Delmarva Farmer Columnists
The value of a liability waiver (April 25, 2017)
By Sarah Everhart, University of Maryland Extension Legal Specialist Agricultural and Resource Economics
(Writer’s note: This column should not be interpreted as legal advice for the reader.)
When I educate Delmarva farmers about liability risks and how the use of liability waivers can reduce their liability exposure, I often get the following question in one form or another, “Are waivers actually enforceable?” In other words, “If someone gets hurt at my farm, will the fact that he or she signed a waiver really protect me?”
In September 2016, a U.S. District Court in Pennsylvania in Melendez v. Happy Trails and Riding Center, Inc. (2016 WL 5402745) examined a liability waiver, giving us some insight into the answer to that question.
Melendez, a customer at Happy Trails and Riding Center, Inc. (“Happy Trails”) horse riding operation, signed an explicit liability waver in which he waived his right to hold the operation liable for injuries related to horse riding.
Specifically the waiver provided that Melendez released Happy Trails “from any and all claims, demands, or cause of action that I ... may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, losses caused by negligence.”
After signing the waiver, Melendez took a ride and was subsequently injured due to a faulty stirrup. Melendez then sued, claiming Happy Trails negligently supplied him with defective equipment, causing his injury.
Melendez argued the liability waiver should not prevent his claim because he did not anticipate and assume risk stemming from faulty equipment and the waiver did not specifically include faulty equipment. The court disagreed, finding that because the liability waiver was valid, it prevented Melendez from successfully pursuing a negligence claim against Happy Trails.
This judicial finding supports the use of liability waivers as an effective way to reduce liability exposure. However, the court did not find the waiver prevented Melendez from pursuing a legal claim that the owner of Happy Trails’ conduct amounted to recklessness.
Recklessness is more extreme than negligence and requires a conscious action or inaction creating a substantial risk of harm to others.
In general, a plaintiff cannot make a baseless claim that a defendant was reckless and expect to get past the summary judgment level of a case which requires showing a genuine dispute of material fact.
The court in Melendez found a genuine dispute of material fact regarding recklessness based on testimony of the owner of Happy Trails himself, who said he had no records (purchase, inspection, repair, etc.) pertaining to his equipment nor any knowledge as to whether the equipment involved had been inspected prior to use.
The court found the owner’s “somewhat cavalier attitude towards safety” sufficient to create a genuine dispute of material fact on the issue of recklessness. Many states, including Maryland, do not allow a liability waiver to prevent a claim of recklessness or gross negligence.
This is a good reminder for all operators: they cannot put their customers’ safety at risk through action or inaction and expect to “hide behind” a liability waiver.
Farm owners should consider liability waivers to be simply one part of a comprehensive farm safety plan and keep thorough records documenting safety procedures.
Interestingly, the court in Melendez also found that the Pennsylvania Equine Activities Immunity Act (“Act”) (4 P.S. §§ 601-606) did not prevent the legal claims from being dismissed at the summary judgment level.
According to the court, the Act only prevents liability for negligence when the injured party voluntary assumed a risk; in other words, Melendez had to know the riding equipment he was provided might break and take the ride anyway.
Given the rarity of faulty stirrups causing injuries, the court found it unlikely Melendez knew of and assumed the risk.
The takeaway point from this part of the decision is if Happy Trails had not had a liability waiver, the Equine Immunity Act would not have prevented a negligence claim.
Therefore, waivers shielding business owners from liability stemming from negligence have value even in states with equine immunity laws. Although Melendez recently settled and the court did not reach a final decision regarding liability, the case is a good illustration of the power and limitations of liability waivers. To help farmers craft a viable liability waiver, ALEI has created a generic liability waiver form available on our website (www.umaglaw.org).
Liability waivers should be reviewed by a personal attorney prior to use.
(Editor’s Note: Sarah Everhart is a legal specialist and research associate with Agriculture Law Education Initiative and the University Of Maryland Francis King Carey School of Law.)
