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  

Read this section in our second article.

IV. FARM ANIMAL LIABILITY ACT  

Initially passed in 1995 as the “Texas Equine Activity Limitation of Liability Act,”  the governing statutory enactment is now known as the FARM ANIMAL LIABILITY ACT. Texas is one of forty-six states to have passed this type of legislation, the purposes of which are to encourage participation in equine activities, to ensure the public is aware of the inherent risks of equine activities, and to provide limited liability to equine facility operators. See Terrance J. Centner, The New Equine Liability  Statutes, 62 Tenn. L. Rev. 997, 1008 (Summer 1995).  

In 2011, the Texas Legislature amended the FARM ANIMAL LIABILITY ACT to apply not only to equine animals but to all farm animals. See Texas Senate Bill 479, 82nd Leg. Session, 2011. The amendment became effective June 17, 2011, and applies to all causes of action accruing after June 17, 2011. This expanded version of the FARM ANIMAL LIABILITY ACT is important for all farm and equine animal owners, as well as anyone sponsoring a livestock or horse show or event, as it may offer limited liability if a person (i.e., a landowner’s guest, employee or independent contractor) is injured during a farm animal activity.  

A. Statutory Definitions  

The statutory definitions in the FARM ANIMAL LIABILITY ACT can be divided into three categories: animals, activities, and persons.  

1. Animals
   
   
   • “Equine animal”, means horses, ponies, mules, donkeys, or hinnies.
     
     
   • “Farm animal” means equines, bovines, sheep, goats, pigs,  hogs, ratites (including ostriches, rheas, and emus), and chickens and other fowl.
     
     
   • “Livestock animal” means an animal raised for human consumption or a farm animal. 
     

2. Activities
     
   • “Farm animal activity” means farm animal shows, fairs, competitions, performances, rodeos, events, or parades involving a farm animal; training or teaching activities involving farm animals; boarding farm animals; riding,  inspecting, evaluating, handling, loading, or unloading farm animals belonging to another; permitting a prospective buyer to ride, inspect, evaluate, handle, load, or unload a farm animal; or informal activities such as riding trips or hunts;  shoeing horses; and veterinarians examining or administering medical treatments.
     
     
   • “Engages in a farm animal activity” means riding, training,  driving, loading, unloading, assisting in the medical treatment of, being a passenger on, or assisting a participant or sponsor with a farm animal. Expressly excluded are spectators at a farm animal activity unless the spectator is in an unauthorized area and in immediate proximity to the farm animal activity.
     
     
   • “Livestock show” means a non-profit event with at least two species or breeds of livestock gathered together for exhibition or competition; and is deemed a “livestock show” under the  FARM ANIMAL LIABILITY ACT.
     
     
3. Persons
   
   
   • “Farm animal professional” means persons engaged in compensation for the instruction of a participant or rent to a participant of the animal for the purpose of riding, driving, or being a passenger on the animal; renting equipment or tack to a participant; examining or administering medical treatment to a farm animal as a veterinarian, and providing veterinarian and farrier services.
     
     
   • “Livestock producer” includes anyone who owns, breeds, raises, or feeds livestock animals.
     
     
   • “Farm animal activity sponsor” is defined as a person or group who sponsors, organizes or provides facilities for a farm animal activity, including facilities for a pony club, 4-H club,  hunt club, riding club, therapeutic riding program, or high school or college class, without regard to compensation; or an operator, instructor, or promoter for facilities, including stables,  clubhouses, pony rides, fairs, or arenas at which a farm animal activity is held.
     
     
   • “Livestock show sponsor” means a group or association that organizes or sanctions a livestock show including political subdivisions and certain nonprofit organizations.
     
     
   • “Participant” is broken into two parts. The first applies to farm animal activities and means a person who engages in the activity without regard to the person’s amateur or professional status and without regard to whether the person pays for the activity. The second portion applies to livestock shows and means a person who competes in a livestock show by showing an animal on a competitive basis or a person who assists that exhibitor.  

B. Requirements for Limited Liability  

Generally, the FARM ANIMAL LIABILITY ACT provides that landowners (and, perhaps, others) are not liable for property damage, injury, or death of a participant in a farm animal activity or livestock show if the injury results from risks inherent to these activities.  

Further, although landowners can benefit from the limited liability (i.e., under the FARM ANIMAL LIABILITY ACT) without posting signs or getting specifically-worded releases signed, there are required signage and contractual language that must be utilized by farm animal and livestock show professionals.  

1. Situations where liability is limited. 
   
   Under this statute, “any persons,” including those categories identified in  the FARM ANIMAL LIABILITY ACT, are not liable for property damage,  personal injury, or death, of a participant in a farm animal activity or livestock show if that damage results from “the dangers or conditions that are an inherent risk” of a farm animal activity or livestock show. 
   
   The statute expressly identifies examples of these inherent risks. First, the list includes damages caused by the propensity of a farm or livestock animal to behave in ways that may result in personal injury or death to a person around it.
   
   Next, injuries caused by the unpredictability of an animal’s reaction to sound, sudden movement, an unfamiliar location, person, or other animal is listed as an example.
   
   Also included are damages caused by land conditions and hazards when the activity involves an equine animal, collisions between the animal and another animal or object, and the potential of a participant to act negligently that could contribute to the injury of another participant.
   
