Real Estate and Property Law (Premises Liability) – The Use of Access Licenses to Protect Landowners, and Their Insurance Policies
With the tail end of winter upon us, one question I’ve been getting regularly, including the recent North Carolina State Bar Call4All Justice Program, is: are landowners who allow other individuals to cut and collect firewood on their land susceptible to potential liability if an accident occurs? The short answer is: Yes! Firewood cutting can be a dangerous activity and if someone involved, or another individual present, is injured through or because of the activity they may pursue recovery for the injuries from any of the involved parties, which includes the landowner and his or her insurance policy. It is important for individuals to recognize that one of the main reasons claims against homeowners for another’s act on the land will occur is because the homeowner’s insurance policy is a potential source of monies to cover medical bills, where an individual defendant may not have such financial resources. While an injured third party would most likely pursue the wood cutter licensee for recovery first, he or she could have potential recourse against the landowner and the respective homeowner’s insurance policy as well.
It is highly recommended that any landowner inviting others to cut and/or collect firewood (or perform or engage in other activities that may lead to a physical injury or property damage) enters into a written agreement setting out the scope of the activities, access, any payments or consideration involved, and, especially, the potential liabilities, waiver of such, and indemnity issues to protect the property owner. This can simply be referred to as a written contract, but is more specifically known the legal world as a license (to access natural resources). Outside of any payment or value involved, the most important thing for the landowner to do is have the invitee/licensee waive any and all liability, claims, and/or damages against him for any injury or other damages emanating out of the activity AND to promise to indemnify, defend, and hold harmless the landowner for any claims by other individuals or third parties arising out of the activity and access.
The more detailed answer follows: Until 1998, North Carolina law created three classes of guests on another’s land – trespasser, licensee, and invitee. In 1998, the North Carolina Supreme Court in Nelson v. Feeland eliminated the distinction between invites and licensees. Now North Carolina law only has two classes of entrants to another’s property – the trespasser and the person lawfully on the premises, what had been the licensee AND invitee (i.e. non-trespasser). Since landowners invite these individuals onto their land and derive beneﬁt from ﬁrewood removal, ﬁrewood cutters are treated as invitees/licensees. As invitees, ﬁrewood cutters create great liability for the landowner. Not only do landowners have a duty to inspect their property, warn invitees about hazardous conditions on the property, and separate other guests or individuals from the activity, but they, and their insurance policies, may also be liable for injuries arising out of the activities, including the firewood cutters and collectors themselves. Further, landowners would then need to inspect the property again, after the licensee had performed the work and tree removal, to be aware of any newly created dangers. Landowners should be aware of their duties and simple liabilities to non-trespassers under the law, and waive any additional potential liabilities via a written contract/agreement/license.
Another blog article discusses when a landowner allows others onto his or her property for free recreational or educational activities, North Carolina Law decreases the respective liability. See N.C. Gen. Stat. § 38A-4. Where landowners are charging a fee for recreational or educational activities, such as hunting, they are required to fulfill the duties for non-trespassers (inspection and warning) and definitely need to use a written contract/license outlining the details and respective liabilities for all parties involved.
Forrest P. Merithew, Attorney at Law, is personally and professional familiar with the issues contained in this blog article, and has experience drafting the simple license access/use agreements for home and landowners to decrease and waive their liability, as well as provide indemnity protection against third party claims. Such materials and matters are relatively simple and, therefore, can be done at a low cost flat fee. If you have any type of real property, invitee, resources, environmental, or legal easement question please contact Forrest Merithew and he will work to provide you with an informed opinion and necessary documentation.
Finally, for those of you looking for access to firewood to keep your homes warm, you can harvest firewood from dead and down trees in North Carolina’s National Forests WITH a permit. The permit allows you to take a maximum of 4 cords of firewood in a calendar year and costs $20.00. An individual is allowed to get two such permits a year and can obtain them from the local Ranger District Office.