Whether we’re ready or not, Labor Day traditionally marks a transition from summer to fall. Pumpkin flavored everything will soon be available at a coffee shop and restaurant near you, and Ohio’s agritourism farms will surely be busy.
Whether you are just getting your agritourism farm up and running, or a seasoned agritourism veteran, it never hurts to take a moment to think about your liability risks. The OSU Extension Agricultural & Resource Law Program has developed a number of resources, available on our publications webpage, that can help you think about ways to minimize the legal risks to you and your farm. These resources include:
- Ohio’s Agritourism Law – Ohio law grants liability protection for personal injuries suffered while participating in an agritourism activity. It also provides for special taxation and zoning of lands where agritourism activities occur. This law bulletin explains what your farm needs to do to be covered by the immunity, and how much protection it provides. Click HERE to read the law bulletin.
- Farm Animals and People: Liability Issues for Agritourism – Farm animals can be a valuable attraction for an agritourism operation, but having people and animals interact on the farm creates liability risks. This factsheet explains a range of animal liability risks and provides a checklist to think about what you can do to reduce the risk of injury to your visitors, as well as reduce the risk of a lawsuit. Click HERE to read the factsheet.
- Agritourism and Insurance – Even with immunity laws in place, a farmer must carefully consider the farm’s insurance needs and ensure that it has adequate coverage. This factsheet explains agritourism insurance, why it may be needed, and more. It also provides a checklist that may help an agritourism farmer make sure that certain important insurance questions are addressed before an accident occurs. Click HERE to read the factsheet.
- Agritourism Immunity Laws in the United States – Many states, including Ohio, have taken steps to encourage agritourism by providing agritourism farms with some degree of immunity to liability. We explain Ohio’s law more in depth in our law bulletin titled “Ohio’s Agritourism Law,” but this factsheet compares approaches taken in other states and provides a checklist that helps an agritourism farm think about how much protection it has under these laws. Click HERE to read the factsheet.
- Agritourism Activities and Zoning – Zoning is a force to be reckoned with in many states, but many states, including Ohio, have taken steps to encourage agritourism through zoning regulations. This factsheet explains how zoning and agritourism interact across the country, including an explanation of Ohio’s current approach. Click HERE to read the factsheet.
- Youth Labor on the Farm: Laws Farmers Need to Know – Many Ohio agritourism farms provide employment to youth, who are able to learn about agriculture, business, and customer service through working at the farm. Those hiring youth under the age of 18 want to make sure that they are following federal and Ohio labor laws. Our latest law bulletin explains the youth labor laws that are unique to agriculture. Click HERE to read the factsheet.
Food sales present some special issues that you will want to think about if you wish to sell food at your farm. Depending upon the foods you sell, you may have to obtain a retail food establishment license for food safety purposes. The following resources can help you think through the steps you must take to sell food at your agritourism farm:
- Food Sales at Agritourism Operations: Legal Issues – Whether you sell fresh produce, cottage foods or baked goods, or prepare and serve food on-site, there are legal risks and requirements that may come into play. This factsheet explains some of the legal issues you should consider before selling food at your farm, and provides a checklist of things to consider before you begin selling food. Click HERE to read the factsheet.
- Selling Foods at the Farm: When Do You Need a License? – This Ohio-specific factsheet explores farmers, including those operating an agritourism farm, need to register or obtain a license in order to sell food at the farm. Click HERE to read the law bulletin.
Beyond our website, many of our peers at OSU Extension have developed a number of helpful resources for agritourism farms. OSU Extension’s Agritourism Ready webpage, which you can access at u.osu.edu/agritourismready/, is designed to be a one stop shop for preparing an emergency management plan. You can also read factsheets on Ohioline related to agritourism ranging from “Creating Signage for Direct Food and Agricultural Sales” to “Grants and Low-Interest Loans for Ohio Small Farms,” and “Maps, Apps and Mobile Media Marketing” to “Selling Eggs in Ohio: Marketing and Regulations.”
As new legal issues arise, we will continue to create resources that help farmers understand and mitigate their risk. In the meantime, we wish everyone a fun and safe fall at Ohio’s agritourism farms.
Agritourism continues to boom across the United States, with agritourism farms offering activities from apple picking to zip lining. Literally A to Z. Consumer interest in food and farming, along with an economic need to augment farm income through diversification, have combined to drive this boom. As more farms delve into agritourism, their liability risks change. Risk and liability are hard, if not impossible, to totally eliminate, but there are a number of steps that agritourism farms can take to reduce the chances of something bad happening.
Based upon the questions generated from our law bulletin on Ohio’s agritourism law, we wanted to take an in depth look at common legal issues and risks facing agritourism. Created as part of a project for the Agricultural & Food Law Consortium, our new factsheet series does just that. Specifically, these factsheets examine:
- Legal risks of animal and human interactions
- Selling food on the farm
- Agritourism immunity laws across the country
- Zoning laws across the country
- Insurance coverage for agritourism
Each factsheet addresses common considerations and questions about starting and operating an agritourism farm, and provides links to helpful resources. The factsheets are designed to have something for everyone in the industry. From those just thinking about implementing agritourism who need to think about the basic risks, to those agritourism farms that are already well established and want a risk refresher. Beyond the industry, those professionals who advise agritourism farms may find the considerations helpful.
