3/3/2020
www.nationalaglawcenter.org
Liability Issues in Agritourism
RUSTY RUMLEY SENIOR STAFF ATTORNEY www.nationalaglawcenter.org (479) 575-7646 [email protected]
Outline
Agritourism Statutes Administrative Law Agritourism Animal Identification ADR Aquaculture AFOs Liability for injuries on the property Biosecurity Animal Welfare Business Orgs Bankruptcy Clean Air Act Biotechnology Clean Water Act Checkoff Nebraska Agritourism Statute Commercial Trans. Climate Change Conservation Programs Commodity Programs Cooperatives Corp. Farming Animals on the Farm Disaster Asst/Crop Ins COOL Estate & Taxation Environmental Law Food Labeling Finance & Credit International Law Food Safety Zoning and Inspection Labor Industrial Hemp Landowner Liability International Trade Local Food Systems Marketing Orders Nat’l Organic Program Nutrition Programs Insurance Native American Ag PACA Packers & Stockyards Production Contracts Pesticides Secured Trans. Renewable Energy Sustainable Ag Agritourism Planning Specialty Crops Water Law Urbanization & Ag
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Negligence
Agritourism Statutes What is negligence? Negligence is the failure to do what a reasonably prudent person would ordinarily do under the same or similar circumstances of a particular case, OR the doing of what a prudent person would not have done
This is the most common cause of action against an type of agritourism operation
Agritourism Statutes By the numbers…
The purpose behind the agritourism statutes is to Deaths in Agriculture in 2015 – 401 reported by CDC address the #1 concern many of people wishing to The FBI reported 86 law enforcement officers killed in the line start an agritourism operation…liability protection. of duty during that same time period. What do you think was the most dangerous occupation? Truck drivers Because negligence is the main cause of action that they face the agritourism statutes typically work by Why does this matter for agritourism? codifying the “assumption of risk” doctrine. How well do their customers understand agriculture? This is a possible to defense to the tort of negligence “Chocolate milk” example Football vs. Agriculture – What is the difference?
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Agritourism Statutes What does the NE Act do?
Limit landowner liability It prevents liability for “inherent risks” at for those engaging in agritourism locations so long as the warning “agritourism” activity is posted properly Typically exempts “inherent risks” from liability Except as provided in section 82-605, an owner who Usually very broadly allows a participant on the owner's premises for written agritourism activities shall not be liable for injury to Not always well liked by or death of the participant or damage to the the legal system…why? participant's property resulting from an inherent risk Can apply to: on the owner's premises. Corn mazes, Hay rides, U- Neb. Rev. Stat. § 82-604 Pick, Etc…
Agritourism Activities Inherent Risks in NE
Agritourism activities include any one or any Inherent risks means those conditions, dangers, or hazards combination of the following: Hunting, fishing, that are an integral part of land or waters used for agritourism activities, including the following: swimming, boating, canoeing, kayaking, tubing, water (a) Surface and subsurface conditions and natural conditions of land, sports, camping, picnicking, hiking, backpacking, vegetation, and waters; bicycling, horseback riding, nature study, birding, (b) The behavior of wild or domestic animals; farm, ranch, and vineyard tours and activities, (c) The ordinary dangers of structures or equipment ordinarily used harvest-your-own activities, waterskiing, snow- in farming or ranching operations when such structures or equipment are used for farming or ranching purposes; and shoeing, cross-country skiing, visiting and viewing (d) The potential of a participant to act in a negligent way that may historical, ecological, archaeological, scenic, or contribute to injury to the participant or others whether by failing to scientific sites, and similar activities; follow safety procedures or failing to act with reasonable caution while engaging in an agritourism activity; Neb. Rev. Stat. § 82-603
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Limitations to Agritourism Statute Protection Limitations to Agritourism Statute Protection
Nothing in the Nebraska Agritourism Promotion Act limits any liability of (4) Who fails to properly train or supervise or improperly or inadequately an owner: trains or supervises employees who are actively involved in agritourism activities and an act or omission of the employee resulting from improper or (1) Who fails to exercise reasonable care to protect against the inadequate training or supervision is a proximate cause of injury to or death of particular dangers of structures or equipment used or kept on the the participant or damage to the participant's property; or owner's premises; (5) Who commits an act or omission that is a proximate cause of injury to or (2) Who has actual knowledge of a particular dangerous condition on the death of the participant or damage to the participant's property if the act or the owner's premises and does not make the particular danger known omission: to the participant if the particular danger is a proximate cause of injury (a) Constitutes willful or wanton disregard for the safety of the participant; to or death of the participant or damage to the participant's property; (b) Constitutes gross negligence; (3) Who reasonably should have known of a particular dangerous (c) Was intentional; condition of equipment used or kept on the owner's premises and does (d) Did not constitute an inherent risk; not make the particular danger known to the participant if the (e) Occurred while the owner or the owner's employees were under the influence of alcohol or illegal drugs; or particular danger is a proximate cause of injury to or death of the (f) Would otherwise be a violation of any other statute or rule or regulation of the participant or damage to the participant's property; State of Nebraska, a state regulatory body, or a political subdivision. Neb. Rev. Stat. § 82-605
Warning Signs…Do they Work? Nebraska Warning Requirements
1. Does posting a sign saying “Not responsible for WARNING--Under Nebraska law, an owner of property, including lands and waters, is not liable for the injury to or death of the any injuries that occur on my land from an participant in agritourism activities or damage to the participant's inherent risk” protect you from a lawsuit? property resulting from the inherent risks of such activities. Inherent risks include, without limitation, the risk of animals and land and water 2. Answer – Typically not, but this can be modified conditions, the ordinary dangers of structures or equipment ordinarily by statute… used in farming or ranching operations, and the potential for you or • Nothing in section 82-604 limits any liability of an owner who another participant to act in a negligent manner that may contribute to receives a fee for allowing a participant on the premises if the owner your own injury or death. You are assuming the risk of participating in fails to do at least one of the following: the agritourism activities for which you are entering the owner's • (a) Post and maintain signage containing the warning as described in subsection (2) of premises. this section in a clearly visible and conspicuous location at or near the Oddly this is one of the few statutes that does not require black ink and letters that are at entrance to the property used for agritourism activities; or least one inch high • (b) Include the warning as described in subsection (2) of this section in any written Neb. Rev. Stat. § 82-606 contract between the owner of the property and each participant allowed on the premises for a fee. Such warning shall be in a conspicuous location within the contract and be written in not less than twelve-point boldface type.
