By: Peggy Kirk Hall, Tuesday, July 31st, 2018

When you think of “agritourism,” corn mazes and hay rides may first come to mind.  While those activities can fall under Ohio’s definition of agritourism, you may be surprised to find that farm markets, you-pick operations, farm tours, wineries and other types of farm-based activities can also fit into the legal definition of “agritourism” in Ohio.  This definition is important for purposes of Ohio’s agritourism immunity law, which can protect agritourism providers from liability for harm incurred during agritourism activities.  The law shifts the risk of liability from agritourism operators to the participants who willingly choose to engage in agritourism activities on a farm.

It’s important to understand that in order to receive the law’s liability protection, each of the following conditions must exist:

Conditions for immunity from liability

1. Qualify as an “agritourism provider.”  The law specifically protects only those who are “agritourism providers,” which means someone “who owns, operates, provides, or sponsors an agritourism activity, or an employee of such a person who engages in or provides agritourism activities, whether or not for a fee.   An important term within this definition is “agritourism,” which means “an agriculturally related educational, entertainment, historical, cultural or recreational activity, including you-pick operations or farm markets, conducted on a farm that allows or invites members of the general public to observe, participate in, or enjoy that activity.”  This definition can include a broad range of activities, such as wine tastings, educational classes, corn mazes and other recreational activities, farm tours, and farm festivals.  Note, however, that the agritourism definition requires that the activity be on a “farm,” which the law further defines as:

• At least ten acres of land (composed of tracts, lots, or parcels), that is used for “agricultural production,”  which means the land is used for “commercial aquaculture, algaculture, apiculture, animal husbandry, poultry husbandry; the production for a commercial purpose of timber, field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, or sod; the growth of timber for a noncommercial purpose if the land on which the timber is grown is contiguous to or part of a parcel of land under common ownership that is otherwise devoted exclusively to agricultural use; or any combination of such husbandry, production, or growth; and includes the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with such husbandry, production, or growth”
• Or, less than ten acres of land if there is an average yearly gross income of at least $2,500 from “agricultural production” on the land.

2. Post required signs. Every “agritourism provider” must “post and maintain” warning signs in order to receive the law’s liability protection.  The purpose of this provision is to inform participants that they are voluntarily assuming the risks of many of the harms that are inherent to being on a farm.  The warning signs or sign templates are available through OSU Extension South Centers and Ohio Farm Bureau.  Each sign must:

• Be placed in a clearly visible location at or near each entrance to the agritourism location or at the site of each agritourism activity;
• Contain the following statement, in black letters measuring at least one inch high:

WARNING: Under Ohio law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if that injury or death results from the inherent risks of that agritourism activity.  Inherent risks of agritourism activities include, but are not limited to, the risk of injury inherent to land, equipment, and animals as well as the potential for you as a participant to act in a negligent manner that may contribute to your injury or death.  You are assuming the risk of participating in this agritourism activity.

Immunity from what?

The agritourism immunity law states that an agritourism provider is immune, or protected from liability, in any civil action for an injury to a person participating in the agritourism activity as long as that person was injured due to a “risk inherent in an agritourism activity.”  An “inherent risk” is a “danger or condition that is an integral part of an agritourism activity,” that would be difficult for an agritourism provider to completely minimize.  According to the law, “inherent risks” include:

• The surface and subsurface conditions of the land;
• The behavior or actions of wild animals not kept by or under the control of an agritourism provider;
• The behavior or actions of domestic animals other than vicious or dangerous dogs;
• The ordinary dangers associated with structures or equipment ordinarily used in farming or ranching operations;
• The possibility of contracting illness resulting from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste;
• The possibility that a participant may act in a negligent manner, including by failing to follow instructions given by the agritourism provider or by failing to exercise reasonable caution while engaging in the agritourism activity that may contribute to injury to that participant or another participant.

If a participant in an agritourism activity is harmed and sues the agritourism provider for injuries caused by any of the above situations, the law protects the provider from any liability or monetary responsibility for those injuries.  In addition, the law specifically states that an agritourism provider is not required to eliminate such inherent risks on the property.

Exceptions to immunity

Although the agritourism immunity law provides civil immunity under certain circumstances, the immunity is not absolute.  The law also states that an agritourism provider could be legally responsible for injury to a participant if the agritourism provider:

• Fails to post and maintain signs (discussed above)
• Acts with a willful or wanton disregard for the safety of the participant,
• Purposefully causes harm to the participant,
• Acts or fails to act in a way that constitutes criminal conduct that causes harm to the participant,
• Has or should have actual knowledge of an existing dangerous condition that is not an inherent risk, and does not make the dangerous condition known to the participant.

Use the agritourism law to your advantage

Agritourism activities can provide many benefits, such as additional income and diversification opportunities for farmers, unique cultural and recreational experiences for farm visitors and education about agriculture.  But there are always liability risks to having people on the farm, which can impact a farmer’s risk exposure.  Take advantage of the agritourism immunity law by ensuring that the operation qualifies for its provisions and does not fall within any of the exceptions from immunity protection.  Even with this liability protection, however, operators should continuously assess the property for safety risks to minimize the possibility of visitor injuries.

The agritourism immunity law is in Ohio Revised Code section 901.80.  For further information, see our Agritourism Law Bulletin and a previous post, which also explain the agritourism law’s protections from county and township zoning for agritourism operations.