Passing Through

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I have a two-part question for your legal column, but both involve a neighbor. I run a small boarding business and my property is next to a large 400-acre parcel. I would like to approach my neighbor about using some of his fields for turn-out and to use some of his vast trails for my clients to ride on. (He uses them for ATVs). I would like to know what I can do to assure him that he would not be held liable for anything that happens on his property so he will feel more comfortable. And that goes for me and my horses, as well as for my clients and their horses. Thank you very much.

You don’t say whether it is your intention to pay for this privilege, or whether you are hoping to do it for free. So the first part of your answer is going to be based upon you receiving this privilege for free. The right to use another person’s property without charge involves specific state statutes, so without knowing what state you are from, I can’t point you to the specific statute. However, every state has a statute that applies to your neighbor allowing riding on his property without charge. These statutes are called “recreational use statutes” and their application to this situation is well established.

In essence, a recreational use statute provides that should a landowner allow someone to use his or her property, without charge, then the landowner is not liable for any damages that the user might suffer. In many states, current use laws (for reducing property taxes) provide that if a landowner utilizes current use to reduce his or her tax bill, then the landowner is required to allow certain groups of people to use the land. The important aspect of recreational use statutes is that the landowner cannot charge for the use of the land.

If we look at New York’s statue (Article 9, Title 1) as a representative statute, you will see that it provides that:

9-103. 1. a. an owner, lessee or occupant of premises, whether or not posted . . ., owes no duty to keep the premises safe for entry or use by others for hunting, fishing, . . ., canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for non-commercial purposes or training of dogs, or to give warning of any hazardous condition or use of or structure or activity on such premises to persons entering for such purposes;

b. an owner, lessee or occupant of premises who gives permission to another to pursue any such activities upon such premises does not thereby 1) extend any assurance that the premises are safe for such purpose, or 2) constitute the person to whom permission is granted an invitee to whom a duty of care is owed, or 3) assume responsibility for or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted.

New York’s statute is similar to other states, and you can see that it clearly provides extensive protection to a landowner in this situation. So the first thing that you need to do is provide your neighbor with a copy of your state’s recreational use statute. One caveat here is that in the few states that would argue that horses are attractive nuisances to children, this approach would change slightly.

The rest of this answer applies whether you have to pay or not.

The second part of the solution to your neighbor’s concerns involves your insurance company. Depending upon the specific language in your liability policy, your policy should cover accidents that happen to your boarders when they take their horses off of your property, in the event that the boarder can show that you are negligent. Your insurance company should be able to put your neighbor on your policy as an “also-insured,” which means that your insurance company would cover any accident that happens on your neighbor’s property. This should probably be combined with an indemnity agreement, meaning that you would be responsible for any lawsuit involving horses on your neighbor’s property.

The third part of the solution to this case involves ATV-proofing your boarders’ horses. Considering that your neighbor already approves the use of ATVs on his property, you need to make sure that the horses will not spook when they see an ATV. I would suggest some approach that involves each horse and rider combination having to pass a test showing that they would be safe. Someone in authority at your stable should sign the test.

Combined, I think that these three approaches would enable you to effectively sell the idea to your neighbor of horses on his property, with little risk to him that he would be held liable for any damages.