Spring 2010

Volume 19 No. 1

Liability and Forestland Ownership

by Justin Schneider

This material is for informational purposes only and should not be construed as legal advice. Please seek guidance of your own counsel with respect to your particular situation.

For those who open their property to others or whose property seems to attract the occasional wanderer, liability issues are a concern. While no means a complete discussion of liability issues, this article will list a few things landowners need to consider.

Liability can be based upon strict liability or negligence. Strict liability exists when activities are so inherently dangerous that liability should be imposed without any finding of negligence.1 Strict liability is not common but exists for activities such as keeping wild animals.2 Negligence is the failure to exercise ordinary care such as a reasonably prudent and careful person under similar circumstances would exercise. To be liable under a negligence theory, you must owe someone a duty that you fail to meet, and that breach of duty must result in some harm.3 The status of the entrant is used to determine the duty owed.

A trespasser enters a person’s land without permission. Once a trespasser is discovered, a landowner has a duty to refrain from committing an intentional act that likely will result in injury to the trespasser.4 Likewise, a landowner cannot fail to act if knowledge exists that a trespasser is likely to be injured and there is an opportunity to avoid the risk.5 If children are trespassers, the attractive nuisance doctrine applies when children cannot comprehend the danger of a situation or avoid it. The child’s lack of understanding danger will lead to a duty to warn the child of the danger, even though the same duty is not owed to an adult. While several requirements exist for liability, the structure or condition must be attractive to children.6 An example might be old, abandoned farm equipment or buildings.

The attractive nuisance doctrine generally does not apply to common objects such as fences, gates, or walls.7 It also does not apply to natural or artificial conditions found in nature.8 Therefore, one would assume that ponds or lakes are not subject to the attractive nuisance doctrine. Licensees enter for their own convenience or entertainment.9 Unlike trespassers, licensees seek permission from the landowner. A landowner owes a licensee the same duty owed to a trespasser and must warn a licensee of any hidden danger of which the landowner has knowledge.10  Invitees are owed the highest duty of care because they are on the property at the invitation of the landowner. Invitees include public invitees, business invitees, and social guests. If the land is held open for the public’s use—such as for a community garden or hiking trail—an entrant is likely a public invitee. Business invitees are invited to enter or remain on land for purposes connected to the landowner’s business dealings.11 Social guests are given an actual or standing invitation to enter onto your property for personal purposes.12 When dealing with invitees, special precautions need to be taken. Landowners must evaluate their premises to determine if any conditions exist that would involve an unreasonable risk of harm to an invitee.13 If those conditions exist and the invitee would not realize the danger or protect against it, the landowner must exercise reasonable care to protect the invitee.14

Several tools exist to reduce liability. The Indiana Recreational Use Statutes provides some protection to landowners who allow certain recreational activities on their property without charge.15 Waivers can be used to agree in advance that a landowner is under no obligation of care for the benefit of the other.16 However, waivers may not protect a landowner from liability if a child is injured.17 Insurance policies can protect landowners from substantial amounts of liability, and some policies can be purchased by the user of the property for the benefit of the landowner. Finally, common sense can play a crucial role in reducing your liability as a property owner.

While liability issues exist and need your attention, there is no reason that others cannot enjoy your property. You just need to take care to protect them as much as possible and to use whatever tools are at your means to reduce the risk that you might be liable for any injuries that they may suffer.

Justin Schneider is a Staff Attorney for the Indiana Farm Bureau, Inc., Indianapolis.

1 Cook v. Whitsell-Sherman, 796 N.E.2d 271, 276 (Ind. 2003).

2 Irvine v. Rare Feline Breeding Center, Inc., 685 N.E.2d 120, 123 (Ind. Ct. App. 1997).

3 Yates v. Johnson County Bd. of Commissioners, 888 N.E.2d 842, 847 (Ind. Ct. App. 2008).

4 Miner v. Southwest School Corp., 755 N.E.2d 1110, 1113 (Ind. Ct. App. 2001).

5 Id.

6 Kopczynski v. Barger, 887 N.E.2d 928, 932 (Ind. 2008).

7 Id.

8 Cunningham v. Bakker Produce, Inc., 712 N.E.2d 1002, 1007 (Ind. Ct. App. 1999) (cut tree limbs not an attractive nuisance).

9 Burrell v. Meads, 569 N.E.2d 637, 640 (Ind. 1991).

10 Id at 639-40.

11 Id. at 642.

12 Id. at 643.

13 Id. at 639-40.

14 Id.

15 See Ind. Code § 14-22-10-2 and § 14-22-10-2.5.

16 Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576, 581 (Ind. Ct. App. 2006).

17 Kirton v. Fields, 997 So.2d 349, 355-56 (Fla. 2008)