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#99154 10/09/07 07:22 PM
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Questions about liability, how many of you let your neighbors or neighbors kids fish in your pond? What do you tell them about any liability? I have signs posted saying I am not responsible for accidents, I don't have a lot of people who fish the pond besides family, but the next door neighbor had a handshake agreement to be able for his family to fish the pond, he did partially stock the pond last year. But with all the sue happy people around this world, and the fact that my property isn't fenced off I am a little concerned about this. I am a very new pond owner. Thanks for any advice.

toolmaan78 #99156 10/09/07 08:09 PM
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Toolmaan (pronounced tool-mahn?)
We fired up some good debate that is kinda similar to your question on this thread .
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I have read accounts (possibly supported within the thread I linked) where there are short, concise contracts used by landowners that allow access to individuals based on a waiver of owner-liable claims. In other words, you can hunt on my property, but don't come cryin' when you break your leg falling into the ravine.

toolmaan78 #99157 10/09/07 08:15 PM
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toolmaan,
I can't answer your question, but it seems to me that that as pond owners we face liability whether we allow someone on the property or not. I have two boys, 10 and 12 yoars old, so of course, they have their friends over to fish, swim, and paddle boat all the time. My first question to all the kids and their parents is "Can you swim?" So far, they all answer "yes".

Rule #1 is the buddy system. No one goes near the pond alone.
Rule #2 is that every paddle boat has to have a life preserver in it at all times.

Of course, your rules will be different as is your pond, your guests ages, etc. But I thought I'd share how I handle it.

By the way, my neighbor just installed a small swimming pool. The county code says he has to put a 6' fence around it. The pool is right next to the 6 acre pond.

Last edited by Jersey; 10/09/07 08:17 PM.

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toolmaan78 #99160 10/09/07 08:27 PM
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toolmaan, every case will be situational, but I would always bet that the liability will rest with the land owner no matter how stupid the claimant (or victim). Sometimes I think that the word "insurance" these days is synonymous with "legal defense expenses not coming out of your pocket."

As far as allowing the neighbor & his family, that does depend on the neighbor and how he contributes, how respectful his kids are, etc., as to your desire to have any liability.

If the pros of the neighbor outweigh the cons, and you still have a concern for liability, I would think you could get the neighbor to sign some kind of liability release form. I'm sure you could still be sued, but it might help to minimize legal defense expenses.

Obviously, that could be a touchy topic to bring up with the neighbor, but I feel you have every right to protect yourself, and if others can't understand that, well...tough.

To answer your first question, I don't allow any of the neighbors to my property on my property. I'm also and absentee land owner. People to fish and hunt on my property, however, they don't have permission, and they know they don't have permission.

EDIT: I hadn't seen Brettski or Jersey's replys before I posted mine. Good points.

Last edited by Sunil; 10/09/07 08:30 PM.

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toolmaan78 #99165 10/09/07 09:44 PM
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No matter what you do, you will be responsible if something happens on your property and some PI attorney is after you.

I suggest that you talk to your insurance contact about an Umbrella policy to cover the excess liability over and above your basic policy.


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Dwight #99180 10/10/07 07:23 AM
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We have only had other peoples' kids at the pond a couple of times. Little kids, which is loosely defined as under 7, wear a life preserver while at the pond. No kids fishing without adults at the pond to help out and keep an eye on things. Fortunately the layout and lack of vegetation at the pond are such that from any point you can see the entirety of the shoreline. If there would places hidden from view, I might be sweating bullets.

We have a lot of people, age 4 to whatever, who are on our place to ride horses (another great "attractive nuisance"). No one gets on a horse without a helmet, proper shoes (that won't hang up in stirrups), and a signed liability release form (for kids, signed by the parents). We have a large liability umbrella policy on account of the horse business, or I would have to consider getting one for the pond.

Last edited by Theo Gallus; 10/10/07 07:24 AM.

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Theo Gallus #99196 10/10/07 08:26 AM
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Here are the basics. Check you insurance. Each state may vary.

Possession of Premises
Within the context of premises liability, a person "possesses" land or premises when:

The person is in occupation of the land with intent to control it;

The person has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it; or

The person is entitled to immediate occupation of the land, if no other person is in possession as just defined.

