Daily Development for Wednesday, November 17, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

LEASES; CHARACTERIZATION; HUNTING RIGHTS: A non-exclusive right to hunt ducks for a fee on the land of another is a “lease” in Louisiana within the meaning of the states Recreational Use Immunity statute, which provides protection to lessees of recreational property.

Richard v. Hall, 874 So. 2d 131 (La. 2004)

Plaintiff’s husband tragically died when a gun accidentally discharged in a duck blind that decedent and defendant’s employee, Hall, were sharing - each of them having gone there pursuant to separate arrangements with the owner of the land, which charged a fee for hunting rights on the land.

Defendant was a company engaged in business unrelated to duck hunting, and Hall was the company president. The company had acquired non exclusive hunting rights on the property only a few weeks before. Although the company took the position at trial that this was an “executive perk,” in fact it was carried on the books as a marketing expense and the benefit of the duck hunting opportunity was not reported as non-cash income to the executives.

Decedent, ironically, was also an employee of the defendant company, but was on the duck shoot as a guest of another party who also had hunting rights on the land.

The court first found that Hall was not engaged in any business of the company at the time of the shooting, and that there was no “vicarious liability.” Despite the fact that the hunting rights had been listed as a marketing asset, Hall in fact was not using the rights for that purpose and the company had never done so. The court distinguished a case in which a company had been found liable for a hunting accident on a vicarious liability basis when the hunting club in question had been the source of considerable business from other club patrons and referrals or the company and the officer was at the club engaged in fixing up the facilities for the new hunting season when he accidentally discharged a shotgun.

Plaintiff, however, alleged that the company was liable because it held a property right in the hunting area and negligently failed to supervise or instruct its invitees in the use of firearms. To address this issue on summary judgment, the court had to deal with a number of separate issues in order to reach the conclusion that the company enjoyed protection under the Recreational Use Immunity Act, which actually is embodied in two separate enactments in Louisiana.

One of these acts provides, inter alia, that 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 . . . [and does not assume responsibility or incur liability for any injury to persons or property caused by any act of a person to whom permission is granted.” The second stated that one who provides access to property without charge for recreational purposes does not “(a) Extend an assurance the the premises are safe for any purposes. (B) [c]onstitute such [recreational user] the legal status of an invitee or licensee to whom a duty of care is owned.” The second extends its coverage to “owners” and includes within the definition “a tenant, lessee, occupant or person in control of the premises.”

In both cases, the court had to deal with the argument that the holder of a non-exclusive hunting privilege is not a “lessee” within the meaning of the Act. Interestingly, this analysis was done much differently under the Louisiana Civil Code that might have occurred in a common law state. At common law, a lease confers “possession,” and certainly there would be an argument that a non-exclusive use right is not possessory and therefore not a lease. A common law court might have gone on, however, to conclude that the intended reach of the statute was to cover parties holding such rights, and to extend the protection as a matter of special legislative interpretation.

Plaintiff made a similar argument in this case, contending that, as there was no definite area identified, the duck hunting rights constituted a “limited personal servitude or right of use or, at the least, a strictly personal obligation for services.” The court, in fact, acknowledged that a some use rights, even those not involving complete possession, might be construed to be a rights in real property. Such rights cannot be construed to be the subject of a lease, since a lease is a personal right under the Civil Law distinction between “rights in rem” and “personal rights.” But such agreements must be in writing. This one wasn’t, therefore no property right was created.

More to the point, the court concluded that there were some use rights in real property that were not substantial enough to amount to property rights. Arguing to analogy to examples set forth in the Civil Code, and relying on prior case law, the court concluded that the non-exclusive rights in this case were not extensive enough to be a right in property. Therefore, apparently even if it was in writing, the agreement in question “more closely resembles a contract whereby the lessors undertook the obligation to furnish to [defendant] the enjoyment of duck hunting . . . for a certain period of time in consideration for [the paid rent.] Ergo - the hunting rights here were a lease and defendant was a lessee.

In a final fascinating twist, the court had to deal with the question as to whether it mattered whether the land itself was being used for a commercial purpose - the leasing of duck hunting rights - even though the lessee of the duck hunting rights was not using them for such purpose - but just permitting its employees to use them without charge. Alert readers will have noted that the two statutory immunity provisions quoted above are quite different. Only one of the two statutes - that dealing with specific immunity from hunting accidents - really provided the immunity that the defendant needed in this case. And under that statute immunity was available only if the land itself was not being used for a commercial purpose. The other statute, the one not useful to the defendant here, was a later enacted statute that provided that the use in question was protected if it did not result from commercial activity, even if the land was being used for commercial activity. The c!
ourt h
eld that the practical interpretation of legislative intent in enacting the second statute was to provide the broader immunity definition to the circumstances arising under the first statute as well.

Comment 1: As they say in the Guinness commercials - “brilliant!!” - and duck hunting is immunized. One suspects that many of the Louisiana judges are duck hunters and found this to be just the right result.

Comment 2: Of course, Code Napolean case law is not of much use to the rest of us who must labor in the darkness of the English law tradition. But the editor found the characterization issue to be an interesting one and a question that ought to be evaluated by those interested in claiming protection under the various use immunity statutes around the country. Do they really protect parties who hold non-exclusive hunting rights and then permit guests to hunt? As the editor has indicated, these likely are not “leases” within the common law definition. If the statute does not apply then the question arises whether this activity is one to which the legislature likely intended to extend immunity benefits. The answer is probably “yes.” So get in there and amend.

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