Mike Gentry, partner with West Webb Allbritton & Gentry, P.C.,  with a nice buck harvested in 2023, on a client of the law firm’s ranch,  Whitetail Dreams Trophy Ranch (WDT Whitetails – Hunt, Deer Hunting,  Hunt, White Tailed Deer (hunttrophybucks.com). 

Is it possible for Texas landowners to limit the legal risks of inviting others to enjoy their property for hunting, fishing, horseback riding, and other recreational purposes?

Yes, landowners can significantly lower the possibilities of being successfully sued if one of their guests is injured while on the landowner’s property, as long as those landowners have taken advantage of often overlooked Texas law, which gives landowners important protections, in the form of limitations on landowner liability, if certain requirements are satisfied. 

 October 2024  

An overview of three important statutory enactments designed to help landowners significantly reduce the legal risks of inviting others onto their land – the TEXAS AGRITOURISM ACT, the RECREATIONAL USE STATUTE, and the FARM ANIMAL LIABILITY ACT.  

By Randal L. Payne 

I. INTRODUCTION 

Cooler weather is finally headed our way and hunting seasons are upon us. This has many Texas landowners thinking about inviting others onto their properties for hunting, horseback riding, and various other outdoor activities. But, landowners are often concerned about potential liability they may incur if a guest is injured while on their land. And, in light of the prevalence of premises liability lawsuits in Texas courts, who can deny the validity of such concerns?  

But, fear not – the Texas Legislature has heard the concerns of landowners; and, in attempts to encourage private property to be opened for public use and recreation,  the Legislature has passed three important statutes offering limitations on the liability of Texas landowners.  

II. TEXAS AGRITOURISM ACT  

In 2015, the Texas Legislature passed, and Governor Perry signed into law, Senate  Bill 610, known as the TEXAS AGRITOURISM ACT, which is now codified as  Chapter 75A of the Texas Civil Practice and Remedies Code. This Act offers important protections for Texas landowners who invite guests to hunt, fish, and engage in certain other outdoor activities on their properties. Not all attorneys who advise Texas landowners are aware of the important protections afforded landowners by this Act, but they should be!  

Essentially, the TEXAS AGRITOURISM ACT provides that if a few relatively-easy to comply with requirements are satisfied, an “agritourism entity” (i.e., defined broadly in this Act to include many landowners) will not be held liable to any persons for injuries or damages to “agritourism participants” (i.e., defined in this Act to include people engaged in a very broad scope of activities including, but not limited to, hunting and many other activities associated with nature or the outdoors) who are injured on “agricultural lands” if either: (a) the landowner has posted a correctly-worded sign in the right place on their property; or (b) the  landowner gets the guest to sign a correctly-worded, written agreement prior to the  activity.  

A. Statutory Definitions  

As you might expect, the TEXAS AGRITOURISM ACT offers definitions of the key terms; and those include:  

• “Agricultural land”, which is defined, in the TEXAS AGRITOURISM ACT, as land suitable for “use in 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” or “domestic or native farm or ranch animals kept for use or profit.” But it is important to note that this seemingly broad definition includes all land suitable for growing crops and raising livestock, not just that land upon which these activities are currently being conducted. This definition is broad enough to allow many well-informed Texas landowners to take advantage of the important liability protections afforded by the TEXAS AGRITOURISM ACT, and landowners should! 
  
  
• “Agritourism activity” is defined, in the TEXAS AGRITOURISM ACT, to mean “an activity on agricultural land for recreational or educational purposes of participants, without regard to compensation.” Compensation paid is irrelevant to whether an activity meets this definition. This is a broad reaching definition; and it includes hunting, fishing, horseback riding, bird watching, and much more than might typically be thought of as “agritourism”, such as corn mazes and pumpkin patches. If you and your guests do it on your land, there is a good chance it falls within the definition of “agritourism activity.”
  
  
• “Agritourism entity” is defined, in the TEXAS AGRITOURISM ACT, to mean “a person engaged in the business of providing an agritourism activity,  without regard to compensation, including a person who displays exotic animals to the public on agricultural land.” Again, compensation is irrelevant in determining whether a business qualifies under this definition.
  
  
• “Agritourism participant” is defined, in the TEXAS AGRITOURISM ACT, to mean “an individual, other than an employee of an agritourism entity, who engages in an agritourism activity.” Importantly, this definition expressly excludes employees of the agritourism entity. If an employee or independent contractor of the landowner is injured, the TEXAS AGRITOURISM ACT’s protections do not apply; but, notwithstanding this limited applicability of the TEXAS AGRITOURISM ACT, the landowner protections of the FARM ANIMAL LIABILITY ACT (discussed below) may still be applicable (i.e., to limit the liability of the landowner), even though it may have been an employee or independent contractor of the landowner who got injured on the landowner’s property.
  