The Status of the Plaintiff
Under the premises liability law of most jurisdictions it is necessary to determine if the plaintiff was an "invitee", a "licensee", or a "trespasser". The defendant's duty to the plaintiff can vary significantly depending upon how the plaintiff is classified. (Some jurisdictions have modified these definitions.) In the definitions below, "premises" should be read broadly to include land, premises, or places of business. The "possessor" is the person in possession of the premises.

Invitee
An invitee is person who is invited to enter or remain on the premises for a commercial benefit to the possessor of premises, or for a purpose directly or indirectly connected with business dealings with the possessor. An invitation may be either express or implied. (Example: A customer in a department store is an invitee, as the department store actively invites the public to come to the premises and to purchase merchandise while on the premises.) A premises owner owes the highest duty of care to an invitee.

Typically, a possessor has a duty to use ordinary care to warn or otherwise protect an invitee from risks of harm from a condition on the possessor's premises if:

the risk of harm is unreasonable, and
the possessor knows or in the exercise of ordinary care should know of the condition, and should realize that it involves an unreasonable risk of harm to an invitee.
The possessor may have a duty to periodically inspect the premises for the introduction of hazards to invitees. For example, a grocery store may be obligated to periodically check its floors for the presence of spilled or broken merchandise, and to make sure that its products are not likely to fall from its shelves.

Licensee
A licensee is a person who is invited to enter or remain on the premises for any purpose other than a business or commercial one with the express or implied permission of the owner or person in control of the premises. A social guest is considered to be a licensee, not an invitee.

Typically, a possessor of premises is liable for physical harm caused to a licensee by a condition on the premises if, but only if, the plaintiff establishes the following three elements:

The possessor knew or should have known of the condition, should have realized that it involved an unreasonable risk of harm to the licensee, and should have expected that the licensee would not discover or realize the danger;
The possessor failed to exercise reasonable care to make the condition safe, or to warn the licensee of the condition and the risk involved; and
The licensee did not know or have reason to know of the condition and the risk involved.
For example, if a homeowner knows that one of the steps leading into a basement is broken (but would not appear to be broken to a reasonably observant individual), the homeowner may be liable to a guest who, without notice of the broken step, is injured when the step gives way.

Trespasser
A trespasser is a person who goes upon the premises of another without an express or implied invitation, for his or her own purposes, and not in the performance of any duty to the owner. It is typically not necessary for a defendant to establish that the trespasser had unlawful intent in making such an entry.

Where premises owners are not aware of the presence of trespassers, they typically have no duty to warn a trespasser of any dangers or to make their premises safe for the benefit of a trespasser. If the premises owner is aware of the presence of trespassers, the premises owner may be obligated to exercise ordinary care in relation to the safety of a trespasser.
















Theo Gallus #99197 10/10/07 08:29 AM
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Brettski, that certainly is an interesting thread.

The real danger, IMO, is the other person's insurance company. They don't want to get stuck with a large claim and will do everything they can to get as much money from you and your insurance company as they can.

In South Dakota, we have a law that says that a landowner is not responsible for accidents on their land when they give permission to someone to hunt or fish. Without this law, landowner permission to hunt pheasants would stop almost totally. However, there is one opening and that is for gross negligence. You tell me what gross negligence is?

In some cases, signs might lower our exposure to liability. Rather than ideas of how to keep trespassers off our land and unbrella insurance, how else can we protect ourselves from lawsuits?

This subject is so important to all of us, that I hope we get some insurance people, legal people etc. to give us some guidelines. Every state has different laws, of course, but it would be nice to have some general guidelines.


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toolmaan78 #99206 10/10/07 10:23 AM
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I can't remember where I heard/read this but I recall that Pennsylvania had a law somehwere that limits the liability of a pond owner. It was supposed to encourage people to have ponds. I never was able to verify it and I'm sure not counting on it. I plan on posting "No Trespassing" signs around the property and around the pond.

RobA #99215 10/10/07 01:38 PM
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West's Annotated Mississippi Code


§ 89-2-1. Purpose; effect of opening property to public use



The purpose of this chapter is to encourage persons to make available to the public land and water areas for outdoor recreational purposes. A lessee or owner who opens a land or water area to the public for outdoor recreational purposes shall not, by opening such land or water for such use:


(a) Be presumed to extend any assurance that such land or water area is safe for any purpose;

(b) Incur any duty of care toward a person who goes on the land or water area; or

(c) Become liable or responsible for any injury to persons or property caused by the act or omission of a person who goes on the land or water area.