Innovative programming for Md. women landowners (April 25, 2017)
Keeping the Farm
By Genevieve Lister, Public Affairs Specialist, Natural Resources Conservation Service, Maryland
From historic homesteaders to contemporary grain producers, women have been the cornerstone of Maryland’s agriculture heritage.
The Census of Agriculture notes that 32 percent of Maryland farmers are Women.
Together, these women are farming more than 629,000 acres to make a $130.2 million impact on the Old Line States’ economy.
Still, more acres are in the hands of women “non-operating” landowners who lease their land to neighboring farmers.
While research shows women landowners and operators are particularly interested in conservation and deeply committed to the health of their farmland, farm families and farm communities, they are underrepresented in farmland conservation programs.
We at NRCS are committed to supporting diversity and inclusion in the agriculture — and that includes building opportunities for women to grow, learn from one another, and lead within their industries.
That’s why in 2015, Maryland NRCS selected the American Farmland Trust for a Conservation Innovation Grant to bring conservation learning circles to Maryland.
This well-tested approach brings local groups of women landowners together for discussions facilitated by female conservation professionals.
The women-only circles help women landowners become more knowledgeable and confident about farm conservation issues, practices and available resources.
After participating in learning circles, more than 50 percent of the women take a conservation action within six months.
Lauree Free owns 340 acres in Cecil County, land that has been in her family for more than 360 years.
But her upbringing in New York City, even with treasured visits to the family farm, did not prepare her for the complexities of land ownership, let alone profitable farming.
She attended the first learning circles session, consisting of three meetings held in Wicomico, Caroline, and Talbot counties.
“It’s all coming together, I now have a game plan to share with NRCS and my Soil Conservation District,” Mrs. Free said. “My conservation plan has been in place for over 15 years, but needs work because things are changing at such a rapid pace. I really respect the science and knowledge that resides at my county offices and I am looking forward to working closely with them again on my farm to be the best steward I can be, particularly with my wetlands.”
Ms. Free is now working with the Cecil Soil Conservation District and NRCS to manage the warm season grasses on her farm more sustainably. She is also pursuing alternative markets to make the farm more viable, including flowers that have the added benefit of providing pollinator habitat.
The women-only circles foster a welcoming, positive atmosphere that creates a sense of group identity and level of comfort among the women.
In addition, the circle provides networking and fellowship opportunities for attendees to meet one another and discuss their concerns, challenges and experiences.
The first meeting included an extended “introduction” in which all participants shared the story of their land. Participants also identified conservation issues, practices and programs for further discussion at future meetings.
The second and third meetings were more structured and included discussions led by invited conservation staff on specific practices, programs and issues identified in the first session.
Women farm and conservation professionals from both public and private or non-profit organizations joined the group to offer technical information and advice, and to share their experiences as fellow women landowners and/or women working in agriculture and conservation.
Additional circles are now in development for women landowners near Prince George’s County and Frederick County, and will be offered this year.
The innovation of the American Farmland Trust conservation learning circles, first pioneered by the Women, Food and Agriculture Network, is their narrowly targeted audience and focus.
There’s a lot of great programming available for women in agriculture, but not for the landowner, and not specifically about conservation. The peer-to-peer learning approach acknowledges women as the experts & decision makers on their own land.
Maryland now has funding available for additional development and adoption of innovative conservation approaches and technologies.
This year, Maryland is seeking Conservation Innovation Grants project proposals that focus on soil health, nutrient management and wildlife, although all submitted projects will be considered regardless of focus. Entities and individuals, including state and local units of government, and non-governmental organizations from Maryland, who are interested in applying for these competitive grants must submit a completed application before 1:30 p.m. on May 12.
Applications may be submitted electronically by visiting www.grants.gov and clicking on the “Apply for Grants” link. The Maryland application number is USDA-NRCS-MD-CIG-17-001.
For more information, visit www.md.nrcs.usda.gov.