The Food Lawyer

In order to remain profitable, many small farms need to cultivate revenue from every possible source. As public interest in farming and agriculture grows, introducing a bit of agritourism on your farm can be a very profitable source of income. 

Treat a decision to enter the agritourism business like you would treat a decision to  grow a crop or to conduct any other agricultural activity - perform a risk management analysis as part of your business plan. Agritourism can expose you to two possible forms of liability you should think about during planning. 

First, you must consider the prospect of liability for injuries caused by the common hazards of the farm. You must prepare for the clumsiness of your customers. Someone will get snagged on rusty equipment. Someone will fall into a ditch. Someone will provoke a vengeful bite from even your friendliest goat. Minor injuries like these are inevitable,  and most of your customers will understand this and just roll with it. They will put a band-aid over their tiny wound, move on with their lives, and tell their friends the funny story of the time they got head-butted by a sheep. 

The laid-back customers are not the ones you need to worry about. You need to worry about the thin-skinned, dramatic, litigious types, and you cannot pick them out once you open the front gate and invite them onto your land. You can only tell them apart from the average customer by their reaction to an injury. Therefore,  your risk management plan has to be built to anticipate the crazies, and you know very well they are out there. 

The type of duty that you owe to people you introduce onto your land can often depend on the reason why they are there in the first place. At common law, there were three types of visitors onto land that defined the level of care owed to them; invitees, trespassers, and licensees.  For example, a trespasser has a right to not be harmed by man-made traps laid out just for him, but if he falls into a cave, he may be on his own.  Generally, agritourists would be classified as invitees who are present for a business or commercial purpose. Understanding your state’s position in this area of law will help you define the rights and duties you owe to them.

It is important that you inquire about your local law because certain states might not apply the three-classification scheme to agritourism at all. According to the laws of the state of North Carolina, for example, agritourism professionals are not liable for injury to or death of a participant resulting from the inherent risks of agritourism activities, so long as certain warnings signs regarding obvious dangers are clearly posted. (N.C. Gen. Stat. § 99E-31). This law applies to a very wide range of activities, from U-Pick operations to the viewing of ranching demonstrations. The law also protects the farm owner from liability for the obvious risks associated with each activity. 

The second major concern for your agritourism operation is dealing with complaints from neighbors. Some neighbors will do nothing but whine about boisterous festivals, screaming kids, or too many parked cars along the roadside. These kinds of complaints fall under the rubric of “nuisance” laws, which generally prohibit landowners from playing loud music, owning 20 insanely barking dogs, having wild parties, and putting rusting cars in the front yard. In a purely residential context, nuisance complaints like these are perfectly valid. 

For farmers, the picture is slightly different. Suburbanization has put residential zones right next to agricultural ones, which is a culture clash waiting to happen. And as small scale farmers begin to put scraps residential land back into agricultural use, more of these nuisance suits are inevitable. 

It is almost certain that your state has a “right to farm” law, which often protect farmers from nuisance liability for normal farming activities like dust from machinery, tractor noise, or animal noise. In my state of New York, our right to farm law specifically includes agritourism in its list of typical farm activities covered by the statute. N.Y. Agriculture & Markets § 308(b). Nuisance protection has even been applied to the noises caused by the late-night, drunken revelry emanating from wine tastings held at vineyards. Lots and lots of wine tasting is agritourism? It can be, if you have a good lawyer.