This article appeared previously in the Delmarva Farmer in December of 2013
Note: This article is not a substitute for the advice of an attorney and should not be viewed as legal advice.
I know many of you often worry about what happens if someone gets injured while on your farm. It could be a customer at your on-farm produce stand or your corn maize or it could be the neighbor that decides to cut across your field to save time. In these cases, it will depend on the duty of care, the legal obligation to protect a third party from foreseeable danger. That duty of care will depend on the status of the visitor to your farm at the time of injury. Maryland recognizes three classes of status: 1) trespasser; 2) licensee; or 3) invitee.
A trespasser is a person who enters your property, owned or rented, without your consent and remains without your consent. For example, your neighbor is out hunting, inadvertently gets on your property and stays there. Your neighbor would be a trespasser since he is on your property without your permission and remains there without your permission. You owe a trespasser the lowest duty of care, to refrain from wilful or wanton conduct that could cause injury. For example, you know ATV riders are crossing your property at a certain spot and string an unmarked cable across that spot to stop them. An ATV rider is trespassing on your property, hits the cable, and is injured. This could be classified as willful and wanton conduct, but if you put a fence up this would not be considered wilful and wanton conduct.
With a licensee, Maryland has two types of licensees: 1) bare licensee and 2) licensee by invitation. A bare licensee is person who has permission to be on your property but is there for his/her own purpose, such as letting a neighbor hunt on your property. You owe a bare licensee the same duty of care as a trespasser to refrain from wilful or wanton conduct. A licensee by invitation is a social guest you invite on your property, such as a party guest or family member. With a licensee by invitation your duty is to fix known problems or to simply warn the licensee about dangerous conditions that are not easily discoverable.
You would owe the highest duty of care to an invitee, someone on your property for your economic gain like a customer. Your duty of care is to protect them from unreasonable risks and to keep the property reasonably safe. You should inspect the property for dangerous conditions, warn of dangerous conditions, and possibly remedy these dangerous conditions. For example, your on-farm stand requires you to go up some steps and one of the steps is starting to rot, you hang a sign warning customers of the bad step, direct them to use another entrance, and repair the steps.
You can minimize your potential legal liability for visitors; remember there is no way to eliminate 100% of legal risk. If you are operating a store or agri-tourism operation on the farm and invite customers onto your farm take a moment to walk around the areas customers will be to determine the potential risks. You may simply need to fix a bad step, fill a hole in, rope off dangerous areas, or hang a warning sign. You should also check your insurance coverage to make sure your coverage matches what you do in your operation, especially true for agritourism operations that are typically excluded from comprehensive farm liability policies. Finally, consult with an attorney and have an audit or check-up done of your operation. This audit/check-up will allow you to identify potential areas of concern and hopefully avoid litigation in the future.