Historically, farmers have been generous in giving permission to people that desire access to their land for recreational use.

Many of us still allow recreational users onto our lands with no expectation of compensation, although the occasion package of venison salami or bag of mushrooms is always welcome.

However, whenever a landowner allows recreational users access upon their lands, liability exposure for injury to the recreational user or others follows. Fortunately, the Indiana Recreational Use Statute (IRUS) affords some protection to landowners who allow recreational use.

Under the statute, a user does not have an implied assurance from the landowner that the land is safe. Also, a recreational user is classified as a “licensee,” and a landowner is required to warn only of any hidden and known dangers.

In addition, under the IRUS a landowner must not act in a way to harm a licensee, or they could be liable for injuries.

An example is if a landowner is mowing weeds and mows too close to a recreational user and some debris strikes the user.

Here, the landowner may be held negligent and liable for damages. A number of landowners charge fees for recreational users.

Unfortunately, in these instances the IRUS’s protections do not apply.  In addition, the law views such paying recreational users as “invitees,” meaning that the landowner has a duty to inspect and ensure the land is safe. Indiana case law on the frequency of inspections, as well what a landowner should look for is limited.  Thus, even a landowner who does inspect their property for dangers may not satisfy what the law requires.

Whether charging for recreational use or not, it is important that a landowner have a written agreement with recreational users. This cannot be stressed enough. Some, but not all, things to consider in such agreement:

•Lease vs. License – A lease generally gives a tenant certain rights under the law, whereas a license is a temporary, revocable, and limited right to enter upon property and partake in certain action. Thus, should a landowner be unhappy with a recreational user, a license usually allows quicker termination.

•Waiver of Landowner Negligence – This provision will work to protect a landowner from their own negligence that harms a recreational user, such as in the mowing example above.

•Assumption of Risk – This provision should basically state that the recreational user knows that lands hold certain dangers, that he/she acknowledges such dangers, and assumes the risks associated with such dangers. 

•Hold Harmless – With this provision, a landowner obtains a promise from the recreational user to pay any costs or claims which may result from the agreement.

•Indemnification – Having this provision requires the recreational user to guarantee against any loss the landowner might suffer on account of the user’s activities.

Because hunting, ATV riding, and many other recreational uses can be highly dangerous, it is important that a landowner have a proper agreement to protect him/herself when someone is injured. 
In addition, remember that the landowner is often looked at as the “deep pocket”, and thus almost will always be named in a lawsuit stemming from injuries caused by recreational use.

John Schwarz practices agricultural law with Simmons-Brown & Cress, in Angola, Ind. and actively participates in his family’s grain farming operation. These articles are for informational purposes only and are not intended to offer legal advice nor create an attorney-client relationship.

The views and opinions expressed in this column are those of the author and not necessarily those of Farm World. Readers with questions or comments for John Schwarz may write to him in care of this publication.