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liability

Little girl walking through strawberry patch with basket of berries
By: Peggy Kirk Hall, Wednesday, May 08th, 2024

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.

  1. 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.

  1. 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/.
  2. 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.
  3. 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.
  4. 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.

Map of the solar eclipse path across Ohio
By: Peggy Kirk Hall, Wednesday, March 20th, 2024

Co-authored with Wayne Dellinger, Extension Educator in Union County and member of the OSU Ag Safety Team.

The upcoming solar eclipse on April 8 is a rare event that could bring a half-million people into the 124-mile eclipse path across Ohio, according to the Ohio Emergency Management Agency.  For months, we’ve been hearing about eclipse issues ranging from eye safety to best viewing locations.  But for farmers and farmland owners within the eclipse viewing area, the solar eclipse raises unique issues and concerns. Should we take steps to secure the farm?   Will it delay our farming activities?  What if we have trespassers or want to invite people to the farm to view the eclipse? 

With the eclipse quickly approaching, now is the time to address the safety and legal questions it creates for the agricultural community.  To provide guidance on these questions, our Agricultural & Resource Law Program partnered with the OSU Ag Safety Team. We offer these five steps farmers and farmland owners can take now to prepare for the solar eclipse:

  1. Secure the farm property. 
  2. Understand trespass laws.
  3. Know responsibilities for invited guests.
  4. Plan ahead for farming activities.
  5. Be prepared to react to an incident.

For each step, we provide explanations of the concerns and issues that might arise, any laws that apply, and actions farmers and farmland owners can take to reduce their safety and legal concerns.  Read the entire article at https://farmoffice.osu.edu/solar-eclipse-2024.

Publication cover page
By: Peggy Kirk Hall, Wednesday, September 27th, 2023

We know farms are subject to more risks than ever before and we know the important role insurance plays in protecting our farm assets. But how many of us actually read and understand our farm insurance policies? The failure to read a policy is probably not due to apathy but is more likely due to the complex nature of an insurance policy. Reading and understanding an insurance policy is difficult for anyone other than those in the insurance industry. But it's a critical necessity for farm risk management.

Our newest publication can help.  Farm Insurance: Covering Your Assets provides a general description of farm insurance and insurance policies.  This information will help a farmer understand how farm insurance coverage works.  Our goal with this publication is to prepare farmers for a review of policy provisions with their insurance agents and ensure the farm has a comprehensive and carefully tailored insurance policy.  We've coupled the publication with a new law bulletin, Farm Liability Insurance: Examining Your Covered Activities and Assets, which provides a quick reference list of farm activities and assets that might not be covered in a standard farm liability insurance policy.

Robert Moore, attorney with the OSU Agricultural & Resource Law Program, authored the publication with the assistance of Jeff Lewis, attorney with OSU's Income Tax Schools, and Zachary Ishee and Samantha Capaldi, National Agricultural Law Center Law Fellows.  The National Agricultural Law Center and the USDA National Agriculture Library provided funding for the project in partnership with OSU Extension. Find the new publications in our Business Law Library on Farm Office at https://farmoffice.osu.edu/law-library/business-law.

Front page of a law bulletin on business entities
By: Peggy Kirk Hall, Tuesday, September 12th, 2023

What type of business entity is your farm?  A common answer to that question is unfortunately the wrong answer:  "I don't have a business entity for my farm."  That's not a correct answer because every farm engaged in the business of farming is a business entity in the eyes of the law.  Our new law bulletin series on "Structuring Your Farm Business" explains the different types of business entities available to farm businesses.  The series also addresses tax and liability characteristics of different business entities, how business entities affect Farm Service Agency programs, how to start and manage an entity, and the important role business entities can play in protecting a farming operation for the future.

Supported by funding from the National Agricultural Law Center and USDA National Agricultural Library, the new series includes these bulletins:

  • A Comparison of Business Entities Available to Ohio Farmers
  • Tax Characteristics of Business Entities Available to Ohio Farmers
  • Farm Service Agency Programs and Business Entities
  • Using Business Entities to Manage Farm Liability Risk
  • Using Multiple Business Entities for a Farm Operation
  • Starting, Organizing, and Managing an LLC for a Farm Business

Authors of the Structuring Your Farm Business bulletins are Robert Moore, Attorney and Sr. Research Specialist for the OSU Agricultural Law Program, Zachary Ishee, Law Fellow with the National Agricultural Law Center (now in private practice) and Barry Ward, OSU Extension's Leader of Production Business Management and Income Tax Schools Director. 

