Since I wrote a blog post several months ago outlining the newly enacted Texas Agritourism Act, I have gotten a flurry of questions from folks across the state related to the Act’s protection and application. I thought I would take the time to answer a few of these questions today.
Where can I find more information about the Agritourism Act?
To read a prior blog post I wrote discussing the basics of the Agritourism Act, click here. To read a more in depth legal discussion of landowner liability statues (including the Agritourism Act) that I wrote for an Agricultural Law Continuing Legal Education seminar, click here. To view the actual statutory language of the Act, click here.
Does the Agritourism Act mean I no longer need to carry liability insurance?
Absolutely not. The Agritourism Act is not a substitute for insurance. There are several examples of situations where a person would still want to rely on liability insurance. First, even thought the Agritourism Act provides limited liability and may allow a landowner to successfully defend against a personal injury case, it does not prevent the landowner from being sued and needing to retain an attorney to handle the litigation. A liability insurance policy would likely provide representation for the landowner. Second, there are numerous exceptions to the Agritourism Act, meaning that there are many instances where the limited liability offered by the Act would not apply to the landowner. In that case, the landowner could look to his or her liability insurance policy to satisfy a judgment. It is strongly recommended that landowners carry a liability insurance policy to protect their operation. Landowners should work closely with their insurance agents and carefully read policies to ensure that all activities being conducted on the property are adequately covered.
Does the Agtitourism Act apply to my outdoor wedding venue?
There has not been a Texas appellate court decision addressing this issue yet. That said, however, there is a case on this issue decided against the landowner under the Recreational Use Statute. In Sullivan v. City of Ft. Worth, 2011 WL 1902018 (Tex. Ct. App. – Ft. Worth 2011) (not designated for publication), the court found that an outdoor wedding and reception was not considered to be “recreation” for purposes of the Recreational Use Statute. The definition of “recreation” under the Agritourism Act is the same as the definition of “recreation” under the Recreational Use Statute, which certainly offers a persuasive argument that the Agritourism Act protections would not apply to someone injured at an outdoor wedding.
Since we simply do not know for sure what a Texas court would do, the prudent course of action for owners of outdoor wedding venues might be to comply with the Agritourism Act requirements in case a court were to hold that the Act did apply to outdoor weddings, but to take additional precautions in case the Agritourism Act is found not to apply such as making dangerous conditions safe or warn guests of such dangerous conditions and maintain adequate liability insurance.
Where can I purchase the Agritourism Act signs?
A person can have the Agritourism Act signs made anywhere so long as the required language found in Texas Civ. Practice and Remedies Code Section 75A.002(1) is printed on the sign. The Texas & Southwestern Cattle Raisers Associoation, Texas Farm Bureau, and the Texas Wildlife Association are all selling these signs.
Do I need to post signs and have the statutory release language be signed in order for the Agritourism Act to apply?
The Act does not require that a person to both post signs and obtain release language, but doing so may be the safest approach. Individually, each of the options offer benefits. One benefit of the signs is that a landowner does not have to worry about collecting signed releases from everyone on the property and, if someone comes on the property for recreation and failed to sign a release, the sign would still be effective. The written release offers benefits as well, including the fact that a person who signed the document cannot argue that he or she did not see a posted sign. Further, because the statute expressly states that a release may be signed by a parent or guardian of a participant, this may offer key protection in the event that a minor is injured on the property that may not be available with just the signs being posted. The paranoid attorney in me always suggests that folks do both hanging of the signs and collecting the signed releases.