The foregoing applies, whether the person going on the land or water area is an invitee, licensee, trespasser or otherwise.


The term "outdoor recreational purposes" as used in this chapter shall include, but not necessarily be limited to, hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing and visiting historical, archaeological, scenic or scientific sites.

§ 89-2-5. Liability for willful injury



This chapter does not relieve any person of liability which would otherwise exist for deliberate, willful or malicious injury to persons or property. The provisions hereof shall not be deemed to create or increase the liability of any person.

Be careful of this though.

§ 89-2-7. Application



The provisions of this chapter shall not apply if any fee is charged for entering or using any part of such land or water outdoor recreational area, or if any concession is operated on said area offering to sell or selling any item or product to persons entering thereon for recreational purposes. Said chapter shall not apply unless public notice of the availability of such lands for such public use shall have been published once annually in a newspaper of general circulation in the county where such lands
are situated.

§ 89-2-23. Duty of care; warning



Except as provided for in Section 89-2-27, a landowner: (a) shall owe no duty of care to keep land or premises safe for entry or use by others for hunting, fishing, trapping, camping, water sports, hiking or sightseeing; and (b) shall not be required to give any warning to any person entering on land or premises for hunting, fishing, trapping, camping, water sports, hiking or sightseeing as to any hazardous conditions or uses of, or hazardous structures or activities on such land or premises.

§ 89-2-25. Permission to use land


Any landowner who gives permission to another person to hunt, fish, trap, camp, hike or sightsee upon land or premises shall not, by the sole act of giving such permission, be considered or construed to have:


(a) Extended any assurance that the premises are safe for such purposes;

(b) Caused the person to whom permission has been granted to be constituted the legal status of an invitee to whom a duty of care is owed; or

(c) Assumed responsibility or liability for any injury to such person or his property caused by any act of such person to whom permission has been granted, except as provided in Section 89-2-27.

§ 89-2-27. Circumstances supporting liability



This article shall not limit any liability which otherwise exists for:


(a) Willful or malicious failure to guard or warn against a hazardous condition, use, structure or activity;

(b) Injuries suffered in any case where permission to hunt, fish, trap, camp, hike, sightsee or engage in any other lawful activity was granted for a consideration other than the consideration, if any, paid to the landowner by the State of Mississippi, the federal government, or any other governmental agency; or

(c) Injuries to third persons or to persons to whom the landowner owed a duty to keep the land or premises safe or to warn of danger, which injuries were caused by acts of persons to whom permission to hunt, fish, camp, hike, sightsee or engage in any other lawful activity was granted.


-----------------------------------------------------------------


47 A.L.R.4th 262 (Originally published in 1986)


American Law Reports
ALR4th
The ALR databases are made current by the weekly addition of relevant new cases.

Effect of statute limiting landowner's liability for personal injury to recreational user
















toolmaan78 #99243 10/10/07 07:35 PM
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Wow, thanks for all the reply's!
I spent some time and read that thread that Brettski put up, good stuff. I have signs from Wal Mart at this time taht say no trespassing. I live on the property so I can watch it to a certain extent. But From anywhere I am including on the water I cannot view all of the shoreline or even half of it. I have lived here a month and so far it hasn't been a issue, but I don't want it to be an issue either. I think I am going to visit with my insurance agent.

toolmaan78 #99248 10/10/07 09:02 PM
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Signs, releases and lease agreements are all good ideas but they will not prevent someone from bringing suit against you if they are injured on your property. People can and will sue you if they are injured, even if they are tresspassing. What you need and want to have if someone is injured on your property is a good liability policy. Most property owners can add their farm & ranching interest to the liability portion of their Homeowner Policy. In Texas most Homeowner Insurance Companies will let you have a limit of 500k to 1 mill in liability limis on the Homeowner Policy, you have to ask for these limit, they are very inexpensive and reasonable. On top of that you can purchase and Umbrella Policy in increments of 1 million dollars that will go over the limits of your underlying Homeowner Policy Limits.

Some VERY IMPORTANT points to ask your Insurance Agent are:
1) Are Defense Cost and Attorney Fees in addition to your liability limits?
2) Be sure your Homeowner Liability and Umbrella Liability Policy do not exclude Farming and Ranching interest. Some Policies do, READ YOUR POLICY and ask your agent.
3) If you have a business venture on your property or charge people to come onto your propety for fishing, hunting, horseback riding etc., you may need Commercial Liability Policies instead of just your Homeowner Liability Policy. Most Homeowner Liability Policies exclude any type of business venture. In this case you would need a Commercial Liability Policy with a Commercial Umbrella Policy.

