The Liability Factor
By Sean Ferbrache
American Hunting Lease Association
The truth about hunting leases is that there just isn’t much downside for any of the parties involved. Landowners realize additional revenue while controlling hunter numbers, reducing trespassing issues and creating much safer hunting conditions. Hunters are thrilled to gain access to quality wildlife habitat through leasing. Most hunters place such a high value on their hunting experience, they are eager to create a friendly, beneficial relationship with their landowner.
However, like any arrangement where promises are made and money changes hands, it is imperative for each side to feel comfortable and free from substantial risk.
For landowners, the responsibility to provide a safe environment for their “guests” creates a very real liability concern. Any visitor to a landowner’s property has the right to expect a reasonable level of safety. However, when a visitor or guest is paying a fee (leasing) to access a property, the level of safety and the expectations are heightened.
A landowner’s duty to his/her guests is defined by the state where the property lies. In most states, a landowner is obligated to provide a safe experience, free from dangers such as abandoned wells, weakened or dead trees or dilapidated structures. Of course, the rugged nature of hunting has inherent dangers, but the landowner is responsible for the variables they can control. In those instances, every effort should be made to remove dangerous conditions or otherwise mitigate the situation. If it isn’t feasible or possible to remove the danger, making the hunters aware of the situation verbally and in the lease agreement are sufficient. In addition, it is always a good idea and in everyone’s best interest to walk the farm/property together, so the landowner can point out potential dangers, boundary lines and sometimes even the best place to hang a stand.
Several states provide waivers to be used to by hunters and landowners. The intent being that a hunter can sign a waiver releasing the landowner from liability in the event of personal injury or damage to personal property. Although it is encouraging to have states take a proactive role in assisting hunters gain access to private property, the fact is a simple waiver just doesn’t cover every scenario and cannot offer the landowner the peace of mind needed to make the most of the hunting lease agreement.
Consider these hypothetical, but very possible scenarios.
Scenario 1. A responsible hunter is sitting in his tree stand on your property one fall morning. He hears footsteps and some rustling in the leaves behind him and as he turns he catches movement. He is certain it was a coyote. He hears the animal circle him and then can see the shape of a small gray animal through the brush. He raises his gun…shoots and kills…your neighbor’s dog! It was an accident he claims, but the result is the same. The waiver the hunter signed? Useless now as your neighbor threatens to sue you over the lost pet.
Scenario 2. One of the hunters leasing your land (signed a waiver only) has fallen from his tree stand. Actually, he was hunting a new area and unknowingly used his climbing tree stand (in the dark) to climb a dead tree. The entire tree snapped in half sending him to serious injury. His recovery will be long and his medical bills off the charts. Although he signed a waiver releasing you from liability, his wife did not. She is now faced with the unenviable task of providing for her family, while her husband recovers. She may have no alternative but to sue you for damages caused by the alleged dead tree.
As you can see, the waiver is well intended and certainly not without some merit. But, truth be told, no landowner with significant assets can afford to risk losing a lawsuit and jeopardizing everything they own.
Fortunately, those concerns are easily and inexpensively addressed with a hunting lease liability insurance policy.
A few of the professional hunting lease companies in business today include a hunting lease insurance policy with their services. For a landowner, this feature is priceless. This type of policy addresses the liability associated with both the landowner AND the hunter(s). In other words, everyone is protected from each other in the event of damages or personal injury caused to the other. In most cases, the policy premium is paid for by the hunt group and coverage begins when the property is listed.
Any hunting lease insurance policy must list the landowner as an “additional insured” to provide the maximum benefit afforded by the policy.
how would a hunting lease insurance policy affect our two scenarios above? In Scenario 1, it is likely the shooting of the neighbor’s dog was accidental. If so, a hunting lease insurance policy would defend the landowner in the lawsuit filed by the neighbor. A liability insurance policy has the duty to defend the landowner against a lawsuit originating from a covered loss. This defense includes attorney fees and court costs up to the limits of the policy. If the shooting was intentional and with malice, the incident would not be covered.
In Scenario 2, coverage through a policy would provide the hunters family with an immediate benefit to help with short term medical costs. This coverage is referred to as medical pay and has limits specific to the individual policy. Once it is determined that the hunter hung his own stand in a dead tree AND that tree had been pointed out in person and in the lease agreement by the landowner, it is likely there would be no further benefits. Remember, hunting lease insurance is liability insurance. It covers all parties against damages they are found to be legally liable for. Sadly, the hunter in Scenario 2 has only himself to blame.
Lastly, an indemnification clause is always a good idea. Again, some of the upper echelon companies will make an indemnity clause a part of their lease agreement. This important paragraph gives the landowner the ability to recoup losses due to property damage, personal injury or attorney fees from the hunters.
The hunting lease concept has proven itself to landowners and hunters over the last 90 years and still has tremendous growth ahead. In a time when landowners and investors are looking to maximize returns on their considerable investments, there is no better option than a hunting lease. The benefits of leasing land to hunters include positive wildlife management, reducing crop depredation and dramatically reducing trespassing problems. Addressing the liability risks to both parties is the final step in securing an arrangement that makes everyone happy.