United States: Texas Agritourism Act Puts A Cork In Liability For Vineyards

With 350 wineries and over 4,000 acres of producing vineyards, Texas' wine business is booming.i] Not only are Texas wine producers making a lot of wine—the state now ranks fifth in American wine production—but they also are attracting a growing number of visitors.ii

Over 1.6 million visitors to Texas wineries have learned about the grapes, the vineyards and the techniques used to make their favorite Lone Star state wine. Of course, with that many visitors, accidents are bound to happen. Fortunately for vineyards, the newly passed Texas Agritourism Act limits liability for some injuries that occur on their premises.

The Agritourism Act was created in response to the Texas legislature's concern over the increasing number of visitors that agricultural businesses—like vineyards—are receiving:

"many landowners are looking to agritourism, which gives landowners an alternative means to sustainable living and provides educational benefits to those who may not be familiar with agriculture. Examples of agritourism include tours . . . [and] self-harvesting..."iii

In return for agricultural landowners opening up their land and providing fun and educational experiences to the public, the legislature wanted to provide limited liability for them.iv

Vineyards receive the limited liability protection provided by the Agritourism Act when they meet certain requirements. Specifically, liability is limited when:

  1. a vineyard (or any other agritourism entity) posts a warning sign meeting certain requirements; or
  2. the vineyard receives a waiver from the agritourism participant (i.e. visitor).

Both of these options are explained more fully below.

The Agritourism Act uses specific definitions to ensure that only "agritourism entities" receive the benefits of limited liability. An "agritourism entity" is an entity engaged in the business of providing an agritourism activity on agricultural land. "Agricultural land" is land suitable for use in the production of plants and fruits grown for human or animal consumption, or land where domestic or native farm or ranch animals are kept for use or profit.

There is no doubt that a vineyard qualifies as agricultural land. An "agritourism activity" is an activity on agricultural land for recreational or educational purposes of agritourism participants. As noted above, when drafting the Agritourism Act the legislature had in mind activities such as tours and self-harvesting events that vineyards might host.

The statutory definition of "recreational activity" also includes a long list of activities that would qualify like picnicking, hiking, nature study, bird watching, and any other activity associated with enjoying nature or the outdoors. "Agritourism participants" are people who engage in an agritourism activity.

Putting all those definitions together, a vineyard that grows grapes for human consumption can limit its liability to visitors who engage in recreational or educational activities. Such activities would include tours or harvesting opportunities, in addition to any activity that teaches visitors about the art and science that is winemaking.

A vineyard can obtain limited liability under the Agritourism Act by posting a sign with the following language:

WARNING

UNDER TEXAS LAW (CHAPTER 75A, CIVIL PRACTICE AND REMEDIES CODE), AN AGRITOURISM ENTITY IS NOT LIABLE FOR ANY INJURY TO OR DEATH OF AN AGRITOURISM PARTICIPANT RESULTING FROM AN AGRITOURISM ACTIVITY.

The vineyard must post and maintain the sign in a clearly visible location on or near any premises on which an agritourism activity is conducted.  The Agritourism Act does not prescribe dimensions for the sign, but prudent vineyards will post a sign large enough to be read by all – not just visitors standing right next to it – ensuring the warning is clearly visible. Additionally, the sign should be posted in a location where every visitor to the vineyard will be able to see it.

Alternatively, a vineyard may require agritourism participants sign a waiver. The agritourism participant must sign the waiver before participating in the agritourism activity. Furthermore, the waiver must be in a document separate from any other agreements between the vineyard and the visitors. Finally, the font on the waiver must be at least 10-point bold font, and contain the following language:

AGREEMENT AND WARNING

I UNDERSTAND AND ACKNOWLEDGE THAT AN AGRITOURISM ENTITY IS NOT LIABLE FOR ANY INJURY TO OR DEATH OF AN AGRITOURISM PARTICIPANT RESULTING FROM AGRITOURISM ACTIVITIES.

I UNDERSTAND THAT I HAVE ACCEPTED ALL RISK OF INJURY, DEATH, PROPERTY DAMAGE, AND OTHER LOSS THAT MAY RESULT FROM AGRITOURISM ACTIVITIES.

Although the Agritourism Act only requires vineyards to post the sign or obtain a waiver, there is no harm in performing both. Doing so reduces the risk that the protections will not apply if one or the other did not meet the statutory requirements. Vineyards allowing visitors to tour large portions of the premises or to partake in multiple activities should consider posting multiple signs.

Even if a vineyard posts a sign or obtains a waiver meeting the requirements in the Agritourism Act, the vineyard still may be liable for:

  • Injuries caused by the vineyard's negligence evidencing a disregard for the safety of the agritourism participant;
  • Injuries caused by a dangerous condition on the land, facilities, or equipment used during an agritourism activity that the vineyard knew about;
  • Injuries caused by the vineyard's failure to train or improper training of an employee actively involved in the agritourism activity;
  • Injuries that the vineyard intentionally causes; and
  • Injuries to an employee of the vineyard.

The Agritourism Act is no substitute for adequate insurance or appropriate use of a business entity (such as a limited liability company, limited partnership, or corporation) to limit liability. However, it provides a level of protection that vineyard owners can obtain at very little cost and that can be used on conjunction with other methods to minimize their financial loss from unforeseen events.

Footnotes

i Texas Wine and Industry Facts, Texas Wine & Grape Growers Association, http://www.txwines.org/texas-wine/texas-wine-industry-facts/ (last visited April 25, 2016).

ii Id.

iii House Comm. On Agriculture & Livestock, Bill Analysis, Tex. S.B. 610, 83rd Leg. R.S. (2015), available at http://www.legis.state.tx.us/tlodocs/84R/analysis/pdf/SB00610H.pdf#navpanes=0.

iv Id.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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