Most of the new factsheets include a checklist. The checklists include questions that an agritourism farmer should ask their attorney, zoning inspector, insurance provider, local health department, and more. The checklists do not represent the only legal concerns that an agritourism farm must think about, but rather a starting point. Every agritourism farm is unique, and must be treated as such when examining liability and risk.
The reducing legal risk in agritourism project is available on our website HERE, as well as the National Agricultural Law Center’s website HERE. This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
When you think of “agritourism,” corn mazes and hay rides may first come to mind. While those activities can fall under Ohio's definition of agritourism, you may be surprised to find that farm markets, you-pick operations, farm tours, wineries and other types of farm-based activities can also fit into the legal definition of “agritourism” in Ohio. This definition is important for purposes of Ohio’s agritourism immunity law, which can protect agritourism providers from liability for harm incurred during agritourism activities. The law shifts the risk of liability from agritourism operators to the participants who willingly choose to engage in agritourism activities on a farm.
It's important to understand that in order to receive the law’s liability protection, each of the following conditions must exist:
Conditions for immunity from liability
1. Qualify as an “agritourism provider.” The law specifically protects only those who are “agritourism providers,” which means someone “who owns, operates, provides, or sponsors an agritourism activity, or an employee of such a person who engages in or provides agritourism activities, whether or not for a fee. An important term within this definition is “agritourism,” which means “an agriculturally related educational, entertainment, historical, cultural or recreational activity, including you-pick operations or farm markets, conducted on a farm that allows or invites members of the general public to observe, participate in, or enjoy that activity.” This definition can include a broad range of activities, such as wine tastings, educational classes, corn mazes and other recreational activities, farm tours, and farm festivals. Note, however, that the agritourism definition requires that the activity be on a “farm,” which the law further defines as:
- At least ten acres of land (composed of tracts, lots, or parcels), that is used for “agricultural production,” which means the land is used for “commercial aquaculture, algaculture, apiculture, animal husbandry, poultry husbandry; the production for a commercial purpose of timber, field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, or sod; the growth of timber for a noncommercial purpose if the land on which the timber is grown is contiguous to or part of a parcel of land under common ownership that is otherwise devoted exclusively to agricultural use; or any combination of such husbandry, production, or growth; and includes the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with such husbandry, production, or growth”
- Or, less than ten acres of land if there is an average yearly gross income of at least $2,500 from “agricultural production” on the land.
2. Post required signs. Every “agritourism provider” must “post and maintain” warning signs in order to receive the law’s liability protection. The purpose of this provision is to inform participants that they are voluntarily assuming the risks of many of the harms that are inherent to being on a farm. The warning signs or sign templates are available through OSU Extension South Centers and Ohio Farm Bureau. Each sign must:
- Be placed in a clearly visible location at or near each entrance to the agritourism location or at the site of each agritourism activity;
- Contain the following statement, in black letters measuring at least one inch high:
WARNING: Under Ohio law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if that injury or death results from the inherent risks of that agritourism activity. Inherent risks of agritourism activities include, but are not limited to, the risk of injury inherent to land, equipment, and animals as well as the potential for you as a participant to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this agritourism activity.
Immunity from what?
The agritourism immunity law states that an agritourism provider is immune, or protected from liability, in any civil action for an injury to a person participating in the agritourism activity as long as that person was injured due to a “risk inherent in an agritourism activity.” An “inherent risk” is a “danger or condition that is an integral part of an agritourism activity,” that would be difficult for an agritourism provider to completely minimize. According to the law, “inherent risks” include:
- The surface and subsurface conditions of the land;
- The behavior or actions of wild animals not kept by or under the control of an agritourism provider;
- The behavior or actions of domestic animals other than vicious or dangerous dogs;
- The ordinary dangers associated with structures or equipment ordinarily used in farming or ranching operations;
- The possibility of contracting illness resulting from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste;
- The possibility that a participant may act in a negligent manner, including by failing to follow instructions given by the agritourism provider or by failing to exercise reasonable caution while engaging in the agritourism activity that may contribute to injury to that participant or another participant.
If a participant in an agritourism activity is harmed and sues the agritourism provider for injuries caused by any of the above situations, the law protects the provider from any liability or monetary responsibility for those injuries. In addition, the law specifically states that an agritourism provider is not required to eliminate such inherent risks on the property.
Exceptions to immunity
Although the agritourism immunity law provides civil immunity under certain circumstances, the immunity is not absolute. The law also states that an agritourism provider could be legally responsible for injury to a participant if the agritourism provider:
- Fails to post and maintain signs (discussed above)
- Acts with a willful or wanton disregard for the safety of the participant,
- Purposefully causes harm to the participant,
- Acts or fails to act in a way that constitutes criminal conduct that causes harm to the participant,
- Has or should have actual knowledge of an existing dangerous condition that is not an inherent risk, and does not make the dangerous condition known to the participant.
Use the agritourism law to your advantage
Agritourism activities can provide many benefits, such as additional income and diversification opportunities for farmers, unique cultural and recreational experiences for farm visitors and education about agriculture. But there are always liability risks to having people on the farm, which can impact a farmer’s risk exposure. Take advantage of the agritourism immunity law by ensuring that the operation qualifies for its provisions and does not fall within any of the exceptions from immunity protection. Even with this liability protection, however, operators should continuously assess the property for safety risks to minimize the possibility of visitor injuries.
The agritourism immunity law is in Ohio Revised Code section 901.80. For further information, see our Agritourism Law Bulletin and a previous post, which also explain the agritourism law’s protections from county and township zoning for agritourism operations.