Litigation Update: The Texas Agritourism Act: New Potential Liability Protection for Texas Agricultural Landowners

Owners of agricultural land in Texas may be entitled to additional limited liability protection thanks to a bill passed in the most recent Texas legislative session and signed by the Governor. The Texas Agritourism Act ("Agritourism Act"), now codified as Chapter 75A of the Texas Civil Practice and Remedies Code, provides certain agricultural landowners with limited liability protection from injuries and damages sustained by individuals engaged in certain activities on the land, provided specific requirements are met.

The Agritourism Act provides that an "agritourism entity" is not liable to any person for injuries or damages sustained by an "agritourism participant" engaged in an "agritourism activity" on "agricultural land" if prior to such activity: (1) the requisite warning was posted; or (2) a written agreement containing required language was obtained.  It is important to break down this language and evaluate the definitions of various terms used as the definitions are quite broad such that many agricultural landowners may not realize that they provide agritourism activities on their land and thus, may not take the necessary steps to ensure they are entitled to the limited liability protection afforded by the Agritourism Act.  The seemingly broad definitions of "agritourism activity" and "agricultural land" suggest that the liability protections may extend beyond what is typically thought of as agritourism activities (hay rides, pumpkin patches, corn mazes, dude ranches, etc.).  For example, based on the broad definitions of these terms, the Agritourism Act may arguably extend to agricultural landowners who allow others to hunt on their land.

The limited liability protection is available to an "agritourism entity," which is defined as a person engaged in the business of providing an agritourism activity, without regard to compensation.  Thus, an agricultural landowner must provide an "agritourism activity" in order to be entitled to the limitation on liability.  An "agritourism activity" is defined as an activity on agricultural land for recreational or educational purposes of participants, without regard to compensation.  Thus, the "agritourism activity" must take place on "agricultural land," which is defined as land that is located in Texas and that is suitable for:  (1) use in production of plants and fruits grown for human or animal consumption, or plants grown for the production of fibers, floriculture, viticulture, horticulture, or planting seed; or (2) domestic or native farm or ranch animals kept for use or profit.  The use of the word "suitable" in the definition of "agricultural land" is important as it implies that the land does not have to be actively used for such purposes; rather, the land merely has to be suitable for such purposes.  The statutory definition of "recreation" for purposes of what constitutes an "agritourism activity" is very broad and explicitly includes the following activities:  hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving (including off-road motorcycling and off-road automobile driving and the use of all-terrain vehicles and recreational off-highway vehicles), nature study (including bird-watching), cave exploration, waterskiing and other water sports, any other activity associated with enjoying nature or the outdoors, bicycling and mountain biking, disc golf, on-leash and off-leash walking of dogs, or radio control flying and related activities.

The Agritourism Act provides limited liability protection from an "agritourism participant injury."  An "agritourism participant" is defined as an individual, other than an employee of the agritourism entity, who engages in an agritourism activity.  An "agritourism participant injury" means 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.

To be entitled to the limited liability protection afforded by the Agritourism Act, an agritourism entity must either: (1) post a warning sign; or (2) obtain a written agreement and warning statement from the participant.  The first option is to have a warning sign posted at the time of the agritourism activity from which the injury or damages arise.  The sign must be posted and maintained in a clearly visible location on or near any premises where an agritourism activity is conducted and must contain the following language:

WARNING

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.

Alternatively, a written agreement and warning statement must be obtained from the agritourism participant prior to the agritourism activity from which the injury or damages arise.   The written agreement and warning statement is considered effective and enforceable if it:  (1) is signed before the agritourism participant participated in an agritourism activity; (2) is signed by the agritourism participant or, if the agritourism participant is a minor, the minor's parent or guardian; (3) is 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; (4) is printed in not less than 10-point bold type; and (5) contains the following language:

AGREEMENT AND WARNING

I UNDERSTAND AND ACKNOWLEDGE THAN 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.  

An agritourism entity should consider utilizing both a posted warning and a written agreement as there are potential advantages to both and doing so reduces the risk that the liability protections will not apply if one or the other did not meet the statutory requirements.  For example, the posted sign would be an important factor in a situation where a written agreement is obtained from a participant, say an individual the landowner allows on their land to hunt, and that individual brings a guest who did not sign a written agreement and that guest is injured while hunting on the land.  On the other hand, the written agreement option explicitly states that it applies to injuries sustained by minors, whereas the posted warning option does not explicitly state that it applies to injuries sustained by minors.

The limitation on liability provided by the Agritourism Act is not unlimited as certain exceptions apply. Specifically, the Agritourism Act does not limit liability for an injury:  (1) proximately caused by the agritourism entity's negligence evidencing a disregard for the safety of the agritourism participant; (2) proximately caused by a dangerous condition on the land, facilities, or equipment used in the activity of which the agritourism entity had actual knowledge or reasonably should have known; (3) proximately caused by the dangerous propensity of a particular animal used in the activity (that is not disclosed to the agritourism participant) of which the agritourism entity had actual knowledge or reasonably should have known; (4) proximately caused by the agritourism entity's failure to train or properly train an employee actively involved in the agritourism activity; or (5) intentionally caused by the agritourism entity.  Additionally, the Agritourism Act does not apply to injuries or damages sustained by an employee of the agritourism entity.

The limitation on liability provided by the Agritourism Act is in addition to other limitations of liability.  Thus, it is important for an agricultural landowner who allows persons to make recreational or educational use of their land to not only determine if the Agritourism Act applies to them and whether they meet the requirements for the limitation on liability, but also to determine whether other limited liability statutes such as the Farm Animal Liability Act and Recreational Use Statute apply to them and whether they meet the requirements of those limited liability statutes.  Additionally, despite the limitation on liability provided by the Agritourism Act or other limited liability statutes, agricultural landowners should continue to ensure they have taken other measures to limit liability such as maintaining adequate insurance or forming the appropriate business entity such as a limited liability company, limited partnership or corporation.

 Mr. Riney is a Senior Attorney in the Litigation Section at Kane Russell Coleman & Logan PC. His practice includes general civil litigation and commercial litigation.  He has defended various livestock professionals, including livestock owners, horse trainers and stable operators, as well as companies in the agribusiness industry.  He can be reached at kriney@krcl.com.