Hazards in the Pumpkin Patch: Legal Issues in Agritourism
You may have noticed that more and more people include agritourism as a part of their entertainment. This is especially true in autumn, when pumpkin patches decorate the countryside with food, games and even haunted attractions. But agritourism is not all hot cider and smiles; indeed, it comes with its share of risks.
Agritourism is such a big industry in Washington that the legislature has decided to regulate and protect it through RCW 4.84.830, 832 and 835. The statute defines “agritourism” to include activities “carried out on a farm or ranch whose primary business activity is agriculture or ranching and that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities….” The definition goes well beyond your standard pumpkin patch, and incorporates tours, pick-your-own operations, parties and events, and even fishing and camping.
Agribusiness owners engaging in agritourism have legal immunity from injury, loss and damage arising from the inherent risks of agritourism activities. This means that if something bad happens to an agritourism customer, up to and including their death, they will be barred from recovering damages against the owner of the activity as long as that customer was actively engaged in an “inherent risk of agritourism.”
Inherent risks of agritourism are defined as “dangers or conditions that are an integral part of an agritourism activity.” These include, but are not necessarily limited to, dangers posed by animals (wild and domestic), farming equipment and structures, and the condition of the land and surrounding waterways. For example, if a customer falls off a horse, is injured by a falling hay bale in the hay maze, or breaks their ankle walking through a muddy field, the agribusiness owner is immune from liability. The owner is similarly immune from injuries negligently caused to a customer by other customers, as long as the offending customer is not a minor or was not intoxicated.
It should be noted, however, that if an injured customer brings a lawsuit against an agribusiness, it is incumbent on the business to plead an affirmative defense of “assumption of the risk of an agritourism activity” in its answer to the complaint. A failure to plead this affirmative defense can result in a waiver of immunity and the lawsuit may be allowed to proceed.
Of course, this immunity does not extend to intentional, reckless or grossly negligent actions. So, if one of the actors in a haunted corn maze purposely injures a customer, the agribusiness will not have immunity from legal action. Additionally, immunity does not extend to dangerous conditions of which the agribusiness owner is aware but fails to warn the customers. Agribusiness owners must also be careful to ensure that all customers are engaging in age-appropriate activities (i.e. don’t allow children to operate heavy farm machinery), and also must ensure that obviously intoxicated customers are not allowed to engage in agritourism activities.
Finally, the statute imposes a requirement for all agribusiness owners to post a written warning to customers regarding the limited liability imposed by the agritourism statute. This warning should be posted at the entrance of the location and at the site of the activity. The specific required wording can be found in the statute itself at RCW 4.24.835.
Agritourism can be fun and rewarding for all involved, but it comes with its share of risks. Agribusiness owners should have competent legal counsel ready to advise on all issues related to agritourism. The attorneys at Beresford Booth have decades of experience working with agricultural clients and are prepared to assist you as you navigate the legal challenges inherent in agritourism.
To learn more about Hazards in the Pumpkin Patch: Legal Issues in Agritourism, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.
