LIABILITY UNDER THE TEXAS RECREATIONAL LAND USE STATUTE

Swimmers.jpgIf you like to hunt, fish, swim or camp you might be surprised to know that Texas has passed a statue that protects private land owners who give permission to others to enter their property for such purposes. The statute is commonly known as the Texas Recreational Use Statute and can be found in Chapter 75 of the Texas Civil Practices and Remedies Code (RUS). Since its original enactment the scope of the RUS has been broadened to cover most activities associated with the enjoying of nature and the outdoors on private land.

The intent behind the RUS is to encourage landowners to allow the public to enjoy outdoor activities on their property. This intent is achieved by defining the applicable standard of care owed to recreational users of property as the duty not to injure them through gross negligence, malicious intent or bad faith. The RUS also places a limitation on the amount of damages that may be recovered from the landowner.

The elements of a cause of action under the RUS are the following:

1. The defendant is the owner, lessees or occupant of agricultural land or other real property;
2. The defendant invited or permitted the plaintiff to enter the land for the purpose of recreation;
3. The plaintiff was injured on the premises;
4. The defendant either did not charge for entry on the premises or charged a limited of money for entry, or in the case of agricultural land, had liability insurance covering acts or omissions resulting from injuries on the property;
5. A condition on the premises posed an unreasonable risk of harm; and
6. The defendant injured the plaintiff through gross negligence, malicious intent or bad faith.

Although the RUS covers all types of real property, it specifically defines agricultural land as land used for the production of plants, fruits and tress for commercial or personal consumption or land used for keeping domestic or native farm animals for use or profit.

Permission to use the land may be express or implied from the defendant’s knowledge of and acquiescence to the public’s use of his land for recreation. Recreation includes, but is not limited to, hunting, fishing, boating, hiking, pleasure driving, off-road motorcycling, swimming, camping and picnicking. See Section 75.001(3) of the Texas Civil Practices and Remedies Code for a more detailed list of activities covered by the RUS.

A limited amount charged for entry onto the property is defined as the total amount of money the defendant collected in the previous year for recreational uses that do not exceed twenty times the total amount of ad valorem taxes paid in the prior year. If the charges received by the defendant exceed that amount, he cannot take advantage of the RUS. However, if the defendant has insurance for agricultural land there is no limit on the amount that can be charged for entry on the premises. But the insurance must be provided under an insurance plan authorized by law, the coverage must be in effect for injuries on the premises caused by an act or omission of the defendant and the limits of insurance must be a minimum of one million for bodily injury and one-hundred thousand for property damage.

To prove a cause of action for premises liability under the RUS, the condition of the property must have imposed an unreasonable risk of harm. Unreasonable risk of harm means that the condition is one that there is a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen the harmful event or some similar event. Foreseeability requires only that the general danger be forseeable, not the exact sequence of events giving rise to the injury. There is no objective test that is applied to determine whether a condition poses an unreasonable risk of harm. Whether such risks are unreasonable is typically based on the nature and location of the condition or whether there have been similar incidents involving the condition.

In addition, the plaintiff must establish that the defendant breached a duty it owed to the plaintiff. Courts use the risk-utility test in determining whether the defendant owed a duty. Typically, a landowner does not have a duty to protect or warn about conditions that are naturally occurring on the land. However, the landowner may have a duty to protect or warn against artificially created conditions. The plaintiff must also show that the defendant breached that duty through gross negligence, malicious intent or bad faith. Gross negligence can be established if the defendant’s conduct involved an extreme degree of risk considering the probability of potential harm to others or the defendant knew about the risk but the defendants’ actions demonstrate that he did not care.

The RUS does not place any limitations on damages for injuries occurring on real property other than agricultural property used for recreational purposes. The RUS caps damages for agricultural property at $500,000 person or $1,000,000 for each single occurrence of bodily injury and $100,000 for each single occurrence of property damage. Since the plaintiff’s burden of proof necessarily requires proof of gross negligence or malicious intent, exemplary damages may also be recoverable under the RUS. However, because there is no case authority discussing the standards for recovery of exemplary damages in RUS cases, the plaintiff should plead and prove by clear and convincing evidence both gross negligence and malicious intent.

Defenses under RUS cases include, but are not limited to, the statute of limitations, attractive nuisance, or that the defendant is not the possessor of the property. The statute of limitations under the RUS is (2) two years.

At The Law Office of Stephen O’Rear P.C. we represent members of the public and landowners who allow people to enjoy outdoor recreation on their property.