Understanding Liability, Regulation, and Compliance in Agritourism

Agritourism Legal Issues Part 1: Intro to Liability and Regulation Andrew Branan, JD Extension Assistant Professor Department of Agriculture and Resource Economics North Carolina State University rabrana2@ncsu.edu

Disclaimer This presentation is not legal advice This presentation is for educational purposes only and merely raises issues of which you should be aware Before making a building decision speak with your county planning office They have the official say and enforcement power In law particularly zoning and construction better to ask forgiveness than seek permission is not really a thing Speak with Insurance Agent before operating

Liability vs. Regulation The concept of liability has been developed over hundreds of years in English Common law Concept of tort law (tort comes from the Latin torquere, to twist, tortus , twisted, wrested aside) Broadly means the wrong one does to another Redress of and compensation for an injury when you owed another person a duty not to injure them The concept of regulation comes form our governments (federal, state, local) use of its Police Power : the obligation we place upon it to protect the general health and welfare of we the people Reserving of course certain individual rights guaranteed in US and State Constitutions Option is to comply or forgo investment in operation Or litigate application of the regulation with the agency then in court

Relationship between liability and regulation To prove liability, plaintiff must prove your negligence (burden of proof on plaintiff) Duty to make them safe Breach of that duty (you didn t make them safe) Proximate Cause (your breach caused their injury) Damages (the extent of their injury) Violating a regulation can shift the burden of proof (known as negligence per se) The regulation must be the type to prevent such injury Plaintiff must fall within class of people regulation was designed to protect Examples: zoning, food safety, seatbelt laws, covid-19 restrictions

Covid-19 Compliance: Employees Compliance with Governor Cooper s Executive Order No. 147 II(B)(7) (Face Coverings) In Certain High-Density Occupational Settings Where Social Distancing is Difficult. Social distancing is inherently difficult where multiple workers are together in manufacturing settings, at construction sites, and in migrant farm, other farm, and agricultural settings. Therefore, in businesses or operations within North American Industry Classification System (NAICS) sectors 311 to 339 (manufacturing), 236 to 238 (construction), and 111, 112, 1151, and 1152 (agriculture), all workers must wear Face Coverings when they are or may be within six ( 6) feet of another person

Is Agritourism included in Agriculture NAICS 1152? Agri-tourism is considered Total income from farm- related sources by USDA-NASS (see B-24 Appendix B)

Covid-19 Customer Capacity Phase II until September 11 Retail 50% capacity Gatherings : 10 person indoor, 25 person outdoor Includes weddings and receptions Day Camps : Open (no restrictions) Playgrounds : Closed On-farm play areas (corn pits, etc.) should probably remain closed Washington State Agritourism Compliance Guide: Phase 2 and 3 Agritourism COVID-19 Requirements

Theory of Liability for Customer Contracting Covid-19 Probably far-fetched, but anyone can get sued Based on a negligence claim: I went to that farm and they owed me a duty to enforce face-masks and social distancing, they did not enforce these rules, and as a proximate cause of that failure I contracted Covid-19 and suffered damages Likely very difficult to prove causation, but what if Multiple cases are traced back to farm (a super-spreader site, and Farm failed to follow Governor s Executive Order limitations In other words, customer getting sick at farm is not strict liability, but a farm failing to follow guidelines?

THANKS FOR INVITING ME! Robert Andrew Branan Extension Assistant Professor Department of Agriculture and Resource Economics North Carolina State University rabrana2@ncsu.edu