A New Hampshire lawsuit that worried Maine landowners has been dropped without a decision on the issue that concerned them.

William Jasmin of Manchester filed the lawsuit in April against Charles Corliss of Epsom, after he fell out of a tree stand on Corliss' property and was left partially paralyzed. Jasmin alleged that Corliss gave him and iRandall Howe of Manchester permission to use the tree stand.

But in a recent deposition,  Howe's description of the man who he said gave permission to use the stand did not even closely resemble Corliss. Jasmin’s lawyer subsequently withdrew the suit, saying that the men might have gotten permission from an adjacent landowner, but used the stand on Corliss’s property instead.

The issue that concerned Maine landowners was Jasmin’s contention that the landowner wa lliable for the hunters' safety because his request that they  kill coyotes constituted compensation. Maine and New Hampshire landowners are protected from liability for injuries suffered by recreational users of their property, as long as they do not receive compensation for that use.

Tom Doak, executive director of the Small Woodland Owners Association of Maine (SWOAM), says that if directives or small gifts constitute compensation, Maine’s statute may be inadequate to shield landowners from liability.

Here’s what the Maine statute says:

Title 14, Section 159-A, Subsection 3. Permissive Use. An owner, lessee, manager, holder of an easement or occupant who gives permission to another to pursue recreational or harvesting activities on the premises does not thereby: A. Extend any assurance that the premises are safe for those purposes; B. Make the person to whom permission is granted an invitee or licensee to whom a duty of care is owned; or C. Assume responsibility or incur liability for any injury to person or property caused by an act of persons to whom the permission is granted even if that injury occurs on property of another person.

Subsection 4 describes the circumstances in which this liability protection is not provided, including “an injury suffered in any case where permission to pursue any recreational or harvesting activities was granted for a consideration other than the consideration, if any, paid to the following: 1) the landowner or the landowners agent by the State; or 2) the landowner or the landowner’s agent for use of the premises on which the injury was suffered, as long as the premises are not used primarily for commercial recreational purposes and as long as the user has not been granted exclusive right to make use of the premises for recreational activities.”

The latter offers liability protection for landowners who charge a fee for the placement of bear baits on their property.

The issue of what constitutes compensation in this Maine statute may be explored in the 2012 legislative session in a SWOAM bill sponsored by Rep. Andre Cushing.

It will also be an issue in New Hampshire where Senator Andy Sanborn of Hennicker told Tricia Nadolny of the Monitor that he was going forward with legislation to further define the terms of compensation. “Just because you give someone a gallon of maple syrup or you help someone hay their field, that doesn’t make it a commercial compensation,” said Sanborn.

New Hampshire may also explore the possibility of adding a provision to its landowner liability protection statute that allows the landowner to recover his legal fees if the lawsuit against him is unsuccessful. Maine already has that provision in its statute.

However, because many of us who hunt or otherwise use someone else’s property send those property owners thank you gifts – particularly at Christmas – this is an issue that we will continue to watch closely.

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