Liability for Farm Visitors: A Look at North Carolina’s Exemption Statutes
[Farm Law editor’s note: the following piece is in draft pending academic peer review, and written as part of the series Farm Law: Owning, Managing and Transferring Farm Interests, sponsored by the North Carolina Tobacco Trust Fund Project # #583400-10363. Comments to email@example.com are welcome. The narrative below with statutory and other citations is available via Google Doc]
As a general matter, visitors to the farm increase risk of injury and liability. When the farm producer invites their customer onto their land or leasehold to generate revenue from a variety of on-farm activities – known as agritourism – the farmer invites people into a work environment of injury-causing variables, including animals, machinery, gates, ditches.
Though North Carolina offers three statutes – concerning equine, livestock, and agritourism activity – that release landowners and farmers from liability for inherent risks on the farm, whether a farmer faces liability for an injury falls under the common law realm of tort law and various theories of defense against liability. The statutes have yet to be tested in North Carolina as an effective bar to an injured plaintiff’s recovery, and a farmer’s negligence still may become a question for a jury under a variation of circumstances, particularly failure to follow the requirements of the liability release statutes.
This short narrative provides an overview of a farmer or landowner’s obligations to visitors – invited and otherwise – to the farm or land, as well as an overview of the three liability release statutes.
The Concept of Negligence
When an injury occurs, the injured party is often faced with economic loss in the form of medical bills, lost productivity at work, and quality of life. If so, the injured party likely requires that someone other than themselves pay the economic costs of the injury. To remedy the economic loss from their injury (to “make themselves whole”), the injured party must assign legal responsibility (liability) to someone for the injury.
In order to assign legal liability, the injured party must prove that the injuring party was negligent under the common law standards of the state where the injury occurs.
In most instances, when an injury occurs and the party identifies the person(s) responsible, the latter will contact their liability insurance carrier and report the injury. (For the insured farmer or landowner, there may be a contractual requirement to immediately contact the insurer when an injury occurs on the farm or land, not wait until the injured party has made a demand). In addition to payment of covered claims, the insurance policy also obligates the insurer to manage and pay for the defense of the claim (i.e. hire and pay the lawyers to settle or try the case). Any communications from the injured party to the farmer are directed to the insurance company, and if the injured party is represented by a lawyer, between the lawyer and insurance company or law firm hired by the insurance company to handle the case.
Negligence is one person’s failure to follow a societal code of “reasonable conduct” required by common law. (The common law is roughly defined as our body of “court-made” law, where historical resolution of disputes through the years are handed down as precedent to courts addressing later disputes.) Under the common law, an injured plaintiff must prove – to a jury’s satisfaction – four (4) elements to establish liability on the part of the injuring party: duty, breach of duty, proximate causation, and damages. As to duty, this refers to a duty on the part of the allegedly responsible party (known as the “tortfeasor”) to act as would a reasonable person in similar circumstances in a manner unlikely to cause injury to another, whether by act or omission. Factors considered by a jury in determining whether a person’s conduct is not reasonable – thus a breach of their duty – relate to foreseeability of the injury, in terms of whether the person’s conduct is likely to cause injury, how severe such injury might be, and the economic burden of risk-reducing precautions.
Such jury decisions are a matter of balancing the above foreseeability factors. If we put breach of duty to a formula, it looks like this: Breach = [(Burden) < (Probability of Loss X Gravity of Loss)]. In other words, if the burden of eliminating or reducing risk is less weighty than the damage that can be done (due to a high probability), then a jury is instructed to find that the defendant acted unreasonably.
On the farm or land, this means accidents that are foreseeable and grave, and reasonably preventable without extraordinary cost or reduction in productivity are the ones the farmer or landowner must take care to avoid. To not do so would be unreasonable, and thus – if the plaintiff proves by a preponderance (slight majority) of the evidence that his injury was caused by the unreasonableness of the farmer or landowner (and not some unrelated or intervening cause), and that he has suffered actual and quantifiable damages – a jury is instructed to find for the plaintiff. As alluded above, no North Carolina court has issued an opinion where such a foreseeability formula is superseded by a warning of “inherent risk” as provided in the statutes.
Proof of proximate cause requires that the plaintiff show that their injury is the direct result of the defendant’s breach of duty. Phrased differently, the plaintiff would not have suffered their specific injury but for the defendant’s failure to act reasonably in the circumstances. If the plaintiff is injured by a cause unconnected to the defendant’s breach of duty, then this element fails. Note that direct result may encompass a series of events set in motion by the defendant, the sequence of such being reasonably foreseeable.
