immunity
Many of Ohio’s farm markets, u-picks, farm petting zoos, and other “agritourism” operations are preparing to open for their spring and summer activities. While these types of agritourism activities are popular, they raise unique liability concerns. That’s because there is always the risk of an injury or harm when bringing people onto the farm, whether allowing them to be near animals, riding on equipment, in crop and orchard areas, or engaging in physical activities. Along with readying the farm for the new season, agritourism operators should also plan for the possibility of a liability incident.
Here are five actions agritourism providers can take to manage liability risk.
- Conduct a safety review. Inspect your operation with visitor safety in mind. Remember, many visitors have never been on a farm or don’t understand what might harm them on a farm. Examine all areas visitors will be in, including surrounding “off limits” areas visitors might try to access, and identify any possible safety hazards. Pay extra attention to areas children will use. Consider these questions:
- Are the facilities, fences, gates, steps, play areas, and other structures in good repair?
- Are doors and gates working and latching properly?
- Are pesticides, herbicides, or chemicals out of sight and inaccessible?
- Are animal enclosures sound, do any “dangerous” animals need to be fully off limits to visitors, and are there handwashing stations near animal contact areas?
- Are there any accessible dangers that might attract children, such as ladders, equipment, lagoons, large tractor tires, and wells?
- Are parking areas and walkways sufficiently sized and buffered from traffic?
Look for the potential dangers, then take actions such as making repairs; installing blockades, fences, locks, or other structures to keep visitors away; putting up signs and warnings; providing instructions or maps; expanding parking areas or walkways; and removing unnecessary dangers.
- Complete our Agritourism Ready course. Be prepared for the possibility of an emergency situation—both natural and man-made disasters can raise the need for an emergency response. How an operation responds to an emergency can reduce harm to visitors and ultimately affect the operation’s risk of liability or harm. OSU offers a curriculum that helps agritourism operations reduce risks by developing an emergency management plan. Access this valuable and free resource at https://u.osu.edu/agritourismready/.
- Train employees. A business is legally responsible for the negligence of its employees, so it’s important to reduce the risk that an employee’s actions will cause or contribute to a visitor’s harm. Provide thorough safety training to agritourism employees. Make sure employees know how to do the job, including activities like operating equipment, maintaining and cleaning visitor areas, handling animals, overseeing children, and responding to a safety incident.
- Obtain agritourism insurance coverage. Insurance is an excellent liability management tool. But be aware that a typical farm insurance policy does not cover agritourism activities, and a separate endorsement or policy may be necessary. Even if a farm has a separate endorsement for agritourism, it’s still important to ensure that any new agritourism activities fall under the agritourism coverage. Now is the time to schedule a visit with the insurance provider and review the insurance policy. Don’t be secretive about what you’re doing in your operation. Share all activities with the provider and ensure that each activity is covered by the policy. If an activity is not covered or will require costly additional coverage, weigh the risk, costs, and benefits of continuing to offer the activity.
- Install the Ohio agritourism immunity sign. I’ve been surprised recently by how many operations I’ve visited that do not have an agritourism immunity sign on display. Posting the sign is a critical risk management tool. That’s because Ohio law provides civil immunity for qualifying agritourism providers if a visitor suffers harm or injuries due to the “inherent risks” of being on a farm. To receive the immunity, however, an agritourism provider must post the required agritourism immunity sign at the entrance to or near the agritourism activities. The agritourism immunity sign warns visitors that the operation is not liable for harm from inherent risks and that they are assuming the risk of participating in agritourism activities. But while it’s an important tool, don’t let the sign replace all of the other recommendations provided in this article. Read more about the immunity law and the agritourism immunity sign in our law bulletin, Ohio’s Agritourism Law, available on farmoffice.osu.edu.
Agritourism is a thriving industry in Ohio. Taking legal precautions to manage liability risk will help ensure that agritourism remains an important component of Ohio agriculture. To learn more about legal issues in agritourism, visit OSU’s Agritourism Law Library on the Farm Office website at farmoffice.osu.edu/law-library.
Tags: agritourism, liability, immunity
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It’s the time of year when many Ohio vegetable gardeners are wondering, “why in the world did I plant so many zucchini?” And it’s also when we start hearing the question, “is there any liability risk in giving away my garden produce?” The good news is that Ohio has a food donation immunity law. The law encourages food donations by granting liability protection to those who give perishable foods like garden produce to agencies that serve individuals in need. A new amendment to the law recently passed in Senate Bill 16 broadens the types of donations that qualify for liability protection. If you’re up to your ears in garden produce, you may want to know about the food donation immunity law.
