Note: This is the second of two parts in the State Bar of Wisconsin Litigation Blog discussing the agricultural tourism immunity statute for an injury claim that occurred at a barn wedding. For the plaintiff side, see the article by Amy Risseeuw, “Agricultural Tourism Immunity and Barn Weddings: The Plaintiff.”
Weddings held at a farm, ranch, or orchard not only provide a relaxed and fun alternative to traditional venues but can also be an income lifeline to family farms, thereby helping to preserve Wisconsin’s agricultural heritage. But, opening up agricultural premises to nontraditional uses like weddings comes with risks.
Wisconsin’s agricultural tourism statute, Wis. Stat. section 895.524, can protect premises owners from losing the family farm if someone is injured at a wedding. It immunizes agricultural tourism providers who post a specific notice from civil liability to individuals as a result of a risk inherent in an “agricultural tourism” activity on property controlled by the agritourism provider.1
I recently represented a farm that was sued by a woman who suffered injuries while attending a barn wedding. She mis-stepped off an elevated area, which was an original feature of a barn built in the 1800s.
The farm had posted the notice required by statute and was pretty clearly “an agricultural tourism provider.” The issue of immunity, therefore, turned on whether the plaintiff was injured “as a result of a risk inherent in an agricultural tourism activity.”2
Although plaintiffs’ counsel prevailed in convincing the circuit court that weddings were not “agricultural tourism,” there is no reported appellate decision supporting this view, and I remain convinced that barn weddings fall within the statute.
Under Wisconsin’s statute, an “agricultural tourism provider” is “a person who operates, provides, or demonstrates an agricultural tourism activity.”3
The Wisconsin Department of Agriculture, Trade, and Consumer Protection broadly defines agritourism as:
any agricultural-based activity that brings visitors to a farm or ranch, agritourism encourages a connection – and for many a reconnection – to agriculture by providing venues that foster a sense of connection to food and those who produce it.
And, the National Agricultural Law Center
defines agritourism as:
... a form of commercial enterprise that links agricultural production and/or processing with tourism to attract visitors onto a farm, ranch, or other agricultural business for the purposes of entertaining and/or educating the visitors while generating income for the farm, ranch, or business owner.
Regardless of the definition, agritourism usually includes four factors:
combining tourism and agriculture;
drawing visitors to agricultural operations;
increasing farm income; and
providing recreation, entertainment, and/or education to visitors.4
Most farms, ranches, and orchards will easily qualify as agricultural tourism providers. My client both grew crops and raised animals, hosted weddings, provided tours to school groups, and was open to the general public.
When operating as a wedding venue, the farm incorporated agritourism by featuring hayrides to a wedding site in the farm fields, permitting guests to interact with animals, and staging receptions in a historic barn.
What Agricultural Tourism Activities Qualify for Immunity?
The answer: It depends.
Wisconsin statutes define what is considered to be agricultural tourism, and grants immunity to property owners for certain activities. But what are these activities?
Learn more about agricultural tourism in Wisconsin, including the recreational immunity statute and exceptions to immunity – to help you effectively analyze which activities qualify for immunity – with “Agricultural Tourism 2023” from State Bar of Wisconsin PINNACLE®. This 1.0 CLE program is available as a live webcast on Oct. 10, 2023, and as webcast replays on dates in October, November, and December 2023.
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Farm Weddings Are Agricultural Tourism
Although the trial court disagreed, there is reason to believe a barn wedding falls within the agricultural tourism statute.
Agricultural tourism activities are educational or recreational activities occurring where agricultural, horticultural, or silvicultural crops are grown or farm animals 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. …”5
In defending against the plaintiff’s claim, the farm argued it satisfied the statutory test because the general public, including wedding guests – and specifically including the plaintiff – toured, explored, and observed crops, farm animals, and historic farm buildings.
Notably, the fee charged by the farm for the wedding included use of the historical agricultural buildings, interaction with farm animals, and hayrides for the guests. Moreover, the plaintiff’s injury occurred as she mingled with other guests inside a historic barn. Dining, dancing, chatting, touring historic buildings, and viewing fields and livestock, are elements of tourism, entertainment, socializing, and recreation.
The statute does not require the injury to be related to any particular agricultural process. Rather, it immunizes an agricultural tourism provider for injuries inherent in “agricultural
tourism activity.”6 Thus, even if a plaintiff is not kicked by a cow or bitten by a goat, the immunity conferred by the agritourism immunity should bar claims arising from injuries occurring on agricultural property during social, recreational, educational, or entertainment events.
Moreover, included within the nonexclusive list of inherent agricultural tourism risks are the ordinary dangers associated with structures used for agricultural activities and conditions of the land.7 Weddings and receptions may not be intrinsically “agricultural,” but they certainly fall within the ambit of “agricultural tourism.”
Further, a guest’s protestations that she was attending a wedding rather than recreating cannot be dispositive. If a participant’s subjective, self-serving declaration regarding the nature of the activity negated application of the statute, it would lack any force at all. Wisconsin rejected that argument within the context of the recreational immunity statute.8
While the court may view wedding attendance as a social obligation rather than recreation, if being taken against one’s will to anticipatorily view a planned fishing spot is a recreational activity, a social event at a dedicated agricultural tourism venue featuring agriculturally themed activities qualifies as agricultural tourism.9
The Exception to Statutory Immunity Is Problematic
Immunity does not exist if the agritourism provider acts with “willful or wanton disregard for the safety of the participant.”10 The statute defines “willful or wanton disregard” as
conduct committed with an intentional or reckless disregard for the safety of others, such as by failing to exercise ordinary care to prevent a known danger or to discover a danger.
Of course, a breach of ordinary care is the standard for negligence – not willful or wanton conduct. Accordingly, the statute is not merely ambiguous, but runs contrary to well-established definitions for willful and wanton. If a breach of ordinary care is an exception to immunity, then the grant of immunity would be illusory.
Courts should not look at a single, isolated sentence, but at the role of the relevant language within the entire statute.11 Within the context of the statute, the first sentence makes plain that immunity is only withdrawn when the agricultural tourism provider acts with “willful or wanton disregard.”
Wisconsin’s recreational immunity statute similarly grants immunity to landowners who open their property to the public for recreational purposes, but withdraws immunity for malicious acts or malicious failure to warn of unsafe conditions.12
Likewise, participants in team contact sports may not pursue tort claims against others involved unless injury is inflicted recklessly or with intent.13
Should the issue arise again, the exception to agritourism immunity should be interpreted in accord with these similar statutes.
This article was originally published on the State Bar of Wisconsin’s
Litigation Section Blog. Visit the State Bar
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1 Wis. Stat. § 895.524(2)(a).
2 Wis. Stat. § 895.524(2)(a).
3 Wis. Stat. § 895.524(1)(b).
5 Wis. Stat. § 895.524(1)(a).
6 Wis. Stat. § 895.524(2)(a) (emphasis added).
7 Wis. Stat. § 895.524(1)(e).
8 Linville v. City of Janesville, 184 Wis. 2d 705, 715, 516 N.W.2d 427 (1994).
9 See id. at 711.
10 Wis. Stat. § 895.524(2)(b)1.a.
11See Alberte v. Anew Health Care Services, Inc., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W.2d 515 (2000).
12See Wis. Stat. §§ 895.52(3)(b), (4)(b), (5), and (6)(b)-(c).
13 Wis. Stat. § 895.525(4m).