As owners of a large amount of land, and as urban development continues to push into rural areas, farmers must be careful to avoid liability hazards. State laws on liability vary widely; you should consult an attorney in your area with experience in liability law if you have any questions.
Traditionally, a landowner’s liability has depended on the idea of a “duty of care”. This means that landowners have a duty to protect anyone on their land from harm. The amount of duty owed to a specific person depends on why that person is present on the land:
- Trespassers are persons who are on a property without permission and who are not providing any benefit to the landowner. Landowners generally owe adult trespassers no duty but must refrain from causing intentional harm. If landowners are aware of frequent trespassers, they should post warnings about any present hazards. Trespassing children are owed more duty of care, since they are assumed to lack judgment or risk assessment. If the landowner creates an improvement which tempts children to enter the land – what many jurisdictions call the “attractive nuisance doctrine” – the landowner must also protect child trespassers against harm.
- Licensees are people who have the landowner’s permission to be present and do not provide a benefit. Landowners are required to warn licensees of any hidden dangers. Some jurisdictions require landowners to repair any conditions that could harm a licensee. Social guests are often classified as licensees, but are assumed to require a greater duty of care, since they provide a social benefit. Some jurisdictions grant social guests the same rights as invitees.
- Invitees are present with permission and provide a benefit to the landowner. These persons include workers or anyone present for a business situation; an example might include a hunter who has paid a fee to the landowner. Landowners are required not just to warn invitees, but to actively identify and fix hazards to create a reasonable amount of safety.
Some jurisdictions no longer use this classification system, but assume that landowners owe a reasonable duty of care to all persons at all times. Under this general duty of care, courts can consider a number of factors when determining liability. Factors include whether the landowner should have foreseen a person’s presence, the likelihood of injury from a hazard, benefits the landowner received, and the burden required to rectify a hazard.
If a landowner creates a situation that is inherently dangerous, they face the tougher standard of strict liability. Agricultural operations must deal with this when raising aggressive animals or storing caustic or flammable chemicals such as fertilizer.
Recreational use is a question that many states have answered in different ways. This allows landowners to avoid liability for injury caused when a guest participates in a potentially hazardous recreational activity on their land. Although there are two model statutes – the 1965 Model Act and the 1979 Model Act – many of the states which have adopted them used varying language and interpret them differently. These statutes are designed to protect landowners when their land is open to the public for recreational use such as hiking, fishing, water sports, hunting, or other outdoors activities. The land does not need to be open at all times and the landowner is allowed to restrict access, but the more restrictions the more likely it is that a court will deem an injury not covered by the recreational use statute.
Several other factors can cause a landowner to forfeit protection, including the acceptance of money for use of the land or the intentional causing of injury.
Landowners can be held liable for nuisances which unreasonably interfere with other landowners’ use or enjoyment of their property. A private nuisance only damages a small number of neighbors, while a public nuisance affects the community as a whole. Courts often use a cost-benefit analysis to determine whether a nuisance is unreasonable. These issues are becoming more and more important to farmers as urban development reaches into their areas. Many states have passed right-to-farm statutes to protect farmers from nuisance suits, but these cases are often difficult to decide even when the farmer’s operations are legal and in full compliance.
Landowners can also be found liable for trespass when activities on their land physically interfere with other landowners’ property rights. This can include loose livestock, odors, or groundwater contamination.
Agricultural landowners can also be found liable for environmental violations. State and federal laws such as the Endangered Species Act or the Clean Air or Water Acts govern the use of pesticides and land usage. Farmers can also be found liable when their operations interfere with neighboring farms’ production methods. An example of this might be when a farmer’s pesticide drifts onto a neighboring farm’s organic fields, causing the loss of organic certification.
The wide variety of liability issues can be confusing, but liability is a vital part of operating a large agricultural operation. You should consult an attorney with experience in liability law if you have any questions about your operations.