The information in this brochure applies to individuals, businesses, non-governmental organizations and other non-governmental entities that own, manage, lease, occupy or hold easements on land.
1981
"While nothing's perfect, if you are a landowner or share a landowner's perspective on things, I bring you glad tidings."
Speaker at Maine Public Access Liability conference, September 1995
If someone comes onto my land and gets hurt, am I liable?
No, except in rare circumstances. Maine has a strong law to protect landowners, known as the "landowner liability" law (or the "recreational use" statute), Title 14, M.R.S.A. Section 159-A.
If someone uses your land or passes through your land for outdoor recreation or harvesting, you assume no responsibility and incur no liability for injuries to that person or that person's property. You are protected whether or not you give permission to use your land.
If you allow volunteers to maintain or improve your land for recreation or harvesting, you are also protected from liability for injuries to them.
What does the law mean by "outdoor recreation" and "harvesting"?
Outdoor recreational activities include: hunting, fishing, trapping, camping, hiking, sight-seeing, operating snow-traveling and all-terrain vehicles, skiing, hang-gliding, dog sledding, equine activities, boating, sailing, canoeing, rafting, biking, picnicking, swimming and other similar outdoor activities. Recreational activity also includes environmental education and research.
Harvesting includes harvesting of forest, field and marine products such as boughs, fiddleheads, and clams. You are protected even if the person using your land is harvesting the products for sale.
Of course, the law does not protect an employer from liability for injuries suffered by workers in agriculture or forestry, not does it protect the owner who charges users for the right to harvest, such a "U-pick" operations.
Is the legal protection the same if I post my land "No Trespassing"?
Yes. As a practical matter, your legal protection is the same whether or not the land is posted.
Is it still possible for me to get sued in spite of the landowner liability law?
Yes, but it is very unlikely for two reasons: (1) a person who brings suit and loses because of the landowner liability law must pay the landowner's legal fees and court costs, and (2) the law protects landowners so clearly that there is little opportunity for the injured person to win. In fact, there has not been a single reported successful case against a landowner where the Maine landowner liability law applied.
Does my homeowner's or farmer's insurance provide me with protection from claims?
Your homeowner's or farmer's liability insurance gives you important protection. The insurance company has two responsibilities under most policies. The company has the duty to pay for the costs of defending any lawsuits brought or threatened against you (the "duty to defend"). In addition, if you are found liable in a lawsuit, the insurer has the duty in most circumstances to pay the damages assessed against you (the "duty to indemnify").
Although each insurance policy has specific coverage and dollar amount limits, most personal injury actions against landowners will fall squarely within the coverage provided by most home and farm liability policies. For all practical purposes, these policies assure landowners of a paid defense of any claims made against them and assure that judgments against them will be satisfied up to the dollar amount of the policy limit.
Be sure to check with your carrier regarding your specific coverage.
Are there situations in which the landowner liability law does not protect me from liability?
Yes, The landowner liability law does not provide protection if a person is injured because of the landowner's "malicious" failure to guard or warn against a dangerous condition. "Malicious" does not mean that you must have a conscious dislike for the person. Malicious intent may be inferred when the landowner has knowledge of a highly dangerous situation, usually man-made, that would have been simple to remedy or warn against and the landowner failed to do so, knowing that people would be likely to be hurt.
Am I still covered by the landowner liability law if I charge a fee to use my land?
Maybe. In general, landowners running commercial recreation or harvesting operations on their land are not protected. For example, commercial campgrounds or ski areas cannot expect to be protected by the law.
But landowners do not automatically lose their protection if they charge fees. The landowner liability law applies to landowners who charge fees for entry as long as the land is not used mainly for commercial recreation or as long as they payment is not for exclusive use, such as club membership or rental for an event or campsite.
Use common sense. Try to avoid creating or allowing clearly dangerous situations. For example, if you wish to block a road by hanging a chain, it would be a good idea to flag the chain or take some other action to make it easily visible.
Also, the best advice regarding fees is not to charge them. Otherwise, you may have to prove that the land is not used primarily for commercial recreation and that the user did not gain any exclusive right to use the land.
This brochure was prepared by the Androscoggin Land Trust with assistance from the Rivers, Trails and Conservation Assistance program of the National Park Service; the trial group at Skelton, Taintor & Abbott, P.A.; Maine Coast Heritage Trust; and many other individuals. The publication was funded through the National Recreational Trails Fund Act (Symms Act).
The information contained in this brochure is only a summary. Please consult a lawyer for more detailed information and advice specific to your situation. You may also contact the landowner relations coordinator in the Maine Department of Inland Fisheries and Wildlife who works with landowners and land users on issues of access (207) 287-8091).
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The above text was downloaded from the Maine Dept. of Conservation, Dept. of Inland Fisheries & Wildlife website November 2005:
http://www.state.me.us/ifw/aboutus/landownerrelations/landownerliability.htm