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  

Read this section in our first article.

III. RECREATIONAL USE STATUTE  

Understanding the vast majority of Texas land is privately owned, and hoping to encourage landowners to allow recreation on their land, the 1965 Texas Legislature passed the RECREATIONAL USE STATUTE, codified at Tex. Civ. Practice and Remedies Code Chapter 75. See University of Texas at Arlington v. Williams, 459 S.W.3d 48, 54 (Tex. 2015). Although portions of the RECREATIONAL USE STATUTE apply to nonagricultural land, government entities, and certain utilities and electric companies, the scope of this article will focus only on the portions applicable to agricultural land.  

A. Statutory Definitions  

The RECREATIONAL USE STATUTE includes three definitions related to provisions regarding agricultural land.  

1. “Agricultural land”  
   
   Under the RECREATIONAL USE STATUTE, three types of land are considered agricultural land. 
   
   First, 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” is included. 
   
   Second, land suitable for “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” is deemed to fall within the definition.
   
   Finally, land suitable for domestic or native farm or ranch animals, to be kept for use or profit, is covered. This seemingly broad definition covers not only land where production agriculture is taking place but, also, any place that is found “suitable for” the specified activities listed.  
   
   
2. “Premises”  
   
   The definition states that premises include land, roads, water, watercourses, private ways and buildings, structures, machinery, and equipment attached to or located on the land, road, water, watercourse, or private way. This definition becomes important in cases when people are injured on or near the premises where they intend to undertake a recreational activity. For example, courts have relied on this definition to apply the RECREATIONAL USE STATUTE where persons have been injured:  
   
   
   • walking to a swimming area, Karl v. Brazos River Authority, 494 S.W.3d 168 (Tex. Ct. App. – Eastland 2015);  
     
     
   • walking through a clubhouse after playing a round of golf, City of Plano v. Homoky, 294 S.W.3d 809, 816 (Tex. Ct. App. – Dallas 2009); and 
     
     
   • walking from the park to a parking lot, Dubois v. Harris County, 866 S.W.2d 787, 789 (Tex. Ct. App. Houston [1st Dist.] 1993).  
     
     
3. “Recreation” 
   
   Initially, when the RECREATIONAL USE STATUTE was passed in 1965, it applied only to hunting, fishing, and camping. See University of Texas at Arlington, 459 S.W.3d 48, 52 (Tex. 2015). The definition was broadened in 1981 to include “activities such as hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study,  water skiing, and water sports.” The Legislature explained that this amendment was necessary because many other recreational activities had gained popularity in the nearly two decades since the statute was originally passed. In 1997, the list was amended again to include bird  watching, biking, disc golf, dog walking, and “any other activity  associated with enjoying nature or the outdoors.” Lastly, in 1999, radio controlled flying was added. The current 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 and other water sports, biking, disc golf, walking dogs, radio controlled flying, and any other activity associated with nature or the outdoors.  
   
   This is an extremely broad definition and a non-exhaustive list of activities that fall within the scope of the statute. See Karl v. Brazos  River Authority, 494 S.W.3d 168 (Tex. Ct. App. – Eastland 2015).  

B. Requirements for Limited Liability of the Landowner  

As a practical matter, when the statutory requirements of the RECREATIONAL USE STATUTE are met, a landowner, lessee, occupier, or other person in control of the premises is liable to a claimant only if the claimant can show the landowner, lessee, or occupier of the land was grossly negligent, engaged in intentional conduct, had malicious intent, or acted in bad faith. The applicability of the limited liability can essentially be analyzed in a series of four questions. 

1. Is the defendant an owner, occupier, or lessee of the property?  
   
   The statutory protection available under the RECREATIONAL USE STATUTE applies to landowners, lessees, and occupiers of land. This allows a broad protection to each of these classes of people. For example, in Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007), the court found that although the university had dedicated an easement to the public, because that did not remove ownership of the underlying fee estate, the university was entitled to protections of the RECREATIONAL USE STATUTE as an owner of the property.  
   
