August 24, 2021

You Pay to Foul Play: Vermont Joins Over Half of U.S. States in Enacting Legislation that Limits Liability for Agritourism

Jessica Griswold

On May 17, 2021, Vermont enacted Act 31 (H.89), an Act Relating to Limiting Liability for Agritourism. Governor Scott signed the bill into law just in time for visitors to make their way to the Green Mountain State for a post-pandemic getaway. In light of the State’s economic recovery goals, Act 31 incentivized agritourism businesses—formerly called “Accessory On-Farm Businesses”—to open their doors to the public and make the most of the summer tourist season. See 24 V.S.A. § 4412(11) (defining “Accessory On-Farm Business” and providing the only Vermont legislation related to agritourism prior to Act 31).

Beginning on July 1, 2021, Act 31 effectively narrowed the scope of liability that an agritourism host could face when a visitor is injured while participating in an agritourism activity on the host’s property. The Act defines an “agritourism activity” as “an interactive or passive activity that is carried out for recreational, entertainment, or educational purposes on a farm and includes farming, food production, historical, cultural, pick-your own, and nature-based activities.” 12 V.S.A. § 5971(1)(A). This definition may include anything from cheese tasting at a dairy farm to hayrides at a local orchard. While agritourism hosts have a legal duty to post warnings, visitors assume the inherent risks of participating in the activities offered at farms and agritourism facilities. Such risks include injuries resulting from wild or domestic animals, climbing and falling from farming equipment or structures, and exposure to hazardous land, water, or vegetation conditions, among others. That said, Act 31does not protect agritourism hosts from liability for their own negligent or intentional conduct that causes injury or death to a participant.

Further, Act 31 notably excludes “lodging at a farm or shopping at a roadside farm stand or operation exclusively devoted to the sale of merchandise or food at retail” from its liability limitations. 12 V.S.A. § 5971(1)(B). As such, the Act’s limited liability protections do not apply to restaurants, breweries, farmers markets, and other food and beverage establishments that don’t operate on farms or offer opportunities to engage in agritourism activities as defined under 12 V.S.A. § 5971(1)(A).

As Act 31 gets tested in the courts, it will be interesting to see if it has the same “teeth”—or lack thereof—as Vermont’s “Sports Injury” Statute (12 V.S.A. § 1037) and “Right to Farm” Statute (12 V.S.A. 5751). The sports injury statute purports to protect hosts of sports activities, such as ski areas, from personal injury lawsuits, by declaring that the participant “accepts the inherent danger in the sport.” Similarly, the right to farm statute purports to protect farmers from nuisance suits by neighbors by declaring that farming activities do not constitute a nuisance. Unfortunately, ski areas and farmers have found that those supposedly-protective statutes do not mean that such lawsuits will be dismissed. Plaintiffs simply allege in their lawsuits that the activity that supposedly injured or harmed them is beyond the scope of the protection afforded by the statute, i.e., is not “inherent” in the sport. Courts refuse to dismiss the lawsuits and instead allow them to proceed all the way through the litigation system to a jury trial, at which time it is up to the jury to decide whether the protection of the statute absolves the defendant from liability. The problem is that defending a lawsuit all the way through a jury trial—even if the defendant ultimately wins—can take years and cost a defendant tens of thousands of dollars in legal fees. This prompts defendants to ask: what good is the protective statute if it doesn’t save me from years of expensive litigation?

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