Georgia Law Impacting Agritourism Operations

Similar documents
FEDERAL LANDOWNER LIABILITY FOR INJURED RECREATIONAL USERS (1) WHETHER ALLEGED NEGLIGENT CONDUCT INVOLVES AN ELEMENT OF JUDGMENT OR CHOICE.

Drake University Agricultural Law Center Edward Cox Staff Attorney February 22, 2013

MAY 2007 LAW REVIEW PARK VISITOR TRESPASSER AFTER DARK

OCTOBER 1986 LAW REVIEW REC USE LAW APPLIES TO PUBLIC LAND IN NY, NE, ID, OH, & WA. James C. Kozlowski, J.D., Ph.D James C.

JUNE 2012 LAW REVIEW NO LIABILITY FOR OBVIOUS PLAYGROUND FALL DANGER

NEGLIGENCE. All four of the following must be demonstrated for a legal claim of negligence to be successful:

LAW REVIEW MAY 1997 NO DUTY TO KEEP PREMISES REASONABLY SAFE FOR ADULT TRESPASSERS. James C. Kozlowski, J.D., Ph.D James C.

STATE OF MICHIGAN COURT OF APPEALS

JANUARY 1998, NRPA LAW REVIEW DANGEROUS TREES POSE A FORESEEABLE RISK OF INJURY

Protection for the Recreational Property Landowner:

LAW REVIEW JUNE 1992 RAINWATER ACCUMULATED IN CLOSED CITY POOL RAISES ATTRACTIVE NUISANCE RISK

Third District Court of Appeal State of Florida

OCTOBER 2012 LAW REVIEW OBVIOUS TREE HAZARD ON PARK SLEDDING HILL

JUNE 2007 LAW REVIEW COMMERCIAL WAIVER SIGNED BY PARENT

LAW REVIEW SEPTEMBER 1992 PLAYGROUND LIABILITY FOR EXPOSED CONCRETE FOOTING UNDER MONKEY BARS IN STATE PARK

OCCUPIERS LIABILITY ACT

LIABILITY UNDER THE TEXAS TORT CLAIMS ACT

NO CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS. CITY OF DALLAS, Defendant/Appellant,

Occupiers' Liability Act (Northern Ireland) 1957

LAW REVIEW MARCH 1992 SWIMMING POOL NOT "ATTRACTIVE NUISANCE" IN TEEN TRESPASSER DIVING INJURY

George Mason University School of Recreation, Health & Tourism Court Reports SLOWE v. PIKE CREEK COURT CLUB, INC. (Del. Sup. Ct.

JULY 2017 LAW REVIEW CRASH ON CHALLENGING MOUNTAIN BIKE TRAIL

Don t Forget the Immunity Offered by the Recreational Use of Land and Water Areas Act

v No St. Clair Circuit Court THE BIG GREEN BARN, LLC, and LC No NO MIKE WRUBEL,

NOVEMBER 2010 LAW REVIEW MUNICIPAL IMMUNITY FOR FAILED 911 SURF RESCUE

S08G1934. AMERICAN MULTI-CINEMA, INC. v. BROWN. Accidents happen. But many accidents can be prevented, or at least

JULY 1998 NRPA LAW REVIEW SPORT LEAGUE FEES: EXCEPTION TO RECREATIONAL USE STATUTE IMMUNITY?

DECEMBER 2016 LAW REVIEW FATEFUL DIVE INTO "CLOSED" PARK POND POOL

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

STATE OF MICHIGAN COURT OF APPEALS

MAY 1996 LAW REVIEW LIMITED LIABILITY FOR CRIMINAL ASSAULTS IN PARK FACILITIES

2015 PA Super 8. Appeal from the Order Dated October 10, 2012 In the Court of Common Pleas of Bucks County Civil Division at No(s):

Iron Gate Exhibition

How to Use Tort Immunity to the Advantage of Your Local Government

Civil Liability Amendment (Personal Responsibility) Act 2002 No 92

STATE OF MICHIGAN COURT OF APPEALS

STATE OF MICHIGAN COURT OF APPEALS

In the Court of Appeals of Georgia

Climbing & Occupiers Liability. reassurance for landowners, managers & users

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

OCCUPIERS LIABILITY ACT

The SCA Equestrian Marshal s Guide to Adult Equestrian Liability Waivers and Signage in the 50 States by Mike Watkins, Esq., Meridies May 2004

Washoe Tribe of Nevada and California. Law & Order Code TITLE 3 TORTS. [Last Amended 10/1/04. Current Through 2/3/09.]

