Hunting season is already underway, but it’s not too late to protect yourself with the proper insurance and contractual protections. Whether you are a landowner or a hunter who leases land, you take on some legal risk. This article focuses on guidance under Indiana law for landowners, but many of the same tips carryover to other state’s laws, as well as hunters. You should always consult an attorney for advice that addresses your specific situation.
When charging a hunter a fee for access, you take on responsibilities that could result in liability. Understanding your risk requires consideration of your state’s law on premises liability in the context of any statutory protections for outdoor recreational use or agritourism. You can receive the benefits of leasing and minimize your risks by following good business practices, buying an appropriate insurance policy (or having your lessee buy one), and drafting a clear contract with the right protections.
Part 1 of this series summarizes potential liability under general premises law. Part 2 analyzes protection extended to landowners who open their property for recreational uses, and, in Indiana, providers of agritourism. Part 3 examines best business practices to limit liability, including maintaining good records, organizing your business as a corporation, and passing on risk with insurance. Finally, Parts 4 and 5 raise questions you should consider before meeting with an attorney to draft your lease agreement.
- Part 1 – Understanding Premises Liability
- Part 2 – Protection Afforded by State Statutes
- Part 3 – Best Business Practices
- Part 4 – Your Hunting Lease: General Questions to Consider
- Part 5 – Your Hunting Lease: Releases, Indemnification, and Defense
– Understanding Premises Liability
Under traditional premises liability rules followed by the majority of states, your duties (and potential liability) as a landowner depend upon your relationship with those persons who come on your property. The status of a person who enters the land of another is characterized as a trespasser, a licensee, or an invitee.
Indiana landowners generally owe trespassers, persons who enter or remain on land without the landowner’s actual or implied consent, the minimal duty of refraining from willfully or wantonly injuring the trespasser after having discovered his presence.
Licensees are persons privileged to enter or remain on the land by the landowner’s permission or sufferance. A landowner assumes responsibility to warn a licensee of any dangerous conditions on the premises of which the landowner has knowledge. The landowner also owes the duty to refrain from willfully or wantonly injuring a licensee or acting in a manner to increase his peril. If you give someone permission to hunt your land without charge, a court in Indiana will likely consider that hunter a licensee. But if you charge that hunter some kind of “monetary consideration,” the court likely will consider that hunter a business invitee owed a higher duty of care. “Monetary consideration” is described further in Part 2 of this series.
An Indiana landowner owes the highest duty of care to an invitee: the duty to exercise reasonable care for the invitee’s protection while he is on the premises. This means the landowner assumes responsibility to ensure the premises are in a reasonably safe condition for the invited uses. A landowner, however, generally is not required to eliminate natural conditions such as streams, ravines, or trees. The duty also requires that the landowner periodically inspect land encompassed by an invitation for concealed dangers and warn invitees of the discovered dangers. In Indiana, an invitee may be one of several types: a social guest, a business invitee, and a public invitee. A public invitee is invited to enter or remain on land as a member of the public for a purpose which the land is held open to the public.
– Protection Afforded by State Statutes
To encourage landowners to open their property for recreational uses, most states, including Indiana, provide statutory protection from some liability. It’s still recommended to consult an attorney, however, because you still may be brought to court and need to defend yourself. As explained later in this article, legal advice now in business formation, drafting a lease, and procuring the right policy can help you avoid future headaches.
Indiana’s Recreational Use Statute
Under Indiana’s Recreational Use Statute, a person who goes upon or through the premises of another either for the purpose of swimming, camping, hiking, sightseeing or for the purpose of hunting, fishing, trapping, or preparing to hunt, fish, or trap, does not have an assurance that the premises are safe for that purpose. See Ind. Code §§ 14-22-10-2(d), 2.5(a). It does not matter whether that person has permission or is a trespasser. Id. In other words, the Recreational Use Statute modifies the traditional premises liability rules discussed in Part 1 so that a landowner’s duty of care is limited to that owed to trespassers. Correspondingly, the landowner does not assume responsibility to ensure the premises are safe for use or to warn of any dangerous conditions. Ind. Code §§ 14-22-10-2(e), 2.5(b).
A landowner should be aware of common exceptions under recreational use statutes. For example, under Indiana’s statute, the protection applies only if the landowner directly or indirectly invites others to use the land for recreational purposes without “monetary consideration.” “Monetary consideration” means a fee or other charge for permission. Ind. Code § 14-22-10-2(b). It does not apply to: (1) the gratuitous sharing of game, fish, or other products of the recreational use of the land; (2) services rendered for the purpose of wildlife management; or (3) in-kind contributions made for the purpose of wildlife management. Thus, if a landowner were to charge a user a fee (through a hunting lease, for example), the landowner would then owe the higher degree of care owed to business invitees. This means, for example, that a landowner might be liable for resulting injuries if a hunter stepped in a large hole on the property and broke his leg or accidentally discharged his gun.
