by Sally Colby
Many farms have enjoyed extra income from inviting the public onto their farms, especially those that feature autumn and Christmas activities. However, such enterprises come with risk.
Jackie Schweichler, staff attorney at Penn State Law’s Center for Agricultural and Shale Law, discussed issues that may arise when guests are invited to farms for agritourism.
Schweichler explained the difference between criminal and civil liability. “A person is criminally liable when they commit a crime against the public,” she said. “Civil liability refers to lawsuits brought by a private party.”
In an agritourism setting, a civil lawsuit could arise from disagreements with customers or outside vendors. “For example, if you engage in a contract with a food truck operator then decide to go with a different vendor, you might be liable,” said Schweichler. “You might owe the food truck operator compensation depending on the wording of the contract and what occurred.”
Regarding liability, Schweichler focuses on liability arising from tortes – a type of legal action brought in a civil case. “Specifically, a torte is an act or omission that results in injury or harm to a person, property or reputation,” she clarified.
In general, the purpose of a torte action is to recover damages. Schweichler illustrated this with an imaginary “Farmer Fred,” a grower who invites the public onto his farm to pick strawberries. Farmer Fred allows his pigs to wander in the strawberry fields in the evening; the waste from the pigs contaminates the fruit and several guests become ill.
“The strawberries have been contaminated due to Fred’s actions,” said Schweichler. “If enough people become sick, there could be criminal charges against the farmer. In a criminal case, those injured have the satisfaction that the farmer has been punished, but otherwise they get nothing. If the injured people take action and file a civil suit, they’ll probably receive financial compensation. If the court rules in their favor, the farmer will have to pay them.”
If someone visits the farm and is injured, the civil suit may ask for compensatory damages including medical care, damages for pain and suffering, punitive damages (which Schweichler said is rare) or the court might issue an order for the defendant to stop the activity. “For on-farm injury cases, most of the time we’re going to see traditional compensatory damages,” said Schweichler. “For an agritourism operator, the operator would need to do something egregious or repeat the activity despite warnings.”
The term “negligence” is often used in lawsuits and can be difficult to prove. “Negligence is the failure to act as a reasonable person would act under similar circumstances,” said Schweichler. “Was the person careless or thoughtless? Did they not do something they should have done? Under negligence, there are four factors a plaintiff would need to prove: Was there a duty or obligation, something the person should have done? Was there are breach of duty? We have to answer a second question – ‘What is the standard of care?’ The jury makes a decision on whether your actions were reasonable and whether you breached your duty of care.” The last two factors are proximate causation, which is about whether the injury is reasonably foreseeable as a result of the defendant’s misconduct. Lastly, there are actual damages – was the guest or customer actually injured?
Other than the owner, the three types of people who enter a farm property are trespassers, licensees and invitees. A trespasser is someone who enters without permission, and the landowner’s obligation is to not maliciously injure that person. If there’s concern about trespassers, Schweichler suggested using alarms or video cameras.
Licensees enter the property with permission, such as friends or family. However, the landowner must notify them of dangerous conditions such as dangerous animals or if a porch step is loose or broken.
“An invitee is a person who enters for the benefit of the landowner for a business purpose,” said Schweichler. “The landowner is obligated to make the premise safe or warn of conditions that cannot be repaired.” Landowners don’t usually have to be concerned about lawsuits from trespassers or friends and family, but should consider the possibility of lawsuits brought about by invitees.
“You must make the property safe, or if it can’t be fixed, you must warn of the danger,” said Schweichler. “Maybe the broken step looks obvious to you and you think you don’t have to warn everyone, but never assume what people see or don’t see. You might have guests who are visually impaired.” Farm owners must be vigilant and review property and equipment routinely.
Some farms have problems with child trespassers, which Schweichler said is relevant if local young people sneak onto the farm after business hours. “It could also be relevant if your business caters to children and you have a large, sprawling property where a child might wander off into areas only meant for staff,” she said. “That’s where the term ‘attractive nuisance’ comes in – something that could be dangerous or might look fun to a kid like ponds, machinery and animals.”
Schweichler explained that if a child climbs onto a tractor, starts it, drives around, falls off and is injured, you might be liable. “The question is whether it would be ‘reasonably foreseeable’ that a child would come onto your property to play with [whatever],” she said. “The best way to address this is to think about what a child could potentially get into and then try to fix or prevent it.”
Negligence can be a tricky topic for farms. “When we’re trying to determine if we can pursue an action in negligence, we have to see if there’s a duty,” said Schweichler. “You owe a different duty to different people. You owe a lot of duty to a business invitee, some duty to a licensee and child trespassers and a small duty to adult trespassers.”
The second aspect of a negligence lawsuit is determining whether there was a breach of duty. This can be difficult because it starts with standard of care. “A standard of care is what a reasonable person would do under similar circumstances,” she explained. “A reasonable person is a reasonable farmer, landowner or businessperson.” Think about something dangerous on your farm, then think about how a non-farmer or inexperienced person might deal with the situation.
“Negligence per se is when someone violates a law that was written specifically to prevent the kind of damage caused by that person’s conduct,” said Schweichler.
There are two tests for proximate causation; one is the “but for” test. “But for the actions of the defendant, would the injury have occurred?” said Schweichler. “Second, were the defendant’s actions a substantial factor in causing the injury? For proximate causation, the injury must fit one of the two tests and must be reasonably foreseeable results of the defendant’s misconduct.” Schweichler used the example of Farmer Larry who tells a guest to grab a bucket on their way to pick blueberries. The guest reaches for the bucket and is struck by lightning but would not have been standing in that spot “but for” instruction from Farmer Larry.
However, if Farmer Larry leaves tools on the ground near the buckets and a guest trips over them on the way to get a bucket and twists an ankle, Schweichler said the circumstances would likely meet both of the proximate causation tests. “But for the tools left on the ground by the farmer, the guest would not have tripped,” she said. “The tools are a substantial factor in the guest tripping and a twisted ankle is a reasonably foreseeable result of someone leaving tools on the ground in a walking area.”
Schweichler said in some cases, the injured party is at also at fault for an injury. “Most states have comparative negligence laws,” she said. “With comparative negligence the jury is asked to assign fault to the parties with percentages. The injured party can still recover damages as long as their negligence is less than that of the defendant.”