• AGRITOURISM: It Means Business
  • January 11, 2018 | Author: Glenn W. Pulley
  • Law Firm: Gentry Locke Attorneys - Lynchburg Office
  • Agritourism not just a hobby. A reputable survey has revealed that in 2015 visitors to Virginia’s agritourism farm businesses spent an estimated $1.5B throughout the state.

    Approximately 17% of the $1.5B total was spent at the agritourism venues; the remaining 83% was spent outside the venues (e.g. hotels, restaurants), but inside the Commonwealth.

    In 2006, the Virginia Code first included a section which recognizes that farmers are utilizing their land to raise crops and livestock but also to promote tourism. So, what is this business called agritourism? The Code defines it as:

    Any activity carried out on a farm or ranch that allows members of the general public, for recreational, entertainment, or educational purposes, to view or enjoy rural activities, including farming, wineries, ranching, historical, cultural, harvest-your-own activities, or natural activities and attractions. An activity is an agritourism activity whether or not the participant paid to participate in the activity.

    As the definition suggests, farmers who are engaged in agritourism are relying on traditional and innovative activities. Music festivals, corn mazes, hay rides, animal husbandry workshops, wineries, breweries, cooking schools, gather your own produce, trail rides, and the list goes on.

    But, wait. By opening the gates to members of the public who may never have visited a farm, isn’t there a serious risk of injury or even death that could make this business venture ill-advised? Well, maybe for some, but the referenced legislation goes a long way towards precluding lawsuits and recoveries against the farmer. This is accomplished by the following Code section:

    § 3.2-6401. Liability limited; liability actions prohibited.

    A) Except as provided in subsection B, an agritourism professional is not liable for injury to or death of a participant resulting from the inherent risks of agritourism activities, so long as the warning contained in § 3.2-6402 is posted as required and, except as provided in subsection B, no participant or participant’s representative is authorized to maintain an action against or recover from an agritourism professional for injury, loss, damage, or death of the participant resulting exclusively from any of the inherent risks of agritourism activities; provided that in any action for damages against an agritourism professional for agritourism activity, the agritourism professional shall plead the affirmative defense of assumption of the risk of agritourism activity by the participant.

    B) Nothing in subsection A shall prevent or limit the liability of an agritourism professional if the agritourism professional does any one or more of the following:

    1. Commits an act or omission that constitutes negligence or willful or wanton disregard for the safety of the participant, and that act or omission proximately causes injury, damage, or death to the participant;
    2. Has actual knowledge or reasonably should have known of a dangerous condition on the land or in the 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; or
    3. Intentionally injures the participant.

    C) Any limitation on legal liability afforded by this section to an agritourism professional is in addition to any other limitations of legal liability otherwise provided by law.

    “Inherent risks of agritourism activity” mean those dangers or conditions that are an integral part of an agritourism activity including certain hazards, including surface and subsurface conditions; natural conditions of land, vegetation, and waters; the behavior of wild or domestic animals; and ordinary dangers of structures or equipment ordinarily used in farming and ranching operations. Inherent risks of agritourism activity also include the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, including failing to follow instructions given by the agritourism professional or failing to exercise reasonable caution while engaging in the agritourism activity.

    Other good news is that there are significant resources available to farmers who add tourism to their business model. These include the Virginia Tourism Corporation, the Virginia Department for Agriculture and Consumer Services, the offices of Planning and Zoning for the locality in which the farm is located, the Rural Development Division of the USDA, and the Virginia Cooperative Extension Service.

    While listed last, the first call a farmer might want to make is to Dr. Martha Walker of the Virginia Cooperative Extension. She has worked on the project for agritourism in Virginia for more than a decade. On December 6, 2017, Dr. Walker moderated a workshop on agritourism at the Cloverdale Quarter on Route 58 east of Danville. The information distributed at the workshop was informative and the presenters were very entertaining. The attendees included those from the private and public sector. Local, state and federal. To recognize the importance of agritourism in Virginia, Senator Kaine was represented at the workshop by his regional director, Gwen Mason.

    As the only attorney at the workshop, it was readily apparent to me that there are many opportunities for attorneys at Gentry Locke to work with those who venture into the agritourism business. There are legal needs in the field of forming the business, drafting its operating documents, advising on issues involving zoning, land acquisition, easements, the environment, wetlands, liability for injuries and property damage, and the drafting and review of contracts. A team approach is essential with the agribusiness entrepreneur working closing with the accountant, the lender, the attorney, and the insurance agent. The attorney and the insurance agent can be especially helpful in avoiding the risk that comes with having visitors on the farm.