“I am a landowner. Am I always liable if someone gets hurt on my property?”
Written by Glassman, Wyatt, Tuttle & Cox attorney Lewis Lyons
This question is frequently asked by individuals and companies alike when making choices about the use of their land and selecting appropriate insurance, whether personal or business. Normally, landowners owe a duty of reasonable care to all people lawfully present on their property. However, state legislatures have passed laws to protect landowners from liability in some circumstances. This article attempts to discuss Landowner Liability in certain situations.
Tennessee, Arkansas and Mississippi are among many states that have enacted recreational use statutes. These statutes can provide absolute immunity from liability for personal injuries and property damage that occur when a person is engaged in a recreational activity on your property. In Tennessee, immunity may apply even when the injured person pays for admission.
Landowners in Tennessee may assert a Tenn. Code Ann. § 70-7-102 defense if they prove that the injured person was engaged in a recreational activity at the time of the injury. While the statute does specifically define some terms, such as who qualifies as a “landowner,” it does not define “recreational activity,” leaving this up to the courts.
T.C.A. § 70-7-102(a) provides a list of activities that constitute recreational activities. The statute provides:
The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant’s own use, nature and historical studies and research, rock climbing, skeet and trap shooting, skiing, off-road vehicle riding, and cutting or removing wood for the participant’s own use, nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.
Tenn. Code Ann. § 70-7-102(a).
The Tennessee Supreme Court has held the statute’s use of the phrase “such recreational activities as” indicated that this list is neither exclusive nor exhaustive. The Court found that it would not be practical to spell out every potential “recreational” activity. Accordingly, activities similar to those explicitly enumerated in § 102 may also fall within the purview of the recreational use statute. For example, the Court determined that a child injured in a bicycle accident was engaged in a “recreational activity” and upheld a finding of immunity, even though the statute did not specifically list bicycling as a recreational activity.
Injured persons may overcome a recreational use defense in basically three ways: (1) prove that the defendant is not a “landowner,” (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner’s conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104.
Our experienced attorneys are available to answer your questions related to liability for personal injuries and property damages, assist in risk management and loss prevention and evaluate insurance coverage issues. Whether you have had an accident already or simply want to learn more about how to prevent them, we are here to serve you.