New York has a flourishing agricultural tourism (or “agritourism”) industry – including apple and pumpkin picking and cutting down your own Christmas tree. Property owners, and insurance carriers, however, were starting to become concerned about the risks in opening farms to the public. In an attempt to alleviate those concerns, and with the idea of lowering liability insurance premiums, in 2017, New York enacted the Safety in Agricultural Tourism Act (which appears at Section 18-301 through 18-303 of the General Obligations Law) to cover farms who open their doors to the public for these types of activities.
So, what does this law do? Theoretically, it is supposed to protect landowners from liability if they adhere to some safety parameters set out in the statute.
First, “[a]gricultural tourism” is defined as: “activities, including the production of maple sap and pure maple products made therefrom, farm and winery tours, equine activities both outdoors and indoors but excluding equine therapy, u-pick Christmas trees, hiking, hunting and other forms of outdoor recreation offered to farm visitors, conducted by a farmer on-farm for the enjoyment and/or education of the public, which primarily promote the sale, marketing, production, harvesting or use of the products of the farm and enhance the public's understanding and awareness of farming and farm life.” NY General Obligations Law 18-302.
The law then goes on to list various obligations on the part of the property owner that, if complied with, would relieve the owner of liability in a lawsuit. These include: posting warning signs, posting signage that delineates walking paths and areas that are open to the public, and adequately training employees. The law also requires property owners to “take reasonable care to prevent reasonably foreseeable risks to visitors, consistent with the responsibility of a landowner to keep his or her premises reasonably safe for intended and reasonably foreseeable uses and users.” NY General Obligations Law 18-305.
So, Does this Law Actually Do Anything? Maybe not. And it may have the opposite impact than intended.
Research has not revealed any cases that have applied this provision in a premises liability case (i.e., the category of personal injury cases involving an injury on someone's property).
The fact that the law retains the requirement that property owners “take reasonable care to prevent reasonably foreseeable risks to visitors” in our opinion appears to undercut the point of the statute (relieving landowners of liability if they check off a list of requirements) because maintaining your property in a reasonably safe condition is the negligence standard applicable to all property owners.
In fact, listing out additional duties, while also retaining this standard, could potentially have the opposite impact in a lawsuit. How? Because failure to adhere to one of those additional duties would potentially not be reasonable or required when applying an ordinary negligence standard. For example, maybe under the facts of a particular case you would argue that a sign is not required. Now, we have an actual list of obligations to adhere to and, if you don't put up that sign, someone now has a statute to rely on that says you should have. Language like “adequately training” employees also begs the question of what is “adequate”.
As plaintiff's lawyers, there are other similar statutes that are more effective in preventing a lawsuit in the first place. For example, NY General Obligations Law 9-103 actually relieves landowners from liability if someone is engaged in a listed “recreational activity” (like hiking, snowmobiling, cross country skiing) when their property has been opened to the public, without retaining the negligence standard. So, unless you have an argument that the statute doesn't apply to you, you wouldn't file that lawsuit in the first place. With Section 18-301 through 303, there still appears to be plenty of room to argue that a landowner did something wrong.
So, time will tell if this law has any impact on lawsuits in the agritourism context.
If you have been injured on someone else's property, give us a call. We're happy to see if we can help. For more on our premises liability practice, click 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.