Legal Liability Issues for Pick-Your-Own Operators

Any business endeavor that brings visitors onto agricultural property increases the risk of legal liability for harm that might occur on the property. Operators of pick-your-own businesses need to be aware of this increased risk. An understanding of the law, including recent immunity protections for certain circumstances, should help operators reduce legal liability risk.

What is Legal Liability?
Legal liability is the legal responsibility for actions that harm another, violate a law or otherwise fall beneath societal standards of behavior. It is liability that is enforceable through the legal system.

Landowner Liability under Ohio Law

“Negligence” is the legal basis for many liability situations—the cause of action that would be alleged by a harmed party. Negligence is the failure to use the degree of care that a reasonably prudent and careful person would use under similar circumstances. To allocate liability based upon negligence in a situation where injury occurs on an agricultural property, the harmed party must prove that the property owner or tenant had a legal duty of care to the harmed party that he or she breached, and that the breach of the legal duty caused the party’s harm.

Ohio law establishes different legal duties for property owners or tenants. The degree of the legal duty is dependent upon the type of visitor. A visitor who is on the property for the property owner’s financial or business benefit is considered an “invitee”, and the legal duty of care for this type of visitor is the most demanding. A pick-your-own customer falls into the invitee category. The property owner’s legal duty to an invitee is to protect the invitee from harm by either taking steps to discover and eliminate all known and unknown dangerous conditions on the property, or by warning the invitee of the dangerous conditions.

Meeting the Landowner’s Legal Duties
To meet his or her legal duties to visitors, the landowner must first understand the situations on the property that might be “dangerous conditions”. These are conditions that create an unreasonable and unnecessary risk of harm to the invitee, and are not readily apparent to the invitee. For example, a hidden hot electrical wire would probably fit within the definition of a dangerous condition. Minimal or trivial defects, such as a nail head popping out of siding, will not likely be deemed “dangerous conditions”. Nor will situations ordinarily encountered, such as snow falling, or “open and obvious” conditions, such as a ladder placed on a slippery floor.

While it might sound simple to protect visitors from obviously dangerous conditions, note that the law requires a landowner to address both unknown and known dangerous conditions on the property. The landowner must actively seek out conditions that could pose a danger, even if the conditions are not readily known to the landowner.

In response to a dangerous condition, the landowner must either eliminate the condition or provide a warning that allows the visitor to stay away from the condition. Taking either of these actions constitutes an attempt by the landowner to satisfy his/her legal duty to the visitor. If the visitor is still harmed despite the landowner’s attempt to meet the legal duty of care, it is possible that the landowner will not be liable for the visitor’s harm. For example, if a property owner puts a fence around a dangerous condition and the visitor climbs over the fence and is harmed, the law supports the argument that the landowner met his legal duty of care by warning the visitor with the fence. Other ways of warning visitors can include verbal or written instructions, signs, maps, blockades, roping or additional measures that clearly identify the danger.

Statutory Immunity for U-Pick Invitees
A recent revision to Ohio law establishes statutory immunity from liability for pick-your-own operators in certain situations. The law, which became effective in April of 2005, addresses owners and operators of “premises open to the public for direct access to growing agricultural produce.” By giving permission to enter the premises, the owner or operator does not make an assurance to customers that the premises are safe from naturally occurring hazards, according to the law. The law also states that the owner or operator has no liability for injuries resulting from the natural terrain or from cultivation of the soil.

Immunity is not automatic, however. The new law provides a defense for pick-your-own landowners and operators to assert against a legal claim of negligence. For example, a u-pick customer who breaks a leg by falling into a dip in the raspberry field can bring a claim of negligence against the owner of the operation. The operator could then assert the immunity defense, arguing that the injury resulted from a naturally occurring hazard on the property. If the operator can prove that the natural hazard caused the fall, then the operator will have no liability to the customer for the injury.

Risk Reduction
Pick-your-own operators can reduce legal liability risk by continuously assessing and eliminating all dangerous conditions on property that is open to customers. If a condition cannot be eliminated, be sure to warn the customers of the danger by way of signs, instructions, fencing, etc. Be aware that there is limited statutory immunity from liability where injuries result from naturally occurring hazards such as the natural terrain or the effects of soil cultivation. Despite this protection, don’t overlook good property management and insurance as risk management tools. A comprehensive approach to liability risk management should lessen the increased risk associated with bringing customers onto the property.

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