Ann Forest Burns

Forest landowners often ask whether allowing others access to their property makes them liable for injuries suffered by those allowed onto the property. The answer depends on the reason the injured party is on the land. A landowner owes a different duty of care to different classifications of users.

A landowner owes the highest duty of care to a business invitee. This is usually someone who comes to the property to benefit the landowner in some way. The landowner owes the invitee a duty of "ordinary care." Generally, the landowner must make the premises "reasonably safe" for the use that the invitee will make of them. She must warn the invitee of dangerous conditions that she knows or should know.

Examples of business invitees to forestland are consulting foresters, loggers, government inspectors and paying recreational users. A brush picker or cone picker who pays for the privilege or otherwise provides a benefit to the landowner becomes a business invitee. If her presence is merely tolerated, she is considered a "licensee."

A licensee is someone whose presence on the land is tolerated by the owner, but does not confer a benefit on the landowner. The legal term can be somewhat confusing because the granting of a license to use property usually involves the payment of money, in which case the legal term for the user would be business invitee, rather than licensee. The duty to a licensee is "reasonable care." The distinction between this and the duty owed to the business invitee has to do with what constitutes a safe condition for the use being made by the visitor.

For example, a road surface that is considered safe enough for a licensee might not meet the standard of care owed to a business invitee because of the nature of the work being done by the invitee and the benefit to the landowner of the invitee's use of the property. A licensee probably has a greater duty to keep herself out of harm's way than does a business invitee. The landowner has the duty to warn the licensee of any known dangerous condition on the property or take steps to make the condition safe.

A trespasser is someone who comes onto property without the permission or tolerance of the landowner. The landowner owes the trespasser very little duty of care. She may not cause the trespasser injury, either by taking an action against him (such as setting a trip gun) or by a callous disregard for his safety (such as using cable gates in an area where motorcyclists are known to ride). Those that disregard posted property are usually viewed as trespassers.

Recreational use statutes

State recreational use statutes and their interpretations by local courts are an important consideration in deciding whether to post one's land, leave it open to free public recreation or attempt to control access and charge a fee. Under Washington law, a landowner that does not charge a fee is liable only for injuries caused by "known latent artificial dangerous conditions." See RCW 4.24.200 and .210. The landowner has a duty to warn of (e.g., signing) or prevent harm by (e.g., fencing off) "known" (to the landowner) "latent" (not readily apparent to the general class of users), "artificial" (not naturally occurring) "dangerous" (reasonably likely to cause harm) conditions. Because the standard of care imposed by the statute is lower than that owed to business invitees, a landowner must carefully consider whether to charge a recreational use fee, thereby removing herself from the protection of the statute.

Whatever the legal status of a visitor, if an injury occurs, the landowner may certainly be sued. Even if there is a statute that confers immunity from liability, the cost of defending the lawsuit and proving the immunity exists can be considerable. Therefore, forest landowners are well advised to purchase liability insurance that will cover the costs of their legal defense, as well as payment of any damages suffered by an injured business invitee or licensee.

Ann Forest Burns and Bruce H. Williams are partners in the Seattle law firm, Burns & Williams. Their practice is concentrated on forestry related matters, such as timber contracts, administrative appeals and estate planning for forest landowners. They can be found at www.lawyers.com/aforestburns or aforestburns@msn.com or the old fashioned way by calling 206-527 5942.