By Doug Graves
COLUMBUS, Ohio – Agritourism has surged in popularity as farmers try to seek other avenues of increasing profits. According to the 2012 U.S. Census of Agriculture, the number of farms and ranches receiving income from agritourism grew by nearly 10,000 over a five-year period and 4,500 of those operations had gross receipts of more than $25,000 from agritourism.
While these enterprises are lucrative for many farmers, they pose a safety risk to visitors and liability to farmers. Peggy Hall, an associate professor and field specialist in agricultural and resource law at Ohio State University, traverses Ohio getting the message out to farmers, begging them to protect themselves and become familiar with liability laws.
“Liability is when the law can hold the farmer accountable for which he or she is responsible,” Hall said. “Ohio has an agritourism liability law which provides some protection and immunity from liability.”
Some, but not all, Hall said.
“The law does not grant immunity for all injuries that might occur on an agritourism operation, such as the provider not having knowledge of an existing dangerous condition that is not an inherent risk and gave no warning to the participants about the dangerous condition,” Hall said. “An example might be an open manure pit on the premise, or a free-roaming animal such as a bull.”
In 2004, Kansas became the first state to enact a liability protection law for farmers and ranchers who offer agritourism activities on their land. Many states followed suit and 31 states now have an immunity law that can shield an agritourism business from liability for visitor injuries in certain circumstances. Ohio, Indiana, Kentucky and Tennessee are among those 31 states.
Accidents during agritourism activities has become an all too often occurrence. For example, a 2-year-old was killed and her mother was injured near Piketon, Ky., when the two became trapped between two shuttle buses in a busy loading area during an agritourism event on the farm.
Last year, during separate farm festivals in northeast Ohio, a 4-year-old was bitten by a donkey. At a separate farm, a 7-year-old boy suffered a broken leg after rough play in a bouncy house.
In Mechanic Falls, Maine, a 17-year-old high school student was killed last year while on a “haunted hayride” when a Jeep that was towing a wagon flipped over. It was later discovered that the Jeep’s rear brakes didn’t work properly and the Jeep was hauling more than double its towing capacity. The hosting farm was held liable.
Any farm hosting agritourism such as pumpkin picking patches, corn mazes, U-pick operations, petting zoos, Cut-Your-Own Christmas tree farms, agricultural museums and even dude ranches pose a safety risk to visitors and liability to farmers. Visitors have fallen from ladders while climbing for high-hanging fruit, climbing on tractors or haystacks. Visitors can even trip over produce that has fallen from overloaded baskets and onto the floor.
Liability lurks even outside agritourism activities. A 2-year-old Oxford, Ohio, boy wandered into his babysitter’s barn and died after a tractor tire that was leaning against a barn wall fell on him.
“Farmers should be aware of children in their neighborhood,” Hall said. “Even if the child is trespassing the farmer can be liable. We see this when farmers have a dangerous, artificial condition that draws them to the farm, such as a swimming pool with a diving board or even a swing from a tree.”
Hall advises farmers to constantly inspect their property and look out for dangerous conditions on the farm that could hurt visitors.
A “dangerous condition” is one that creates an unreasonable and unnecessary risk of harm that is not readily apparent to the visitor. A dangerous condition (or attractive nuisance) on farms would include manure lagoons, machinery and anything else with moving parts, grain bins, grain elevators and ladders.
Certain situations, although dangerous, are not considered dangerous conditions because they are ordinarily encountered or are “open and obvious” to a visitor. A landowner would not have a duty to protect a property visitor from those types of dangerous situations. Such an example is a pond.
“Ohio courts have determined that a pond is not an inherently dangerous condition,” Hall said. “Rather, a pond is an ‘open and obvious danger’ and a person is expected to realize the risk of drowning or being harmed in pond. Ohio courts have been generally unwilling to impose liability on landowners for people harmed from being in a pond.”
Another myth, Hall said, is that posting signs keeps farmers from liability. Totally wrong, Hall said.
“Signs are not real helpful when it comes to liability,” she said, “because they don’t provide a warning about the danger that will harm the trespasser. They’re helpful, however, for criminal trespass purposes. These signs can help bring criminal charges against the trespasser. Signs can help deter trespassers by establishing clear boundary lines. Under Ohio law, a landowner should post ‘No Trespassing’ signs in a manner reasonably calculated to come to the attention of potential intruders.”
This time of year, there are an abundance of four-wheelers, fishermen and hunters who take their activity to farms.
Ohio’s hunting laws clearly state that a landowner has no liability to a hunter who does not have the landowner’s written permission to hunt on the property. Converting a recreational trespasser to a recreational user with permission can provide liability protection.
“If you give permission and allow hunters and snowmobilers on your property without charging them to do so, then you have protection from liability, as stated in Ohio’s Recreational User’s Fact Sheet,” Hall said.
Farmers in any state can be liable for intentionally harming a trespasser by setting a dangerous hidden “trap” or chasing and attacking the trespasser upon discovery. Holding a trespasser against his or her will can lead to liability. Ohio’s “citizen arrest” law allows farmers and others to detain a trespasser only if that person has committed a felony, such as a murder. Ohio law doesn’t allow the farmer to harm or apprehend the trespasser simply because the person is on the farm or might harm the property.