In the last several years, many agricultural businesses have embraced agritourism (visiting a working farm, ranch or other agricultural entity to experience and become educated about its operations) as a method to enhance revenue and educate the public about agriculture. Activities like navigating a corn maze, picking fruit, feeding animals, or participating in a farm stay are popular kinds of agritourism that afford individuals who have not previously been exposed to agricultural activity the opportunity to experience something new and learn a little about where their food comes from.
Becoming involved in agritourism requires an agricultural operation to consider many different issues, including the potential liability that could occur if a visitor were injured while participating in an agritourism activity. Fortunately, several states have passed laws dealing directly with this issue.
Oklahoma, Idaho and Florida are three states which recently passed laws dealing with liability for the “inherent risks” of agritourism activities. The three laws are very similar, so we will consider the Florida law as representative. Florida’s law took effect on July 1, 2013, and prohibits local governments from enacting ordinances or policies restricting agritourism activity on agricultural lands. In addition, it limits liability for agritourism operators.
The new Florida law provides agritourism operators with an affirmative defense to any claim for injury or death resulting exclusively from inherent risks, as long as a warning is posted in accordance with the statute. In order to properly post a warning, operators must post a sign in a “clearly visible location” at the entrance and at the site of the agritourism activity. The sign’s text must be in black print, each letter must be at least one inch in height, and there must be enough color contrast to be clearly visible. Additionally, if a written contract is used, the warning must be included in “clearly readable print.” The sign and contract must contain the following words:
Under Florida law, an agritourism operator is not liable for injury or death of, or damage or loss to, a participant in an agritourism activity conducted at this agritourism location if such injury, death, damage, or loss results from the inherent risks of the agritourism activity. Inherent risks of agritourism activities include, among others, risks of injury inherent to land, equipment, and animals, as well as the potential for you to act in a negligent manner that may contribute to your injury, death, damage, or loss. You are assuming the risk of participating in this agritourism activity.
Under the new Florida law, an agritourism operator is not released from liability for injury or death if the operator commits gross negligence or displays willful or wanton disregard for safety, or if the operator intentionally injures the participant.
In addition to Florida, Idaho and Oklahoma, another 17 states have laws limiting, in some fashion, liability for agritourism operators. These states include Alabama, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maine, Mississippi, Missouri, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, Utah and Virginia.
Another 12 states have laws that mention agritourism, but do not limit liability. Agritourism operators should consult the law in their state to determine what affirmative steps they may need to take to ensure they are protected from liability to the maximum extent possible.