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Big Fun, Low Risk: Liability Limits for Injuries from Recreational Activities on Agricultural Land

By:  Amy S. York, Esq. and Gregory S. Porter

Recreation is big business in Texas.  Hunting, fishing, camping, hiking, boating – there are so many ways to enjoy Texas’s beautiful landscape, wild places, and outdoor activities.  What Texas does not have, however, is an abundance of public lands where people can go to engage in these leisure activities.

Many recreational activities necessarily involve risk – guns, heights, water, weather, animals.  The risk is part of the fun, after all!  Understandably though, private landowners have historically been reluctant to allow just anyone on their property, not wanting to take on the financial risk of possible injuries occurring on their property.

Recreational Use Statute

In order to encourage private landowners to allow the public access to their land for recreation, the legislature enacted the Recreational Use statute, Chapter 75 of the Texas Civil Practice & Remedies Code, which limits landowners’ liability in certain ways.[1]

Limitations on Liability

Under the Recreational Use statute, an “owner, lessee, or occupant of agricultural land” can invite another person onto his or her land “for recreation” without:

(1) assuring that the premises are safe;

(2) owing the person a greater degree of care than is owed to a trespasser[2]; or

(3) assuming a responsibility or incurring liability for any injury to any individual or property caused by the person’s act.[3]

The landowner, lessee, or occupant owes the invitee no duty of care to avoid injuries, other than those caused by his or her own “willful or wanton acts or gross negligence.”[4]

In other words, the landowner (or lessee or occupant) could allow people to come onto the property to engage in recreational activities without making sure the premises were safe, without taking on any duty of care toward the guests, and without taking responsibility for any injury that might occur, unless the landowner (or lessee or occupant) was grossly negligent or caused the injury directly.  The landowner, lessee, or occupant would still be liable for their actions taken in bad faith or with malicious intent.[5]

Definitions of Agricultural Land and Recreation

The Recreational Use statute defines “agricultural land” as that which is “suitable for”:

(A) use in production of plants and fruits grown for human or animal consumption, or plants grown for the production of fibers, floriculture, viticulture, horticulture, or planting seed;

(B) forestry and the growing of trees for the purpose of rendering those trees into lumber, fiber, or other items used for industrial, commercial, or personal consumption; or

(C) domestic or native farm or ranch animals kept for use or profit.[6]

The statute does not define “suitable for.”  The phrase indicates that the land would not have to be in actual agricultural use but only be capable of being such use.  Interestingly, the Recreational Use statute defines “premises” to include “land, roads, water, watercourse, private ways, and buildings, structures, machinery, and equipment attached to or located on the land, road, water, watercourse, or private way,”[7] emphasizing that it applies not only to outdoor activities.

The statute provides an open-ended definition of “recreation” as meaning an activity such as:

  • hunting;
  • fishing
  • swimming
  • boating
  • camping
  • picnicking;
  • hiking;
  • pleasure driving, including off-road motorcycling and off-road automobile driving and the use of off-highway vehicles;
  • nature study, including bird-watching;
  • cave exploration;
  • waterskiing and other water sports;
  • any other activity associated with enjoying nature or the outdoors;
  • bicycling and mountain biking;
  • disc golf; on-leash and off-leash walking of dogs;
  • radio control flying and related activities; or
  • rock climbing.[8]

Activities such as using playground equipment and watching a sporting event have been found to be recreational activities even though they are not specifically listed.[9]  In fact, Texas courts have held that activities incident to recreation, such as walking in a parking lot or clubhouse, are also covered by the statute’s liability limits.[10]

The recreational use statute is written quite broadly and courts have generally interpreted it quite broadly as well.

Monetary Damages Cap

The statute provides another incentive to landowners:  it caps their potential monetary damages for acts and omissions resulting in injuries to no more than $500,000 – $1,000,000 so long as the landowner has sufficient liability insurance in place.[11]

Agritourism Act

In 2015, the legislature went even further in providing liability protections for those providing recreational activities:  it enacted the Agritourism Act (the “Act”), Chapter 75A of the Texas Civil Practice and Remedies Code.

Limitations on Liability

Under this Act, if an “agritourism entity” posts a warning or obtains a written waiver from and “agritourism participant,” then it is not liable to the agritourism participant for an injury unless the injury was intentionally caused by the agritourism entity or was proximately caused by:

  • “the agritourism entity’s negligence evidencing a disregard for the safety of the agritourism participant”;
  • a dangerous condition on the land, facilities, or equipment of which the agritourism entity knew or should have known;
  • the dangerous propensity of a particular animal that is known or should have been known by the agritourism entity and that was not disclosed to the agritourism participant; or
  • “the agritourism entity’s failure to train or improper training of an employee.”