As to entry upon land, North Carolina law – from the case of Nelson v. Freeland – requires that a landowner “exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.” In Nelson v. Freeland, the NC Supreme Court reduced visitors to two classes, those invited (called “invitees”) and those not (“trespassers”). In the case of invitees, the duty of reasonable care applies. For those not expressly or impliedly invited there is no duty of care, except to refrain from wilful or wanton behavior causing injury.
A Defense Against Liability: Contributory Negligence
Though a defendant may have acted unreasonably, a claim of negligence can be defeated by showing that the plaintiff’s injury was partly caused by his own unreasonable behavior. North Carolina is one of several “100% contributory negligence” states; this means that if a jury believes a plaintiff was also negligent in the slightest degree as a proximate cause of his injury, he may not recover for his injuries.
A jury instruction for contributory negligence reads:
The law requires every lawful visitor to use ordinary care while on the premises of another. Ordinary care means that degree of care which a reasonable and prudent lawful visitor would use under the same or similar circumstances to protect himself and others from [injury] [damage] while [on] [using] the premises of another. A lawful visitor’s failure to use ordinary care is negligence.That said, a plaintiff’s unreasonable behavior may be foreseeable.
As noted, the plaintiff’s negligence must – like the defendant’s – be the proximate cause of his injury, which like all others is a question for the jury.
Assumption of the Risk
Assumption of the risk is also available as a defense to negligence, but only between parties with a contractual relationship. This includes the relationship between farmer and visitor. Assumption of risk means that the injured party “consented to relieve the defendant of an obligation of conduct toward him, and to take his chance of injury from a known risk.” The use the common law defense of assumption of risk to defeat a negligence claim has two elements: (1) plaintiff has actual or constructive knowledge of the risk, and (2) plaintiff consents to assume that risk by proceeding with the activity. This is the basis upon which North Carolina’s visitor liability defense laws – discussed below – operate.
Liability Defense to On-Farm Injury: N.C.G.S. Chapter 99-E
Following behind prudent containment efforts and liability insurance, the primary legal defense in North Carolina against on-farm injury by animals and other causes are the sundry farm visitor liability limitation statutes concerning livestock generally, equine operations, and agritourism operations found in NC General Statutes Chapter 99E. These three statutes operate to limit the liability of a livestock owner or operator for injuries “inherent” in an equine, other livestock or agritourism operations on a theory of assumption of the risk. The three statutes have one central requirement: the farm owner or operator must post signage with a warning prescribed in each statute. The statutes do not excuse an owner or operator from negligent behavior in proximately causing an injury. These statutes merely provide a shield against liability for a class of causes considered “inherent” on a farm, and thus contemplate injuries that might occur as would to anyone visiting a farm and choosing to ride or otherwise be near farm animals and machinery.
Like a liability waiver, the statutes allow the operation to warn visitors, clients, customers that they are entering a farm or engaging with animals, and that such engagement has inherent risks. Such is the language on the sign prominently displayed, warning the visitor to proceed at his own risk. The requirement that the sign be prominently displayed creates a presumption that the visitor saw the sign, processed the warning, and proceeded with the visit. The visitor is agreeing and is presumed to appreciate the risk and assess the consequences of participation in activities, or by simply being in proximity to inherent risks. Following are particulars of the three liability statutes.
Equine Liability: N.C.G.S. §99E-1. This section of the Chapter 99E limits the liability of equine professionals, equine activity sponsors, and “any other person engaged in an equine activity” from liability for injury or death “resulting exclusively from any of the inherent risks of equine activities.” Equine activity means “any activity involving equine.” The statute defines “inherent risks” broadly as:
- The possibility of an equine behaving in ways that may result in injury, harm, or death to persons on or around them.
- The unpredictability of an equine’s reaction to such things as sounds, sudden movement, unfamiliar objects, persons, or other animals. Inherent risks of equine activities does not include a collision or accident involving a motor vehicle.
There are certain fact exceptions to the liability limitation such as when the equine operation provides the horse and fails to make a reasonable assessment of the rider’s ability, or provides faulty tack. Another exception is the equine operator’s wilful or wanton disregard for the safety of the participant which proximately causes the injury. This third exception may represent a broad category of evidence to suggest a person’s decision precipitated events that caused an injury. Landowners who allow equine riding on their land without charge are not covered by the equine statute, but likely receive liability limitations under North Carolina’s Recreational Use Statute.
