learn more about waivers and releases

Looking for Answers?

What is a waiver and how is it used? Does a waiver always work? Why does a waiver fail?  How do I write an effective waiver?  What if the client is a minor?  See Liability Waivers 101. . .

Agritourism Liability: A Question in Georgia

By Doyice Cotten

IMG_20150709_150521Recently I stopped at an operation in South Georgia in which the operator charges one dollar each for patrons to enter a fenced area.  There patrons can view an assortment of animals including a horse, a donkey, a bison, a water buffalo, goats, and a few more animals. After I paid the admission, my wife and I took my grandson in. At the entry, a sign was posted. I was familiar with equine and other sport liability statutes, but was not familiar with an agritourism statute. I photographed the sign; its image is pictured below:

Since I was not familiar with an agritourism statute I decided to look it up. I was puzzled to find that the following version of Agritourism warning signs does not match up with the sign at the establishment.

O.C.G.A. § 51-3-31 (2014) provides that “A landowner who charges admission for a person who is 18 years of age or older to hunt or fish on the owner’s property or to enter the owner’s property for the purposes of agritourism shall be immune from civil liability for any injuries caused by the inherent risk associated with agritourism, hunting, or fishing activity, provided that: (1) The landowner’s conduct does not constitute gross negligence or willful and wanton misconduct; (2) The agritourism landowner has posted at the main point of entry, if present, to the property a sign with a warning notice stating the following:

“WarningIMG_20150709_145912 (1)

Under Georgia law, there is no liability for an injury or death of a hunting or fishing participant at least 18 years of age conducted at this location if such injury or death results from the inherent risks of such hunting or fishing activity. Inherent risks of hunting or fishing activities include, but shall not be limited to, the potential of you to act in a negligent manner that may contribute to your injury or death and the potential of another participant to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this hunting or fishing activity.”

The statute specified that “The warning notice specified in this paragraph shall appear on the sign in black letters, with each letter to be a minimum of one inch in height.” The statute also specifies that

(3) The person who has paid admission to the landowner to enter such landowner’s property to hunt, fish, or for the purposes of agritourism has signed a waiver of liability form stating that the person entering the landowner’s property has waived all civil liability against the landowner for any injuries caused by the inherent risk associated with agritourism, hunting, or fishing activity. Such waiver of liability form shall mirror the language provided for in paragraph (2) of this subsection regarding the warning notice.

 My next thought was that the operator had used the equine statute, however, that statute provides for a sign with the following language.

WARNING

Under Georgia law, an equine activity sponsor or equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to Chapter 12 of Title 4 of the Official Code of Georgia Annotated.

Questions To Answer

Where did the operator get the warning sign?

Does the warning sign meet the requirement specified in the statute?

What about liability if a party younger than 18 is injured?

Why is a waiver not used?

And one final, important question! Suppose the operator were to post the sign required by the statute and meet its requirements. Does the statute intend for the waiver to protect against liability for negligence? Nowhere is “negligence” mentioned. Even more important, “negligence” is not mentioned in the statute when it reads “. . . provided that: (1) The landowner’s conduct does not constitute gross negligence or willful and wanton misconduct. . . .”

Sorry, I don’t have any answers to these questions, but would ask any readers with answers or ideas to send me your thoughts.