The entire Sturcturing Your Farm Business series is now available in the Business Law library on farmoffice.osu.edu

 

Zucchini and yellow squash in a wooden box
By: Peggy Kirk Hall, Wednesday, July 26th, 2023

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.

  1. 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.” 

  1. 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. 

  1. 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.

  1. 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: 

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.

By: Peggy Kirk Hall, Wednesday, November 27th, 2019

Food is likely on the minds of many people as we head into the holiday season.  Being an agricultural attorney, it’s hard to think about food without also worrying about food product liability.  Whether growing turkey or romaine lettuce, producing food for human consumption is a risk-laden endeavor that can lead to legal liability for a farmer.  That’s why knowing and following Good Agricultural Practices (GAPs) is imperative for farmers who raise produce, eggs, meats, and other foods for direct human consumption.  Employing those production practices is critical to producing a safe food product.   But what if a food isn’t safe and causes illness or death?   

No one wants to believe their food product would harm someone or that their customers would sue them for such harm.  But it’s a reality that food producers must face.  I’ve recently had the pleasure of working with farmers in OSU’s Urban Master Farmers Program and OEFFA’s Begin Farming Program who are taking these risks to heart and learning not only about GAPs, but also about other tools that address food product liability risk.  Teaching these producers has reminded me of how important it is to remind all producers about these tools.  So here’s a rundown on four important food product liability tools:

  1. Management practices.  In addition to using production practices such as GAPs, a producer’s management practices can also manage food liability risk.  Thorough employee training, for instance, ensures that everyone is following GAPs and other risk management procedures.  Documentation of production procedures can be useful evidence when determining liability for a food product.  Keeping records of such documentation along with other records such as sales and training records can help inform what caused the incident and whether it can be traced to a producer’s product.  Regulatory compliance, such as following Ohio’s Uniform Food Safety Code, might also be necessary, depending upon the food product.  Each of these management practices feed into a solid risk management plan.  This requires a producer to engage in continuing education.
  2. Insurance.  An insurance policy can be an excellent way to manage food safety liability risk.  But to obtain adequate insurance coverage, a producer should review all food products and food sales activities with an insurance professional.  A farm’s standard liability policy might offer adequate coverage for the foods and food sales activities.  Alternatively, a producer may need to add an endorsement or “rider” or obtain a separate commercial food product liability policy.  The goal is to ensure coverage for medical and related costs if someone contracts a food borne illness from a particular food product sold in a particular way.  It’s also important to revisit the insurance coverage when taking on a new activity or creating a new food product.  Doing so will ensure maximum protection and reduce the possibility that an incident is not covered. 
  3. Recall insurance and planning.  A producer who sells a sizeable quantity of food products through a number of sources or a food broker may need to consider recall insurance.  This type of policy will kick in when a food product must be recalled because it has been identified as a food safety risk.  It can help cover the costs of notifying the public about the product and removing the product from stores, institutions and consumers.  Likewise, having a detailed recall plan can minimize such costs by ensuring that the recall process is responsive, efficient and effective.
  4. Business entity formation.  “Do I need an LLC?” is a common question we receive, and the answer is usually “it depends.”  Organizing as a Limited Liability Company (LLC) or Corporation won’t prevent a producer’s liability, but it can limit the liability to the assets of the business.  An LLC, for example, contains a producer’s business assets and separates them from the producer’s personal assets, such as a home.  If there is a legal liability incident, the LLC assets would be subject to that liability.  It would be difficult for someone to get beyond the LLC and into the producer's personal assets.  The LLC doesn't relieve the producer from liability, but it can safeguard those personal assets.

Talking about legal liability has a way of ruining one’s appetite, but hopefully that won’t stop food producers from thinking seriously about food product liability risk.  The good news is that like most liability exposure areas, tools can help minimize liability risks for our food producers.  Using those tools might just help settle our worries about food product liability.

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