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Tuesday, November 29, 2011

Hunter becoming hunted and the liability of the landowner !!

There are two sides to a coin – in India – there is a peculiar ‘please adjust’ mentality.. it is common when you travel in a reserved compartment – meant to seat 3 – you could 5 people seated nearby, with another passenger just trudging in and asking for some space – it is after all adjustment ! – you could find somebody violently getting into a queue or sneaking with a request – ‘pl ajust’…. Mostly it works without people coming to terms – most are used to this way of life……… but there are countries where negligence becomes a tort and then becomes a suit.

It is not easy to explain – ‘Tort’ in common law is a wrong – it involves a breach of a civil duty [not a contractual one] owed to somebody else.  It is not a crime, which by nature is against the society.  Some acts could be tort as also a crime – prosecution for a crime is that of the State.  Any party who is harmed by a tort may bring a law suit claiming compensation.  One who commits a tortious act is called a tortfeasor.   Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships.

Though still in its nascent stages in India, Liability Insurance is big business elsewhere, especially in USA.  It is the insurance of protecting the holder of the policy against the liabilities imposed by law suits and similar claims.  An easy to understand example, is the vehicle owner’s liability to those who get injured in any accident involving the vehicle.  Whilst assessment and indemnification are the only roles for an Insurer in General Insurance, in Liability, the Insurer has the duty to defend, duty to indemnify and in some duty to settle a reasonable claim.  There could be Public and Product liabilities and in US, a Commercial General Liability Policy (CGL) takes care of both.  

‘hunter becoming hunted’ is a known phrase –   Hunting  is the practice of pursuing any living thing, usually wildlife, for food, recreation, or trade.  Elsewhere in US, a hunter was seriously hurt when a tree stand he was using collapsed – he was left partially paralyzed after the fall.  He sued the owner of the property and tree stand !  

The hunter later realised from other sources that the person whom he had sued had given him the permission to use the tree stand had actually spoken to another person who owned the tree stand but not the land.   If somebody takes permission to use your land, gets injured and sues you for the fall – naturally, such act would spark fears on the landowners who would think more than twice or simply deny permission to use their land for hunting, any recreational activity or for any other purpose.  Upon knowledge of the circumstances, the hunter did drop the suit and his lawyer who had filed paper work reportedly told that the case was not about land access; it was about holding the owner of a faulty product accountable – the defective tree stand and not the land on which it was located !  Once he was aware that the owner of the land did not own the tree stand also, he dropped his suit !!.

There are also news that lawmakers are suggesting legislation aimed as much private land as possible remains open to hunters, hikers, and sporting vehicles.  The Law would not require the owners to keep the land safe for use or give warning of the hazards.    Whether the legislation reportedly would protect he landowner from liability when they get something in return for allowing people onto the property is not yet known.  Meanwhile there is further news that the hunter’s lawyers are trying to identify the actual owner of the tree stand and would consider filing a new claim.

Curious are the ways of people…….. 

Do provide your feedback on the articles that interest you

With regards
S. Sampathkumar


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