Torts or Tractors? Prevention is Best Tactic to Avoid Legal Action

3/8/2014 7:00 AM
By Michael Short Delaware Correspondent

DOVER, Del. — It can sometimes seem like a lawsuit is lurking around every corner of a farm these days.

Conversations among farmers can turn more to torts than tractors.

While nothing will completely eliminate a legal minefield, there are steps that farmers can take to dramatically reduce their potential liability and make it more difficult for a lawsuit to be successful.

The Women in Agriculture Conference held on Thursday, Feb. 20, in Dover, Del., featured an array of sessions throughout the day, including one that tried to provide legal tips and suggestions for farmers.

The session was packed with women who peppered the speakers with questions like: “What do I do if somebody is hunting on my property and I don’t know about it?” or “What do I do if my neighbor is letting out my livestock?”

For many situations, the advice was to simply be proactive and consult an attorney before any legal problems surface.

In other cases, posting no trespassing, beware of dog or similar signs can help head off legal trouble.

“How many of you actually want to talk with an attorney?” asked one slide shown to the audience. The slide included a tongue-in-cheek picture of a shark.

“Virtually every lawyer will tell you of clients to whom they have had to say If you had just come to me as you started, I could have helped guide you or helped you avoid the farm’s current legal problem,”’ said University of Maryland’s legal specialist and economist Paul Goeringer.

Goeringer spoke about Right-to-Farm laws and mitigating legal risks for farmers.

Goeringer advised the audience to be proactive and keep their neighbors educated and informed. He reminded attendees that many of those neighbors likely aren’t familiar with farming and that keeping them informed could help sidetrack objections before they start.

Being willing to work with neighbors is a “great way to avoid litigation,” he said.

Goeringer suggested that farmers hold a barbecue, start a Facebook page, invite neighbors to visit the farm or consider holding a meeting if they are planning to expand operations.

He urged farmers to take photos and keep records in case of a lawsuit. He also urged them to meticulously follow any and all regulations and permit requirements because “violating one is just asking for trouble and puts a target on you.”

William Pons, a University of Maryland law fellow, told the audience that there are three categories of people who visit a farm. Each requires certain actions by farmers to protect them from legal action.

The first class is uninvited guests or trespassers, and farmers have little legal obligation in those instances, he said. They cannot intentionally create a hazard such as rigging an unseen and dangerous tripwire at ankle height to stop local cross-country skiers.

They could, however, erect a fence and put up a no trespassing sign. If one of the skiers climbed the fence and fell, the farmer would likely be protected from any legal action, he said.

Farmers must simply avoid “wanton or willful action” in such cases.

The second category of visitors is guests or licensees who may use your land. For those visitors, farmers need to avoid “wanton or willful action,” but they should also provide a reasonable warning about any dangers on the property. For example, they should warn people about a sinkhole on the farm, he said.

The third and final category is invitees, such as visitors to your farm market or bed and breakfast. Farmers must meet the criteria for the first two categories, but they must also maintain a safe environment, he said.

Maintaining a safe environment might include posting a beware-of horses sign, repairing steps and railings, posting an employees-only sign or filling that sinkhole.

“As I said earlier, there is no way to limit 100 percent of legal risks. The most you can do is develop strategies that make your life easier if you are taken to court,” Goeringer said.

For more information, you can contact the Agriculture Law Education Initiative at umaglaw.org or extension.umd.edu/alei.


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11/23/2014 | Last Updated: 7:15 PM