You’ve heard “A man’s home is his castle”. That same concept should apply to control of your commercial stable property. It might – but only to an extent. This article addresses persons on your property, their respective legal status, and what an owner can, cannot, should, and MUST do to control liability exposure.
The law defines various status categories to persons on your property. These include:
- Trespasser – a person(s) who enters upon your land without permission
- Known Trespasser: a person(s) who with your knowledge enters upon your land without permission
- Licensee: A social guest on your property with your permission, but not for business purposes
- Invitee: A person on your property for actual and potential business purposes, and
- Minors: Children under the age of 18
The trespasser, who is on your land without permission, is due the lowest level of care for his/her safety. “Trespassers” can include not only neighbors using your property to dog walk, hike or hunt. They can also include persons who mistakenly exercise access your property unaware they are trespassing (no defense, it’s still a trespass!); ex-husbands or wives, or other parties attempting to self-repossess horses with disputed ownership. Trespassers may also include a person who had the legal right to enter your property but commits a wrongful act after entry (i.e. someone with an alleged ownership interest in a horse boarded at your stable who refuses to leave after being asked to leave, or a guest who is intoxicated). How do you handle these occurrences?
Most people think a landowner owes no duty to a trespasser where they are, after all, trespassing. Wrong. An owner owes a minimal duty to avoid harming the trespasser. For instance, owners with farm acreage know its possible people will knowingly or unknowingly enter the property to hike, birdwatch or hunt. While a trespasser assumes the risk of being injured by conditions on the property, the owner still must “refrain” from “intentionally” harming a trespasser. Thus a trespasser who is injured by a falling tree, wildlife attack, or fall from an eroded creek path has no right to sue. Conversely, a trespasser who was blocked by an unflagged barb wire string put across a previously open road to the property may have a cause of action against the owner who strung barb wire with an intent to block people accessing the road, with foreseeable harm.
A known trespasser is one who, while unidentified specifically, has made his or her presence known.
An owner’s duty of care towards a known trespasser rises slightly above that due to an unknown trespasser, and is again predicated upon actions which do not intentionally harm the known trespasser.
1. Identified Known Trespassers
If the trespasser can be identified, the owner has a legal obligation to “warn” that individual they are trespassing and must stop. This might include neighbors who frequently access your property with their dogs, or neighbor children who come over to “pet the horses” without your permission. Identify those parties and send a written letter, with delivery receipt requested, informing them they are trespassing, they are placing themselves in potential danger for which you are not responsible, they are breaking the law and must stop. If children trespassers are involved, inform the parents of the potential harm or injury to the child that might result if they do not stop the trespass.
2. Known but Unidentified Trespassers
A duty can be owed even to trespassers who you know are trespassing (i.e. evidence of truck tracks on a dirt road and discarded beer bottles), but cannot be identified. Your duty is to post some type of notice where it can be seen, and IF you block access, you do so in a manner that will not injure the trespassers. An example is hunters who regularly trespass on land through a road entering property. In one reported case, the deservedly irritated landowner inserted cut-off poles across the drive. The poles – visible in daylight – could not be seen at night. The trespassers attempted to enter the road at night at a moderate speed, but unaware that new poles blocked the road. The landowner was held liable to the trespassers for knowingly creating a situation causing them injury. Had they placed reflectors on the poles, the outcome may have been different.
A licensee is a person to whom permission is granted to be upon the property, for reasons other than commercial gain. The “licensee” is typically referred to as a “social guest”. Thus if you have a boarder with family members or friends present, those individuals are “licensees”. Licensees also include persons attending social events on your property, or guests of your clients who are using the premises for a non-business related event. A stable owner bears only a moderate duty of care to “licensees”, which is defined only as a duty to warn of any dangerous conditions known to the owner, but unknown to the licensee.
At a stable, the Equine Activity Liability Act warning sign covers this warning in most respects. States possessing such statutes require posting of the signs at all areas where access to horses occur. The signs warn that horses or livestock can be “inherently dangerous” due to their natural behaviors, and state that parties “participating” in equine or livestock activities assume the risk of injury or death related to those activities. Stable owners should post the relevant warning signs not only at the main entrance to the arena or stall areas, but also at any access points to the equine or livestock areas. Thus if a barn has three doors into the stall and arena areas, three warning signs should be posted. The stable owner should additionally take photographs of the signs which reflect the date and location of the photo, with the photo containing sufficient “perspective” to identify the location where the sign is posted. Lacking this “perspective”, the photo bears little legal relevance as an exhibit in a later legal proceeding.
Warning signs should also be posted at (1) stable aisles, with instructions not to pet horses and to exercise caution while walking under cross ties; (2) paths between stalls and arenas; (3) arena access areas, and (4) trailer loading locations.
Farm properties have other potentially hazardous areas. Shaving and hay storage barns should have warning signs posted that they are “potentially dangerous and off limits to unauthorized personnel”. Similar postings should be placed by ponds, trails with dangerous erosion exposures, rotted well coverings, or grown-over barbed wire. If an area presents a substantial risk of injury, that area should: (1) be identified with some form of warning sign or yellow caution ribbon; (2) be blocked off entirely, and/or (3) rebuilt or repaired.
An “invitee” is on your property because they were “invited” for a commercial purpose. This might include buy/sale of horses, lessons, purchase of property, clinic attendance, boarding or considering boarding horses. As the “invitee” is there specifically at your invitation to benefit you commercially, the “invitee” deserves and commands the highest degree of care towards their safety while on your property. Legal protections for the invitee mimic those for licensees, but require even more attention to detail. For instance, if you’re having an event following a snow storm, you must take reasonable steps to have snow and ice removal in ingress and egress areas. Slip and fall exposures must be attended to. Any area or condition that poses a “foreseeable” harm or injury exposure must be corrected before the event. Understand that “foreseeability” is defined as whether the ordinary person in the stable owner’s position, knowing what he/she knew or should have known, could anticipate that harm of the general nature suffered was likely to result.
For this reason, stable owners bear the highest duty to regularly conduct and record premise liability inspections. These should include, at a minimum, review of the parking lots, arenas, fencing, stalls, and aisles. Any issue – however small – that could result in a foreseeable injury to invitees should be corrected with some warning sign posted until that correction occurs.
Minors are children under 18 years old. A property owner again owes an extremely high duty to care for minors. The law of “attractive nuisance” recognizes that children are attracted to, and like to play, in potentially dangerous areas. The owner must take steps to keep children away from these areas (i.e. construction equipment, dirt piles, and hay or shavings barn). Owners must also warn parents against these conditions and require parents to assume supervision of their children at all times. CHILDREN UNDER 15 SHOULD NOT BE DROPPED OFF AND LEFT UNATTENDED AT THE STABLE!
Compliance with these steps can be irritating to a landowner. Yet no one wants an injury occurring on their property. Recognizing the legal status of persons on your property, while adopting these risk control measures, will provide you peace of mind as to your liability exposure.
© Denise E. Farris. (February, 2018). This article may not be reprinted or reproduced in any manner without the consent of the author. This article is not intended to be the provision of legal advice. For fact-specific questions, refer to an attorney licensed in your state. Contact: Denise Farris, Farris Legal Services, LLC. [email protected].
This article provides general coverage of its subject area. It is provided free, with the understanding that the author, publisher and/or publication does not intend this article to be viewed as rendering legal advice or service. If legal advice is sought or required, the services of a competent professional in your state should be sought. The publisher and editor shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.