If you are a private landowner in North Carolina, you may not be aware that you owe a certain duty of care not only to people who have permission to be on your property, but also to those who do not, and that your duty to those who have "permission" extends to more than just the people to whom you give express permission. However, the North Carolina Landowner Protection Act (the "Act") changes some of this traditional landowner liability where the user of the land has received permission from the landowner, without charge, to hunt, fish, trap, or otherwise engage in recreation on the land.
Traditional Landowner Liability
North Carolina law generally places all land users in one of two categories: invitees or trespassers. A trespasser is someone who enters your property without permission or any right to be there, and an invitee is someone who is lawfully on your property.
Persons lawfully on your property will include not just those to whom you give express permission, but also those whom the law considers to have "implied permission" to be on your property. For example, if you fail to properly post that your land is private, or if you tolerate the occasional trespass by an individual without protest, you may have just given implied permission to someone to be on your property, and therefore owe that person the heightened duty owed to an invitee.
It is intuitive that you should owe a greater duty of care to an invitee because you know they are going to be on your land and you can warn them of dangers. The duty you owe to an invitee requires that you reasonably inspect your property, take reasonable measures to avoid injury to your invitees, and minimize any dangerous conditions on your property of which you are or should be aware.
On the other hand, the duty you owe to a trespasser is much less. You only have the duty to avoid willful injury to the trespasser, except in cases involving children, where the legal doctrine of "attractive nuisance" can cause you to be liable for injuries to a child who trespasses on your property in order to access something that is likely to be visited by children. The attractive nuisance that most readily comes to mind is a trampoline or swimming pool, but a pond or large fallen tree may be all that is required to create an attractive nuisance on your property.
It is easy to see how this legal framework creates a disincentive to landowners to open their lands to the public for hunting, fishing, and recreational purposes because when the general public has implied or direct permission to be on private land, the landowner is exposed to heightened liability. However, the use of otherwise natural and undeveloped, privately-owned land for hunting, fishing, and recreation is traditional in North Carolina; indeed throughout the United States, and many consider these activities beneficial husbandry of the land and the hunted and trapped species. So, how can landowners open their lands to the public but also reduce the associated liability in the event of an accident?
The North Carolina Landowner Protection Act
North Carolina legislators tackled the balance between use of natural and undeveloped land and landowner liability when they passed the Act. The purpose of the Act was to encourage landowners to make lands available for recreational use at no cost by changing traditional landowner liability to invitees using an owner's land for the purposes of hunting, fishing and trapping. The Act provides that when a landowner permits or even invites someone, without charge, onto their land for recreational purposes, the landowner owes that person only the duty of care the landowner owes to a trespasser.
How does the Act do this? State laws, like the Act, are frequently referred to as "Purple Paint Laws." The nickname stems from provisions in the Act and similar legislation in other states, which provide landowners with a method to "post" their land without the headache of maintaining signage as well as limiting their liability to invitees for hunting, trapping and the like. The purple paint provision provides that instead of building a wall or fence around the property, or worrying that posted "No Trespassing" signs will be removed or blown away by wind, landowners may mark their land by putting purple paint on trees. The purple paint signifies to hunters and others that the property beyond the paint belongs to a private individual and should not be accessed. The purple paint provision is meant to keep the public safe from stray bullets or other unsafe conditions, and to also protect the landowner against claims that the landowner failed to post, or mark, the property as a "No Trespassing" area. The Act specifies the length of each paint mark, and the paint mark's visibility and required vicinity to the base of a tree or post.
What Are the Requirements and Effect of Permission to Hunt, Fish, or Trap on Posted or "Painted" Land?
If you are entering an area that is posted or has a "purple paint mark," you are trespassing unless you have written permission from the landowner, in which case you can continue your recreational activities. However, under the Act, even with proper written permission, the landowner only owes you the same reduced duty as the landowner owes a trespasser.
Of course, as a law-abiding citizen and good neighbor, you've likely gotten some form of written consent from the landowner in order to be on their land for hunting, fishing, trapping, or other recreational use. That written consent may have come in the form of a hunting club membership, a license, or even just a personal note written by the landowner.
But under the Act, merely obtaining the written permission is not enough. The Act also requires that:
• The permission be dated within the last twelve (12) months;
• Be signed by the landowner, lessee, or agent of that land; and,
• That you that you carry that written consent with you and provide it upon request of any law enforcement officer.
The North Carolina Wildlife Resources Commission provides a sample permission form as a public service to outdoor recreational users to facilitate compliance with the Act. In the case of a hunting club, the hunting club must have written permission from the landowner or leaseholder and each club member must carry both a current membership card from the hunting club and a copy of the written permission granted to the club.
Thus, if you are entering an area that is posted or has a "purple paint mark," you are trespassing and can be arrested and removed from the land by law enforcement. Another provision of the Act now allows wildlife officers to enforce trespass laws immediately, instead of having to first obtain an arrest warrant or criminal summons.
Again, in the event you are injured while on the owner's land for outdoor recreational uses, and the landowner has not charged you for being on the land, the landowner will not be liable to you for your injuries unless the landowner has violated the very minimal obligations owed to trespassers, even though the landowner has given you written permission to use the land.
Further Minimizing Liability
Of course, in addition to the protections afforded by the Act, landowners can further minimize their liability to both invitees and trespassers by maintaining liability insurance on their properties. However, landowners should read insurance policies carefully to ensure that a proposed policy covers those activities that the owner permits the public to engage in on the property.
In addition to obtaining insurance, a well-written agreement between a landowner and the public user can provide significant protection to both parties. The permission agreement can allocate risk and specify the obligations of each party, as well as give notice of, and describe any potentially dangerous areas on the property.
So, if you find yourself hunting, fishing, or exploring the outdoors and you come across any purple paint, you will know what to do: treat it as you would a fence or "No Trespassing" sign, and get written permission from the landowner to conduct your activities on the land and to keep yourself safe from arrest and danger. If you carefully respect purple paint or signs, and properly obtain permission, you will also give the landowner continued motivation to allow you to hunt, fish, or trap on the private property in the future.
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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.