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My neighbor sometimes mows a ditch on a far side of our property without asking. The ditch is steep and I'm concerned he may tip over the mower and get hurt.

I have 2 questions:

  1. If this does happen, am I liable, particularly since they didn't ask permission to do this and
  2. What can I do to limit liability if this were to happen?

I'm certain state laws differ. FWIW, I live in KS.

Edit : The ditch is next to a road, which was added later. It is part of an road, utility and drainage easement that I can't change, or would be difficult (and likely pricey) to do.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet ♦
    May 19, 2021 at 22:34
  • I agree with ohwilleke's summary of Kansas property liability laws as I lived there before and been there/seen that. I do not agree with their answer to the possible problem as I feel it leaves you in a weird hazy state. Based on you passing them a note with a warning that mowing that ditch is dangerous... 1. You are admitting you see that as dangerous. 2. You are not really telling them to stop mowing it. This is rather ambiguous and weird. Also by not telling them to stop a note kind of looks like this in summary - thank you for mowing the grass on my land, I know it is dangerous, keep doing
    – blankip
    May 19, 2021 at 22:57

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Kansas evaluates these kinds of cases, known as premises liability cases, under the general law of negligence (which is a common law claim governed by case law in Kansas, rather than a statute, except as modified by specific statutes in some respect or other).

When you own or control a piece of property, you are responsible for making reasonable efforts to ensure that visitors are safe. If you fail to identify safety risks that you should have reasonably known about, or if you fail to correct potentially hazardous conditions, you could be held liable for any injuries that result. The law is just that vague and is interpreted by judges and juries on a case by case basis.

When that happens Kansas uses a comparative negligence system that evaluates the percentage of the fault attributable to everyone who is alleged to have been negligent including the person injured. Damages are allocated based upon those percentages (unless the person injured is more than 50% at fault, in which case the person injured recovers nothing in the lawsuit).

Kansas is not among the states that make a formalistic distinction between the duties owed to "invitees", "licensees" and "trespassers" as the common law historically did. If a risk is foreseeable and you could have taken affordable precautions (relative to the value of the activity the not taking the precaution made possible) to address it, and you didn't, you could be held liable. Trespassing is just one of an infinite number of factors that the jury considers in assigning comparative fault.

The main pro-active actions that you can take are to purchase homeowner's insurance with reasonable liability policy limits and ideally umbrella insurance as well (which increases your policy limits at a modest additional cost), and to communicate in writing to the neighbor (in a way that you can prove if anything happens later) warning your neighbor of the risks that you foresee and urging your neighbor to take care to avoid those risks.

The statute of limitations in these cases in Kansas is usually two years although exceptions apply.

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    What does the OP gain by writing a letter pointing out the foreseeable risk? It's not clear to me how that would give them any legal protection - I wouldn't expect that merely making others aware of a risk would be considered mitigation. If the neighbor or someone else did get hurt, I'd think such a letter could be used as evidence against the OP showing that the risk was, in fact, foreseeable, and that the OP took no steps to correct a known issue.
    – Nuclear Hoagie
    May 19, 2021 at 13:50
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    @NuclearHoagie If the landowner tells the neighbor that the ditch may be dangerous, but the neighbor mows the ditch anyway, that seems to demonstrate that the neighbor willingly accepted the risk, which means that if he mows the ditch and gets injured, it's probably his own fault. It would be hard to argue that the neighbor's injuries, despite being caused by the neighbor's own actions, and despite the fact that the neighbor knew of the danger, are actually the landowner's fault.
    – Tanner Swett
    May 19, 2021 at 19:05
  • @TannerSwett I see where you're coming from, but I'm having trouble extending the logic to extreme cases. I'm imagining if the homeowner has an abandoned well, and the neighbor falls in and dies - I'm not convinced the argument that "I told him not to fall in there!" would be a good defense against liability.
    – Nuclear Hoagie
    May 19, 2021 at 19:13
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    @NuclearHoagie An abandoned well is a great example of a case where warning of the risk ("hey, there's an abandoned well on my property at XYZ location, watch out for it") would suffice to avoid liability. The idea is that people should be warned of non-obvious dangers. It is only dangerous if you don't know that it is there.
    – ohwilleke
    May 19, 2021 at 20:51
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    @NuclearHoagie "What does the OP gain by writing a letter pointing out the foreseeable risk? It's not clear to me how that would give them any legal protection" By this logic, businesses should not put out 'Caution wet floor' markers when they mop the floors.
    – Glen Yates
    May 20, 2021 at 14:32

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