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Avoid Expensive Litigation When You Have Visitors at Your Farm
Sales reps, delivery drivers, hunters, haulers, and even school kids. Farmers have more visitors on their farms than ever before. Exactly what is your risk if an accident or injury happens?
Penn State agricultural professor Jayson Harper and Extension associate Lynn Kime have written on this topic for the Penn State Ag Alternatives website. Here are their answers to three common questions.
1. How is personal injury liability determined?
There are two general approaches. The first, called the status-equals-duty-owed approach, is based on English common law that considers the status of the injured person. Visitors are generally categorized as trespassers, licensees, or invitees. Trespassers are neither invited nor permitted. Licensees are not invited, but are permitted. Invitees come by invitation, express or implied. An invited guest would have more rights if injured than a trespasser.
The second approach, called reasonable care and arising from criticism of the common law, is a single rule that requires the landowner to exercise reasonable care in protecting visitors. The status of the injured person (trespasser, licensee, or invitee) does not determine liability.
Still, status is not totally irrelevant to resolve a dispute. For instance, property owners cannot be expected to maintain property to protect those who enter against their wishes.
2. What about recreational use?
As demand for recreational land increases, some landowners allow hiking, camping, fishing, swimming, and other outdoor activities on their property. Liability concerns stop others from doing this.
In Pennsylvania, the game commission encourages farmers and other landowners to open their properties for public hunting. State recreational-use laws have modified the duty owed by the farmer in such cases.
In general, these laws provide that a landowner has neither extended any assurance that the premises are safe, nor conferred upon users the status of licensee or invitee to whom a duty of care is owed.
Most state laws, however, do not give landowners complete immunity from liability. The most common situations where you could lose protection is where a fee is imposed (as in fee hunting), or the injury is caused by the farmer’s willful or malicious failure to guard against a danger.
An important condition for the recreational-use laws to apply is that you allow others to use the property at no charge. If the purpose is to earn additional income (such as agritainment or fee hunting), protections from liability don’t apply.
3. What about children?
The rules for determining liability are usually modified with children. The following questions might apply.
- Did the owner know that children trespassed where the injury occurred?
- Did the owner know of an unreasonable risk of harm to children?
- Are the children too young to realize the risk?
- What is the value of the property that caused the injury, and how does the value compare to the risk of harm?
- Did the owner exercise reasonable care?
An example might be if you have abandoned vehicles or equipment near a school and there are no warning signs. If a child wanders across the field and is injured, consider how the five questions above would affect liability exposure.
Intentional acts and those that exhibit a conscious indifference for safety give rise to liability. The duty to warn by signs, barricades, or enclosures reflects your special knowledge of the risk.
For example, dog owners must post beware-of-dog signs for people to see when entering the property. If you invite people onto the property for financial gain, you should have the dog in an enclosed pen or run.
For specific and detailed advice about your particular operation and your state laws, contact your attorney and insurance agent.