- - AGRICULTURAL CORE CURRICULUM - - (CLF1000) Advanced Core Cluster: AGRICULTURAL BUSINESS MANAGEMENT (CLF1750) Unit Title: AGRICULTURAL LAW ____________________________________________________________________________ (CLF1753) Topic: AGRICULTURE LIABILITY Time Year(s) LAWS 1 hour 3 / 4 ____________________________________________________________________________ Topic Objectives: Upon completion of this lesson the student will be able to: Learning Outcome #: (P-3) - List the characteristics of liability laws as they relate to agriculture. Special Materials and Equipment: References: Max A. Mickelsen, Attorney at Law (Agricultural Law), P.O. Box 750487, Petaluma, CA 94975-0487. Rosenberg, H. R., & Egan, D. L. (1990). LABOR MANAGEMENT LAWS IN CALIFORNIA AGRICULTURE. Available from: Publications, Div. of Agriculture and Natural Resources, University of California, 6701 San Pablo Ave., Oakland, CA 94608-1239. (510) 642-2431. Evaluation: Completion of Activity Assignments TOPIC PRESENTATION: AGRICULTURE LIABILITY LAWS A. Farmers and ranchers are especially affected by liability laws because most of their net worth is invested in agricultural land and machinery and also because there are so many risks and hazards associated with agricultural enterprises. (See CLF1800, Safety in Agribusiness Operations (CLF1801, Factors that Contribute to Farm Accidents; CLF1802, Machinery Safety; and CLF1803, Management's Responsibility in Farm Safety) for a treatment of the many risk situations found in agricultural work.) 1. If a farmer loses a liability lawsuit and does not have sufficient insurance coverage or money to pay the amount of the judgment, his assets and even his farm or ranch can be sold; the farmer could thus lose his livelihood. 2. Even if a farmer wins a liability lawsuit, legal fees and costs (which often run to thousands of dollars), time lost from work, and general disruption of activities take a heavy toll on farming operations. 3. It is not unusual for a lawyer to charge $100-$250 per hour for his services; a liability lawsuit is a very expensive undertaking that can go on for a long time, sometimes years. B. Risks and Liabilities on the Farm 1. The laws relating to liability of a farm owner/operator are really the same as they would be for any other business. The difference is that the nature of farming often creates more risk situations. a. Not all people coming onto farm property are treated in the same way; they are divided into three different classes: 1) Invitee - a person who is "invited on the property." Basically, an invitee has not come for his own pleasure but for a purpose that benefits the farm owner as well as himself, for example, a regular salesman or feed supplier. - The farmer owes a duty to an invitee to use reasonable care to keep the property in safe condition and to warn of hidden dangers that a reasonable person might not notice. 2) Licensee - a person who comes on the property with the permission of the owner but for his own purpose, for example, a social guest or a hunter with permission. - Generally, the duty to licensees is the same as for invitees, except that it is questionable whether there is a duty to warn of hidden dangers. 3) Trespasser - a person who comes onto the property without permission from anyone. - Usually there is no duty owed by the farmer to any trespasser on the property. - A problem can occur, however, if the person is technically a trespasser but has been on the property frequently and with the owner's knowledge. In such a situation, the trespasser might be treated as a licensee. b. A farmer's liability to trespassing children is an entirely different story. He may be liable to young children who are attracted to the farm by some hazardous condition that exists or was created by the farmer. This is referred to as the "Attractive Nuisance Doctrine." 1) A farmer's risk from an "Attractive Nuisance" is so great that it deserves careful consideration. 2) A person is liable for harm to trespassing children if the injury is caused by a condition on the property when: - The farmer knows, or should know, that young children are likely to be in the area; - The farmer knows, or should know, that the condition involves an unreasonable risk of harm to young children; - Young children, because of their age, may not understand the danger; and - A person using reasonable care would not have allowed the condition if he weighed the usefulness of the condition against the expense or inconvenience of removing it. ______________________________________________________________________________ NOTE TO INSTRUCTOR: The "Attractive Nuisance" concept is difficult, but it occurs so frequently that time should be spent discussing it and talking about variations so the students gain an appreciation of the risks involved. Although each individual case needs to be considered separately, the above general principles would be applicable in each case. The point to be gotten across is that farmers should not look at these situations in an attempt to figure out whether or not they are liable, but rather to consider whether the risk of doing domething is great enough to take positive action to prevent possible injury. Whenever there is any reasonable chance that children could be present, assume that children will be present. ______________________________________________________________________________ __________________________________________________________ ACTIVITY: 1. The following situation was a real lawsuit: A farmer finished discing his field one evening and left his tractor with the disc attached in the middle of his field, which was near, but not next to, a residential area. The farmer left the