by Bill and Mary Weaver
According to the law, agritainment at your farm is not agriculture, and most farm owner liability policies will give no coverage for liability arising from agritainment injuries.
“Farm owner liability policies cover the production and marketing of crops or livestock,” explained Rachel Armstrong, attorney for non-profit “Farm Commons” in Madison, WI, “because that is how the law defines agriculture.” Armstrong recently spoke at a conference covering organic and specialty crops and agritainment.
If you allow the public on your farm on a regular basis for corn mazes, petting zoos, or tours, your farm owner liability policy will not cover you for injuries arising out of those activities. “Injuries will occur,” Armstrong continued. “It’s not a matter of ‘if’, but of ‘when.’
“There’s a sense in the farming community that the farmer is responsible for all injuries that happen on farm property, but that simply isn’t true.”
The farmer is responsible only when he has been negligent. There is willful negligence, and there is plain negligence. Plain negligence is defined as not doing something about a possible potential hazard that another prudent person under similar circumstances would have done.
Someone can sue you, however, (even if you have not been negligent,) to try to prove that you have been negligent. “This can cost you both time and money,” Armstrong continued, “because negligence is determined in court.”
If you are sued, even if the lawsuit is without merit, you’ll need to hire an attorney and pay the legal costs. But if such thoughts keep you awake at night, consider this: if you buy a commercial insurance policy that covers agritainment, the legal costs will be borne by the insurance company.
“The single most important risk management step you can take,” Armstrong stressed, “is to buy insurance. A good policy with a reputable insurance company will get you farther, faster, than any other step.”
If you only occasionally hold events on your farm, and the number of visitors is small – under 100 – an endorsement to your existing farm owner liability policy may be enough. But if you regularly allow visitors on your farm, buy a commercial liability policy, after studying it closely to see what risks it covers.
“An insurance policy is a specific, detailed contract. Insurance companies are not looking to pay for problems that are not in the contract. Know what your specific policy covers.”
Your insurance agent will come to your farm, perhaps yearly, to look for hazards and risks. Take seriously the agent’s recommendations. “Insurance companies are experts in risk management, and the most important step in risk management is removing potential risks before an accident happens.”
Your insurance agent may ask you to do things that may be burdensome financially. They may, for example, tell you that a building on your farm in an advanced state of disrepair must be torn down, or they will not renew your policy.
“A building in disrepair is a lawsuit waiting to happen,” stressed Armstrong, “and those lawsuits are difficult to win in court. If your agent tells you, ‘Do something about this,’ take it to heart.”
Finding the right policy to cover your agritainment events is not necessarily easy. But once you have found your policy and you are confident, after discussion with your agent, that it gives you the coverage you need, there is another step to take. Read again the section that tells you what you are required to do in the event of an accident on your farm, so you will be able to draw on your policy.
How soon after an accident, for example, are you required to notify the insurance company? Evidence collection usually starts immediately after you are aware of the accident. What kinds of evidence are you required to collect? That could include names and addresses of the victim and any witnesses, witness statements, photos of the accident site, and of the wounds caused.
In agritainment law, in addition to the concept of negligence on the part of the farmer, there is also the concept of “assumption of risk.”
Armstrong described a hypothetical situation in which the court could potentially have applied the concept of “plain negligence” OR the concept of “assumption of risk,” depending on other circumstances surrounding the accident.
“The farmer’s 15-year-old son wanted to dig a large hole on an out-of-the-way back corner of the farm. The farmer consented. However, one day during a farm tour, a teenage boy and girl slipped away from the tour group for ‘time alone,’ and ended up falling into the hole.”
The prosecutor could argue negligence, reasoning that a prudent person who had frequent on-farm visitors would not have allowed his son to dig the hole.
The defense attorney could argue that the teenage couple “assumed the risk” when they ventured beyond the area designated for the tour, which was marked by signs.
“Farms are inherently dangerous places,” added Armstrong, “with power equipment and animals.”
A verdict of “plain negligence” or “assumption of risk” would hinge on the details. How clearly marked was the designated area where visitors were to remain? How far beyond the designated area did the couple hike before they fell into the hole? How easy was it to fall into the hole? Was the hole visible from some distance away? Was there a barrier around the hole?
Also, why was the hole dug in the first place? Was it part of a needed irrigation or tiling project? Did it serve some purpose?
“Such cases are long, complex, and very expensive,” continued Armstrong. “Insurance company lawyers have a lot of experience in arguing such cases,” and if you are insured, your insurance company will be paying their fees.
Finally, communicate about risks. “Visitors are more likely to follow the rules if they are asked to read them, and then sign that they agree to follow them.” (Less effective are signed waivers that each visitor assumes all risks and will not sue. These are usually easy to break in court, and by law, cannot apply to children.)
Posting good signs is also a wise idea, but the opposing attorney can say, “My client did not see the sign.” It may help to request each person’s signature that they have read important signs.
Relatives and good friends, “who would never sue” also pose a potential risk. If they are injured on your farm and use their medical insurance to pay for needed care, their medical insurance companies can sue you to recover damages, and by law, those friends can’t prevent this.
Rachel Armstrong obtained her law degree and became Executive Director and attorney of the non-profit “Farm Commons” so that she could give legal education to farmers “on topics that keep them awake at night.”
Agritainment injury liability – are you covered?
by Bill and Mary Weaver