   
2. Was the property at issue “agricultural land?”  
   
   Here, the court simply determines if the property at issue meets the “agricultural land” definition listed in Section 75.001(1) of the RECREATIONAL USE STATUTE. Please note that portions of the RECREATIONAL USE STATUTE apply to land other than agricultural land, but that discussion is beyond the scope of this blog.  
   
   
3. Did the plaintiff engage in or enter for a recreational purpose?  
   
   Several court cases have considered whether an injured party “entered the premises for recreation” and, if so, ruled that the RECREATIONAL USE STATUTE would apply. First, courts have made clear it is not the parties’ intent or the normal use of the property that controls, but instead, the relevant inquiry is what activity the injured party was engaged in at the time of the injury. See City of Bellmead v. Torres, 89 S.W.3d 611, 614 (Tex. 2002). In that case, the plaintiff went to a softball complex to play a competitive game but was injured while sitting on a swing. The Supreme Court determined that the relevant question was not whether competitive softball qualified as “recreation,” but whether sitting on a swing met the definition. 
   
   Second, courts have found the following activities to meet the definition of “recreation:”
   
   
   • sitting on a swing, City of Bellmead v. Torres, 89 S.W.3d at 615;
     
     
   • playing outdoor sand volleyball, Univ. of Tex. Health Sci. Center at Houston v. Garcia, 346 S.W.3d 220, 225 (Tex. Ct. App. – Houston [14th  Dist.] 2011); 
     
     
   • walking on a Marina from shower to a boat, City of Corpus Christi v. Ferguson, 2014 WL 4595146 (Tex. Ct. App. – Corpus Christi 2014) (not  designated for publication); 
     
     
   • playing an information soccer game after a picnic at a park, Garcia v. City of Richardson, 2002 WL 1752219 (Tex. Ct. App. – Dallas 2002);
     
     
   • playing on playground equipment, Kopplin v. City of Garland, 869 S.W.2d 433, 441 (Tex. Ct. App. – Dallas 1993); 
     
     
   • visiting a zoo, City of Dallas v. Patrick, 247 S.W.3d 452 (Tex. Ct. App. –  Dallas 2011); and 
      
   • bicycling to work, City of San Antonio v. Peralta, 476 S.W.3d 653, 658  (Tex. Ct. App. – San Antonio 2015).
     
     On the other hand, the following activities have failed to meet the definition of “recreation:”  
     
     
   • spectating at a competitive sporting event, Univ. of Tex. at Arlington v. Williams, 459 S.W.3d at 55 (Tex. 2015)); 
     
     
   • outdoor weddings, Sullivan v. City of Ft. Worth, 2011 WL 1902018 (Tex. Ct. App. – Ft. Worth 2011) (not designated for publication); and
     
     
   • walking through an outdoor area to reach a parking lot, Vidrine v. Center for Performing Arts at Woodlands, 2013 WL 5302654 (Tex. Ct.  App. – Beaumont 2103) (not designated for publication). 

4. Are one of the three monetary requirements satisfied?  
   
   The RECREATIONAL USE STATUTE applies as long as landowners meet one of  the three monetary requirements listed below, which are set forth in Texas Civil Practice and Remedies Code 75.003(c):  
   
   
   • No fee is charged. 
     
     This first option is the simplest. For landowners allowing persons to enter their agricultural land for recreational purposes free of charge, the RECREATIONAL USE STATUTE protections apply. 
     
     
   • Taxes are sufficiently greater than fees charged. 
     
     The second option applies where a landowner charges a fee to enter the property, but where the “total charges collected in the previous calendar year for all recreational use of the entire premises of the owner, lessee, or occupant are not more than 20 times the total amount of ad valorem taxes imposed on the premises for the previous calendar year.” 
     