Here's how the law works.
- The grant of immunity
The food donation immunity law is in Ohio Revised Code 2305.37. It states in Section B that a person who, “in good faith,” donates “perishable food” to an “agency” is not liable for harm that may arise if the food, when distributed to an “individual in need,” is not “fit for human consumption.”
- The donation must be made “in good faith” that the food is “fit for human consumption” when donated
There is not a definition for the term “in good faith,” but it’s a term commonly used in legal situations. It means that a person acted with an “honest intent” and not with an intent to deceive or conceal something. The food donation immunity law provides two conditions to help ensure a person is donating in good faith. First, the immunity only applies if a person determines, prior to making a donation, that the food is “fit for human consumption” at the time it is donated to an agency. The term “fit for human consumption,” though not defined by this law, means that it is edible and safe. But note there is no responsibility on the donor to ensure the food will be edible and safe after it is donated, when it is actually consumed or distributed. Second, when determining whether food is fit for consumption, a donor cannot act with gross negligence or willful or wanton misconduct. These two conditions mean that if a donor doesn’t inspect the food at all before delivery or knows something happened to the food that could make it unsafe for consumption but donates it anyway, the law will not protect the donor from liability if the food causes harm.
- The law applies to “perishable food”
The law’s definition of “perishable food” is broad. It refers to any food that may spoil or otherwise become unfit for human consumption due to its nature, age, or physical condition. The definition includes fresh fruits and vegetables, fresh and processed meats, poultry, fish, seafood, dairy products, bakery products, eggs, refrigerated and frozen foods, and packaged foods. It also includes food prepared but not served by a food service operation such as a restaurant, caterer, or hotel, and gleaned foods, discussed below.
- Donations must be to “agencies” that serve “individuals in need”
Donations to friends and family don’t qualify for the liability protection—the law only applies to a donation to an “agency” that serves “individuals in need.” Several definitions and conditions are important.
- An “agency” is an organization that distributes perishable food to “individuals in need,” either directly or indirectly. The term includes any nonhospital, charitable nonprofit corporation organized under Ohio nonprofit laws, or nonprofit charitable association, group, institution, organization, or society. An “individual in need” is a person an agency determines to be eligible for food distribution due to poverty, illness, disability, infancy, or similar circumstances.
- A qualifying agency is one that does not charge a fee for the food. However, Senate Bill 16 recently amended the law to allow donations to an agency that charges an amount no more than the cost of handling the food. That change means even if individuals pay a food handling cost to receive the donated food, the donor of the food will receive immunity.
- Another section of the law, 2305.37(D), also grants immunity to an agency that distributes donated food as long as the agency determines the food is fit for human consumption when the food distribution occurs.
Ohio law also provides liability protection for “gleaning”
Growers can also be immune from liability when allowing someone else to pick or salvage the garden produce and donate it to an agency. This is referred to as "food gleaning" and Ohio law also provides liability protection to those who allow food gleaning. First, the gleaned food is considered “perishable food” and is covered by the food donation immunity law described above. Second, the food gleaning immunity law in Ohio Revised Code 2305.35 grants a landowner or operator immunity for physical injuries sustained by a gleaner during the gleaning process. The landowner or operator is not liable for injuries to a gleaner resulting from any risks or conditions of the property or any normal agricultural operations on the property.
Ready to donate?
Gardeners ready to donate excess garden produce first need to locate an agency that serves individuals in need. Find a local food bank, food pantry, soup kitchen, meals on wheels, or similar agency, and make sure the agency doesn’t charge individuals to receive the food or charges no more than the cost of handling the food. These resources can help locate an agency:
- Ample Harvest - https://ampleharvest.org/find-pantry/
- Ohio Victory Gardens - https://u.osu.edu/ohiovictorygardens/donating-your-victory/
- Ohio Soup Kitchens, Food Banks, Food Pantries - https://www.homelessshelterdirectory.org/foodbanks/state/ohio
Before delivering garden produce to tan agency, be sure to inspect the produce and ensure it is fit for consumption—clean, not spoiled, and edible. Don’t have time to pick and deliver? Find a food gleaner who may be willing to glean your garden and donate the food to an agency. Here’s a resource that lists Ohio food gleaners: https://nationalgleaningproject.org/gleaning-map/states/ohio/?fwp_state=oh.
Tags: food law, liability, immunity, food donation, food gleaning
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