Answer A to Question 10. To prevail under negligence, the plaintiff must show duty, breach, causation, and

LAW REVIEW AUGUST 1997 MARTIAL ARTS PARTICIPANTS DO NOT ASSUME INCREASED RISK OF INJURY. James C. Kozlowski, J.D., Ph.D James C.

Occupiers Liability Act 1962

Argued September 26, Decided. Before Judges Fuentes and Accurso.

Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee, JJ., and Compton, S.J.

OCTOBER 2014 LAW REVIEW CONCUSSION TRAINING LACKING IN FEDERAL CIVIL RIGHTS CLAIM

DEFENDANT S CASE EVALUATION SUMMARY INTRODUCTION. Plaintiff, *** fell in the entryway of the *** on ***, allegedly injuring her shoulder and

STATE OF MICHIGAN COURT OF APPEALS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

v No Oakland Circuit Court

LAW ENFORCEMENT LIABILITY

In the Indiana Supreme Court

SENATE, No STATE OF NEW JERSEY. 218th LEGISLATURE INTRODUCED FEBRUARY 26, 2018

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 10, 2002 Session. BARBARA CAGLE v. GAYLORD ENTERTAINMENT CO.

STATE OF MICHIGAN COURT OF APPEALS

No CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS AT DALLAS CITY OF DALLAS, Defendant/Appellant, MAURYA PATRICK,

STATE OF MICHIGAN COURT OF APPEALS

IN THE SUPREME COURT FOR THE STATE OF FLORIDA

GUIDANCE NOTE: LIVESTOCK ON PUBLIC RIGHTS OF WAY

Motion for Summary Judgment (Judge Randy Hammock)

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT **********

STATE OF OHIO ) IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) DECISION AND JOURNAL ENTRY

PUBLICATION 1967 A Reprint from Tierra Grande

FS December, Modifying Georgia s Negligence Law: A New Good Samaritan Paradigm for Some Business Owners. Terence J.

STATE OF MICHIGAN COURT OF APPEALS

STATE OF MICHIGAN COURT OF APPEALS

Saskatchewan Association of Rural Municipalities

STATE OF MICHIGAN COURT OF APPEALS

No. 47,314-CA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA * * * * * Versus * * * * * * * * * *

Torts. Louisiana Law Review. Wex S. Malone. Volume 25 Number 1 Symposium Issue: Louisiana Legislation of 1964 December Repository Citation

ILLINOIS LAW MANUAL CHAPTER V PREMISES LIABILITY. "A possessor of land is not liable to his invitees for physical harm caused to them

STATE OF MICHIGAN COURT OF APPEALS

Illinois Official Reports

Commonwealth of Kentucky Court of Appeals

TRESPASSING LAW. THEREFORE the Council of Henvey Inlet First Nation enacts the Henvey Inlet First Nation Trespass Law No as follows.

Title 28-A: LIQUORS. Chapter 100: MAINE LIQUOR LIABILITY ACT. Table of Contents Part 8. LIQUOR LIABILITY...

2015 IL App (1st) U. No IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY

California Bar Examination

Legal Liability in Adventure Tourism

Title 17-A: MAINE CRIMINAL CODE

Chapter II, Book III, Code Civil Of Intentional and Unintentional Wrongs

NEW JERSEY LAW REVISION COMMISSION. Final Report Relating to. Equine Activities Liability Act. May 22, 2014

Identifying and Addressing the Limitations of Waivers and Permission Forms in a School Setting

GRADER S GUIDE *** QUESTION NO. 1 *** SUBJECT: TORTS. Pat will assert claims for assault and battery and trespass to property.

STATE OF MICHIGAN COURT OF APPEALS

LAW REVIEW JANUARY 1987 MUST LANDOWNER PROTECT MOONING REVELER FROM HIMSELF? James C. Kozlowski, J.D., Ph.D James C.

