I recently authored an article for the Nebraska Defense Counsel Association’s publication entitled The Nebraska Agritourism Promotion Act and the Muddy Waters of Recreational Liability. Click here to read the printed article. Our practice at Jacobsen Orr often involves advising farmers, agricultural landowners and others about preventing and mitigating liability risks associated with use of real property for recreational purposes, and we are also often involved in the defense of litigation when an accident occurs on agricultural property. Because Nebraska, like many states, has adopted statutes that appear to protect against this liability, it is important to understand how and under what circumstances such protection is available. In many cases, the protection is illusory and we want to make sure that our clients do not place undue reliance on the statutes themselves.
Landowners and farmers, especially those considering whether to open up their lands to “agritourism,” including canoeing, hiking, photography, birdwatching, hunting, fishing, and the like, need to consult their insurers and legal counsel about ways to mitigate their risks of liability for recreational uses made of their property. What happens when those visitors tramping around the farm and ranch get hurt? Who is responsible when the sow attacks the kids, grandma trips over the pumpkin vine, grandpa is bitten by rattlesnake, Eddie falls out of the canoe, Susie accidentally shoots somebody, mom falls off of the hay wagon or dad falls over the cliff while trying to get that perfect picture of the waterfall?
Like many things in the law, the answer is clear as mud. The Nebraska Legislature some years ago enacted the “Recreation Liability Act,” which provided some protection to landowners who didn’t charge for entry onto the premises. As long as the owner did not act or fail to act “willfully or maliciously,” the owner enjoyed some limitation of liability from allegations of ordinary negligence. See Neb. Rev. Stat. § 37-730 et al. But in light of the fact that approximately 97% of the land in Nebraska is privately held, and to encourage more “agritourism,” the Legislature recently enacted the Nebraska Agritourism Promotion Act. See Neb. Rev. Stat. § 82-602 et al. This Act now seemingly provides some limitation of civil liability for owners of farms, ranches and other rural land, even if a fee is paid in return for the invitation or permission to enter the premises. But, there continue to exist a myriad of exceptions, including: (1) no protection if the injury or death was not caused by an “inherent risk” on the property, (2) potentially no protection for “owners” or “agents” whose annual income from agritourism exceeds $500,000, (3) no protection if owner failed to exercise reasonable care to protect against “the particular dangers of structures or equipment used or kept” on the property, (4) no protection if the owner had “actual knowledge” of a particular dangerous condition and failed to warn of that condition,” and several others. The Act also expressly requires that the owner provide notice to those entering the property for a fee. The notice language is about eight lines long and might be difficult to squeeze onto a sign, but could potentially be placed in a written contract. See Neb. Rev. Stat. § 82-606(2).
The Agritourism Act may be a step in the right direction for landowners who wish to supplement their agricultural income with fee-based recreational activities on their property. But, owners are cautioned to read the statutes carefully, consult with their attorneys, and inquire with their insurance agents or brokers concerning the scope of their CGL or farm liability insurance to cover such activities. Instead of blind reliance upon the existence of these statutes, it is important that landowners take steps to mitigate their risks and continue to tread these muddy waters very carefully.