Indiana’s Recreational Use Statute also does not provide a landowner immunity from an injury to a person or property caused by an intentional, willful, or malicious or an illegal act of the owner or occupant. Ind. Code §§ 14-22-10-2(g), 2.5(d). Nor does it affect existing Indiana case law on the liability of landowners with respect to business invitees in commercial establishments or the attractive nuisance doctrine (having an artificial condition on your property that is likely to attract child trespassers). Ind. Code §§ 14‑22‑10‑2(f), 2.5(c).
Indiana’s Agritourism Statute
Indiana’s Agritourism Statute, Ind. Code § 34-31-9 et seq., passed in 2011, may provide greater protection than the Recreational Use Statute. “Agritourism” is broadly defined to include self-pick farms, farmers markets, and agricultural fairs. It also applies to “natural resource based activities and attractions, including hunting, fishing, hiking, and trail riding.” Ind. Code § 34-31-9-2.
Under the Agritourism Statute, an “agritourism provider” is not liable for (1) an injury to a participant or (2) the death of a participant when such injury or death results from an “inherent risk” of agritourism activities. Ind. Code § 34-31-9-10. An “agritourism provider” means a person who provides the opportunity for agritourism activities whether or not the participant pays to participate in the activity. Ind. Code § 34-31-9-3. “Inherent risks” of agritourism activities include those conditions, dangers, or hazards that are an “integral part” of the activity, including risk inherent to land, equipment, and animals. “Inherent risks” also include the likelihood participants may act negligently by failing to follow instructions or failing to obey written warnings or postings. Ind. Code § 34-31-9-4.
Providers who receive monetary consideration from participants also may obtain the Agritourism Statute’s protection. But in order to qualify for the protection, such providers must post warning signs and obtain signed releases from the participants that include the warning notice. Ind. Code § 34‑31‑9‑12. Any written contracts must also have a copy of the written notice. Ind. Code § 34-31-9-13.
Indiana’s Agritourism Statute does not offer an agritourism provider immunity from injury or death of a participant caused by an act or omission that constitutes a willful or wanton disregard for the safety of the participant or an intent to injure. Ind. Code § 34‑31‑9-11. Nor does it affect existing Indiana case law on a landowner’s duty to warn an invitee of any dangerous conditions on the land, facilities, or equipment, or dangerous propensity of a particular animal, of which the landowner has knowledge. Id.
These statutes serve as an affirmative defense to personal injury lawsuits. You still may need to defend yourself in court. There are extra steps you can take in advance, however, to strengthen your case and limit the costs of a lawsuit. These steps will be addressed in Parts 3, 4, and 5 of this article.
– Best Business Practices
Maintain Good Recordkeeping
It is very important to keep accurate records, especially of efforts to reduce risks. Before leasing your property for monetary consideration, inspect your property and identify hazards. Examples of hazards include abandoned wells and high-risk trees that might fall. Notify your invitees and licensees of known hazards in writing and provide maps showing hazard areas. Document your steps and make copies of any documents you hand out. Ask to see hunting licenses and any safety education certifications and make a copy.
Organize Your Business as a Corporation
Consider whether you would like to add a layer of protection for your personal assets by creating an S-Corp or LLC for the purpose of handling leases. If you plan to operate the company with another individual, contact an attorney to help you draft bylaws or an operating agreement.
1. Buy Your Own Policy
If you wish to lease your property for a fee, consider buying a specialty general liability policy or endorsement that specifically includes fee hunting. The standard homeowner’s liability policy provides coverage for bodily injuries to persons on the insured premises with the permission of the insured. It generally does not cover your business pursuits or activities for which you are compensated. Even if your homeowner’s policy extends to farming activities, your insurance company may not consider recreational activities such as fee hunting as “farming.”
When shopping for a liability policy, ask if the policy includes bodily injury or property damage resulting from the use of tree stands, vehicles, and firearms. Also check that the definition of “premises” includes the land to be leased for hunting purposes. Importantly, make sure that the insurer has a duty to defend you (i.e., at least pay your legal fees and expenses) if you are sued.
Using an old junker or ATV as part of your hunting activities? The standard automobile insurance policy is limited to liability arising from injuries that result from the ownership, care, maintenance, operation, or use of the vehicle described in the policy. If your hunting vehicle is not listed, it likely is not covered.