key in the ignition. That evening, two neighborhood boys went into the field and one got onto the tractor and started it. The disc ran over his brother's leg and seriously injured him. If you were on the jury, would you find the farmer liable for the boy's injured leg? Why or why not? What could the farmer have done that would have prevented the injury? ********** In this particular case, the farmer was found to be not negligent. The Court found that it was not reasonable in a farming community for equipment to be removed each evening from a field to a sheltered area away from children. That put too much of a burden on the farming community. However, if the tractor had been left quite near the residential area, most likely the result would have been different. Also, a different Court or jury might have come to the opposite decision. _________________________________________________________ 2. Negligence and Strict Liability - Many people assume that someone must do something wrong in order to be liable. That is the general concept of negligence which means doing or failing to do something that a reasonable person could have done. For instance, driving 65 miles per hour around a curve marked 25 miles per hour is not reasonable. If an injury were to occur, it could be assumed that the driver was "negligent" and he might be found liable for the resulting injuries. Many laws require a person to be found negligent before he can be held liable or acccountable for his action. On the other hand, some laws and regulations are based on "strict liability." This means that there is liability regardless of whether the person did anything wrong. a. Some pollution control regulations are based on the concept of strict liability, so that if a farmer pollutes a stream, he may be held liable despite the fact that he took all reasonable precautions to avoid pollution. b. In the case of an employee of a farmer who is injured during the course of his employment, workers' compensation insurance is based on "strict liability" without regard to negligence by either the farmer or the employee. 1) The employee does not have to sue the farmer and try to prove negligence by the farmer in order to be compensated for his/her injuries. 2) Similarly, the farmer does not have to constantly worry about whether everything he does or doesn't do might be found negligent by a court. 3) Every employer is required to carry worker's compensation insurance to cover these risks. ______________________________________________________________________________ NOTE TO INSTRUCTOR: See CLF1803, Management's Responsibility in Farm Safety, for more detailed information regarding workers' compensation insurance in California and liability if the employer does not carry workers' compensation insurance. ______________________________________________________________________________ c. Liability for Negligence to Recreational Visitors 1) California and many other states have adopted legislation which limits liability of the farmer who allows people to use his land without charge for such recreational activities as nature studies, water skiing, hiking. 2) The landowner is usually protected from liability unless - he intentionally causes injury - his gross negligence leads to injury d. Liability for Livestock 1) Livestock create a particular risk for farmers. It is almost impossible to guarantee that livestock will not break out at one time or another. Sometimes this involves getting onto another person's property and other times it involves getting on the highways where particularly dangerous risks can take place. 2) Almost all areas are "fence in jurisdictions." This means that it is the farmer's responsibility to "fence in" his livestock; it is not the responsibility of the other person to "build a fence to keep livestock out." 3) The concept of negligence must be considered when trying to decide who is liable for damage to or by livestock. Did the farmer create a fence which a reasonable person would think was sufficient to keep the livestock fenced in? - If a heavy tank truck overturns one night and flattens a portion of a farmer's fence, and before the farmer discovers the damage to his usually well-maintained fence, some of his cattle wander onto the road, the farmer may not be considered negligent. - On the other hand, if the farmer habitually neglects to maintain his fences, and as a consequence of his negligence in fence fixing, his cattle wander onto the road and are hit by a car, the farmer might well be liable for all injuries incurred. 4) There are a few areas of the country which are called "fence out jurisdictions." These are generally open space areas where livestock are free to roam; people in these areas have a responsibility to build a fence around their property that is strong enough to "fence out" cattle. This is NOT the normal situation. e. Liability for Fires Caused by Farm Machinery 1) Many types of farming operations have the potential of causing a fire. Harvesting, for instance, is often done when a crop is dry and easy to set on fire. If a farmer is negligent in how he operates his machinery, and it causes a fire which escapes to a neighbor's property, he could be liable for all damages. 2) Another situation that is now occurring, probably because many local governments are short of funds for fire protection, is that a farmer who causes a fire is not only liable for any damage caused to other people's property, but may be liable for the cost to the fire department(s) in putting out a fire that occurs on his property alone. This is a relatively new concept which hasn't really been tested, but it is a risk that should be considered. f. Liability for Movement of Pesticides and Other Chemicals 1) If a farmer applies something to his property which moves to another person's property, he will be liable for any damages. 