4109Re: [CALBIRDS] Common Black-Hawk (ethical challenges)
- Jun 6, 2005A number of folks have emailed privately regarding my post on Civil Code
Some expressed the point that landowners "have a perfect right to refuse
to allow permission to cross their land, even if it is an
'inconvenience' to birders," and this is of course true. No landowner
is required to give permission to enter their land for any purpose,
absent a warrant.
Others express the opinion that "the statute does not protect the
landowner or his insurance company from lawsuits and the legal fees
required to get the lawsuit dismissed." Yes, I guess, but misleading
and pretty irrelevent. From the insured's point of view -- the
landowner's point of view -- his or her insurance will provide the
defense at no cost to the landowner. That is part of the cost of the
insurance, and it is built into the system. The cost of defending
against frivolous lawsuits is already way overblown by insurers, and is
already part of the premium. There is no risk to the landowner to allow
permission to enter for birding, unless he/she is uninsured (extremely
unlikely). As to the cost of the insurance company to defend and get
dismissed a frivolous case? It is de minimis. That cost is so small
when compared to the cost spent by insurance companies in fighting
perfectly good lawsuits that it is so low as to be nothing.
Another wrote to say that there is the risk of insurance rates rising
even if one has a meritless lawsuit filed against the landowner. That
has not been my experience. The types of rates they rise on "claims,"
as opposed to actual damages paid out for actual liability, are
professional liability insurance (attorney malpractice, medical
malpractice insurance) and not typical homeowner/landowner situations.
One raised the point that occasionally bogus lawsuits are filed to get
"nuisance" value, but I can't imagine that happening when there is no
debate about "duty." Under section 846, there is no "duty" to warn
against dangers on the land, and no "duty" to make the land safe.. In
most situations -- like driving a car -- each of us has a "duty" to
drive safely and we can be sued, even falsely, when someone says we
drove unsafely and caused injury. But the lack of "duty" under section
846 pretty much eliminates the "nuisance" lawsuits because they don't
have a legal leg to stand on, no matter how flimsly. They can easily be
dismissed at minimal cost.
To assuage those landowners for whom Civil Code section 846 is not
enough, I have often offered to sign a waiver of liability in addition
to the protection offered by section 846. One can even sign a waiver
that requires the signer to "defend and indemnify" the landowner. In
other words, you promise to pay for the landowner's defense of any
lawsuit that you file against him or her for injuries during your
birding on the property, and agree to repay to the landowner any damages
you might recover. That is an absolutely no risk promise to the
landowner. Even if you sue and his/her insurance company has to defend,
the landowner and his insurer can get back all the costs of throwing you
out of court.
I have found that a discussion with landowners on these topics reduces
their fears and misconceptions greatly, but not always. There are still
some who refuse access, often saying something like "well, I don't want
you finding an endangered species on my land." I usually explain that
Common Black-Hawks or whatnot are not endangered, and that's all I'm
looking for. But some still say "no" and that is their right. Yet my
experience during the Breeding Bird Atlas is that the vast majority
would listen to all these reasons, and most often give permission.
Don Roberson, J.D.
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