Texas Landowner Liability Part III: Recreational Use Statute

There is an important statute that limits liability of certain property owners who open their land up for recreational uses.  Understanding that the vast majority of Texas land is privately owned, and hoping to encourage landowners to allow recreation on their land, the Texas Legislature passed the Recreational Use Statute.  This statute may be found at Civil Practice and Remedies Code Chapter 75.

Photo via Britt Fisk Photography


Essentially, where the statute applies, the landowner, lessee, or occupier owes the plaintiff the same duty as a trespasser–meaning that the landowner, lessee, or occupier may not intentionally injure or act in gross negligence.  As explained by the statute, the statute does not apply to acts of gross negligence, bad faith, or malicious intent.  No additional duty (such as those owed to trespassers or licensees) apply.  The following elements must be met in order for the Recreational Use Statute to apply.

1. Defendant is the owner, lessee or occupier of agricultural land or “real property other than agricultural land.”  

First, the statute offers protection not only to landowners, but also to lessees and occupiers of land.

Next, as you can see, essentially, the statute applies to all real property.  The level of protection, however, is the greatest for agricultural land.  For example, for agricultural land, the statute applies to all persons given permission or invited to enter the premises for recreation.  For land other than agricultural land, the statute applies only to those given permission to enter the land for recreation, not those expressly invited to do so.

Agricultural land is defined as land “suitable for” use in the production of plants and fruits grown for human or animal consumption, or plants grown for the production of fibers, floriculture, viticulture, horticulture, or planting seed; domestic or native farm or ranch animals kept for use or profit; or forestry and the growing of trees for the purpose of rendering those trees into lumber, fiber or other items used for industrial, commercial, or personal consumption.

2.  The plaintiff enters the property for a recreational purpose.  

Recreation is broadly defined as including “any activity related to enjoying the outdoors.”  This includes hunting, fishing, swimming, boating, camping, the use of ATVs, water skiing, biking, and hiking.  Court decisions have also found swinging on a swing set, golfing, and playing sand volleyball to constitute recreation.  The courts have found this not to include outdoor weddings.

3.  The plaintiff meets one of the three monetary options:

(a) The landowner, lessee, or occupier charges no fee to the plaintiff.

(b) The fee charged by the landowner is less than 20 times the amount of  ad valorem taxes paid by the landowner last year.  This language sounds more complex than it really is.  A landowner just needs to add up the total income from recreational uses for the last calendar year.  Next, the landowner would add up the total paid on ad valorem taxes for all his or her property (both that where recreation occurred and all other property owned by the landowner) last year.  So long as the amount received for recreation is not twenty times greater than the amount paid for taxes, the landowner is protected by this prong of the statute.

(c) The landowner, lessee, or occupier of agricultural land maintains insurance coverage as defined by statute.  Note, initially, that this prong of the test is available only to agricultural landowners, lessees, and occupiers.  The minimum coverage amount is defined by statute as 500,000 for each person, 1 million for each single occurrence of bodily injury or death, and $100,000 for each single occurrence of injury or destruction of property.  An added benefit is available to agricultural landowners, lessees, or occupiers who meet this “adequate insurance” requirement.  The statute provides a cap for damages equal to the insurance coverage that the plaintiff can recover.  That this means is that an agricultural landowner, lessee, or occupier maintaining “adequate insurance” would not be required to pay over the insurance coverage to a plaintiff.

Finally, the statute offers one additional protection for agricultural land.  The statute provides that no trespasser over the age of 16 can bring an attractive nuisance lawsuit for injuries on agricultural land used for recreation.

What Should Landowners Do?

Any landowner, lessee, or occupier of land who allows persons to enter his or her land for recreational use should be aware of this statute and ensure that they are covered.  Additionally, because of the liability cap offered to those owners of agricultural land, I highly recommend that landowners consider carrying the minimum amount of insurance listed in part (3)(c) above.

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