New Jersey-2018-A4019-Introduced

An Act limiting liability arising from agritourism activities, supplementing Title 2A of the New Jersey Statutes, and repealing P.L.1997, c.378.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. As used in this act:

"Agritourism activity" means an interactive or passive activity, carried out with or without payment to an agritourism host on a farm, related to agriculture, food production, historic tradition, or nature watching, and which is conducted by an agritourism host for the education, entertainment, or recreation of participants. "Agritourism activity" shall include, but shall not be limited to, a farming activity, the viewing of an historic, cultural, or natural attraction, a pick-your-own activity, nature watching, and an activity involving an animal exhibition at an agricultural fair. "Agritourism activity" shall not include a roadside farm stand or operation exclusively devoted to the sale of merchandise or food at retail.

"Agritourism host" means a person who provides the facilities and equipment necessary to participate in an agritourism activity.

"Farm" means any land, and related structures and equipment, used for the production for sale of agricultural, horticultural, viticultural, forestry, dairy, livestock, poultry, bee, or other related products, and which qualifies for farmland assessment pursuant to the "Farmland Assessment Act of 1964," P.L.1964, c.48 (C.54:4-23.1 et seq.).

"Inherent risk" means any danger or condition that is an integral part of, or arises from, an agritourism activity, including, but not limited to, the propensity of a wild or domestic animal to behave in ways that may result in injury or death to persons on or near the wild or domestic animal; a hazard such as a surface or subsurface condition; a natural condition of land, vegetation, or waters; the ordinary dangers of structures or equipment used in farming; and the potential of a participant to act in a negligent way that may contribute to injury or death to the participant or others, such as failing to follow safety procedures or failing to act with reasonable caution while engaging in an agritourism activity.

"Participant" means any person who is invited onto the farm for the purpose of participating in an agritourism activity.

2. a. Notwithstanding the provisions of any other law to the contrary, and except as provided in subsection b. of this section, an agritourism host shall not have a legal duty to protect a participant from the inherent risks of an agritourism activity, and shall not be liable for injury to or death of a participant resulting from the inherent risks of an agritourism activity, provided the agritourism host gives proper warning as required pursuant to section 3 of this act.

b. Nothing in subsection a. of this section shall limit the liability of an agritourism host who:

(1) commits an act or omission of gross negligence concerning the safety of a participant that proximately causes injury or death to the participant;

(2) has actual knowledge of a dangerous condition on the land, facilities, or equipment used in the activity, or the dangerous propensity of a particular animal used in the activity, that proximately causes injury or death to the participant and does not make that danger known to the participant;

(3) intentionally injures a participant; or

(4) commits any other act, error, or omission that constitutes willful or wanton misconduct, gross negligence, or criminal conduct that proximately causes injury or death to the participant.

c. Any limitation on liability afforded by this section to an agritourism host shall be in addition to any other limitations on liability otherwise provided by law, including, but not limited to, the limitations on liability for sport and recreational activities in P.L.1968, c.73 (C.2A:42A-2 et seq.), for the operation of motor vehicles and horseback riding in P.L.1985, c.431 (C.2A:42A-6 et seq.)., and for equine animal activity in P.L.1997, c.287 (C.5:15-1 et seq.).

3. a. An agritourism host shall post and maintain a sign in a clearly visible location at or near the main entrance to each agritourism activity and in black letters at least one inch in height containing the warning notice specified in subsection c. of this section.

b. Every written contract entered into between an agritourism host and a participant for goods or services related to an agritourism activity shall contain in clearly visible print the warning notice specified in subsection c. of this section.

c. The warning notice required pursuant to subsections a. and b. of this section shall read: "WARNING: Under New Jersey law, an agritourism host is not liable for the injury or death of a participant in an agritourism activity resulting from the inherent risk of the agritourism activity. Inherent risks include without limitation the risk of animals, weather, land conditions, and the potential for you as a participant to act in a negligent way that may contribute to your own injury or death. You are assuming the risk of participating in this agritourism activity."

d. Failure to comply with the requirements of this section shall result in the agritourism host being unable to invoke the limitation on liability provided in section 2 of this act.

4. The provisions of this act shall be liberally construed to serve as an inducement to the owners, lessees, and occupants of farms, who might otherwise be reluctant to do so for fear of liability, to host agritourism activities.

5. P.L.1997, c.378 (C.2A:42A-9 et seq.) is repealed.

6. This act shall take effect on the 90th day after the date of enactment, and shall apply only to agritourism activities that occur on or after the effective date of this act.

STATEMENT

This bill would provide limited civil liability immunity to farmers hosting agritourism activities.

An agritourism activity is an interactive or passive activity, carried out without or without payment to an agritourism host on a farm, related to agriculture, food production, historic tradition, or nature watching, and which is conducted by an agritourism host for the education, entertainment, or recreation of participants. Agritourism activities include farming activities, the viewing of cultural, historic, or natural attractions, pick-your-own activities, nature watching, and activities involving an animal exhibition at an agricultural fair. It would not include roadside farm stands or operations exclusively devoted to the sale of merchandise or food at retail. Under the bill, an agritourism host would not have a legal duty to protect a participant from the inherent risks of an agritourism activity, and would not be liable for injury to or death of a participant resulting from the inherent risks of an agritourism activity, provided the host gives proper warning as required in section 3 of the bill.

Proper warning, as specified in the bill, is the posting of a warning notice on certain signs and contracts. That warning notice would read: "WARNING: Under New Jersey law, an agritourism host is not liable for the injury or death of a participant in an agritourism activity resulting from the inherent risk of the agritourism activity. Inherent risks include without limitation the risk of animals, weather, land conditions, and the potential for you as a participant to act in a negligent way that may contribute to your own injury or death. You are assuming the risk of participating in this agritourism activity." Failure to follow the warning requirements would result in the agritourism host's loss of limited liability protections.

The limitation on liability also would not extend to any agritourism host who: (1) commits an act or omission of gross negligence concerning the safety of a participant that proximately causes injury or death to the participant; (2) has actual knowledge of a dangerous condition on the land, facilities, or equipment used in the activity or the dangerous propensity of a particular animal used in the activity that proximately causes injury or death to the participant and does not make that danger known to the participant; (3) intentionally injures a participant; or (4) commits any other act, error, or omission that constitutes willful or wanton misconduct, gross negligence, or criminal conduct that proximately causes injury or death to the participant. The limitation on liability provided by the bill would be in addition to any other limitation on liability provided by law, including, but not limited to, the limitations on liability for outdoor sports and recreational activities and equine animal activities.

Finally, the bill would repeal P.L.1997, c.378 (C.2A:42A-9 et seq.) concerning farmer immunity for "pick-your-own" operations. The protections in that law would be included in this bill, and are expanded to include agritourism activities generally. This bill is modeled substantially on legislation from Arkansas.