Hunting and Landowner Liability

For many South Dakota youth, hunting was a way of life growing up in our State. This was true even for those without access to private land owned by parents or relatives. It used to be that hunters could walk railroad track right of ways, without risk of being cited for a trespass. Hunters could routinely find friendly farmers willing to let them hunt their sloughs in late season, if the cattle were not turned out in nearby surrounding fields. In more recent times, however, many landowners are simply too worried about opening themselves up to potential liability by opening their land to permissive hunting. As a result, hunting opportunities on private property has decreased. Some landowners automatically say “no” because the perceived potential liability is too great.

To address such concerns, the South Dakota Legislature enacted statutes that serve to limit landowner liability. A landowner who “directly or indirectly invites or permits without charge any person to use property for outdoor recreational purposes or activities, does not thereby:

(1) Extend any assurance that the land is safe for any purpose;
(2) Confer upon any person the legal status of an invitee or licensee to whom a duty of care is owed; or
(3) Assume responsibility for, or incur liability for, any injury to persons or property caused by an act of omission of the owner as to maintenance of the land.

SDCL § 20-9-14. The landowner is thereby protected from claims arising from such permissive use, unless he or she is “grossly negligent” or guilty of “willful or wanton misconduct.” Landowners who grant permission are protected from ordinary claims of negligence, and may only be held liable in extreme cases; e.g., where they know a condition exists on their land where injury is probable or expected to occur.

The same statutes do not insulate the hunters themselves for their own negligence, or from any resulting personal injury or property damage they cause while permissively hunting the land of another. In this way, the South Dakota Legislatures has attempted to facilitate the longstanding tradition of permissive hunting on private lands in South Dakota, and the kind-hearted landowner can rest easier.