   The Texas Supreme Court has taken an expansive view with regard to the inherent conditions for which limited liability is available. In Loftin v.  Lee, 341 S.W.3d 352 (Tex. 2011), the Texas Supreme Court explained that the statute reflects an “expansive view” of inherent risk. The examples listed in the statute cover a broad range of situations and are not exclusive. “The Act simply cannot be fairly read to limit inherent risks to those which are unavoidably associated with equine behavior. Construed so narrowly, the Act would accomplish nothing.”
   
   In the case of Little v. Needham, 236 S.W.3d 328 (Tex. Ct. App. – Houston 1st Dist. 2007), the Houston Court of Appeals prohibited a defendant from being held liable after the Court found risk to be inherent where the plaintiff was injured when a horse collided with a tree.
   
   In the case of Gamble v. Peyton, 182 S.W. 1 (Tex. Ct. App. – Beaumont  2005) the Beaumont Court of Appeals prohibited a defendant from being held liable after the Court found that fire ants biting a horse and causing it to buck was an inherent risk of an equine activity. 
   
   
2. Required warning language for farm animal professionals. 
   
   As previously mentioned, the FARM ANIMAL LIABILITY ACT requires farm animal professionals and livestock show sponsors to post certain signage and include specific language in any written contracts into which they enter.
   
   For farm animal professionals, the statute requires a sign be posted and maintained in a clearly visible location if the person manages or controls a stable, corral, or arena where the professional conducts a farm animal activity. The same language must be clearly readable in every written contract that the farm animal professional enters into with a participant for professional services, instruction, or rental of equipment, tack, or a farm animal. See id. The required language is as follows: 

WARNING UNDER TEXAS LAW (CHAPTER 87, CIVIL PRACTICE AND REMEDIES CODE), A FARM ANIMAL PROFESSIONAL IS NOT LIABLE FOR AN INJURY TO OR THE DEATH OF A PARTICIPANT IN FARM ANIMAL  ACTIVITIES RESULTING FROM THE INHERENT RISKS  OF FARM ANIMAL ACTIVITIES.  

3. Required warning language for livestock show sponsors 
   
   The FARM ANIMAL LIABILITY ACT also requires a livestock show sponsor to post and maintain signage if that person manages or controls a stable, barn, or arena at which a livestock show is conducted. Again, the sign must be posted in a clearly visible location near the stable, barn, or arena. The same language must be included in every written contract that the sponsor enters into with a livestock show participant. This warning must be clearly readable. The required language is as follows: 

WARNING UNDER TEXAS LAW (CHAPTER 87, CIVIL PRACTICE AND REMEDIES CODE), A LIVESTOCK  SHOW SPONSOR IS NOT LIABLE FOR AN INJURY TO  OR THE DEATH OF A PARTICIPANT IN A LIVESTOCK  SHOW RESULTING FROM THE INHERENT RISKS OF  LIVESTOCK SHOW ACTIVITIES.  

C. Exceptions  

Like the TEXAS AGRITOURISM ACT, the FARM ANIMAL LIABILITY ACT includes a list of exceptions. These include situations where:  

1. Injury or death was caused by faulty equipment or tack that was provided by the defendant who knew or should have known it was faulty.
   
   
2. The defendant provided the farm animal to the participant and the defendant failed to make a reasonable effort to determine the ability of the participant to safely engage in the activity. It is important to realize that the Supreme Court has held that the FARM ANIMAL LIABILITY ACT does not require “a formal, searching inquiry” as a requirement before the limitations of liability apply. See Loftin v. Lee,  341 S.W.3d 352 at 359 (Tex. 2011) In that case, the fact that the defendant knew the plaintiff raised horses for years, had no trouble mounting the horse, and seemed to be getting along fine on the ride was sufficient inquiry to defeat the application of this exception.
   
   
3. The injury was caused by a latent condition of the land and the defendant knew of such condition but failed to warn the participant.  See Gamble v. Peyton, 182 S.W. 1 (Tex. Ct. App. – Beaumont 2005)  (wherein the Court ruled that fire ants on the property were not proof of a dangerous latent condition on the land and, even if they were, the defendant’s statement that he was having a lot of trouble with ants was sufficient warning to the rider).
   
   
4. The defendant committed an act or omission with willful or wanton disregard for the safety of the participant, which caused the injury.  Courts have taken a limited view of this exception, requiring conscious disregard for the participant’s safety in order for the exception to apply. See Little v. Needham, 236 S.W.3d 328 (Tex. Ct.  App. – Houston 1st Dist. 2007) (plaintiff claimed wanton and willful disregard where defendants had never owned a stable before and did not conduct a safety inspection; court found this not to be wanton or willful conduct, which required a conscious indifference to the welfare of an injured person).
   
   
5. The defendant acted intentionally in causing the injury. 
   
   
6. The defendant allowed or invited a noncompetitor to participate in an activity connected with livestock and the injury resulted from this participation.  

In 2021, the Texas Legislature amended the FARM ANIMAL LIABILITY ACT to ensure that it applies to working ranches, even if the injured party is an employee or independent contractor of the farm animal or livestock professional.  

D. Summary and Key Points  

In general, the FARM ANIMAL LIABILITY ACT provides that defendants will not be liable for property damage, injury, or death to participants in farm animal activities or livestock shows resulting from the inherent dangers associated with farm animal activities or livestock shows. Any person who is involved in a farm animal activity or livestock show should ensure that the proper signage is posted and contractual language is included where necessary so that the limited liability protections are available if a lawsuit arises. Our firm, West Webb Allbritton & Gentry, P.C., is certainly capable of ensuring compliance, in order to take advantage of these important protections.  

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.