STATE OF MICHIGAN COURT OF APPEALS

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON October 26, 2006 Session

2018 PA Super 216 : : : : : : : : : : : : : : : :

CLAIMS LAW UPDATE PARENTAL LIABILITY WAIVERS. American Educational Institute, Inc. [Ref. Law of Contracts, Para. 3.03]

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

RELEASE, WAIVER, HOLD HARMLESS, AND INDEMNIFICATION AGREEMENT

In the Court of Appeals of Georgia

RIGHT TO USE AGREEMENT 2019

Liability Risks for After-Hours Use of Public School Property to Reduce Obesity: MISSISSIPPI

No. 116,578 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. CHRISTINA BONNETTE, Appellant, TRIPLE D AUTO PARTS INC., Appellee. SYLLABUS BY THE COURT

Transcription:

Georgia Law Impacting Agritourism Operations 2017 Georgia Agritourism Annual Conference Tifton, Georgia February 28, 2017 Presented by: Joel L. McKie Hall Booth Smith, P.C.

Why Does It Matter? A farmer owns and operates several orchards and allows the public on his property to pick fruit from the trees for purchase. The farmer directed mother and adult daughter to an area on his farm to pick nectarines. As the daughter was walking between the rows of trees, her leg went into a hole up to the height of her knee, causing her to fall and fracture her right ankle. The daughter claimed she failed to see the hole, despite looking down for snakes, because it was covered by approximately one foot of grass. Farmer testified that the grass was cut once every 10-14 days and that paraquat was sprayed around the trees every 3-4 weeks. The farmer claimed he was never able to locate the hole where daughter was injured.

Why Does It Matter? Participant enters an unlit, haunted corn maze between 10:00 PM and 11:00 PM. No signs warned patrons about the terrain inside the maze, and neither did the scripted speech given by the tractor driver, who transported customers to the start of the maze. About 30 minutes after the patron arrived, "a downpour" started. After being at the corn maze an hour, while the patron stepped over flowing water, he lost his footing and fell. While trying to get up, he fell again, twisting and breaking his leg. The patron knew of no means to "escape" the maze except by trudging through to the end. The injured party argued the area of his fall was effectively unavoidable and the owner had insufficient employees to guide visitors out of the maze when it began to rain heavily.

Topics Georgia Premise Liability Generally Georgia s Agritourism Statute Georgia s Pick Your Own Statute Releases

Georgia s Premise Liability Invitee Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. O.C.G.A. 51-3-1 Licensee -- Is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification. -- The owner of the premises is liable to a licensee only for willful or wanton injury. Trespasser As to the trespasser, no duty arises of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, man-traps, and things of that character.

Do You Owe the Same Duty as Kroger? While not an insurer of the invitee's safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge A duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk or to lead them into a dangerous trap Duty includes inspecting the premises to discover possible dangerous conditions of which the owner/occupier does not have actual knowledge, and taking reasonable precautions to protect invitees from dangers foreseeable from the arrangement or use of the premises. Where a static condition is open and obvious condition and, therefore, could have been avoided in the exercise of ordinary care, there is no liability. Robinson v. Kroger Co., 268 Ga. 735, 740 (1997)

What Does Constructive Knowledge Mean? A premise Owner can show lack of constructive knowledge by demonstrating compliance with reasonable inspection procedures A reasonable inspection procedure varies based on nature of business Constructive knowledge may be inferred by the absence of such procedures

The Impact of Children on the Property Higher Standard Because a child of tender years may be unable to appreciate a danger and, therefore, to have knowledge of the hazard equal to that of the owner/occupier, an owner/occupier may be held to a higher standard of care toward a child than toward an adult. Negligent Supervision As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. The measure of duty of a person undertaking control and supervision of a child to exercise reasonable care for the safety of the child is to be gauged by the standard of the average responsible parent.

Pick Your Own Immunity Statute (2001) The owner or operator of any farm specializing in pick-your-own agricultural products shall not be liable for an injury to or the death of a participant resulting from the inherent risks of harvesting agricultural products (1) "Agricultural products" means Christmas trees, fruits, vegetables, pecans, nuts, horticultural products, and other such fresh farm products that are made available to the general public through pick-your-own farm operations. (2) "Participant" means any person who enters the farm location, alone or with a group, for the purpose of harvesting fresh farm products from pick-your-own farm operations.

Pick Your Own Immunity Statute Exceptions (1) Owns, leases, rents, or otherwise is in lawful possession and control of the land upon which the participant sustained injuries because of a dangerous latent condition, which was known or should have been known to the owner or operator; (2) Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury; or (3) Intentionally injures the participant. Civil Liability Under Product Liability Laws

Pick Your Own Immunity Warning Every owner and operator of a pick-your-own farm operation shall post and maintain white signs which contain the warning notice in black letters, with each letter to be a minimum of one inch in height. Signs shall be placed in a clearly visible location near the entrance of the farm. Every written contract entered into by an owner or operator shall contain in clearly readable print the warning notice.

