3003 Lakeland Cove, Suite E.  |  Jackson, MS 39232  |  601-420-2200

MASSEY, HIGGINBOTHAM, VISE, AND PHILLIPS, P.A.

Landowner Liability Issues

by Mike Massey on January 25, 2012

Landowners face potential liability when they allow others to use their land for hunting, fishing, hiking, camping, etc.  However, the state of Mississippi along with many other states have passed recreational land owner liability statues that limit the liability of land owners in certain situations.

No Fee Access – Landowner Protected by Mississippi Code

If you open your land to the public but you don’t charge a fee for the access, you do not have a duty of care to keep your land safe for entry or use by others for hunting, fishing, etc. and shall not be required to give any warning of dangerous conditions to the same (Pursuant to Section 89-2-23 of the Mississippi Code).  This law also applies to people that you give permission to use the land (Miss Code Ann. §89-2-25).

This protection applies in all situations except where a landowner willfully or maliciously fails to guard or warn of a dangerous condition; if the landowner was paid any compensations for use of his land other than by the federal, state, or local government; or in a situation where a third party to whom the landowner owned a duty to keep the land safe is injured by acts of person(s) given permission to hunt, fish, etc.

Essentially, these statutes apply to landowners who allow others to use their property for activities such as hunting, fishing, hiking, camping, etc. so long as you do not willfully, deliberately, or maliciously injure anyone or you do not charge a fee to use your land, or if notice that the land is open to the public is not published at least once annually in a newspaper in the county where the land is located.

This law will not apply to you if you have leased your land to a hunting club or others and charge a fee for using your land for recreation.  If you do not meet the requirements set forth in these statutes, then you will be subject to potential liability as established by the courts.

Fee Access – Your Responsibilities

If you accept any payment from a club or individual for the use or lease of the land, you are no longer protected by the limited liability statutes previously mentioned. You would then become subject to common law levels of liability established by the Courts.

There are three (3) status levels recognized in Mississippi and in the majority of states when on the land of another: (1) trespassers, (2) licensees, and (3) invitees. The duty of care a landowner owes to each (your responsibility) is determined by how the court classifies the person.

Trespassers

A trespasser is a person who enters another’s land without license, invitation, or other right.  As a landowner, you may not willfully or wantonly injure the trespasser. Practically, this means that you as the landowner cannot set up booby traps such as spring guns, bear traps or otherwise to injure someone who enters your land without permission. A better option is to post your land and call the proper authorities if you notice people trespassing on your land.

Licensees

A licensee is a person who enters the property of another for his own convenience or pleasure pursuant to the license or implied permission of the owner.  As a landowner, you must refrain from willfully or wantonly injuring them, the same requirements for a trespasser.  The Mississippi Supreme Court has made a simple negligence exception to the duty of care owed to licensees that applies to landowners whose (1) active negligence subjects a licensee to unusual danger (2) when the presence of the licensee is known.

This exception does not apply in the case of a licensee who is injured as a result of a condition on the land through passive negligence. This rule of liability is based on the theory that a licensee receives permission to be on the land as a gift, because there is no benefit given by the licensee and the licensee must take the land as he finds it.  To be cautious, however you should still warn of or repair known dangerous conditions.

Invitees

The final status level is that of an invitee.  An invitee is a person who enters the land of another in response to an express or implied invitation of the owner for the mutual benefit of the parties.  As a landowner, you must keep the premises reasonably safe and where unsafe conditions exist, to warn of any known danger not in plain and open view.  If you receive any compensation from the hunters or the hunting club, then you will owe the hunter or hunting club a duty to keep the premises reasonably safe and to warn of known hidden dangers.

Previous post:

Next post: