Liability for Non-Clients on Your Property

Recognizing the legal status of persons on your property—and undertaking risk control measures—can help mitigate your liability exposure.
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Did you know that you have an obligation to protect—and refrain from intentionally harming—people who knowingly trespass on your equine property?

You’ve heard the saying “A man’s home is his castle.” While you might feel that same concept should apply to your commercial equine property, it only does to a certain extent. This article addresses persons on your property, their respective legal status and what a property owner can, cannot, should and must do to control liability exposure.

Status of Visitor

The law defines status categories regarding persons on your property. These include:

  • Trespasser: a person(s) who enters upon your land without permission;
  • Known Trespasser: a person(s) who, with your knowledge, enters upon your land without permission;
  • Invitee: a person on your property for actual and potential business purposes;
  • Licensee: a social guest on your property with your permission, but not for business purposes; and
  • Minor: a child under the age of 18.

Trespasser

The trespasser, who is on your land without permission, is due the lowest level of care for his/her safety. “Trespassers” can include neighbors who use your property to dog walk, hike or hunt. The term can also include persons who mistakenly exercise access to your property, unaware they are trespassing (no defense; it’s still a trespass!); ex-husbands or wives; or other parties attempting to self-repossess horses with disputed ownership.

Trespassers can also include a person who has the legal right to enter your property, but commits a wrongful act after entry (i.e., someone with an alleged ownership interest in a horse boarded at your stable who refuses to leave after being asked to leave, or a guest who is intoxicated and won’t leave even after being asked to leave).

How do you handle these occurrences?

Most people think a landowner owes no duty to a trespasser when they are, after all, trespassing. Wrong. An owner owes a minimal duty to avoid harming the trespasser.

For instance, owners with farm acreage know it’s possible that people will knowingly or unknowingly enter the property to hike, birdwatch or hunt. While a trespasser assumes the risk of being injured by conditions on the property, the owner still must “refrain” from “intentionally” harming a trespasser.

Thus, a trespasser who is injured by a falling tree, wildlife attack, or a fall from an eroded creek path has no right to sue. Conversely, a trespasser who was blocked by unflagged barbed-wire strung across a previously open road to the property might have a cause of action against the owner who strung that wire with an intent to block people accessing the road, with foreseeable harm.

Known Trespasser 

A known trespasser is one who, while unidentified specifically, has made his or her presence known.

An owner’s duty of care toward a known trespasser rises slightly above that due to an unknown trespasser, and it is again predicated upon actions that do not intentionally harm the known trespasser.

Identified Known Trespassers: If the trespasser can be identified, the owner has a legal obligation to “warn” that individual that he or she is trespassing and must stop. This might include neighbors who frequently access your property with their dogs or neighbor children who come over to “pet the horses” without your permission.

Identify those parties and send a written letter, with delivery receipt requested, informing them that they are trespassing, they are placing themselves in potential danger for which you are not responsible, and they are breaking the law and must stop. If child trespassers are involved, inform the parents of the potential harm or injury to the child that might result if they do not stop the trespass.

Known but Uninidentified Trespassers: A duty can be owed even to trespassers who you know are trespassing (i.e., evidence of truck tracks on a dirt road and discarded beer bottles) but who cannot be identified. Your duty is to post some type of notice where it can be seen, and if you block access, you do so in a manner that will not injure the trespassers.

An example is hunters who regularly trespass on land through a road entering your property. In one reported case, the irritated landowner inserted cut-off poles across the drive.

The poles—visible in daylight—could not be seen at night. The trespassers attempted to enter the road at night at a moderate speed, but were unaware that new poles blocked the road. The landowner was held liable to the trespassers for knowingly creating a situation causing them injury. Had they placed reflectors on the poles, the outcome might have been different.

Licensee

A licensee is a person to whom permission is granted to be upon the property for reasons other than commercial gain. The “licensee” is typically referred to as a “social guest.” Thus, if you have a boarder with family members or friends present, those individuals are “licensees.”