     To do the analysis, a landowner should first calculate all income received from recreational users for the past calendar year. Next, the landowner should calculate the total ad valorem taxes he or she paid for their entire premises in the past calendar year.
     
     Importantly, courts have made clear that this includes all property owned by the landowners, not just that where recreation occurs. See Howard v. East Texas Baptist  University, 122 S.W.3d 407 (Tex. Ct. App. – Texarkana 2003) (“encompasses the property opened to the public for recreational use and any other real property owned by the party seeking limited liability under the statute; that is, the owner’s entire premises.”). So long as the total income calculated is not 20 times higher than the total taxes paid, the landowner is covered by the statute.
     
     
5. Adequate insurance is maintained. 
   
   The final option provides that if a landowner carries liability insurance coverage of equal or greater to that described in Texas Civil Practice and Remedies Code 75.004(a), he or she is covered under the statute, regardless of compensation received by recreational users. 
   
   The required /minimum threshold coverage levels needed, in order for a landowner to qualify under this option, are:  
   
   
   • $500,000 for each person,
     
   • $1 million for each occurrence of bodily injury, and
     
   • $100,000 for each occurrence of property damage.  

Agricultural landowners who elect to meet this option are afforded an additional benefit. The statute provides a limit on the damage amount that may be awarded in cases where an agricultural landowner, lessee, or occupant carried this level of insurance; and, specifically, controlling statutory provision states:  

“The total liability of an owner, lessee, or occupant for a single occurrence is limited to $1 million, and the liability also is subject to the limits for  each single occurrence of bodily injury or death and each single occurrence for injury to or destruction of property states in this subsection.”  

C. Exceptions  

When the statutory requirements are met and the RECREATIONAL USE STATUTE applies to limit a landowner’s liability, the only exceptions that exist are where a defendant (i.e., the landowner):  

• is grossly negligent,  
  
• acts willfully or wantonly,  
  
• acts with malicious intent, or  
  
• acts in bad faith.  

Courts have explained that a landowner has no duty to warn or protect recreational users from obvious defects and conditions on the land. “The owner may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake.” State v. Shumake, 199 S.W.3d 279, 288.  

Conversely, a landowner can be liable for gross negligence if the landowner creates a condition the recreational user would not reasonably expect to encounter on the property in the course of the permitted use. By way of example, in City of Waco v. Kirwan, 298 S.W.3d 618, 626 (Tex. 2009), the Texas Supreme Court held that a landowner under the RECREATIONAL USE STATUTE does not generally owe a duty to warn or protect against dangers of natural conditions on the land and, therefore, failing to do so will not ordinarily meet the standard of gross negligence.  

Courts interpreting the gross negligence exception have explained that gross negligence includes two elements. First, the act or omission, when viewed objectively, must involve an extreme degree of risk, considering the probability and severity of potential harm to others. See Howard, 122 S.W.3d at 412. Second,  the actor must have actual, subjective awareness of the risk involved, but proceed in conscious indifference to the rights, safety, and welfare of others. Put another  way, “the plaintiff must show that the defendant knew about the peril, but his acts  or omissions demonstrate that he did not care.” Louisiana Pac. Corp. v. Andrade,  19 S.W.3d 245, 246-47 (Tex. 1999).  

D. Summary and Key Points  

Landowners who would like to open their property to allow others to engage in recreational activities should consider how to take advantage of the important protections afforded by the RECREATIONAL USE STATUTE. This statute, unlike the TEXAS AGRITOURISM ACT or FARM ANIMAL LIABILITY ACT, requires no signage or signed documents. Instead, owners, lessees, and occupiers of agricultural land need only ensure they meet one of the three monetary requirements listed in the statute. West Webb Allbritton & Gentry, P.C., can, certainly, help you do the analysis, to give you the peace of mind that comes from knowing you took every opportunity to realize the full advantage of the important protections afforded by the RECREATIONAL USE STATUTE.  

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.