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Agritourism: Liability When Farms Open Their Property to the Public

Posted by Giovanna A. D'Orazio | Oct 27, 2017 | 0 Comments

New York has a flourishing “agritourism” industry – including apple and pumpkin picking, cutting down your own Christmas tree and equine therapy.  Farm owners, however, are concerned about liability insurance costs stemming from opening their property to the public.  Will they get sued because someone trips over some rough terrain? Gets stung by a bee?  We once called poison control from a Christmas tree farm because our daughter ate some berries off of the ground. Could we have sued if she got sick? (Probably not successfully, but that's the kind of thing landowners are worried about.).

Governor Cuomo just signed a bill into law that adds a new section to the General Obligations Law and seeks to clarify landowners' obligations for these types of agritourism activities.  If the landowner complies with its obligations, then the law relieves it from liability.  The full text of the bill can be read here

New York General Obligations Law 9-103 already protects landowners who open their property to the public for specifically listed recreational activities.  But those recreational activities don't include the types of agritourism activities this new law is intended to cover.   

A comparison of the two laws indicates that GOL 9-103 is more protective than this new law, essentially relieving landowners of liability (with some exceptions) when individuals are engaged in the listed recreational activities (like hiking, snowmobiling and cross country skiing).  The new law, on the other hand, still imposes a duty to act with reasonable care under the circumstances – the ordinary negligence standard – and lists a bunch of other steps a farm owner must take – including training employees, signage and posting warnings – in order to fall within the liability protections of the statute.  Perhaps that's because it's more practicable to take those steps on a farm as opposed to when a landowner opens half of a mountain to public use.

Will this law actually cut down on lawsuits?

It appears that the reasoning behind the new law was to give some additional guidance about liability so that insurance companies would have a better idea of what to expect in terms of their exposure and hopefully lower premiums.  Reading it, however, given that there is still a duty to act with reasonable care – which is not included in the GOL 9-103 provision – it does not appear to have changed the law all that much.   Therefore, whether it will cut down on lawsuits remains to be seen.   

There is a difference between preventing lawsuits in the first place and bringing a lawsuit that is ultimately unsuccessful.  A law like GOL 9-103 does cut down on lawsuits because it expressly states that landowners are not liable for any injury stemming from the listed activities.  In that situation, an attorney knows not to even file the lawsuit in the first place.  The new law, however, does not have that kind of language.  Therefore, there will always be an opening to argue that a landowner has not acted with reasonable care under the circumstances – which is the law applicable to all landowners, generally. 

So, using our daughter eating the berries as an example, if we were hiking on a mountain, GOL 9-103 would tell us not to even bother filing a lawsuit.  This new law, however, leaves an opening: what if the landowner knew kids were eating the berries? What if they didn't warn about them?  In the end, it's unlikely the lawsuit would be successful (and most plaintiff's lawyers who work on contingency fee have no interest in suing a case that is going to be dismissed), but the law doesn't discourage bringing the lawsuit in the first place in the same way GOL 9-103 does.

If you are interested in reading more about premises liability, visit that section of our website here.  You can also read on that page about an appeal Giovanna successfully argued at the Appellate Division Third Department about the application of GOL 9-103. 

About the Author

Giovanna A. D'Orazio

Giovanna has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna also has experience litigating Article 78 proceedings in New York State court.

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