A reader, R. L. Taylor of Renewable Energy Systems, Broomfield,Colo., wrote to ask about any cases relating to insurance forproperty leased out for hunting purposes–Taylor and his employerlease out their property for hunting parties.

I found a case from Louisiana that might be useful. The case wasresolved at trial only to be reversed on appeal because of factualdisputes. The case establishes that both the lessor and lessee ofproperty for hunting purposes can be held liable to anyone who isinjured as a result of using the property.

Any person allowing property to be leased for the purpose ofhunting should advise his insurer that he will, on occasion, leasehis property for that purpose and that the insurer should agree tocover that risk or obtain separate insurance from the lessee toprotect the interest of the lessor.
Although most of the injuries will be falls, explosions or fires,they also can be deadly results of accidental shootings of membersof the club who are involved in hunting exercises.
In Cunningham v. Northland Insurance Co., (769 So.2d 689,769 So.2d 689 [La.App. 09/14/2000]), the Louisiana Court of Appealsdealt with Taylor's question. The plaintiff, Cunningham, soughtdamages for personal injuries arising from the use of anall-terrain vehicle (ATV) where the plaintiff was injured on landin Mississippi leased for hunting by the defendant, the Eight PointHunting Club. The plaintiff was an officer in the hunting club andone of its founding members.
Background
Cunningham was riding his three-wheeled ATV on the leased propertyto assist in the construction of a deer stand. On his way to thesite, the plaintiff had to travel up a newly constructed “ridgeroad,” which was cut around a large sinkhole on a hill in a woodedarea. As he rode to the top of the hill, the front wheel of theplaintiff's ATV began to rise off of the ground. In an attempt torestabilize the ATV, the plaintiff leaned forward to put moreweight on the front end. This caused the rear wheels of the ATV tolose traction and the ATV began rolling backward down the hill. Theplaintiff attempted to jump clear of the ATV, but instead fell intoa sinkhole. The ATV fell into the sinkhole on top ofplaintiff.
The plaintiff sued the hunting club, its insurer, NorthlandInsurance Co., and Yamaha Motor Corp. U.S.A., the manufacturer ofthe plaintiff's ATV. The theory of liability against the huntingclub was that it was negligent in failing to repair a dangerouscondition on its premises (i.e., the sinkhole).
The plaintiff claimed that the trial court erred in determiningthat even if the hunting club was negligent in not filling thesinkhole, “the act of the plaintiff in attempting to drive up thehill, knowing the ATV had a tendency to tilt backwards, was anintervening cause of his injuries.”
The plaintiff testified in his deposition that prior to hisaccident, he knew of the existence of the sinkhole into which hefell and he discussed with another hunter the possibility offilling in the sinkhole. The sinkhole had existed for a period ofyears, but had recently increased enough to where it had washed outthe “ridge road” that was used to get to a deer stand.
The plaintiff testified that in a prior conversation, he said tothat hunter that “if we don't run out of our allotment for money onroads, go ahead and put one. But if that hole is as big as you sayit is, you have to pay it because it's really your stand.” As hetestified in his deposition, the other hunter eventually decided tohave the bulldozer operator clear a path around the sinkholeinstead of filling it.
Judgment
The Court of Appeal concluded that it is anomalous to find that adefendant has a duty to provide reasonably safe premises and at thesame time deny a plaintiff recovery from a breach of that sameduty. The party in the best position to eliminate a dangerouscondition should be burdened with that responsibility. If adangerous condition is obvious to the plaintiff, then it is obviousto the defendant as well.
The defendant, the Court of Appeal ruled, should fix the problemand, therefore, abolished the so-called “open and obvious” defenseand decided to apply the true comparative negligencedoctrine.
Because the jury found there was negligence, the trial judge erredin construing the open and obvious defense as a complete bar whenit really is only a mitigation of damages on a comparativenegligence basis under Miss. Code Ann. Sec. 11-7-15. The verdict infavor of the property owner was reinstated.
Concluding that the plaintiff, as an invitee, was injured by anatural condition on a remote part of the business premises andthat “the danger was known and appreciated” by the plaintiff, thecase was sent back to the trial court.
Because the area was thickly wooded and plaintiff's view of thesinkhole from the base of the hill may have been obscured byunderbrush, the questions of what plaintiff could see and whatplaintiff could reasonably be expected to know prior to commencinghis assent are still in dispute.
Finally, the trial court found that even if the hunting club wasnegligent in not filling the hole, “the act of the plaintiff inattempting to drive up the hill, knowing the ATV's tendency to tiltbackwards, was an intervening cause of his injuries” was dismissedby the Court of Appeal. Inherent in this determination is thefinding that plaintiff knew that if he lost control of his ATV, hemay fall into the sinkhole and become injured.
The Court of Appeal also noted that at least three factors may befound to be partially or fully at fault in causing plaintiff'saccident:
1. The plaintiff's actions in attempting to ride up the hill
2. The plaintiff's ATV's propensity to lift its front wheel whenriding up a hill
3. The existence of a large sinkhole on the hill and near the roadplaintiff was attempting to navigate.
The court determined that reasonable minds could differ on thesequestions of causation. A determination of what factors caused theplaintiff's accident and subsequent injuries, and the apportionmentof fault to the factors, can only be made by the trier of factafter a full trial on the merits.