Once upon a time (did I really start an article that way?) pumpkin farms were few and far between. The farmers usually just placed a few rows of pumpkins of increasing size near the farm’s driveway, modestly priced their product, and sold the pumpkins for cash only.
The farms certainly weren’t the commercial extravaganzas they are today, with everything from pumpkins and caramel apples, to food markets that include fanciful soaps and pick-your-own floral bouquets. Add a petting zoo and a haunted hay ride, and you’ve got something that approaches an agricultural circus!
My kids start bouncing off the walls as soon as we mention that we are going to a pumpkin farm. We go to a different one every October weekend. As I keep up with my kids – going down giant slides, getting lost in corn mazes, and getting crazy dizzy in human hamster wheels – I began to wonder if they were even going to remember to grab a pumpkin on the way out.
I also started to contemplate what sort of insurance needs and legal concerns an operation like this may have. Of course, I am no expert in this area, and anyone exploring such a business venture should consult with an expert Wisconsin attorney, insurance agent, and others who would be able to guide them through establishing their pumpkin-sized dreams.
But, for the purposes of this blog entry, let’s assume that a business owner has already put together a terrific business plan for a pumpkin farm, complete with pumpkins, other goodies, a petting zoo, and a giant playground.
At some point in the movie,
The Princess Bride, the Man in Black says to criminal mastermind Vizzini, “Truly you have a dizzying intellect,” to which Vizzini responds, “Wait ‘til I get going!” After scratching the surface to research some of the laws and regulations that apply to different aspects of farm with an accompanying agritourism operation, I am convinced that Vizzini himself wrote them all.
The pumpkin farms I have described above probably fit best into the definition of agritourism, so I will focus my observations on that type of business. Narrowing my focus even more, I will only address insurance and liability concerns.1
Insurance and Liability
Of course, farmers need insurance. Farmers who convert their farm into an attraction with activities such as hayrides, corn mazes, play areas, pettings zoos, pick-your-own produce, food and beverage sales most certainly need additional coverage, and need to be sure that various safety measures are in place.
Many of the visitors to farm attractions – especially children – may have little or no experience with farms, machinery, animals, and the rural environment. Agritourism attractions can be very exciting for children. Children are curious creatures and think of the farm as a playground. Children are unpredictable and horrible listeners at times. Parents who have no rural or farming background may be unaware of hazards presented by the farm.
To protect against these risks, necessary insurance products may include premises liability, workers’ compensation, physical damage to business property, product liability, motor vehicle, crop insurance, and some kind of casualty insurance.
As insurance carriers become more and more familiar with agritourism (or “agritainment”), their agents become more sophisticated in properly advising farmers what insurance needs they have.
So, the best place to start to identify insurance needs is likely with a knowledgeable insurance agent.
The Wisconsin legislature has recognized the need to protect farmers who are reinventing themselves to thrive economically, and to educate the public about their activities and how they contribute to society.
Specifically, Wisconsin statutes provide immunity from liability for “agricultural tourism activity” which is broadly defined as
… an educational or recreational activity that takes place on a farm, ranch, grove, or other place where agricultural, horticultural, or silvicultural crops are grown or farm animals or farmed fish are raised, and that allows members of the general public, whether or not for a fee, to tour, explore, observe, learn about, participate in, or be entertained by an aspect of agricultural production, harvesting, or husbandry that occurs on the farm, ranch, grove, or other place.2
The statute also defines several of the inherent risks a “participant” assumes as “… a danger or condition that is an integral part of an agricultural tourism activity, including all of the following:
The surface and subsurface conditions of land and the natural condition of vegetation and water on the property.
The unpredictable behavior of wild, domestic, or farm animals on the property.
The ordinary dangers of structures or equipment ordinarily used where agricultural, horticultural, or silvicultural crops are grown or farm animals or farmed fish are raised.
The possibility that a participant in an agricultural tourism activity may act in a negligent manner, including by failing to follow instructions given by the agricultural tourism operator or by failing to exercise reasonable caution while engaging in the agricultural tourism activity, that may contribute to the injury to that participant or to another participant.”3
And most importantly, the law exempts an, “agricultural tourism provider” from liability for the death of or injury to a participant in an agricultural tourism activity if both of the following conditions are met:
The participant is injured or killed as a result of a risk inherent in an agricultural tourism activity.
The agricultural tourism provider posts and maintains, in a clearly visible location at each entrance to the property where the agricultural tourism activity takes place or at the location of each agricultural tourism activity, a sign that contains the following notice in black lettering, each letter a minimum of 1 inch in height, on a white background:
"NOTICE: A person who observes or participates in an agricultural tourism activity on this property assumes the risks inherent in the agricultural tourism activity. Risks inherent in the agricultural tourism activity may include conditions on the land, the unpredictable behavior of farm animals, the ordinary dangers associated with equipment used in farming operations, and the potential that a participant in the agricultural tourism activity may act in a negligent way that may contribute to injury or death. The agricultural tourism provider is not liable for the injury or death of a person involved in an agricultural tourism activity resulting from those inherent risks."4
The law specifically excludes immunity for agricultural tourism providers who act intentionally or with willful or wanton disregard for the safety of the participant, such as by failing to exercise ordinary care to prevent a known danger or to discover a danger.5
The statute does not provide “blanket immunity,” nor does it replace the need for liability insurance, and agricultural tourism providers should still conduct best practices and provide good faith efforts to ensure the safety of their participants.6
Agritourism is Good for Wisconsin
As we see on-farm stores, pick-your-own endeavors, and agritourism grow in popularity in Wisconsin, many families are taking advantage of opportunities to become reacquainted with agriculture and farming. As with any industry, new businesses flock to new markets, and it is important to know what business and legal issues exist around such an operation. The value of agritourism is well-recognized in Wisconsin and in other states, which provide immunity from liability as long as certain precautions are taken.
Our family has enjoyed this fall more than many in the past, as we found new and more ways to enjoy outdoor activities. So, at the next pumpkin patch we visit, I will be sure to read the notice of “agricultural tourism activity,” and remind my kids that the 50-foot slide into a pile of hay is slid upon at our own risk.
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This article was originally published on the State Bar of Wisconsin’s Agriculture Law and Rural Practice Blog of the Solo/Small Firm & General Practice Section. Visit the State Bar sections or the Solo/Small Firm & General Practice Section webpages to learn more about the benefits of section membership.
1 For a more comprehensive discussion of business and legal concerns related to agritourism and other farm/agriculture business ventures, check out the State of Wisconsin Department of Agriculture, Trade, and Consumer Protection’s publication
Wisconsin Local Food Marketing Guide.
2 Wis. Stat. §895.524(1)(a)
3 Wis. Stat. §895.524(1)(e)
4 Wis. Stat. §895.524 (2)(a)
5 Wis. Stat. §895.524 (2)(b)
Wisconsin Agricultural Tourism Association website.