Scenario 3: Agritourism Activity Liability

Question: Andrew owns and operates a beef cattle operation. Andrew’s friend Betty, a biology teacher at the local high school, persuades Andrew to let her class visit Andrew’s farm to learn about crossbreeding applications in a real-life setting. Andrew posts the statutory warning notice in bright red letters an inch high at the entrance to his farm and in the area of the tour. He also briefs his visitors on the risks they face while visiting his farm and has each of the students sign a waiver containing the warning notice language. During the guided tour, Chuck, the star high school quarterback, sneaks away with some friends. To show off his stellar quarterbacking skills, Chuck gets behind a cow as if to receive a snap. The cow, who is usually docile, has no interest in being Chuck’s center and gives him a swift kick, breaking Chuck’s kneecap and ruining his prospects for a college football scholarship. Chuck sues Andrew for damages, claiming that since Andrew didn’t post the statutory notice in black letters, the statutory Agritourism Activity Liability protection doesn’t apply. Is Chuck correct, or is Andrew protected by the statute?

Answer: Again, this scenario addresses the question of compliance with Virginia Code Chapter 64, Title 3.2. Under Section 3.2-6402(A), every agritourism professional must post and maintain signs that contain the following notice:

“WARNING” or “ATTENTION” followed by “Under Virginia law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if such injury or death results from the inherent risks of the agritourism activity. Inherent risks of agritourism activities include, among others, 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. You are assuming the risk of participating in this agritourism activity.”

The statute specifically states that “[t]he notice shall consist of a sign in black letters, with each letter to be a minimum of one inch in height.”

Section 3.2-6402(C) provides the kicker: “Failure to comply with the requirements concerning signs and notices provided in this section shall prevent an agritourism professional from invoking the privileges of immunity provided by this chapter.” Because this limitation on the agritourism professional’s liability is one created by this statute, then the statute must be complied with to receive its benefits.

In this case, Andrew printed his signs in red ink rather than black as required by the statute. Although this seems fairly technical, you don’t want to be in the position of arguing to the judge that when the Virginia legislature specifically required black letters it really meant any color would do. Thus, even though Andrew included the required language in the right size, the color was wrong. Section 3.2-6402(C) will likely prevent him from asserting the protection afforded by the statute.

Practice Tip: This is not the time to be creative. Make sure you strictly comply with the terms of the statute.

Disclaimer: This is a hypothetical situation provided for general educational purposes and shouldn’t be relied on to resolve a specific case. As each case can turn on different facts, always consult with counsel in your jurisdiction for your specific situation.