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.
Readers are encouraged to respond to or criticize this posting.
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