by Sally Colby
When it comes to liability related to agritourism, or agritainment, Dr. Brian Schilling says every farm is unique and there is no ‘one size fits all’ approach for managing liability on agritourism farms. However, farmers can take steps to avoid messy legal issues.
Schilling, an extension specialist in agricultural policy at Rutgers University, says while farm owners don’t want to think of customers from a legal standpoint, the reality is that when bringing others onto the farm, whether they’re customers or employees, there’s a possibility of them being injured and the farm owner becoming a plaintiff in a lawsuit.
Most farm visitors are unfamiliar with the hazards of a working farm. Worse, they may ignore instructions and safety warnings, and may go to off-limits area. “Some folks visiting your farm will not adequately supervise children,” he said. “Your farm guests may start off as customers but ultimately, they may become injured, or may falsely claim they were injured. Under the law, if someone enters your property, whether invited or not, the owner has some level of responsibility for ensuring that person’s safety is protected.”
One aspect of liability is ‘status equals duty’. Schilling explains that this means the landowner owes people entering his or her property a different duty of care. Legal obligations vary in relation to who a person is — while a trespasser has a certain degree of protection, an invitee has more.
An invitee is someone who comes to the farm to pick pumpkins, apples or take a hayride. Schilling says the obligation of the landowner to this person is the highest. The owner must be proactive, and discover and eliminate all known and unknown dangerous conditions.
The ‘reasonable care approach’ concept means that a landowner is expected to exercise reasonable care for the safety of persons entering their property. “The concept of foreseeability is an important factor,” said Schilling. “In a legal case, liability would be determined in part based on how foreseeable was it that an individual entered your property and what was the foreseeability of an injury occurring? Many courts have migrated toward the ‘reasonable care’ approach where in a liability lawsuit, they’re going to look at what reasonable level of care was exercised by the landowner to make sure the persons entering the property were kept safe.”
Premises liability is failure of the property owner to protect people coming onto the farm from potentially hazardous conditions. For example, on a choose and cut Christmas tree farm where there might be holes or stumps, premises liability is failing to protect people from tripping or falling.
Agritainment farms are in the business of hospitality, which potentially invites product liability. This involves products consumed on the farm that cause illness. Property damage describes damage to the property of a customer by the business or an employee, such as an employee hitting a customer’s car in the parking lot.
“Your employees are also a potential source of liability,” said Schilling. “Under law there is vicarious liability, which says that in the case of an agritourism operator, the operator is responsible for his or her own actions and also the actions of people acting on his or her behalf — whether it’s employees hired by the farm or independent contractors.” Providing training to employees to recognize and report to you risks and hazards is absolutely critical.
What about pets brought to a no pets allowed venue? If your policy is to not allow domestic animals onto your property, it should be enforced. Schilling suggests tactfully turning away people who bring pets because they’re a liability for food safety or if a child is bitten.
Schilling says it isn’t all doom and gloom for agritainment operators, and suggests potential defenses. One potential defense to liability is ‘exceeding the scope of the invitation or permission.’ One example is a visitor entering an area clearly designated as off limits with a ‘keep out – personnel only’ sign, such as on a pesticide shed. A person who knowingly violates and enters the area is exceeding the scope of their invitation, and this may offer the farm owner a degree of defense. However, it’s up to the farm owner to clearly provide information about areas that are off-limits.
Contributory negligence is another defense. One example is a ‘looking zoo’ that doesn’t allow interaction with the animals, yet someone climbs the fence, tries to pet an animal and is bitten. Schilling says the law will apportion the liability for that injury according to each party’s degree of negligence. The farm owner can claim they made a good faith effort to keep animals and visitors separate, yet this visitor went over the fence and was injured.
No matter what measures are in place, Schilling says liability exposure can never be fully eliminated. “Farms are working enterprises and inherent hazards will always exist,” he said. “There is no single strategy for protecting against liability. Some farms will say ‘I’m insured so I’m okay.’ Insurance is necessary but not a fully adequate strategy for protecting against liability. We advise that liability be viewed holistically, as a program of activities. It’s about layering protections.”
The most important step in limiting liability is to make farm safety a non-negotiable priority for yourself and employees. “Go out and be proactive, and search for hazardous conditions and attend to them,” Schilling said. “Have routine inspections of your hayride area or a field where people will go out and pick their own product. If you’re going to have a hayride, corn maze, petting zoo or any activity on your farm, it’s recommended you have a plan of operation.” This means identifying potential hazards and coming up with strategies to mitigate those hazards.
Consider taking photos and videos throughout the farm to document conditions and highlight safety precautions. This helps demonstrate that you have been proactive and consciously thinking about visitors’ safety.
All 50 states have some form of right-to-farm laws that protect commercial farm operations engaged in responsible farming practices from neighbors’ nuisance complaints and potentially overly restrictive local regulations. “This is an important and powerful legal protection,” said Schilling, “however, while a number of right-to-farm laws I’m familiar with recognize agritourism as a protected activity, the guidelines for what constitutes accepted agricultural practices are not very well defined.”
Schilling says it’s critical to understand the state provisions that govern the right-to-farm. “How do they recognize direct marketing, how do they recognize agritourism, what are the provisions that dictate acceptable activities?” he said. “A right-to-farm law will not protect a farmer acting irresponsibly, or a farmer who is violating state or federal law, or putting public safety and welfare at risk.”
Many farms that invite school or other groups require a liability waiver. “Having a signed waiver that says something to the effect ‘I, the farm visitor, agree to indemnify and hold harmless the landowner from any claims made by (the user) as a result of any injury’ is a very powerful legal protection,” said Schilling. “Courts recognize these waivers as a legally admissible document.” A waiver adds a layer of protection but does not fully remove responsibility from the landowner. Some farms post highly visible waivers of liability throughout the property that presume consent by an individual entering the premises.
An incident response form should be used to document any incident to provide a record and preserve the details of an event. A farm incident form includes space to document the time and date of the incident, weather conditions, name and information of the injured person, witnesses, and a clear detailed description of the accident. Schilling recommends maintaining a dedicated file for such forms in the case of a future lawsuit.
Agritourism enterprises should never operate without insurance. Schilling says some providers have been reluctant to take on the increased risk of agritourism, but are becoming more familiar with such enterprises. Make sure you fully understand what it is and isn’t covered by the policy, and review the policy regularly with the provider. Consult with the provider prior to changing anything related to activities offered or if the business attracts significantly more visitors than in the past. Third-party vendors (bounce house, pony rides) should provide their own insurance and list the farm and its operator as an additional insured.
Schilling urges agritainment operators to become familiar with federal, state and local regulations, and learn about any laws, regulations, codes or permits before starting a project. “It’s one of the most daunting tasks a beginning agritourism operator has to face,” said Schilling. “They’re moving from a production environment into a retail, hospitality environment. We advise new entrants into the industry to sit down with an extension agent, consult with Farm Bureau and discuss with their department of agriculture what some of the prevailing regulatory and legal requirements will be.”
A list of supportive materials for agritourism farms is available at www.agritourism.rutgers.edu/training
More revenue, more liability
by Sally Colby