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Introduction

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Having visitors on a farm increases risk of injury and liability. When a farm producer invites customers onto the land or leasehold for agritourism activities, guests are in proximity to a work environment rife with potential injury-causing variables, including animals, machinery, gates, and ditches.

North Carolina has three statutes (called “visitor liability defense” laws) concerning equine, livestock, and agritourism activities that release landowners and farmers from liability for inherent risks on the farm. (While each statute provides its own definition of “inherent risk” in context of equine, livestock, or agritourism activities, the term itself connotes an intrinsic danger of an object, thing, or activity that cannot be mitigated except with more-than-casual precaution.) Whether a farmer faces liability for an injury falls under the common law realm of tort law and various theories of defense against liability. The visitor liability defense statutes, however, have yet to be tested in North Carolina as an effective bar to an injured plaintiff’s recovery. In addition, a farmer’s negligence still may become a question for a jury under a variety of circumstances, particularly failure to follow the requirements of the liability defense statutes.

This factsheet provides an overview of a farmer or landowner’s obligations to visitors — invited and otherwise — to the property, including a description of each of the visitor liability defense statutes.

The Concept of Negligence

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When an injury occurs, the injured party is often faced with economic loss in the form of medical bills, lost productivity at work, and diminished quality of life. The injured party likely requires someone else to pay the economic costs of the injury. To remedy the economic loss from the injury (to “make themselves whole”), the injured party must assign legal responsibility (liability) to someone for the injury.

To assign legal liability, the injured party must prove that the injuring party was negligent under the common law standards of the state in which the injury occurs. Common law is roughly defined as our body of “court-made” law, in which historical resolution of disputes through the years are handed down as precedent to courts addressing later disputes. Under North Carolina common law, an injured plaintiff must prove to a jury’s satisfaction four elements to indicate that the injuring party is liable through their negligent actions: 1) duty, 2) breach of duty, 3) proximate causation, and 4) damages.

In most instances, when an injury occurs and the party identifies the person or persons responsible, the alleged injuring party will contact their liability insurance carrier and report the injury. (The insured’s contract may require the insured to immediately contact the insurer when an injury occurs on the farm or land, instead of waiting until the injured party has made a demand). In addition to payment of covered claims, the insurance policy also obligates the insurer to manage and pay for the defense of the claim (that is, paying attorneys to settle or try the case). Any communications from the injured party to the farmer are directed to the insurance company; if the injured party is represented by an attorney, communication is between the attorney and insurance company or law firm hired by the insurance company to handle the case.

Negligence means one person’s failure to follow a societal code of “reasonable conduct” required by common law, which as noted previously requires an injured party to prove the four elements of duty, breach of duty, proximate cause, and damages. In this legal context, “duty” means that the allegedly responsible party (known as the “tortfeasor”) acts as would a reasonable person in similar circumstances in a manner unlikely to cause injury to another, whether by act or omission. Factors considered by a jury in determining whether a defendant’s conduct is not reasonable — and thus a “breach of duty” — relate to foreseeability of the injury, for example, whether the defendant’s conduct is likely to cause injury, how severe such injury might be, and the economic burden of risk-reducing precautions (Restatement (Third) of Torts: Liability for Physical Harm § 3).

Jury decisions on reasonable conduct are a matter of balancing the previously described foreseeability factors. A formula for breach of duty looks like this: Breach = Burden < Probability of Loss × Gravity of Loss. In other words, if the burden of eliminating or reducing risk is less weighty than the damage that can be done (due to a high probability), then a jury is instructed to find that the defendant acted unreasonably. This is known as the “Hand Rule,” developed by Judge Learned Hand in the 1947 case United States v. Carroll Towing Co.

On the farm or land, the Hand Rule means accidents that are foreseeable and grave, and reasonably preventable without extraordinary cost or reduction in productivity, are the ones the farmer or landowner must take care to avoid. To not avoid those situations would be unreasonable. Thus, if the plaintiff proves by a preponderance (slight majority) of the evidence that his or her injury was caused by the unreasonableness of the farmer or landowner (and not some unrelated or intervening cause) and that he or she has suffered actual and quantifiable damages (see end of section), a jury is instructed to find for the plaintiff (UNC School of Government 2020). As of the publishing date of this factsheet, no North Carolina court has issued an opinion in which such a foreseeability formula is superseded by a warning of “inherent risk” as provided in the three statutes.

Proof of “proximate cause” requires that the plaintiff show that the injury is the direct result of the defendant’s breach of duty. In other words, the plaintiff would not have suffered the specific injury but for the defendant’s failure to act reasonably in the circumstances. If the plaintiff is injured by a cause unconnected to the defendant’s breach of duty, then the breach of duty element fails. Note that direct act resulting in injury may be the final one in a series of events set in motion by the defendant, the sequence of such being reasonably foreseeable, much like pushing the first domino in a line of dominoes that causes the last one to fall.

As to entry upon land, North Carolina law, based on the 1998 case Nelson v. Freeland, requires that a landowner “exercise reasonable care in the maintenance of their premises for the protection of lawful visitors.” In Nelson, the N.C. Supreme Court limited “visitors” to two classes, people who are invited (called “invitees”) and people who are not invited (“trespassers”). In the case of invitees, the duty of reasonable care applies. For those not expressly invited or implied to be invited (for example, a situation where a legal invitation arises by surrounding circumstances, though no invitation is uttered), there is no duty of care on the part of the landowner except to refrain from willful or wanton behavior causing injury.

Regarding the “fourth element” proof of damages: this is the requirement that a plaintiff prove and quantify loss to recover anything from defendant. There are numerous measurements of damages, including direct medical costs and rehabilitation, damage to plaintiff’s property, lost wages due to injury, and loss of quality of life. Some are straightforward; others require expert testimony to establish.

A Defense Against Liability: Contributory Negligence

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Though a defendant may have acted unreasonably, the defendant can defeat a claim of negligence by showing that the plaintiff’s injury was partly caused by his or her own unreasonable behavior. North Carolina is one of several “100% contributory negligence” states; this means that if a jury believes a plaintiff was also negligent in the slightest degree as a proximate cause of his or her injury, the defendant has no legal obligation to provide compensation for the injury.

A proposed jury instruction offered by the University of North Carolina’s School of Government (2020) for contributory negligence reads:

The law requires every lawful visitor to use ordinary care while on the premises of another. Ordinary care means that degree of care which a reasonable and prudent lawful visitor would use under the same or similar circumstances to protect himself and others from [injury] [damage] while [on] [using] the premises of another. A lawful visitor's failure to use ordinary care is negligence. That said, a plaintiff’s unreasonable behavior may be foreseeable.

The plaintiff’s negligence must — like the defendant’s — be the proximate cause of the injury, which is a question for a jury (Bottoms v. Seaboard & R.R. Co., 1894).

Assumption of the Risk

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Assumption of the risk is also available as a defense to negligence, but only between parties with a contractual relationship, such as the farmer and the visitor. Assumption of risk means that the injured party "consented to relieve the defendant of an obligation of conduct toward him, and to take his chance of injury from a known risk" (Morris 1954). The use of the common law defense of assumption of risk to defeat a negligence claim has two elements: (1) plaintiff has actual or constructive knowledge of the risk, and (2) plaintiff consents to assume that risk by proceeding with the activity (Daye and Morris 2012). Assumption of the risk theory is the basis for North Carolina’s visitor liability defense laws applied to farming, discussed in the next section.

Liability Defense to On-Farm Injury: N.C.G.S. Chapter 99E

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Beyond prudent mitigation efforts and liability insurance, the primary legal defense in North Carolina against on-farm injury by animals and other causes are the three farm visitor liability defense statutes (N.C. General Statutes Chapter 99E), which apply to livestock operations in general, equine operations, and agritourism operations. These three statutes operate to limit the liability of a livestock owner or operator for injuries “inherent” in equine operations, other livestock operations, or agritourism operations on a theory of assumption of the risk. The three statutes have one central requirement: the farm owner or operator must post signage with a warning, using the language prescribed in each statute. The statutes do not excuse an owner or operator from negligent behavior in proximately causing an injury. These statutes merely provide a shield against liability for a class of causes considered “inherent” on a farm, and thus anticipate injuries that might occur as would to anyone visiting a farm and choosing to ride or otherwise be near farm animals and machinery.

Like a liability waiver, the statutes prescribe a method for the operation to warn visitors, clients, and customers that they are entering a farm or engaging with animals, and that such engagement has inherent risks. Such is the language to be included on the sign prominently displayed, warning visitors to proceed at their own risk. The requirement that the sign be prominently displayed creates a presumption that the visitor has seen the sign, processed the warning, and proceeded with the visit. The visitor is agreeing and is presumed to appreciate the risk and assess the consequences of participating in activities or being in proximity to inherent risks. Following are particulars of the three liability statutes.

Equine Liability: N.C.G.S. §99E-1

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This section of Chapter 99E limits the liability of equine professionals, equine activity sponsors, and “any other person engaged in an equine activity” from liability for injury or death “resulting exclusively from any of the inherent risks of equine activities (N.C.G.S. §99E-2[a]).” Equine activity means “any activity involving equine” (N.C.G.S. §99E-1[3]). The statute defines “inherent risks” broadly as:

  1. The possibility of an equine behaving in ways that may result in injury, harm, or death to persons on or around them.
  2. The unpredictability of an equine's reaction to such things as sounds, sudden movement, unfamiliar objects, persons, or other animals. Inherent risks of equine activities does not include a collision or accident involving a motor vehicle (N.C.G.S. §99E-1[6]).

There are three categorical fact exceptions to the liability limitation. First, if a plaintiff proves that the equine operation provides the horse and fails to make a reasonable assessment of the rider's ability, or second, provides faulty tack, liability protection is lost. Third, the plaintiff must prove the equine operator’s willful or wanton disregard for the safety of the participant, which proximately causes the injury. This third exception may represent a broad category of evidence to suggest a person’s decision precipitated events that caused an injury. Landowners who allow equine riding on their land without charge are not covered by the equine statute, but they likely would receive liability limitations under North Carolina’s Recreational Use Statute (N.C.G.S. §38A-1)

As noted, the key provision of the liability defense statute is the required posting of the signs in a “clearly visible location on or near stables, corrals, or arenas where the equine professional or the equine activity sponsor conducts equine activities.” Though the number of signs is not specified, the prescribed warning must appear in any contracts or written agreements, including equipment rental agreements (N.C.G.S. §99E-3[a]). The required wording specified by N.C.G.S. §99E-3(b), in minimum 1-inch letters, is:

WARNING

Under North Carolina law, an equine activity sponsor or equine professional is not liable for an injury to or the death of a participant in equine activities resulting exclusively from the inherent risks of equine activities. Chapter 99E of the North Carolina General Statutes.

In all three 99E articles, the requirement of posting by businesses is specific: “Failure to comply with the requirements concerning warning signs and notices provided in this Part shall prevent an equine activity sponsor or equine professional from invoking the privileges of immunity provided by this Part” (N.C.G.S. §99E-3[c]). See also N.C.G.S. §99E-8(d) (general livestock) and N.C.G.S. §99E-32(c) (agritourism).

Farm Animal Activity Liability: N.C.G.S. §99E-6

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The visitor liability defense statute for farm animal activity operates like the equine statute, with a few differences. The 99E-6 law broadens farm animal definition to include “cattle, oxen, bison, sheep, swine, goats, horses, ponies, mules, donkeys, hinnies, llamas, alpacas, lagomorphs, ratites, and poultry” (N.C.G.S. §99E-6[4]).

The activities qualifying for immunity are very broad, including educational activities like farm demonstrations, rodeos, rides and fairs, veterinary services or farrier work, competitions, and parades involving farm animals. Also included are injuries sustained when evaluating an animal for purchase.

Inherent risks are expanded from the equine statute to add the “risk of contracting an illness due to coming into physical contact with animals, animal feed, animal waste, or surfaces that have been in contact with animal waste” (N.C.G.S. §99E-6[9][c]). The signage requirement lists sign display areas as same as the equine statute, with nearly identical warning sign language. The acts that disqualify the operator from the visitor liability defense laws — faulty tack, misjudging participant’s ability, and willfully or wantonly disregarding the participant’s safety — are the same as the equine statute.

Agritourism Liability: N.C.G.S. §99E-30

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The agritourism statute is the newest of the visitor liability defense statutes in Chapter 99E. This statute operates on the same principles as the previous two, including required signage posted with specific language warning of inherent risks. The range of activities is broadened further. The inherent risks are expanded to include natural features of the land where the agritourism activity is conducted, and include the “ordinary dangers of buildings and equipment ordinarily used in farming and ranching operations” (N.C.G.S §99E-30[3]). Note that there are words in that phrase a jury would have to define — based on facts submitted by the parties — namely what features constitute “ordinary dangers” and “ordinarily used.”

In addition to the willful or wanton act, if the operator “has actual knowledge or reasonably should have known of an existing dangerous condition on the land, facilities, or equipment used in the activity or the dangerous propensity of a particular animal used in such activity and does not make the danger known to the participant, and the danger proximately causes injury, damage, or death to the participant, then protection by the statute is lost” (N.C.G.S §99E-3[b][2]). Note that this exception is omitted in the equine and livestock statutes, and it is unclear whether an expansive reading of the descriptions in the agritourism statute could encompass the types of activities and resulting injury anticipated under the equine and livestock statutes. For example, would the agritourism visitor liability defense statute apply to a claim for an injury sustained on a trail ride due to an undisclosed land defect? The agritourism statute is more specific than the other two regarding signage, requiring that a sign be posted at the entrance to the farm and at the “site of the agritourism activity,” so, at a minimum, two signs are required (N.C.G.S.§99E-32[c]). The statute is clear — like the others — that failure to post signage denies the defendant the use of the assumption of the risk defense provided by the agritourism statute; failure to post signage with the required language results in a loss of protection by the statute.