  
• “Agritourism participant injury” is simply defined, in the TEXAS AGRITOURISM ACT, to mean “an injury sustained by an agritourism participant, including bodily injury, emotional distress, death, property damage, or any other loss resulting from the person’s participation in an agritourism activity.”
  
  
• “Premises.” The definition of “premises”, in the TEXAS AGRITOURISM ACT, refers back to the definition of this term in the RECREATIONAL USE STATUTE; specifically, “premises” includes land, roads, water, watercourses, private ways, buildings, structures, machinery, and equipment attached to or located on the land, road, water, watercourse, or private way. 
  
  
• “Recreation.” In the TEXAS AGRITOURISM ACT, the Legislature simply referred to the way “recreation” is defined in the RECREATIONAL USE STATUTE as being applicable to the TEXAS AGRITOURISM ACT as well. The broad definition includes activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving (including ATVS and off-road vehicles), nature study (including bird watching), cave exploration, water skiing, other water sports, biking, disc golf, walking dogs, radio controlled flying, and any other activity associated with nature or the outdoors. Again, this is an extremely broad definition; and there is a high likelihood that if your guests are doing it on your property, it probably falls within the definition of “recreation.”  

B. Requirements for Limited Liability of the Landowner  

As noted above, if an agritourism participant (i.e., often your guest) suffers an agritourism injury on agricultural land, an agritourism entity (i.e., often you, as the landowner) is not liable to any person for damages if only one of the following two easy to comply with requirements/alternative ways of limiting liability are met: (1) an appropriately-worded sign is posted at the right location on the property, or (2) an appropriately-worded release is signed by the guest.  

1. Required Signage  

In order to qualify for limited liability, the first option is for a landowner to post a correctly-worded warning sign. Under the statute, the signs must be clearly visible on or near any premises where an agritourism activity occurs.  

The sign must contain the following language:  

“WARNING: UNDER TEXAS LAW (CHAPTER 75A, CIVIL PRACTICE AND REMEDIES CODE), AN AGRITOURISM ENTITY IS NOT LIABLE FOR ANY INJURY TO OR DEATH OF AN AGRITOURISM PARTICIPANT RESULTING FROM AN AGRITOURISM ACTIVITY.”  

One obvious benefit of electing to utilize the method described above of posting a properly-worded sign is that, once the sign is posted in the proper place, the landowner’s work is done. He or she is not required to obtain signatures on releases before persons enter the property for a recreational or educational activity. Further, if a person brings an unexpected guest with him or her, the sign will likely be a sufficient warning to that person of limited liability, regardless of the lack of a signed waiver or agreement.  

2. Required Release Language  

The alternative option for a landowner to qualify for limited liability is for the landowner (i.e., in the role of “agritourism entity”) to obtain a signed,  written agreement from participants. The agreement must  be:

1. signed before participation in an agritourism activity;
   
2. signed by the participant or the participant’s guardian if he or she is a minor;
   
3. separate from any other agreement between the participant and entity except a different warning, consent, or assumption of risk; 
   
4. printed in at least 10-point bold type; and 
   
5. contain the following language:  
   

 “AGREEMENT AND WARNING:  

I UNDERSTAND AND ACKNOWLEDGE THAT AN  AGRITOURISM ENTITY IS NOT LIABLE FOR ANY  INJURY TO OR DEATH OF AN AGRITOURISM  PARTICIPANT RESULTING FROM AGRITOURISM  ACTIVITIES. I UNDERSTAND THAT I HAVE ACCEPTED  ALL RISK OF INJURY, DEATH, PROPERTY DAMAGE,  AND OTHER LOSS THAT MAY RESULT FROM  AGRITOURISM ACTIVITIES.”  

Although this option will require more paperwork on the part of the agritourism entity (i.e., the landowner), it may provide important protection in the event that minor children are injured on the property. The Texas Supreme Court has not ruled on whether a liability release signed by a parent on behalf of a minor child is enforceable. At least one Texas appellate court has held that they are not. See Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. App. Houston 1993). The rationale behind this decision is that Texas law seeks to be especially protective of children and that parents should not be able to waive a child’s personal injury claims. Given this unsettled legal question, the fact that the TEXAS AGRITOURISM ACT expressly states that a guardian may release liability on behalf of a minor if the written release option is used may prove to be important if seeking to enforce a release against an injured minor.  

