September will bring the opening of Texas bird hunting season and (hopefully) the onset of cooler weather. This means that many Texans may soon be emerging from air-conditioned vehicles and buildings to enjoy outdoor activities. Texas land owners who allow others to use their land for trail riding, hunting, or other recreational uses should be aware of when Texas law says they may be held liable for injuries arising from the use of their property. 

The applicable legal standard is found in the Texas Recreational Use Statute (RUS) (Chapter 75 of the Texas Civil Practice & Remedies Code). A link to the full language of the statute can be found here

The RUS was originally enacted in 1965 to limit the liability of Texas land owners who allow others to use their land for hunting, fishing or camping. The RUS has been amended many times over the years to expand the immunity and to broaden the scope of the law. The current law is summarized below:

  •  Limits liability of land owners, lessees, and occupants of agricultural land and other real property. All references to “land owners” below includes also lessees and other occupants;
  • Provides that if land owners give permission to others to use the land for recreational purposes, the land owner is not liable to the invitee unless the land owner was grossly negligent, acted with malicious intent, or acted in bad faith;
  • Provides that a land owner is not liable for any injury to a trespasser except for willful or wanton acts or gross negligence by the land owner;
  • Covers any activity associated with enjoying nature or the outdoors;
  • Covers a land owner who meets one of the following tests: (1) does not charge for entry to the premises; (2) charges for entry to the premises, but the total charges collected in the previous calendar year were not more than 20 times the total amount of ad valorem taxes imposed on the premises; or (3) has premises liability insurance coverage in effect that meets the statutory requirements($1 million for each occurrence of bodily injury or death and $100,000 for each occurrence of property damage or destruction);
  • The following damages caps apply to claims against owners of agricultural land if they are covered by premises liability insurance that meets the statutory requirements:1) $500,000 in damages per person; 2) $1 million for each occurrence of bodily injury or death; and 3) $100,000 for each occurrence of damage to or destruction of property.

Tips to avoid liability: Post “No Trespassing” signs in conspicuous areas around your property. Do not charge invitees for using the land. Get premises liability insurance that meets the statute’s guidelines if you believe you will be allowing visitors to use your land for recreational purposes. Lastly, it never hurts to have invitees sign a liability release.

All 50 states have some form of Recreational Use Statute, and the law varies greatly from state to state.  To locate recreational use statutes in other states, see this site.  For more information on the Texas RUS, see this article from the Texas A&M Real Estate Center.

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Anybody can file a lawsuit; the question is whether you can win the lawsuit and collect the judgment. I am writing this post for the benefit of all potential plaintiffs in horse cases who would like some guidance to determine whether a horse case is worth pursuing. To be worth pursuing, a horse case must satisfy five elements: (1) Money, (2) Damages, (3) Liability, (4) Causation, and (5) Credibility.

1)         Money. Our civil justice system is not about revenge or even justice…it’s about money, because money is virtually the only way a civil court can compensate a plaintiff. Potential plaintiffs need to consider how much money it would take to pursue the case versus the potential amount they can actually recover from the defendant. As a general rule of thumb, the amount in controversy needs to be at least $25,000 to make it worth engaging counsel to prosecute a civil case. In many cases, plaintiffs will not be awarded their attorneys’ fees even if they win the case. The potential defendant needs to either have an insurance policy that would apply to the potential claims or otherwise have assets that are not exempt from attachment on a judgment.

2)         Damages. In a good horse case, a plaintiff can prove the defendant damaged them and can put a dollar amount on the damages. If the plaintiff cannot quantify their damages, the lawyer usually cannot either. Expert witnesses can sometimes be hired (usually at the client’s expense) to figure out what the damages are. But sometimes, after spending money on an expert, clients don’t like the answer the expert comes up with. Therefore, the best cases are those where the amount of damages is fairly simple to quantify.

3)         Liability.         A good horse case is one where it can be proven that the defendant is liable for the damages that the plaintiff incurred. For a defendant to be liable, a plaintiff needs to be able to prove that the defendant either breached the terms of an agreement with the plaintiff, or was liable in tort to plaintiff (common torts in horse cases include negligence, fraud, and breach of fiduciary duty).

4)         Causation.      The plaintiff must be able to prove that the defendant’s actionable conduct caused the money damages identified by the plaintiff. The plaintiff must be able to prove that the defendants’ actions, and not some other person or event, caused the damages complained of. In the best cases, the plaintiff can pinpoint the person or entity that damaged them, and can explain what the defendant did or failed to do that ultimately caused the damages.

5)         Credibility. The credibility of a plaintiff is often the most important element of a horse case. Does your story pass the “smell test”? Put your emotions aside for a moment and ask yourself whether your demands are reasonable given the applicable customs and conventions as they currently exist in the horse industry. I recommend talking to others who have played the defendant’s role (i.e. horse trader, veterinarian, trainer) about your case. If those who have been in the defendant’s shoes before agree with your position, chances are your story will be credible to a jury.

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