Bizarre Texas Hunting Accident Could Demonstrate Challenges of Recreational Use Statute

Texas CapitolThe Houston Chronicle reported a bizarre hunting accident in Texas that claimed the lives of three people and a hunting dog on Wednesday, August 9, 2023.  Three people from Florida were hunting in a cornfield near Bastrop, TX with a friend from Red Rock, Texas when they fell into a cistern (underground storage tank) that was filled with hydrogen sulfide gas. Delvys Garcia, 37, Denise Martinez, 26, and Noel Vigil-Benitez, 45 were recovered from the cistern. Apparently, the dog fell in and efforts to rescue the dog led to the people succumbing to the fumes. The bizarre nature of this accident has left a number of questions unanswered so far.

How Does Hydrogen Sulfide Get Into a Cistern?

Hydrogen sulfide occurs naturally in underground water such as well water and cisterns due to sulfur-eating bacteria that thrive in low-oxygen environments. The bacteria consume the sulfur and release the gas into the air. The gas has a rotten egg smell. Since a cistern is simply an underground storage tank for rainwater, it is a natural environment for the bacteria to thrive.

What is a Landowner’s Duty to Invited Guests When Dangerous Conditions are Present on the Land?

Typically, landowner liability s controlled by premises liability law. Under Texas premises liability law, a landowner owes the highest duty of care to invitees–people who are invited onto the land. For invitees, a landowner must conduct a reasonable inspection of the premises and either fix any unreasonably dangerous conditions or warn the guests of the condition.  This would seem to be pretty clear-cut that there was at least a duty to warn of this danger. However, other issues may muddy this up a bit. This is not just any premises, this is agricultural land. Texas premises liability lawyers understand that makes a big difference.

What is a Landowner’s Duty to Invited Guests When Dangerous Conditions are Present on Texas Agricultural Land?

Under the Texas Recreational Use Statute, a landowner who allows someone to use his agricultural property for specified recreational uses owes them no duty of care. The specified uses include hunting, fishing, swimming, boating, camping, hiking, exploring, bicycling, dog walking, cave exploration, radio-controlled flying, water skiing, pleasure driving, picnicking, disc golf, and other activities.

In the present case, we do not know what was disclosed to the deceased individuals, but they were there to hunt. Thus, it would appear that the landowner had no duty.

See Chapter 75 of the Texas Civil Practice and Remedies Code for the full text of the Texas Recreational Use Statute.

Are There Exceptions to the Texas Recreational Use Statute?

Yes. There are two exceptions to the Texas Recreational Use Statute:

  • Business use exception: if the land owner charges a fee for entry and the total amount of entry fees charged for the previous calendar year exceeds 20 times the property tax assessed in that year, then the Recreational Use Statute does not apply.
  • Gross Negligence Exception: If the property owner injures the guests due to wanton or willful conduct or he/she is grossly negligent in causing the injury, the Recreational Use Act does not protect him/her.

Applicability of the Exceptions

There are potential arguments to be made for the exceptions to apply. However, we simply do not know enough facts to determine whether they will prevail at this time. The business use exception requires that tax and business records be subpoenaed and evaluated. The gross negligence exception may hinge upon what the premises owner knew about the cistern and the dangers presented. However, the latter exception is a long shot in these cases when no duty is owed.  In any event, with three human lives lost, there is a good chance the applicability of the Texas Recreational Use Statute will get tested.