Landowners' Liability For Hunters And Trespassers - AgEBB

Landowners' Liabiltiy For Hunters And Trespassers

By Dr. Stephen F. Matthews
Professor Of Agricultural Law
Social Science Unit, College of Agriculture, Food, and Natural Resources
University of Missouri - Columbia

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October 13, 1986
Revised 1996 by Deanne Hackman

CAUTION: Do not rely upon this information for legal advice. See an attorney for legal advice to fit your facts.

In 1983 Missouri joined approximately forty states by passing a statute designed to lessen landowner liability while encouraging landowners to open their lands to hunters, hikers, and other recreational users. The complete text of the statute should be available in your local county library (or the Courthouse library), in the Missouri Revised Statutes (1978) in the 1983 Supplement in Chapter 537.345 through 537.348.

This statute focuses upon whether the landowner (or renter) might be civilly liable for injuries suffered by trespassers, hikers, hunters, and others who enter at "no charge." The issue of criminal liability is not covered by this statute nor this brief article. Criminal liability for trespass deals with whether law enforcement officials can arrest "trespassers" for "illegal entry" upon private lands (first and second degree trespass are defined in the Missouri statutes at Chapter 569.140 and 569.150).

Missouri's no-charge statute purports to relieve any landowner or tenant of any duty of care to persons using it for recreational purposes, unless there is a charge for such use or a malicious or grossly negligent failure to guard or warn against a dangerous condition. However, under the statute, trespassers remain able to recover for a "malicious or grossly negligent" failure of the landowner or tenant to warn of dangerous conditions.

Missouri's recreational user statute affords protection for both public and private landowners. "Landowners" are defined to include "any individual, legal entity or governmental agency that has any ownership or security interest whatever or lease or right of possession in land." Given the increasing concern of public officials over possible liability for negligence, this statute would seemingly reduce public and private landowners' liability and the need for costly general liability insurance. However, traditional common law liability remains in "charge" situations, such as where park entrance fees or parking fees are collected.

Assuming no "charge" is made to the recreational user, landowners and tenants presumably can remain silent as to known hazards without liability. This is a major shift in liability, from the land occupier to the entrant. Unfortunately, the recreational user may not be in a position to avoid accidents because he may be unfamiliar with potential dangers on the land. On its face, this statute could provide encouragement for landowners and tenants to not repair their property or to not warn hikers and hunters of existing hazards.

The recreational user statute seemingly narrows the landowner's liability for business visitors to the landowner's premises. The rationale supporting this liability is that unless a "charge" is made for use of the land, the recreational entrant is covered by the statute. However, not all business entrants are recreational users - as illustrated by machinery parts and dairy products delivery persons. Under the Missouri statute, landowners still owe a duty of care to traditional no-charge business visitors against known or discoverable hazards.

Liability under the statute attaches where rural landowners "charge" recreational entrants. "Charge" under Missouri's statute is broadly defined to include no-fee situations where permission is given "for the purpose of sales promotion, advertising or public goodwill in fostering business purposes." As farmers increasingly have off-farm, part-time businesses where business goodwill is fostered by sponsoring picnics, hayrides, etc., these farmers should be made aware that such non-recreational land use is not protected by the statute.

It is unclear what effect, if any, this statute will have upon child trespassers, as the statute is silent on this subject. Courts faced with similarly silent statutes have reached interpretations in both directions. One commentator suggests that if the child entrant is not old enough to have formed the requisite recreational intent, the statute would not be applicable.

Landowners remain liabile to recreational users for injuries caused by the landowner's "[m]alicious or grossly negligent failure to guard or warn against a dangerous condition, structure, personal property which the owner knew or should have known to be dangerous, or negligent failure to guard or warn against an ultrahazardous condition which the owner knew or should have known to be dangerous." There is, however, some question as to whether this relieves the landowner of a common law duty to make a "reasonable inspection to seek out and discover dangers."

A word of caution is in order for farm businesses near farm residences because the Missouri statute does not protect landowners for injuries to recreational users that happen in a residential area. (A "residential area" is defined as a tract of land of one acre or less used predominantly for residential purposes.) Similarly, no protection is afforded a landowner for injuries to recreational users of a "swimming pool." Thus, farm ponds intended and adapted for swimming and held out as a swimming area are not within the statutory protection.

Given the vagueness of what will constitute a "charge or fee," farm landowners are cautioned to remain vigilant in guarding against dangerous conditions that might injure visitors. While the "recreational user" liability exemption serves as a potential shield for the landowner, this statute might well increase the likelihood of recreational entrants being injured since landowners may fail to maintain premises in a safe condition.