Down to Cases: Leased Hunting Property Raises Risks

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

I found a case from Louisiana that might be useful. The case was resolved at trial only to be reversed on appeal because of factual disputes. The case establishes that both the lessor and lessee of property for hunting purposes can be held liable to anyone who is injured as a result of using the property.

Any person allowing property to be leased for the purpose of hunting should advise his insurer that he will, on occasion, lease his property for that purpose and that the insurer should agree to cover that risk or obtain separate insurance from the lessee to protect 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 members of 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 Appeals dealt with Taylor's question. The plaintiff, Cunningham, sought damages for personal injuries arising from the use of an all-terrain vehicle (ATV) where the plaintiff was injured on land in Mississippi leased for hunting by the defendant, the Eight Point Hunting Club. The plaintiff was an officer in the hunting club and one of its founding members.
Background
Cunningham was riding his three-wheeled ATV on the leased property to assist in the construction of a deer stand. On his way to the site, the plaintiff had to travel up a newly constructed “ridge road,” which was cut around a large sinkhole on a hill in a wooded area. As he rode to the top of the hill, the front wheel of the plaintiff's ATV began to rise off of the ground. In an attempt to restabilize the ATV, the plaintiff leaned forward to put more weight on the front end. This caused the rear wheels of the ATV to lose traction and the ATV began rolling backward down the hill. The plaintiff attempted to jump clear of the ATV, but instead fell into a sinkhole. The ATV fell into the sinkhole on top of plaintiff.
The plaintiff sued the hunting club, its insurer, Northland Insurance Co., and Yamaha Motor Corp. U.S.A., the manufacturer of the plaintiff's ATV. The theory of liability against the hunting club was that it was negligent in failing to repair a dangerous condition on its premises (i.e., the sinkhole).
The plaintiff claimed that the trial court erred in determining that even if the hunting club was negligent in not filling the sinkhole, “the act of the plaintiff in attempting to drive up the hill, knowing the ATV had a tendency to tilt backwards, was an intervening cause of his injuries.”
The plaintiff testified in his deposition that prior to his accident, he knew of the existence of the sinkhole into which he fell and he discussed with another hunter the possibility of filling in the sinkhole. The sinkhole had existed for a period of years, but had recently increased enough to where it had washed out the “ridge road” that was used to get to a deer stand.
The plaintiff testified that in a prior conversation, he said to that hunter that “if we don't run out of our allotment for money on roads, go ahead and put one. But if that hole is as big as you say it is, you have to pay it because it's really your stand.” As he testified in his deposition, the other hunter eventually decided to have the bulldozer operator clear a path around the sinkhole instead of filling it.
Judgment
The Court of Appeal concluded that it is anomalous to find that a defendant has a duty to provide reasonably safe premises and at the same time deny a plaintiff recovery from a breach of that same duty. The party in the best position to eliminate a dangerous condition should be burdened with that responsibility. If a dangerous condition is obvious to the plaintiff, then it is obvious to the defendant as well.
The defendant, the Court of Appeal ruled, should fix the problem and, therefore, abolished the so-called “open and obvious” defense and decided to apply the true comparative negligence doctrine.
Because the jury found there was negligence, the trial judge erred in construing the open and obvious defense as a complete bar when it really is only a mitigation of damages on a comparative negligence basis under Miss. Code Ann. Sec. 11-7-15. The verdict in favor of the property owner was reinstated.
Concluding that the plaintiff, as an invitee, was injured by a natural condition on a remote part of the business premises and that “the danger was known and appreciated” by the plaintiff, the case was sent back to the trial court.
Because the area was thickly wooded and plaintiff's view of the sinkhole from the base of the hill may have been obscured by underbrush, the questions of what plaintiff could see and what plaintiff could reasonably be expected to know prior to commencing his assent are still in dispute.
Finally, the trial court found that even if the hunting club was negligent in not filling the hole, “the act of the plaintiff in attempting to drive up the hill, knowing the ATV's tendency to tilt backwards, was an intervening cause of his injuries” was dismissed by the Court of Appeal. Inherent in this determination is the finding that plaintiff knew that if he lost control of his ATV, he may fall into the sinkhole and become injured.
The Court of Appeal also noted that at least three factors may be found to be partially or fully at fault in causing plaintiff's accident:
1. The plaintiff's actions in attempting to ride up the hill
2. The plaintiff's ATV's propensity to lift its front wheel when riding up a hill
3. The existence of a large sinkhole on the hill and near the road plaintiff was attempting to navigate.
The court determined that reasonable minds could differ on these questions of causation. A determination of what factors caused the plaintiff's accident and subsequent injuries, and the apportionment of fault to the factors, can only be made by the trier of fact after a full trial on the merits.