2) This is often an issue when pesticides drift into a residential area, but it can be a problem between neighboring farmers as well. g. Liability for Pollution 1) Liability for pollution damage is one of the most difficult problems facing farmers. 2) Almost all farming activities involve drainage into a stream of one sort or another. It may be a very small flow from the farm into a creek, but if the discharge enters any kind of waterway, the laws administered by the California State Dept. of Fish and Game apply. All areas are also covered by Regional Water Quality Control districts. These laws also cover discharges to underground water systems. 3) Fish and Game rules and regulations are strict liability, which means that it makes no difference if the farmer was negligent or used the best care possible, he is still potentially liable for all damages that occur from his pollution of a stream. In addition, there may be fines and penalties. 4) Regional Water Quality laws are based on negligence, which means that the farmer must conduct his operation in such a way as to reasonably prevent any discharge of pollutants into a stream or waterway. 5) A third liability is for "unfair business practices," which means that a farmer is considered to have an unfair business advantage over his neighboring farmers if they are practicing pollution control and he is not. A polluting farmer may thus be liable for sanctions, penalties, damages, all of which are expensive. 6) In almost all situations, all three areas of liability exist. It is extremely important that farmers do everything within their power to prevent pollution. - If a small pollution problem exists, there may be a small fine if the farmer has done everything possible to prevent it. - However, if the pollution is extensive, ongoing, and the farmer does not seem interested in correcting the problem, there may be very large fines and damages assessed. 3. Insurance to Cover Liability for Agricultural Activities a. Because the risks of agricultural operations to persons both on and off the farm are so great, it is very important to try to protect against damages by carrying liability insurance. b. Although liability insurance may be expensive, it is probably the cheapest means of avoiding significant liability. c. One of the real difficulties is that insurance companies have tended to "limit" their liability coverage. For example, most insurance policies exclude any coverage for pollution. d. A farmer and his insurer should regularly discuss the kinds of liability that exist in any agricultural enterprise. e. If the farmer is a tenant, there is an issue of whether he or the landowner is legally liable for any damages incurred by the agricultural operation on the land. 1) Generally, the person in possession of the property is responsible for activities that occur on the property. Thus, if the land is rented to a tenant, most of the time the tenant will have all responsibilities regarding risks. 2) However, very often agricultural leases give the landlord responsibility or involvement in the tenant activity, including such things as direction in how the property will be maintained and a share of profits. In these situations, the landlord would probably be named in any lawsuit involving liability. 3) Consequently, it is very important that the landlord be named as an "additional insured" so that he will be defended by the insurance company in any liability suit where he might be named. _____________________________________________________________ ACTIVITY: Mr. Dairyman operates a dairy with 700 cows. This dairy was built about 20 years ago by his father who milked 300 cows. The dairy has grown over the years with a new milking parlor and feed barns, and this expansion has gradually added to the size of the pollution pond for wastewater. The pond really isn't big enough, but there is a rather extensive irrigation system to dispose of the liquid manure. Last week there was a very heavy rainstorm. Much more rain came down than normal and the runoff got into the manure storage pond and caused an overflow that went into Neighborhood Creek. The storm was accompanied by thunder and lightning which caused some of Mr. Dairyman's heifers to panic. They ran into a corner of the field where there was a section of fence that needed repairing. Mr. Dairyman had been planning to do this later (after the seasonal rains) since it would be easier then. Two of the heifers got out onto the road and were hit by Mr. City Dweller. Some of the other heifers went across the road and got into the neighbor's strawberry field. The neighbor didn't have much of a fence to keep them out, since he didn't have any livestock of his own. The heifers did extensive damage to his strawberry crop. The next morning Mr. Dairyman discovered the extent of the manure water that had gotten into Neighborhood Creek. He immediately pumped it out as best he could. Normally Mr. Dairyman did all his irrigation of wastewater in the morning, since winds usually came up in the afternoon. However, there was so much water to get out of the creek that he continued to irrigate into the afternoon. The winds carried some of the waste material over to a neighbor's duck farm and the ducks got sick. *********** Make a list of the different kinds of liability Mr. Dairyman has in the situation described above. What would be the best way for him to deal with each instance of liability that he faces? ______________________________________________________________ 12/16/91 MM/CH/ch #%&C