Landowners' Liability For Hunters And Other
"Land Entrants"
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. (http://www.moga.state.mo.us/STATUTES/C537.HTM)
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 lessens the landowner's liability for
non-business visitors with permission 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.
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.
One strategy for landowners is to make sure children are accompanied by an adult
(and no "charge" is made), as such children are "treated like adults" for
traditional common law liability purposes.
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.
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Reviewed and revised October 14, 2003