Even if your current policy covers the risks associated with fee hunting, check that the amount of coverage is sufficient to pay the full amount of potential damages. You may need to buy excess insurance or an umbrella policy.
2. Be a “Named Insured” on the Lessee’s Policy
Another option is to require the lessee to obtain liability insurance before hunting on the property, maintain it throughout the lease term, and include you as a “named insured” or “additional insured.” This should offer insurance coverage to you under the lessee’s policy in the event of a claim made by a third party.
Before signing the lease, ask for proof of coverage and a copy of the policy. Check that you are named as a named or additional insured and that the policy meets your requirements. Also check that the policy is not expired and will not expire before the end of the lease term. And make sure the policy cannot be cancelled without your notice.
With the risks involved in relying on your lessee’s policy, you should hire an attorney who specializes in insurance recovery to draft the insurance provisions in your lease and to review any policies obtained as a result.
– Your Hunting Lease: General Questions to Consider
Having a written lease, signed by all parties, is the most important step in avoiding potential misunderstandings, conflict, and lawsuits. Putting the agreement in writing helps landowner and lessees critically consider what they want in a lease agreement. Although you may feel tempted to draft a DIY lease, these agreements are too important not to have them prepared by a skilled professional. In preparing to meet with your attorney, you should give serious thought to the following provisions:
1. The Parties
Consider whether the lessee may bring guests onto the property and how many, and whether those guests may be children under the age of 18. Require that any guest be approved in writing by you and that they sign a liability release and indemnification agreement (discussed below). Under Indiana Code section 14-22-10-1, a person may not hunt upon privately owned land without having the consent of the owner or tenant of the land. You should provide written permission for the lessee. Consider using the permission form provided by the Indiana Department of Natural Resources (“DNR”), which also provides a warning notice and waiver meeting the requirements of the Agritourism Statute, Ind. Code § 34-31-9-14. You may find the DNR’s form here.
2. Property Description
Be specific to the exact property you will be leasing. Use legal metes-and-bounds descriptions when possible or draw boundaries on an aerial photo, map, or diagram.
Make the lessee aware of other users of the property, e.g., oil and gas companies, and yourself. Require that the lessee acknowledge these activities could potentially interfere with his or her hunting ability and promise that he or she will act in good faith to accommodate and cooperate with these other users. The lease should address what will happen in the event that an interference occurs.
3. Duration, Termination, and Renewal
Specify the length of the lease. Will the lease automatically renew for the next year or terminate on a particular date? Is the permission for a particular season only, e.g. archery or firearm? Is it a multi-year contract? Caution: Most states, including Indiana, by statute, require agreements lasting longer than one year be in writing to be enforceable. It is strongly recommended, however, that all hunting leases be in writing regardless of the length of their term.
4. Price and Payment
A hunting lease should include the terms of payment required under the lease, including the amount, the due date, the manner in which payment is to be made, and the remedy in the event of nonpayment. You can require payment per animal, per acre, per year, per person, or any combination of these factors. Indicate how the payment is to be made (daily, weekly, yearly, one lump sum, etc.). If using an installment method, you may want to impose a penalty for late payments. You also may wish to require a security deposit to cover any damage caused by the lessee.
Is the lease limited to dawn-to-dusk hunting or does it include camping? If overnight camping is an option, consider whether you want any restrictions on pets or alcohol use.
Designate the entrance points, gates, roads, and buildings the lessee is permitted to use.
Will you permit the lessee to use vehicles or ATVs on the property? In what areas? Stipulate that all gates be kept closed at all times, particularly if there are livestock on the property. Also include a requirement that the lessee repair or pay for any damage caused to the property, including damage to improvements, fences, and gates, death or injury to livestock, destruction of crops, and trash or other debris left on the property.
Will the lessee be able to construct any improvements on the property such as tree stands or shelters? Indicate if you want to restrict placement of such improvements, and any hunting blinds and wildlife feeders, and be specific. Must the lessee remove the improvements at the end of the lease? Consider setting a deadline.
Specify the type of hunting method allowed. This includes both the type of weapon that may be used (bow, rifle, shotgun, etc.) as well as other considerations, such as whether the lessee may use dogs during the hunt. Double-check that your limitations are consistent with the rules set by your state’s natural resources department.
Are there areas on the property you do not want guns shot on or towards? Describe the proper actions or procedures if a wounded deer runs onto your neighbor’s property. Do they call you? The neighbor?
State any wildlife harvest limits. Ask that the lessee report certain information about the animals killed. This could include photographs and measurements to be used for advertising purposes. Specify an area where any animal may be cleaned on the property and the requirements for carcass disposal.