There is a big difference between Commercial and Personal Libility Policies and Umbrella Policies. Be sure your agent knows exactly what exposures you have at your place and address them. Don't be cheap. You want to be sure you have the correct policy should you need it.

fishinglth #99259 10/11/07 01:58 AM
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ya'll just as well go get a condo without water feature

cliffbrook #99260 10/11/07 05:47 AM
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 Originally Posted By: cliffbrook
ya'll just as well go get a condo without water feature


Or stay away from our computer and stay at our ponds.

Sitting here reading this thread is a dose of reality. It's all just a little frightening and depressing. When I'm at my pond, I feel happy and secure. While there, I don't even think about the perverted laws and people that could threaten me, my family, and my land.

I guess I should go hide at my pond at midnight and confront my trespassers, and tell them to be sure to wear PFD's. \:\)

It's ironic that I would probably be exposed to less legal jeopardy by shooting interlopers.

bobad #99269 10/11/07 08:33 AM
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I have a CYA file an inch think, but like my insurance agent (my wife) and my attorney’s say….if someone wants your money bad enough your in for a fight. After a local farmer got sued by a deer hunter that feel out of a tree stand, and a trespassing kid on a ATV hit a barbed wire fence sued another local land owner…we took a hard look at our potential liability issues. Now..for the really ugly story. You think your friends are truly your friends? Have you ever had an Attorney say “ I think we can get six, maybe seven figures out of these folks and there insurance company”? I’ve seen it happen time and time again. CYA!!!

bobad #99270 10/11/07 08:41 AM
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The real irony here is that when you've finally earned "something to lose," you then have to protect it, because other lowlifes will try to help you "lose" what you've worked so hard to gain.


Excerpt from Robert Crais' "The Monkey's Raincoat:"
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Sunil #99321 10/11/07 08:02 PM
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ewest, can you explain what these two clauses mean? I'm always afraid of the exceptions.

b) Injuries suffered in any case where permission to hunt, fish, trap, camp, hike, sightsee or engage in any other lawful activity was granted for a consideration other than the consideration, if any, paid to the landowner by the State of Mississippi, the federal government, or any other governmental agency; or

(c) Injuries to third persons or to persons to whom the landowner owed a duty to keep the land or premises safe or to warn of danger, which injuries were caused by acts of persons to whom permission to hunt, fish, camp, hike, sightsee or engage in any other lawful activity was granted.


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Norm Kopecky #99385 10/12/07 01:05 PM
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I checked into this with a libility lawyer one time and concluded that my best bet is to post "No Trespassing" signs. Any other signs warning of danger or any agreements that try to avoid liability are likely to be used against you as evidence that you knew your property was dangerous. As others have basically said above, I don't thing there is a way to win on this subject. Everyone go write your congressman to support some sort of liability reform. I think the best reform would be to simply required that anyone losing a suit pays for both parties litigation costs. That will fix frivolous suits and ambulence chasing lawyers.


Gotta get back to fishin!
bz #99472 10/13/07 10:29 AM
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 Originally Posted By: bz
.....Everyone go write your congressman to support some sort of liability reform. I think the best reform would be to simply required that anyone losing a suit pays for both parties litigation costs. That will fix frivolous suits and ambulence chasing lawyers.


Exactly! That's why Europe doesn't have so many frivolous lawsuits because if you lose, you pay the other party for bringing them to court.

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Once I sued a jerk in small claims court and I won. The judge made the guy pay my filing costs.



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 Originally Posted By: bz
Everyone go write your congressman to support some sort of liability reform. I think the best reform would be to simply required that anyone losing a suit pays for both parties litigation costs. That will fix frivolous suits and ambulence chasing lawyers.


Good thoughts BZ, but unfortunately, most of the congressmen are lawyers themselves. That's why we will never have meaningful tort reform. Democrats and Republicans fight it out on every conceivable issue. The only thing on which they have common ground is tort reform.

Your liability lawyer is probably correct. I guess I need to take down my "no fishing" signs. The signs could be construed as an attraction to trespassers!


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