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Animals on the Farm
Animals on the Farm Two Major types of risks with animals on the farm: 1. The risk of physical injury • Biting, kicking, scratching, trampling, etc… ALL CREDIT FOR THIS PART OF THE PRESENTATION GOES TO CARRIE KLUMB • This is the risk that is easily identifiable AND PEGGY KIRK HALL. THIS PRESENTATION WAS GIVEN ON JUNE 21 ST, 2. The risk of contracting a zoonotic disease 2017 AND IS PRESENTED TODAY WITH THEIR • This is unseen risk that may often result in damages that far PERMISSION AND WITH SOME CHANGES. exceed anything seen with physical injury cases
Animals on the Farm Animals on the Farm
Physical Danger Zoonotic Diseases Most animals have the Diseases that may be potential to cause some deadly to humans are form of injury commonly carried by Don’t just think about animals that show this from your absolutely no signs of perspective…what about infection. young children? Salmonella, E Coli, etc… Livestock may not be shedding germs constantly so testing is inaccurate.
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Animals on Farms Animals on the Farm
What can be done to Outbreaks from Animals reduce the risk? Over 200 separate outbreaks with more than 5,100 Curtail direct contact illnesses and 500 hospitalizations between 1996- with the livestock 2014. Use double fences Do not allow participants Pennsylvania, Maine, Minnesota and North Carolina to enter pens or have have all had major disease outbreaks involving contact with manure serious injury or the death of young children Maintain handwashing stations and signage in obvious locations CDC resources
Tips to remember…
Agritourism statutes do NOT provide complete Zoning and Inspections protection Only inherent risks Limitations in the statute You should have other forms of protection to supplement the agritourism statute Insurance Inspection schedule Proper design Business entity Etc…
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Zoning Tips Zoning Tips
One of the top 10 topics that we get questions on… Know what you want to do before moving forward!
What do you want your business to look like? Zoning is typically handled at the municipal and Just traditional farming county levels…you may have to go down to city hall U-pick to actually see the requirements. Farm Stand on the property You may need to work closely with someone at the city if you “Processing” on property have a complicated situation. Composting Confirm conversations with writing (i.e. follow up emails) and ask if there are any more requirements that you should be aware of. Wedding venue (this is where inspections typically come in!)
Zoning and Inspection Tips
Do NOT get into any arguments with zoning boards or Insurance inspectors.
If you think that there may be a problem then hire a local attorney that has experience with zoning issues in that town or county. Sometimes who you know is more important than what you know… Some local governments don’t follow their own written rules.
Be flexible. Sometimes you may not be able to do everything you want in a given location
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Insurance Insurance
Make the insurance Who should purchase it? agent aware of any Agritourism operator or the landowner if they are changes and that they are separate? covered by the policy (in Who should have their name on the policy? writing) Business entity or you? What type of insurance do they have? Creativity might be great Many common policies (general farm and homeowners) for business, but terrible likely do not provide protection. for liability! Many agritourism policies exclude communicable Farm stays, allowing diseases unless you purchase a rider! customers to run equipment, etc… Example: Dehn’s Pumpkin patch…
Insurance Tips
If possible have them see the operation in person Agritourism Planning before buying a policy Check in yearly to see if coverage has changed Identify the exclusions
Get everything in writing! Your agent might change They will not be able to remember every conversation that they had with you
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Agritourism Planning Boundaries are helpful
Helpful hints: Restricting access to only the part of the farm that Mark boundaries carefully is used for the Set up an inspection schedule agritourism activities can greatly help with Pros and cons of this approach reducing legal risk. Use information from the inspection to provide invitees with a written warning of the dangers that Think about the cannot be fixed. boundary though! Do any of your operations also have animals that the public can touch?
Agritourism Planning…Why this example?
Planning resources: http://nationalaglawcenter.org/readingrooms/agritourism/ There are many resources that provide things to think about BEFORE starting a new business venture. Learning from your mistakes is important, but also learn from the mistakes of others because you will never live long enough to make them all yourself. Proper planning will also help you comply with the agritourism statutes and maybe even more importantly…Prove it!
Challenges WILL arise…the question is “Are you prepared to deal with them?”
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The Nation’s Leading Source for Agricultural and Food Law Research and Information
Contact THE NATIONAL AGRICULTURAL Information: LAW CENTER
Rusty W. Rumley Phone: (479) 575-2636 Email: [email protected]
www.nationalaglawcenter.org
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