Definitions of Agricultural Land, Agritourism Entity, and Agritourism Activity

The Agritourism Act relies on the same definitions of premises and recreation as the recreational use statute, but defines “agricultural land” to only land that is suitable for:

  • use in production of plants and fruits grown for human or animal consumption, or plants grown for the production of fibers, floriculture, viticulture, horticulture, or planting seed; or
  • domestic or native farm or ranch animals kept for use or profit.[12]

“Agritourism entity” is defined as “a person engaged in the business of providing an agritourism activity, without regard to compensation, including a person who displays exotic animals to the public on agricultural land.”[13]  This definition would include landowners, lessees, and occupiers of land, but would extend to entities providing services on agricultural land that they do not own, lease, or occupy, such as a mobile petting zoo or an outfitting company.

“Agritourism activity” means “an activity on agricultural land for recreational or educational purposes of participants, without regard to compensation.”[14]  This expands the scope of liability protection from solely recreational activities to activities that are educational in nature and clarifies that no compensation need be paid in order for the liability protection to exist.  A free nature program at a local ranch, for instance, would fit in this definition.

Application of Liability Waiver to Children’s Rights

As you learned in our blog entry entitled Trampoline Park Injuries and the Effectiveness of Liability Waivers published on June 12, 2019, a parent is generally not able to effectively enter into a preinjury release on behalf of his or her child.

The Agritourism Act stands this rule on its head:  parents, managing conservators, and guardians can sign proper preinjury waivers and effectively waive their children’s rights to pursue damages stemming from an injury sustained during their participation in an agritourism activity.[15]

This critical provision applies only to written waivers, however, and not merely posting warnings.  Written waivers must be printed in a document separate from other agreements, in at least 10-point font, and contain specific wording to be effective, however.[16]

Conclusion

The Texas legislature has enacted the Recreational Use statute and the Agritourism Act limiting liability exposure for private entities providing recreational and educational activities on agricultural land.  The Agritourism Act expands the coverage of the Recreational Use statute in many ways, but the courts have not weighed in yet on it.

I, for one, hope that the Agritourism Act results in more opportunities to explore Texas’s breathtaking beauty and untamed nature up close!

Amy S. York, Esq., is an attorney and a guest-blogger for Dobbs & Porter, PLLC.

[1] Meredith v. Chezem, No. 03-18-00256-CV, 2018 Tex. App. LEXIS 10065, at *3 (Tex. App. – Austin Dec. 7, 2018, no pet.).

[2] The landowner owes no duty of care to a trespasser.  Tex. Civ. Prac. & Rem. Code § 75.002(a)(1).

[3] Tex. Civ. Prac. & Rem. Code § 75.002(b).  Also note that owners, lessees, and occupants of non-agricultural land have similar protections under Tex. Civ. Prac. & Rem. Code § 75.002(c), but this article is intended to specifically address agricultural land.

[4] Tex. Civ. Prac. & Rem. Code § 75.0002(a).

[5] Tex. Civ. Prac. & Rem. Code § 75.002(d).

[6] Tex. Civ. Prac. & Rem. Code § 75.001(1).

[7] Tex. Civ. Prac. & Rem. Code § 75.001(2).

[8] Tex. Civ. Prac. & Rem. Code § 75.001(3).

[9] City of Belmead v. Torres, 89 S.W.3d 611, 615 (Tex. 2002) (swinging); Sam Houston State Univ. v. Anderson, No. 10-07-00403-CV, 2018 Tex. App. LEXIS 8614, at *8-*9 (Tex. App. – Waco Nov. 12, 2008, no pet.) (watching a baseball game and citing several other cases where courts have found recreation to include more than just the listed activities).

[10] See Meredith, No. 03-18-00256-CV, 2018 Tex. App. LEXIS 10065, at *7 (citing cases where injuries arising from activities such as walking in a parking lot or a club house fell within the statute’s liability limitations).

[11] Tex. Civ. Prac. & Rem. Code § 75.004(a)-(b).

[12] Tex. Civ. Prac. & Rem. Code § 75A.001(1).

[13] Tex. Civ. Prac. & Rem. Code § 75A.001(3).

[14] Tex. Civ. Prac. & Rem. Code § 75A.001(2).

[15] Tex. Civ. Prac. & Rem. Code § 75A.004(2).

[16] Tex. Civ. Prac. & Rem. Code § 75A.004(3)-(5).

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