6. Reserving Landowner Rights
Consider reserving your right to enter the property for various reasons during the lease, including to care for crops or livestock or to inspect the premises. Specify whether you and your family members have permission to hunt on the property during the term of the lease, or if the lessee has exclusive hunting rights. Consider who will get to hunt where on opening day, etc.
7. Compliance with Safety Rules and the Law
You do not owe a duty to provide for safety of every person who comes on your property. You may not know, however, when someone to whom you do owe such duty comes on your property. Further, you may be hauled into litigation and need to prove your case. Thus, for practical and legal purposes, it is a good idea to consider and implement safe hunting practices on your property. In your lease, outline safe hunting practices such as responsible gun handling; not shooting in the direction of people, livestock, or buildings; not using alcohol or drugs; and preventing fires on the property. Indiana requires anyone born after December 31, 1986 be certified in Hunter Education before they can purchase a hunting license. Indicate if you require that the lessee and their guests have attended a hunting safety course and if they must show proof of attendance. Require that the lessee report safety violations to you.
Generally, a person who breaks a hunting law risks having his or her hunting license suspended or revoked. 312 IAC 9‑2-10. To the extent you know or have reason to know your lessee is committing a fish and wildlife violation (for example, hunting over bait in Indiana) and acquiesce, you may be putting your hunting license at risk. Similarly, you may be guilty of aiding and abetting criminal activity if you know or have reason to know that your lessee is committing a crime and do nothing. See Ind. Code § 35-41-2-4. In your lease, require that the lessee abide by all state and federal laws, including game laws. Require the lessee and any other hunters to have valid hunting licenses covering the species identified in the lease. Ask for a copy of each hunter’s hunting license and make photocopies. Require that the lessee report any hunting law violations or other criminal activity to you.
If know or have reason to know that your tenant has committed a fish and wildlife violation, call 1‑800-TIP-IDNR (1-800-847-4367) or file a complaint online. Dispatchers are available 24 hours a day, 7 days a week. You can remain anonymous and may receive a monetary award. If you know or have reason to know your lessee has committed a crime other than a fish and wildlife violation, notify the police.
– Your Hunting Lease: Releases, Indemnification, and Defense
You also can limit much of your liability through waivers and releases, indemnification provisions, and insurance provisions in your lease.
1. Liability Release and Indemnification Agreements
Landowners should acquire a waiver and release from liability from the lessee as part of the lease. If there are to be guests with the lessee, a similar document should be signed by each of them. Through a properly drafted waiver, even if you charge a fee, you should be able to obtain the same level of liability protection afforded by state recreational use statutes. If a hunter is under 18, his or her parent or guardian must sign.
To be valid, the release from liability must be expressed in unambiguous terms and conspicuous. To be adequately specific, a release of liability should outline the potential dangerous conditions on the land. The release should then state that the lessee understands the potential dangers associated with entering the property and that the lessee voluntarily and knowingly releases liability of the landowner for any dangerous conditions, negligent acts, or gross negligence. It is critical that the release not only use the words “negligence” and “gross negligence” but that it specifically and explicitly refer to the negligence of the party seeking release from liability—in this case the landowner. To meet the conspicuousness requirement, the release should be a separate document written in large and/or bold font. You should seek legal counsel to draft a legally enforceable waiver.
In addition to the liability release, provide a clause that the lessee will indemnify and hold you harmless from any claim, demand, loss, damage, attorney’s fees, and cost resulting from any damages caused to others by the hunter or the hunter’s activity on the property. This is a critical issue and should be discussed in detail with an attorney to ensure the provision complies with Indiana law. Keep in mind that indemnification agreements only work if the party indemnifying you is solvent.
2. Lessee Liability Insurance
If you decide to require the lessee to obtain liability insurance before hunting on the property and include you as a “named insured” or “additional insured,” be sure to specify the minimum required level of coverage for bodily injury and property damage. Also require that the policy specifically identify the land where the hunting will take place. The policy should also defend you if you are sued and indemnify you if a judgment is obtained against you. Consider requiring that any coverage as an “additional insured” be independent of the actions or liability of the named insured (likely the lessee). If you do not include this requirement, make sure the lessee follows the terms and conditions of the policy—and know the consequences if they do not. You should hire an attorney who specializes in insurance recovery to draft the insurance provisions in your lease and review any policies obtained as a result.
If you plan to allow others to hunt on your property this season, educate yourself about your protections under your state law. Then, make calling an attorney part of your game plan.
This article is not a substitute for individualized legal advice. All parties—landowners and lessees—should consult with their own attorneys and insurance agents or brokers when entering into hunting leases and buying insurance policies.