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The examples provided here may be helpful to policy makers and advocates in formulating additional law. Several questions are also provided below the examples in order to help flesh out concerns direct marketing farmers may have about such laws.

As a result of the threat of liability facing farmers who operate pick-your-own farms, several states have enacted laws to limit the potential liability of these operations.  Under these laws the operator is protected as long as the operator did not create an “unreasonable risk” or did not engage in “willful, wanton, or reckless conduct.”

While the individual state laws deal with the same subject each takes a somewhat different approach. It is worthwhile examining the language of several of the laws to illustrate the different types of protections which might be available.  For example:

New Hampshire Stat. §508:14 II
II. An owner of land who permits another person to gather the produce of the land under pick-your-own or cut-your-own arrangements, provided said person is not an employee of the landowner and notwithstanding that the person picking or cutting the produce may make remuneration for the produce to the landowner, shall not be liable for personal injury or property damage to any person in the absence of willful, wanton, or reckless conduct by such owner.
The New Hampshire law, enacted in 1981, is interesting because it specifically mentions “cut-your-own” operations.

Compare this language with the somewhat different approach used in the Ohio law.  It  provides:

(B) In a tort action, in the absence of willful or wanton misconduct or intentionally tortuous conduct, no owner, lessee, renter, or operator of premises which are open to the public for direct access to growing agricultural produce shall be imputed to do either of the following:

(1) Extend any assurance to a person that the premises are safe from naturally occurring hazards merely by the act of giving permission to the person to enter the premises or by receiving consideration for the produce picked by the person;

(2) Assume responsibility or liability for injury, death, or loss to person or property allegedly resulting from the natural condition of the terrain of the premises or of the condition of the terrain resulting from the cultivation of the soil.

The Michigan law takes yet another approach to offering liability protection for PYO operators.  It provides that:
(5) a cause of action shall not arise against the owner, tenant, or lessee of land or premises for injuries to a person, other than an employee or contractor of the owner, tenant, or lessee, who is on the land or premises for the purposes of picking and purchasing agricultural or farm products at the farm or “u-pick” operation, unless the person’s injuries were caused by a condition that involved an unreasonable risk of harm and all of the following apply:

(a) The owner, tenant, or lessee knew or had reason to know of the condition or risk.

(b) The owner, tenant, or lessee failed to exercise reasonable care to make the condition safe, or warn the person of the condition or risk,

(c) the person injured did not know or did not have reason to know of the condition or risk.

(6) As used in this section, “agricultural or farm products” means the natural products of the farm, nursery, grove, orchard, vineyard, garden, and apiary, including, but not limited to, trees and firewood.

The final example of a PYO liability limitation is the New Jersey law.  This law provides:
1.  As used in this act, “agricultural or horticultural land” means orchards, nurseries or other land devoted to the production for sale of plants, crops, trees, forest products or other related commodities.

2.  Notwithstanding the provisions of law to the contrary, an owner, lessee or occupant of agricultural or horticultural land shall not have a legal duty to protect a person who is invited onto the land for the purpose of picking or taking agricultural or horticultural products from the natural risk or hazards that are inherent characteristics of agricultural or horticultural land, and shall not be liable if such a person invited onto the land is injured because of any natural risks or hazards that are inherent characteristics of agricultural or horticultural land.

Q. Will these laws be effective in protecting pick-your-own operators from potential liability?

The answer will depend on the facts of what happened and the law involved.  For example, while the New Jersey law does not explicitly provide that it applies when the person has paid money to be on the land, a legislative note attached to the law makes it clear that is the purpose.  This is an example of the type of legal question which can arise even when such a law is on the books.  From reading these different laws, you can see that a number of questions may still need to be litigated, including: what are the “inherent characteristics of the land”, what is a “condition that involved an unreasonable risk of harm”, what is “willful, wanton, or reckless conduct” of the owner?

While these laws will apply to some situations, such as a person falling into a hole (if the owner did not know it was there) it is unlikely the laws will provide protection in a case where a person was injured by falling off a defective ladder provided by the owner.  One problem with the PYO laws is they may give owners a false sense of security that they are protected from liability and the owners may then fail to take reasonable precautions to prevent accidents from happening.  Perhaps the best way for you to think of such laws is that while it is better to have one than not to, do not rely on the laws to protect you from liability, especially if you can prevent the situation from arising.

Q. Do these laws protect me if I donate excess food to the local food bank or let a local church group pick fruit left in the orchard?

The laws relating to PYO’s should not be confused with laws which protect farmers who allow gleaning, which does not involve money, or farmers who make donations of food.  Laws protecting people who make good faith donations of excess food have been enacted in all fifty states and at the federal level.  These laws are discussed in Chapter Six.

An example of a law which protects a person donating food is the New Hampshire law which provides:

New Hampshire Stat. § 508.15
II.  The good faith donor of any food to a needy individual or individuals or to a bona fide charitable or non-profit organization for distribution or serving by such organization without charge or at a charge sufficient only to cover the cost of handling and administering such food and the distribution thereof, shall not be subject to criminal penalty or civil damages arising from the condition of the food, unless an injury is caused by the gross negligence, recklessness, or intentional misconduct of the donor; provided, however, that at the time of donation such food is not knowingly misbranded and is not adulterated and has not been manufactured, processed, prepared, handled or stored in violation of applicable rules of the department of health and human services, or unless an injury is caused by the gross negligence, recklessness or intentional conduct of the donor.
An example of such a protection for allowing gleaning is the Michigan law, which provides:
Mich. Comp. Laws Ann. §324.73301 (3)
A cause of action shall not arise against an owner, tenant, or lessee of land or premises for injuries to a person who is on that land or premises for the purposes of gleaning agricultural or farm products, unless that person’s injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee.