What should liability agreement include?
To protect yourself if you operate an agritourism operation, whether you charge a fee or not, adhere to the requirements of a new code, IC 34-21-9.
One requirement is to post a sign. Here’s what the sign should say:
“Under Indiana law, an agritourism provider is not liable for injury to, or death of, a participant in agritourism activities at this location if the death or injury results from the inherent risks of agritourism activity.
• The law spells out specific language for an agritourism warning sign.
• Include key clauses in the agreement the recreational user must sign.
• Work with an attorney to draw up the agreement.
“Inherent risks of agritourism activity include risks of injury inherent to land, equipment and animals as well as the potential for you to act in a negligent manner that may contribute to your injury or death, or for other participants to act in a manner that may cause you injury or cause you death.
“You are assuming the risk of participating in this agritourism activity.”
One other requirement is that the participant receives written notice of the warning and signs a release.
You may also want anyone using your land to sign a written agreement. Some, but not all things, to consider in such an agreement include:
• Lease vs. license. A lease generally gives a tenant certain rights under the law, whereas a license is temporary, revocable and grants a limited right to enter upon the property and partake in certain action. Thus, should a landowner be unhappy with a recreational user, a license usually allows quicker termination.
• Waiver of landowner negligence. This provision will work to protect a landowner from their own negligence that harms a recreational user, such as if the landowner is mowing too close to a recreational user and something hits him.
• Assumption of risk. State that the recreational user knows that land holds certain dangers, that he or she acknowledges such dangers and assumes risks associated with them.
• Hold harmless. A landowner obtains promise from the recreational user to pay any costs of claims which may result from the agreement.
• Indemnification. The recreational user guarantees against any loss the landowner might suffer on account of the user’s actions.
• Mandatory insurance. Require recreational users to obtain insurance that names the landowner as an additional insured. Be sure to receive a copy of the policy.
Because most recreational uses can be highly dangerous, it’s important for a landowner to have a proper agreement to protect him or her if someone is injured.
Remember that the landowner is often looked at as having deep pockets. He or she will almost always be named in a lawsuit stemming from injuries caused by recreational use.
Consult with an attorney and have a proper agreement created. Ask the attorney to provide the agreement in a format where you can fill in names, dates and other site-specific information.
Then you can use the agreement in many different settings and until the laws change.
John J. Schwarz II farms with his family near Stroh in northeastern Indiana and is an agricultural attorney and farm estate planner. Reach him at 260-351-4440, or at [email protected], or visit www.farmlegacy.com. These articles are for general informational purposes only and do not constitute an
This article published in the February, 2012 edition of INDIANA PRAIRIE FARMER.