As noted above, the key provision is the posting of the signs in a “clearly visible location on or near stables, corrals, or arenas where the equine professional or the equine activity sponsor conducts equine activities.” Though the number of signs is not specified, there is a requirement that the prescribed warning appear in any contracts or written agreements, including equipment rental agreements. The language in minimum one inch letter is:
Under North Carolina 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 exclusively from the inherent risks of equine activities. Chapter 99E of the North Carolina General Statutes.”
In all these three 99E articles, the requirement of posting is specific: “Failure to comply with the requirements concerning warning signs and notices provided in this Part shall prevent an equine activity sponsor or equine professional from invoking the privileges of immunity provided by this Part.”
Farm Animal Activity Liability: N.C.G.S. §99E-6.
The farm animal activity liability immunity law operates like the equine statute, with a few differences. The 99E-6 law broadens the farm animals in include “cattle, oxen, bison, sheep, swine, goats, horses, ponies, mules, donkeys, hinnies, llamas, alpacas, lagomorphs, ratites, and poultry.” The activities qualifying for immunity are very broad, including education such as farm demonstrations, rodeos, rides and fairs, veterinary services or farrier work, competitions, parades involving farm animals. Also included are injuries sustained when evaluating an animal for purchase.
Inherent risks are expanded from the equine statute to add the “risk of contracting an illness due to coming into physical contact with animals, animal feed, animal waste, or surfaces that have been in contact with animal waste.” The signage requirement lists display areas as same as the equine statute, with nearly identical warning sign language. The acts of the operator that disqualify him from statutory liability protection – faulty tack, misjudged participant’s ability, wilfully or wantonly disregarded the participant’s safety – are the same as the equine statute.
Agritourism Liability: N.C.G.S. §99E-30
The agritourism liability statute is the latest of the liability limitation statutes in Chapter 99E. This statue operates on the same principles as the other two: required signage posted with specific language warning of inherent risks. The range of activities is broadened further. The inherent risks are expanded to include attributes on the land where the agritourism activity is conducted, and include the “ordinary dangers of buildings and equipment ordinarily used in farming and ranching operations.” Note there are words in that phrase a jury would have to decide encompassing the facts of the situation, such as “ordinary dangers” and “ordinarily used.”
As for losing the protection of a statute, in addition to the wilful or wanton act, if the operator “has actual knowledge or reasonably should have known of an existing dangerous condition on the land, facilities, or equipment used in the activity or the dangerous propensity of a particular animal used in such activity and does not make the danger known to the participant, and the danger proximately causes injury, damage, or death to the participant[,] then protection is lost. Note this exception is left off the equine and livestock statutes (§99E-1 and §99E-6 respectively), and it is unclear whether an expansive reading of §99E-30 agritourism activity descriptions to could encompass the types of activities and resulting injury contemplated under the equine and livestock statutes. For example, would the agritourism liability protection apply to a claim for an injury sustained on a trail ride due to an undisclosed land defect?
The agritourism statute is more specific than the other two regarding signage, requiring that a sign be posted at the entrance to the farm and at the “site of the agritourism activity,” so at a minimum, two signs. The statute is clear – like the others – that failure to post signage is fatal to succeeding in the assumption of the risk defense provided by the §99E-30; failure to post signage with the required language results in a loss of protection of the statute.
North Carolina appellate courts have yet to address fact patterns that have either failed application of the statute or have resulted in dismissal because of the statute. However, one recent case reviewed a liability dismissal under a companion §99E liability statute – related to hazardous recreation activity – and held that the statutory limitation fails (at least on motion to dismiss the case) under a complaint of gross negligence, which is akin to the “wilful and wanton” standard under the equine, livestock, and agritourism statutes. A quick look at cases from other jurisdictions tells us that failure to produce evidence that the signs were posted, and posted in areas of clear viewing by the participants, the statute may not be invoked to dismiss the case, and the case continues to the jury if not settled before. Because the language of the North Carolina statutes is specific on this point of posting signage, it follows that when the statute is invoked to support a pre-trial dismissal of the case, failure to produce evidence that the signs were properly posted when the injury occurred could allow the statute to fail and the trial to proceed.
Also because there are no reported cases in North Carolina, we do not know what “inherent risks” really means under the law of this state, or at least what fact pattern it might describe. Likewise, “wilful and wanton” have not been applied to a farm setting,, and “ordinarily used in agriculture” also requires fact definition. A look at cases in other jurisdictions reveals that courts may require in jury instructions a charge that the jury decide whether the facts qualify these phrases as an exception to the liability protection.
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