Jun 19, 2017Take hold of managing liability on agritourism farms
Agritainment operators need to do everything they can to minimize farm safety risks, manage liability, mitigate financial risk through enterprise budgeting and improve marketing strategies.
Brian J. Schilling is the project director of a multistate effort to develop and deliver educational programming to agricultural educators and service providers working with Northeast farmers interested in agritourism development. He spoke at the most recent Mid-Atlantic Fruit & Vegetable Convention in Hershey, Pennsylvania.
“Agritourism is an increasingly important strategy for farmers to expand farm income and employment opportunities for family members,” Schilling said. “By opening farms to visitors for educational and recreational purposes, agritourism also raises public awareness and appreciation of farming and agricultural issues.”
Schilling noted an estimated one in five New Jersey farms provide some form of agritourism activity such as on-farm direct marketing, educational tours, entertainment, outdoor recreation, or farm accommodations.
“While a promising business opportunity for some agricultural producers, attracting hundreds or even thousands of people onto the farm increases the likelihood that a guest or employee will be exposed to farm safety risks or even injury,” Schilling said. “These realities present additional legal liabilities to farm operators and should be carefully considered before inviting visitors on to a farm.”
Farm-based safety risks can never be eliminated. However, they can be managed through a comprehensive approach to farm safety and risk management, Schilling said. The group offers a fact sheet listing strategies that a farm operator can adopt to create a safer environment for farm visitors and manage the legal liabilities that may arise from increased farm visitation.
Schilling, assistant Extension specialist in agricultural policy, Rutgers University, led a project supported by a grant from the Northeast Sustainable Agriculture Research and Extension program (SARE), titled “Development of Extension Programming to Support the Advancement of Agritourism in the Northeast.”
Other participants included representatives from Rutgers University, as well as contributions from individuals at the University of Vermont, University of Maine and the University of Delaware.
“There is no single action a business operator can take to address liability issues, but taking every reasonable effort to create a safe environment for farm patrons is clearly an essential one,” Schilling said.
“I’m not here to give legal advice, just present cautions,” Schilling said at the Mid-Atlantic event. His bottom line message: Agritainment operators “cannot willfully or wantonly cause injury or harm to visitors, regardless of their status.”
Those restrictions stretch as far as to include some requirements to warn certain trespassers on a property of known hazards at the location. Trespassers can be seen as “exceeding the scope of the invitation,” but the duty of care could vary per individual and incident, he said.
Invitees to a property could include customers, employees and third-party service providers.
“The highest duty for care is to those you invite on to your property,” Schilling said. “You must proactively search for potential hazards and eliminate, mitigate or warn against such hazards.”
Schilling said the duty of care is owned by the possessor of the land. “Negligence is the failure to exercise proper duty of care.”
Essential approaches to managing on-farm liability include not:
- Putting off addressing a safety concern until “tomorrow”
- Taking the “it should be common sense …” approach
- Relying on “immunity” laws (such as limited liability provisions).
“You are responsible for the safety and welfare of individuals from the moment they walk onto your farm,” Schilling said. “Keeping them safe is of paramount importance; but accidents invariably happen. Protecting your personal and business assets is therefore an essential risk management strategy.
For more resources on agritourism farm safety and liability management – including farm evaluation checklists, training videos, fact sheets and a sample incident response form – visit the New Jersey Agricultural Experiment Station’s Extension Training for Agritourism Development website at http://agritourism.rutgers.edu/training.
Basics of agritourism safety
Each farm has its own unique safety factors to consider. Common ones that often warrant attention include:
- The safety of parking areas (as well as farm entrances and exits)
- Storage of equipment and machinery that may pose a danger to visitors
- “Attractive nuisances,” which are areas or features of the farm that may attract the interest of visitors, especially children (e.g., farm ponds, tractors, or farm animals)
- Safe storage of farm chemicals (fertilizers, pesticides, etc.)
- Plans for accommodating people with limited mobility or disabilities
- Appropriate lighting, as needed
- The level of desired access to/contact with farm animals
- Safety of food served onthefarm(byyouora vendor)
- Contingencies for inclement weather
- Safety of buildings and structures that may be accessed by the public
- Emphasize extending reasonable care to keep children safe in all cases.
— Gary Pullano, managing editor