Though the number of filed cases and jury verdicts in lower trial courts is not known, the North Carolina Court of Appeals has yet to review a case with a fact pattern related to the injury that has failed protection of the statute, or has resulted in dismissal because the cause of injury fits the inherent risks covered by the statute. However, a 2019 case, Suarez by and through Nordan v. American Ramp Co., reviewed a liability dismissal under a similar §99E liability statute related to hazardous recreation activity (N.C.G.S. §99E-21); the court held that the statutory limitation fails (at least on motion to dismiss the case) under a complaint of gross negligence, which is akin to the “willful and wanton” standard under the equine, livestock, and agritourism statutes. A cursory look at cases from other jurisdictions revealed that failure to produce evidence that the signs were posted, and posted in areas clearly viewable by the participants, may not be used as a statutory shield to dismiss the case, and the case may continue to the jury if not settled beforehand (Macfadyen v. Maki, 2007; McGraw v. R&R Investments Ltd., 2004; Beattie v. Mickalich, 2009).

Because the language of the North Carolina statutes is specific on the point of posting signage, it follows that when the statute is invoked to support a pre-trial dismissal of a case in which signage has been provided, failure to produce evidence that the signs were properly posted when the injury occurred could allow the trial to proceed.

Because there are no published court opinions in North Carolina addressing this issue, we do not know what “inherent risks” really means under the law of this state or what fact pattern it might describe. Likewise, “willful and wanton” have not been applied to a farm setting, and “ordinarily used in agriculture” also requires fact definition. A look at cases in other jurisdictions reveals that courts may require in their jury instructions an instruction that the jury decides whether the facts qualify these phrases as an exception to the liability protection (Clyncke v. Waneka, 2007; Loftin v. Lee, 2011).

Conclusion

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As we have illustrated, an injured person bears the burden of proof to require a culpable farm (or its insurer) to compensate him or her for the costs of the injury. Most farm injury matters never reach trial, as they are usually settled by the farm’s insurer. If any cases do reach trial, the three North Carolina laws offering liability protection to farm operators may provide a route to early dismissal of such actions, so long as the statutory requirements have been followed. However, the laws do not necessarily exclude liability for actual negligence of the farmer, but rather place on the injured visitor an assumption of the risk that can be claimed as a defense by the farmer. Such defense can be overcome if an injured plaintiff demonstrates — to the satisfaction of the court — that the injury was the result of something that is not an “inherent risk” in farming. Without the benefit of appellate opinions in North Carolina or elsewhere to illustrate this term, the true effectiveness of these laws is unknown.

References

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Daye, Charles E. and Mark W. Morris. 2012. North Carolina Law of Torts, 3rd Ed. Lexis Nexis.

Morris, Naomi. 1954. “Torts — negligence — availability of defense of assumption of risk.” UNC Law Review 32, no. 3: 366–373.

UNC School of Government. 2020. North Carolina Conference of Superior Court Judges, North Carolina Pattern Jury Instructions for Civil Cases. Online. https://www.sog.unc.edu/resources/microsites/north-carolina-pattern-jury-instructions/north-carolina-pattern-jury-instructions-civil-cases.

Resources

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Black’s Law Dictionary. 5th ed. 1979. West Publishing Company.

Cases Cited

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Beattie v. Mickalich, 284 Mich. App. 564, 773 N.W.2d 748 (2009)

Bottoms v. Seaboard & R. R. Co., 114 N.C. 699, 19 S.E. 730 (1894)

Clyncke v. Waneka, 157 P.3d 1072 (Colo. 2007)

Loftin v. Lee, 54 Tex. Sup. Ct. J. 895, 341 S.W.3d 352 (2011)

Macfadyen v. Maki, 70 Mass. App. Ct. 618, 876 N.E.2d 437 (2007)

McGraw v. R & R Investments Ltd., 877 So.2d 886 (Fla. App. 2004)

Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998)

Suarez by and through Nordan v. American Ramp Co., 266 N.C. App. 604, 831 S.E.2d 885 (2019)

United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)

Ackowledgment

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This publication is funded under Grant #2019-001-16 from the Tobacco Trust Fund Commission.

Author

Extension Assistant Professor (Agricultural and Environmental Law)
Agricultural & Resource Economics

Publication date: July 30, 2021
AG-895-01

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