Editors Note: Thanks go to Tiffany Dowell Lashmet for permission to run this excellent article on the Texas Agritourism Act. Tiffany is an Assistant Professor and Extension Specialist specializing in Agricultural Law with Texas A&M Agrilife Extension. Many, if not most, states now have agritourism acts that help to provide liability protection for owners of agricultural land who allow its use for educational or recreational activities. Be careful to note the requirement of waivers of liability. This article was originally published in the Texas Agricultural Law Blog.
by Tiffany Dowell Lashmet
As was briefly mentioned in this prior legislative recap post, Texas now has a new statute offering liability protection for agritourism operations. The Act, carried as SB 610 and now codified as Texas Civil Practice and Remedies Code Chapter 75A, offers important protections of which landowners need to be aware.
The statute provides that an “agritourism entity” is not liable to any person for injury or damages to an “agritourism participant” if: (1) the required signage is posted; or (2) a written agreement containing required language is obtained.
Let’s break this statute down to discuss each requirement.
(1) The act is aimed at protection persons injured while participating in an “agritourism activity.” By definition, an agritourism activity is an activity on agricultural land for recreational or educational purposes of the participants, regardless of compensation.
The requirement that the property involved be “agricultural land” means that it must be land suitable for use in the production of fruit or crops grown for human or animal consumption, or plants grown for production of fibers, floriculture, viticulture, horticulture, or planting seed, or suitable for domestic or native farm or ranch animals to be kept for use or profit. This is a very broad definition–requiring only that land be “suitable for” this wide range of agriculturally related activities.
The requirement that a person be engaged in an educational or recreational activity is also important. A “recreational purpose” is defined as including hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving (including ATVs), nature study, cave exploration, water sports, biking, disc golf, walking dogs, radio control flying, and other activities associated with enjoying nature or the outdoors. Again, this is an extremely broad definition.
So, for example, if a plaintiff was on a defendant’s ranch land to hunt deer, that would meet the definition of an “agritourism activity” required for the statute to apply.
(2) The Act offers protection to “agritourism entities.” This is defined as a person engaged in the business of providing an agritourism activity, without regard to compensation. For example, a farmer or rancher who allowed persons to enter his or her property for recreational or educational purposes would meet this definition.
(3) The Act applies to “agritourism participants.” This term is defined as an individual engaged in an agritourism activity. This means that any person who is on agricultural land for a recreational or educational purpose meets this requirement. Specifically excluded from this definition, however, are employees of the agritourism entity. So, assume a ranch allows a neighbor to come over to fish and he is injured. That neighbor would be an agritourism participant. If, however, it was an employee of the ranch who was injured while fishing, the statute would not apply.
(4) The Act applies to “agritourism participant injuries.” This term is defined as “an injury sustained by an agritourism participant, including bodily injury, emotional distress, death, property damage, or any other loss arising from the person’s participation in an agritourism activity.” Again, this is a broad reaching definition that will allow limited liability for most damage claims.
Requirements for Limited Liability
If the above requirements are satisfied and the Act applies, an agritourism entity is not liable for any agritourism participant injuries if one of the following two options are met: (1) required signage is posted; or (2) a release including required language is obtained.
(1) Required signage. The first option in order to qualify for limited liability is for a landowner to post warning signs. Under the statute, the signs must be clearly visible on or near any premises where an agritourism activity occurs. The sign must contain the following language: WARNING: UNDER TEXAS LAW (CHAPTER 75A, CIVIL PRACTICE AND REMEDIES CODE), AN AGRITOURISM ENTITY IS NOT LIABLE FOR ANY INJURY TO OR DEATH OF AN AGRITOURISM PARTICIPANT RESULTING FROM AN AGRITOURISM ACTIVITY.
(2) Required release language. The alternative option is for the agritourism entity to obtain a signed written agreement from participants. The agreement must be (1) signed before participation in an agritourism activity; (2) be signed by the participant or the participant’s guardian if he or she is a minor; (3) be separate from any other agreement between the participant and entity except a different warning, consent, or assumption of risk, (4) be printed in at least 10-point bold type; and (5) contain the following language: AGREEMENT AND WARNING: I UNDERSTAND AND ACKNOWLEDGE THAT AN AGRITOURISM ENTITY IS NOT LIABLE FOR ANY INJURY TO OR DEATH OF AN AGRITOURISM PARTICIPANT RESULTING FROM AGRITOURISM ACTIVITIES. I UNDERSTAND THAT I HAVE ACCEPTED ALL RISK OF INJURY, DEATH, PROPERTY DAMAGE, AND OTHER LOSS THAT MAY RESULT FROM AGRITOURISM ACTIVITIES.
Exceptions to Limited Liability
The limitation on liability offered by this statute is not, however, unlimited. Numerous exceptions apply.
(1) As noted above, the statute expressly states it does not apply if an employee of the entity is injured.
(2) The protections do not apply if the injury was caused by the entity’s “negligence evidencing a disregard for the safety of the agritourism participant.”
(3) The protections do not apply if the injury is caused by a dangerous condition of which the entity had actual knowledge or reasonably should have known on the land, facilities, or equipment used in the activity.
(3) No limited liability exists if the injury is caused by the dangerous propensity of a particular animal used in the activity not disclosed to the participant of which the entity has actual knowledge or reasonably should have known.
(4) Protections do not apply if the injury is caused by the entity’s failure to adequately train an employee involved in an agritourism activity.
(5) No limited liability exists for injuries intentionally caused by the entity.
Summary and Key Take Home Points
(1) This statute offers free limited liability if the requirements are met. Any Texas landowner or occupant who allows persons to make recreational or educational use of their property should carefully review the statute and ensure its protections apply. The broad language of the statute’s definitions of “agricultural land” and “recreational activity” will likely cover a number of operations. Importantly, this protection will apply to persons injured while hunting on property.
(2) Agritourism entities should comply with at least one (if not both) of the requirements regarding signage and written agreements. There are potential advantages to both. The signs could be useful if additional persons are on the property who did not sign the waiver form. For example, if your neighbor signs the required release form but then brings his wife along to hunt, the signs would be very important if the wife were injured and had not signed the form. On the other hand, the wavier form specifically states that it applies to minors, whereas the signs do not. The most prudent course would, obviously, be to have both signs and the signed document.
(3) This statute expressly states that it is in addition to other limitations of liability. Thus, protections of other statutes such as the Farm Animal Liability Act (read about that here and here) or the Recreational Use Statute (read about that here) will still apply. Again, the most prudent course would be to ensure any and all statutes that could potentially apply do apply.
(4) This statutory protection is not unlimited and may not prevent an entity from being sued. Lawsuits can certainly still be filed by agritourism participant making claims that at least one of the exceptions listed above applies. For example, an injured person could certainly file suit and argue that his or her injuries were caused by a dangerous condition of which the landowner knew. This type of allegation would likely be sufficient to allow a lawsuit to proceed into the discovery phase. Because of this, it is important that all landowners, particularity those engaged in agritourism activities, obtain liability insurance that covers the specific activities on the land.