Pick Your Own Immunity Warning The signs and contracts described in subsection (a) of this Code section shall contain the following warning notice: "Under Georgia law, an owner or operator of a pick-your-own farm location is not liable for an injury to or the death of a participant from the inherent risks of harvesting agricultural products, pursuant to Article 7 of Chapter 14 of Title 2 of the Official Code of Georgia Annotated." Failure to comply with the requirements concerning warning signs and notices provided in this Code section shall not prevent an owner or operator from invoking the privileges of immunity provided by this article.

What is Georgia s Agritourism Immunity Statute? A landowner who charges admission for a person who is 18 years of age or older to hunt or fish on the owner's property or to enter the owner's property for the purposes of agritourism shall be immune from civil liability for any injuries caused by the inherent risk associated with agritourism, hunting, or fishing activity. EXCEPTION: The landowner's conduct does not constitute gross negligence or willful and wanton misconduct. Enacted in 2009

What is Agritourism for Purposes of the Statute? The term "agritourism" means charging admission for persons to visit, view, or participate in the operation of a farm or dairy or production of farm or dairy products for entertainment or educational purposes or selling farm or dairy products to persons who visit such farm or dairy (same definition as in CUVA from 2007). CLEAR EXCLUSIONS Farm Weddings Rodeos

Two Important Conditions of Agritourism Statute The landowner has posted at the main point of entry, if present, to the property a sign with a warning notice stating... on the sign in black letters, with each letter to be a minimum of one inch in height; The person who has paid admission to the landowner to enter such landowner's property to hunt, fish, or for the purposes of agritourism has signed a waiver of liability form stating that the person entering the landowner's property has waived all civil liability against the landowner for any injuries caused by the inherent risk associated with agritourism, hunting, or fishing activity.

Agritourism Warning Warning: Under Georgia law, there is no liability for an injury or death of a participant at least 18 years of age in a registered agritourism activity conducted at this registered agritourism location if such injury or death results from the inherent risks of such agritourism activity. Inherent risks of agritourism activities include, but shall not be limited to, the potential of you to act in a negligent manner that may contribute to your injury or death and the potential of another participant to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this registered agritourism activity."

What is Willful and Wanton Conduct? Willful conduct is based on an actual intention to do harm or inflict injury. Wanton conduct is that which is so reckless or so charged with indifference to the consequences as to be the equivalent in spirit to actual intent. Willful misconduct, or willful failure or refusal to perform a duty required by statute, is more than negligence or even gross negligence; it involves conduct of a criminal or quasi-criminal nature, the intentional doing of something, either with the knowledge that it is likely to result in serious injury, or with the wanton and reckless disregard of its probable consequences.

Other Statutory Immunity Hunting and Fishing Title 51 Requires Sign Fishing Title 27 Requires Sign Equine and Llama Liability Title 4 Requires Sign Recreational Property Act Title 51 No Fee Open to Public O.C.G.A. 27-3-1(e) extends immunity to owner who gives permission to another person to hunt, fish, or take wildlife upon the land with or without charge

Contractual Waivers/Releases A contracting party may waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest. O.C.G.A. 1-3-7. Exculpatory clauses in Georgia are valid and binding, and are not void as against public policy when a business relieves itself from its own negligence. Parties to a contract are presumed to have read their provisions and to have understood the contents. Not Effective Against Gross Negligence

Other Considerations for Waiver/Releases Business Realities Minors Do Not Have Capacity to Waive Rights. Parents Generally Do Have Right to Release Medical Expense Claim Corporate Structure Naming the Right Releasees Out of possession Landlord

Liability Takeaways Identifying, Avoiding, and/or Eliminating Unreasonable Risks Creation of a Reasonable Inspection Procedure Compliance with the Applicable Pre-requisites to Statutory Defenses Releases/Waivers Responsiveness

If an Incident Occurs Obtain Medical Attention Report it to Insurer Take Photographs Make a Report Take Names/Witness Statements Correct Any Condition

Questions? Joel L. McKie jmckie@hallboothsmith.com 404-586-6608 (O); 229-426-2205 (C)