Do you own land in Texas and let people use that land for recreational purposes like hunting, fishing or hiking? Then you may be entitled to limited liability protection thanks to the Texas Agritourism Act (the Act). It can also benefit businesses like vineyards and safari venues.
The Act (see Texas Civil Practice and Remedies Code Chapter 75A) was an amendment passed in 2015 to limit a landowner’s liability to others who use that land for recreation. It eliminates an agritourism entity’s liability to an agritourism participant who is injured on agricultural land, if the entity posted the proper warning or obtained a written waiver, and so long as the injury doesn’t arise from the entity’s negligent conduct, a dangerous condition existing on real property, a dangerous animal or improper employee training.
Does the Act apply to your operation?
The Act applies to owners of “agricultural land” considered to be “agritourism entities” if an “agritourism participant” is injured during an “agritourism activity.” Now let’s break that down…
Agricultural land – land that is: suitable for use in the production of plants and fruits for human or animal consumption and plants grown for the production of fibers, floriculture, viticulture, horticulture or planting seed; or suitable for domestic or native farm or ranch animals to be kept for use or profit. The Act doesn’t require that the agricultural activities are ongoing on the property at the time the participant is injured. For example, if a person has land suitable for growing crops for animal production, but isn’t currently growing crops at the time of the injury, the land still meets the definition of “agricultural land.”
Agritourism entity – a person engaged in the business of providing an agritourism activity, without regard to compensation, including a person who displays exotic animals to the public on agricultural land. Some examples are cattle ranches, corn mazes, pumpkin patches, vineyards and drive thru safaris. A tree farm is usually not an agricultural entity, unless the trees grow fruit.
Agritourism participant – an individual, other than an employee of an agritourism entity, who engages in an agritourism activity.
Agritourism activity – an activity on agricultural land for recreational or educational purposes of participants, without regard to compensation.
Recreation – generally includes any activity associated with enjoying nature or the outdoors, but probably not outdoor wedding venues (see Sullivan v. City of Ft. Worth). Click here for the complete definition.
Agritourism participant injury – an injury sustained by an agritourism participant, including bodily injury, emotional distress, death, property damage or any other loss arising from the person's participation in an agritourism activity.
Premises – includes land, roads, water, watercourse and private ways and buildings, structures, machinery and equipment attached to or located on the land, road, water, watercourse or private way.
Liability under the Act (§75A.002)
There are a handful of reasons why an agritourism entity’s liability may not be limited under the Act, such as:
- Injuries proximately caused by the agritourism entity’s intentional acts or disregard for the safety of the agritourism participant;
- Failing to disclose dangers the agritourism entity had actual knowledge of, or reasonably should have known, relating to the condition of the land, facilities or equipment used in the activity;
- A dangerous propensity of a particular animal used in the activity; or
- Failure to properly train employees involved in the activity.
It’s also unlikely that there will be insurance coverage for these types of acts or omissions.
If none of the exceptions applies, an agritourism entity is not liable to any person for an agritourism participant injury or damages arising out of the injury, if the agritourism entity either posted the proper warning or obtained a written waiver (requirements for both options are provided by the Act).
Posted Warning: (§ 75A.003)
To enjoy the benefits of the Act by posted warning, an agritourism entity must post and maintain a sign in a clearly visible location on or near premises on which an agritourism activity is conducted. The sign must contain the following language:
UNDER TEXAS LAW (CHAPTER 75A, CIVIL PRACTICE AND REMEDIES CODE), AN AGRITOURISM ENTITY IS NOT LIABLE FOR ANY INJURY TO OR DEATH OF AN AGRITOURISM PARTICIPANT RESULTING FROM AN AGRITOURISM ACTIVITY.”
Unfortunately, the Act does not provide any further clarity on where the sign must be posted or what the sign must look like. It may be helpful to look at other statutes that require posted signs, like the statute that directs what a posted sign must include in order to prevent trespass by license holders with a concealed handgun, commonly referred to as a “30.06 sign” (Tex. Pen. Code Ann. § 30.06 (West)). This statute requires the sign to include the prescribed language in both English and Spanish, have contrasting colors with block letters at least one inch in height and be displayed in a conspicuous manner clearly visible to the public.
Signs may be created anywhere as long as the required language is printed on them. They’re also available for purchase from the Texas Farm Bureau, Texas and Southwestern Cattle Raisers Association and Texas Wildlife Association.
Written Waiver: (§ 75A.004)
To enjoy the benefits of the Act by written waiver, the written waiver must:
- Be signed before the agritourism participant engages in an agritourism activity;
- Be signed by the agritourism participant or, if the agritourism participant is a minor, the agritourism participant's parent, managing conservator or guardian;
- Be in a document separate from any other agreement between the agritourism participant and the agritourism entity other than a different warning, consent or assumption of risk statement;
- Be printed in no less than 10-point bold type; and
- Contain the following language:
“AGREEMENT AND WARNING
I UNDERSTAND AND ACKNOWLEDGE THAT AN AGRITOURISM ENTITY IS NOT LIABLE FOR ANY INJURY TO OR DEATH OF AN AGRITOURISM PARTICIPANT RESULTING FROM AGRITOURISM ACTIVITIES. I UNDERSTAND THAT I HAVE ACCEPTED ALL RISK OF INJURY, DEATH, PROPERTY DAMAGE, AND OTHER LOSS THAT MAY RESULT FROM AGRITOURISM ACTIVITIES.”
YES, you still need liability insurance.
Although the Act reduces the potential for an agritourism entity to be held liable for injury to agritourism participants, the Act isn’t a substitute for liability insurance. The Act won’t prevent a landowner from being sued and needing an attorney to handle the litigation (expenses a liability insurance policy often covers). Additionally, there are many exceptions to the Act where the limited liability wouldn’t apply to the landowner, in which case the landowner could look to his or her liability insurance for coverage.
When you partner with Higginbotham for your business insurance, we give you the tools you need to make smart decisions about managing your risks, including your contractual exposures. Learn more about our Texas risk management services and contact our team.