Licensees also include persons attending social events on your property or guests of your clients who are using the premises for a non-business-related event.

A stable owner bears only a moderate duty of care to “licensees,” which is defined only as a duty to warn of any dangerous conditions known to the owner but unknown to the licensee.

At a stable, the state’s Equine Activity Liability Act sign covers this warning in most respects. States possessing such statutes require posting of the signs at all areas where access to horses occurs. The signs warn that horses or livestock can be “inherently dangerous” due to their natural behaviors, and state that parties “participating” in equine or livestock activities assume the risk of injury or death related to those activities.

Stable owners should post the relevant warning signs not only at the main entrance to the arena or stall areas, but also at any access points to the equine or livestock areas.

Thus, if a barn has three doors into the stall and arena areas, three warning signs should be posted.

The stable owner should additionally take photographs of the signs that show the date and location of the photo with the photo containing sufficient “perspective” to identify the location where the sign is posted. Lacking this “perspective,” the photo bears little legal relevance as an exhibit in a later legal proceeding.

Warning signs should also be posted at 1) stable aisles, with instructions not to pet horses and to exercise caution while walking under cross ties; 2) paths between stalls and arenas; 3) arena access areas; and 4) trailer loading locations.

Farm properties have other potentially hazardous areas. Shaving and hay storage barns should have warning signs posted that they are “potentially dangerous and off limits to unauthorized personnel.” Similar postings should be placed by ponds, trails with dangerous erosion exposures, rotted well coverings or grown-over barbed wire.

If an area presents a substantial risk of injury, that area should: 1) be identified with some form of warning sign or yellow caution ribbon; 2) be blocked off entirely; and/or 3) be rebuilt or repaired.

Invitee

An “invitee” is on your property because that person was “invited” for a commercial purpose. This might include the buying/sale of horses, lessons, purchase of property, clinic attendance, a boarding client or a person considering boarding horses at your facility.

As the “invitee” is there specifically at your invitation to benefit you commercially, the “invitee” deserves and commands the highest degree of care toward his or her safety while on your property. Legal protections for the invitee mimic those for licensees, but invitees require even more attention to detail.

For instance, if you’re having an event following a snow storm, you must take reasonable steps to have snow and ice removal in ingress and egress areas. Slip-and-fall exposures must be attended to. Any area or condition that poses a “foreseeable” harm or injury exposure must be corrected before the event.

Understand that “foreseeability” is defined as whether the ordinary person in the stable owner’s position, knowing what he/she knew or should have known, could anticipate that harm of the general nature suffered was likely to result.

For that reason, stable owners bear the highest duty to regularly conduct and record premise liability inspections. These should include, at a minimum, review of the parking lots, arenas, fencing, stalls and aisles.

Any issue—however small—that could result in a foreseeable injury to invitees should be corrected with some warning sign posted until that correction occurs.

Minors

Minors are children under 18 years old. A property owner owes an extremely high duty to care for minors. The law of “attractive nuisance” recognizes that children are attracted to, and like to play, in potentially dangerous areas.

The owner must take steps to keep children away from these areas (i.e., construction equipment, dirt piles and hay or shavings barns). Owners must also warn parents against these conditions and require parents to assume supervision of their children at all times.

Children under 15 should not be dropped off and left unattended at the stable.

Take-Home Message 

Compliance with these steps can be time-consuming and irritating to a land owner, yet no one wants an injury occurring on his or her property.

Recognizing the legal status of persons on your property, while adopting these risk control measures, will provide you peace of mind as to your liability exposure.

Denise E. Farris practices equine, business and veterinary law in the Kansas City area. She is an arbitrator/mediator trained by the American Arbitration Association. She also is a horsewoman.

Disclaimer: This article provides general coverage of its subject area. It is provided free, with the understanding that the author, publisher and/or publication does not intend this article to be viewed as rendering legal advice or service. If legal advice is sought or required, the services of a competent professional in your state should be sought. The publisher and editor shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication. 

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