Liability

One of the most widespread landowner concerns is about their potential liability. New Hampshire has a statute that limits the liability of landowners that allow public access to their land. The key to understanding this is in the concept of "duty of care". To those you invite to your property you owe a duty of care. If your land is unposted, or your land is posted but you give permission for any of the uses listed within this statute without asking for anything in return, such as a fee, you have no duty of care for the user's well-being. As with most everything, there are a few exceptions. Although the existence of a statute doesn't guarantee that you won't be sued, it is a powerful defense if you are.

CJ White, manager of Eastern Mountain Sports in Concord, NH enjoying fishing, one of the six approved recreational activities allowed and open to the public on all recreational discounted current use lands (1.48 million acres in total). -Photo courtesy of CJ White.

RSA 212:34 Duty of Care

I.  An owner, lessee or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, trapping, camping, horseback riding, water sports, winter sports or OHRVs as defined in RSA 215-A, hiking, sightseeing, or removal of fuel wood, or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purposes, except as provided in paragraph III hereof.

II.  An owner, lessee or occupant of premises who gives permission to another to hunt, fish, trap, camp, ride horseback, hike, use OHRVs as defined in RSA 215-A, sightsee upon, or remove fuel wood from, such premises, or use said premises for water sports, or winter sports does not thereby:

     (a) Extend any assurance that the premises are safe for such purpose, or

     (b) Constitute the person to whom permission has been granted the legal status of an invitee to whom a duty of care is owed, or

     (c) Assume responsibility for or incur liability for an injury to person or property caused by any act of such person to whom permission has been granted except as provided in paragraph III hereof.

III.  This section does not limit the liability which otherwise exists:

     (a) For willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or

     (b) For injury suffered in any case where permission to hunt, fish, trap, camp, ride horseback, hike, use for water sports, winter sports or use of OHRVs as defined in RSA 215-A, sightsee, or remove fuel wood was granted for a consideration other than the consideration, if any, paid to said landowner by the state; or

     (c) The injury caused by acts of persons to whom permission to hunt, fish, trap, camp, ride horseback, hike, use for water sports, winter sports or use of OHRVs as defined in RSA 215-A, sightsee, or remove fuel wood was granted, to third persons as to whom the person granting permission, or the owner, lessee or occupant of the premises, owed a duty to keep the premises safe or to warn of danger.

Identified in the first paragraph of the statute are the land uses that the landowner, lessee or occupant owes no duty of care to others for. The six traditional land uses required to receive the Recreational Discount are listed here; as well as OHRVs (including snowmobiles, ATV's and dirt bikes) and other primarily recreational uses.

The second paragraph clearly states that if the owner, lessee or occupant gives permission to another for any of the listed uses, they are not extending any assurance that the land is safe for such purpose. It also says that the act of giving permission does not give the potential user the legal status of an invitee to whom a duty of care is owed.

The exceptions...
There are three exceptions to this law, when the liability which otherwise exists is not limited by this statute.

1. The first exception is if you willfully or maliciously fail to warn others of a dangerous condition, use, structure or activity. It is the injured user's burden to prove the landowner's failure to warn was willful or malicious. Although these terms are not defined in this statute, a federal district court case that was appealed to the First Circuit Court of Appeals (which includes New Hampshire and is one step below the United States Supreme Court) defined this concept as "a voluntary act committed with an intent to cause its results." In other words, an intentional act designed to cause injury. Does this sound far-fetched? Legally it is difficult to prove as well, and there is little case law involving the application of this statute.
   
   
2. The second exception to this statute is if you charge a fee, or receive something in return ("consideration") for the use of your land, then you have a duty of care to the users. An example of this would be a pick-your-own farm. Since everyone's land and land uses are idiosyncratic, landowners involved with this type of land use should consult with their attorney regarding their liability potential.
   
   
3. The third exception is a protection to those the landowner owes a duty of care to. If someone who had been given permission to use the land for any of recreational uses listed within this statute were to intentionally injure an invited person, the landowner's liability toward the invited person is not limited by this statute.
   
   This article is intended as an explanation of relevant New Hampshire statutes, and should not be considered to be legal advice. SPACE cannot give legal advice regarding your particular situation. For information specific to your land use, please consult with your attorney.
   
   Snowmobile and ATV use
   Even broader protection for landowners is found within the chapter concerning Off Highway Recreational Vehicles, which includes snowmobiles, dirt bikes and ATV's.

215-A:34 Posted Land (Effective Jan 1, 2006)

I. An owner may post all or any portion of his land against use by an OHRV. Such notices may read "SNOW TRAVELING VEHICLES PROHIBITED" or "OHRVs PROHIBITED" or may have in lieu of these words an appropriate sign with the designated symbol of sufficient size to be readable at a distance of 50 feet indicating that use of this land is prohibited for the purpose so specified. Whoever without right enters such land that has been so posted shall be guilty of a violation. Provided, however, that failure of an owner to post his land as provided in this section shall not be construed as granting any license to users of OHRVs to enter said premises, nor shall said failure be construed as implying any duty of care to the user of an OHRV by the owner.

II. [Repealed.]

 

The statute specifies that failure to post does not grant license to enter the premises, nor does failure to post imply any duty of care to the user of an OHRV by the landowner. Failure to post against OHRV use is not to be interpreted as an invitation for such use by the landowner. This is an important distinction, as it differs from other recreational land uses. Generally, land left unposted signifies to potential users that the landowner allows use by others. This is not the case with OHRV use.