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’Tis the season for written recreational agreements

With the majority of the Indiana wildlife hunting seasons rapidly approaching, most farmers and landowners will soon have numerous individuals entering onto their lands. Not to mention that other recreational activities such as snowmobiling, ice fishing, etc., bring yet more individuals onto the land.

There seems to be a misunderstanding among landowners pertaining to their rights and duties towards recreational users.  The most common misunderstanding that people seem to have is the thinking that Indiana has a law that if someone is injured on the property while partaking in recreational uses, then the landowner is not liable.

I will attempt in this article clarify the misunderstandings that many landowners have regarding this. To begin, Indiana does in fact have a statute called the Indiana Recreational Use Statute (IRUS).  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. However, landowners should take full note that the IRUS has several limitations.

First, the IRUS does not apply to landowners who charge fees for recreational users. 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.

Second, the IRUS only pertains to activities that are recreational in nature.  Thus, if someone is coming onto your property to pick walnuts, obtain rocks out of a field, etc., these activities will probably not qualify as recreational under the statute, and thus leave the landowner unprotected.

Third, the IRUS does not protect a landowner from their own negligence.  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.

Fourth, the IRUS does not apply to individuals who are invited onto the property by the landowner. As you can see, the IRUS has some severe shortcomings and will not cover all landowners.

In addition, even if a landowner does not run afoul of any of the above stated shortcomings, plaintiff attorneys will make the argument that whatever caused the injury was due to the negligence of the landowner.  For example, say a hunter shoots at a deer, misses the target, and strikes another hunter.  More than likely, the injured party will sue the landowner, saying the landowner was negligent for letting a bad hunter onto the property. You can see that a claim of landowner negligence can, and probably will, be brought no matter what the injury.

Landowners should not allow recreational users on their land without a written agreement.

My family only allows hunters and other recreational users on our farms with a written agreement. Simply put: no written agreement, no usage of our farms. 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 most 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 J. Schwarz, II, is a farmer and attorney in Steuben County, Ind. He focuses his practice on agricultural law and legal issues important to farming communities. He can be reached at 260-665-9779 or jschwarz@cresslaw.com

10/28/2009