C. Exceptions  

The limitation on liability offered by the TEXAS AGRITOURISM ACT is not, however, unlimited. Numerous exceptions apply that will likely result in many case-by-case determinations as to whether the TEXAS AGRITOURISM ACT will apply. These exceptions are as follows:  

1. The protections do not apply if the injury was proximately caused by the entity’s “negligence evidencing a disregard for the safety of the agritourism participant.” 

2. The protections do not apply if the injury is proximately caused by a dangerous condition of which the entity had actual knowledge or reasonably should have known on the land, facilities, or equipment used in the activity.
   
3. No limited liability exists if the injury is proximately caused by the dangerous propensity of a particular animal used in the activity not disclosed to the participant of which the entity has actual knowledge or reasonably should have known.
   
4. Protections do not apply if the injury is proximately caused by the entity’s failure to adequately train an employee actively involved in an agritourism activity.
   
5. No limited liability exists for injuries intentionally caused by the agritourism entity.  

D. Summary and Key Points  

The TEXAS AGRITOURISM ACT offers valuable limited liability for landowners if its requirements are followed, to wit posting appropriately-worded signs and/or utilizing well-drafted written releases. Although it is true that there are distinct potential advantages to utilizing one option over the other, the savviest landowners can take full advantage by utilizing both options at the same time, to wit:  

• posting appropriately-worded signs; and 
  
• also getting all guests to sign well-drafted written releases.  

The broad definitions of “agritourism activity” and “agricultural land” permit prudent landowners to extend their protection well beyond those activities typically thought of as constituting agritourism, including risks to landowners created when they enter into hunting lease agreements, and, subsequently, one of the hunters gets injured or killed while hunting on private land.  

Importantly, the TEXAS AGRITOURISM ACT expressly states that it is in addition to all other limitations of liability. This means that other limited liability statutes, such as the RECREATIONAL USE STATUTE and FARM ANIMAL LIABILITY ACT, can also be taken advantage of by prudent landowners and their well-informed lawyers.  These truths underscore the importance of valid / appropriately-worded liability releases, to ensure protection in as many circumstances as possible. To help you do this, we invite you to reach out to West Webb Allbritton & Gentry, P.C., to learn how easy it will be for you to take advantage of the important liability-limiting protections available under the TEXAS AGRITOURISM ACT.  

III. RECREATIONAL USE STATUTE  

Read this section in our second article.

IV. FARM ANIMAL LIABILITY ACT  

Read this section in our third article

V. ABOUT THE AUTHOR 

In addition to being an avid outdoorsman, fly angler, and bowhunter, Randal  (“Randy”) Payne is an experienced civil trial lawyer practicing in the litigation  practice area of West Webb Allbritton & Gentry, P.C. For the past 27 years, Randy has been Board Certified in Civil Trial Law by the Texas  Board of Legal Specialization; and has successfully defended landowners in many  premises liability lawsuits filed by injured guests, and by the families of guests  killed while on his clients’ properties, including:  

• the successful defense of landowners sued by the family of a deceased  teenage guest killed in a tragic ATV crash, while the teenager was joy riding (i.e., operating the landowner’s ATV without the landowner’s  permission or knowledge);  
  
• the successful defense of landowners sued by the family of a deceased  hunter who, as an invited guest of the landowner, was killed in a deer blind  by a rifle bullet fired by another guest while deer hunting on the  landowner’s property;
  
• the successful defense of a landowner sued by a guest who fell on exterior  stairs to a second level of a residence on the landowner’s property;
  
• the successful defense of the owner of a shopping center, and the property  management company which managed the commercial property, sued by a  guest who was injured inside of a retail store located in the shopping  center, when another guest accidentally drove her vehicle through a plate  glass window and into the retail store in which the guest was shopping at  the time; and 
  
• the successful defense of the owner of an apartment complex, and the  property management company which managed the apartment complex,  sued by a guest who was raped inside one of the apartments by an unknown assailant. 
  

Randy congratulating a client of West Webb Allbritton & Gentry, P.C., Guy Griggs of Whitetail Dreams Trophy Ranch (WDT Whitetails – Hunt, Deer Hunting, Hunt, White Tailed Deer (hunttrophybucks.com), on successfully locating a very well designed and built deer blind which, by the way, is manufactured by Boss Game  Systems, LLC (Boss Game Systems), another client of West Webb Allbritton &  Gentry, P.C.

The author with a nice buck taken with his bow, on a client’s ranch in Mexico,  back when Randy wore a younger man’s camos.