Updated: Jul 9, 2020
This column should not be construed as legal advice
This column originally appeared in the Lancaster Farming, Vol. 59 No. 52 Oct. 4th Edition.
I realize this column is a couple of months overdue but we are in the middle of agritourism season for many farms across the state and country. Many of you have the opportunity to walk through corn mazes, pick pumpkins, or go on a hayride. But many agritourism operators have concerns about how to limit liability for customers who get hurt running through the maze, falling while picking pumpkins, being hurt on the hayride, and so on. These accidents could happen through your fault or the customers’ fault.
Understanding how to manage legal risks in the operation is something agritourism operators should consider. Some basic tools to consider are utilizing liability waivers, purchasing liability insurance, and understanding how negligence defenses, such as contributory negligence, operate.
The first tool to consider is a liability waiver for your customers. A liability waiver is a contract releasing an operator from potential liability for activities on the farm or other recreational businesses. Liability waivers act as a form of assurance that the customer will not sue the agritourism operator for injuries. Requiring customers to sign a waiver may lose you some business, but you would need to weigh lost customers against the potential benefits of the liability waiver. Colleague Ashley Newhall has developed a checklist to consider before talking with an attorney (see http://bit.ly/waiverchecklist for the checklist). Do not try to develop this waiver on your own, but consult an experienced attorney in your area who can aid you in developing a liability waiver that works for your agritourism operation (a directory of ag attorneys in Maryland can be found at www.umaglaw.org).
Another tool is liability insurance for the operation. Liability insurance is a contract between the purchaser and the insurance company allowing you to transfer some of your risk to an insurance company. In return for transferring the risk, you agree to pay premiums and gain assurance that the insurance company will cover potential liability incurred in your operation. In many cases, this could include litigation expenses. How much risk you transfer (how much are you willing to pay) will have to be worked out in considering your individual risk management plan.
Our final tools are potential defenses to a negligence claim. Potential defenses will both be very fact–specific, meaning they may not apply to every situation, but could apply in many situations. Other defenses may also apply; the two we’re about to examine are the more common ones that apply to agritourism operators to potentially limit liability. These defenses are contributory negligence and assumption of the risk. These are both affirmative defenses, meaning that it is up to the defendant to bring the defense up at the right time or the defense will be lost. Contributory negligence is based on the idea that the injured party owes a duty of care to himself or herself and breaching that duty is significant enough to bar the injured party from recovering damages. For example, a customer is running and chasing after friends through your corn maze, trips and falls, and breaks an arm. Based on these limited facts, contributory negligence may apply because we would expect the customer not to be running through the maze and taking care to protect themselves.
As a business owner, you do not want to rely solely on this potential defense. Contributory negligence is fact-specific and is also a question for a jury to decide. You should always check with your insurance agent to see if areas of your business are covered under the farm’s liability policy. You should also work with the insurance agent to make sure that you have the right level of coverage, which depends on you, your operation, and what you can afford to pay. Last, work with an attorney to see if additional signage is necessary or any other steps you can do to limit your liability. Being proactive is a good way to limit potential legal liability.