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Protections for agritourism exist in ND

Agritourism is a timely topic for this column. Pumpkin patches and corn mazes will soon be on full display, and these activities have evolved into important ways for farm operators to diversify their operations and increase their revenues.

North Dakota is one of several states that legally define the term "agritourism." Chapter 53-13 of the North Dakota Century Code is devoted to the topic and is entitled "Agritourism Activity Registration and Liability."

"Agritourism activity" is any activity, including farming and ranching activities, or any historic, cultural or natural attraction, that is viewed or enjoyed by members of the general public for educational, recreational or entertainment purposes. Whether or not a member of the general public pays to enjoy the activity or attraction is irrelevant.

Why would someone want to have an activity defined as agritourism? That's a good question. The answer is that if an agritourism operator is registered with the State of North Dakota, then that agritourism operator actually has certain statutory protections from liability for injury or death to members of the public. Under NDCC 53-13-04, so long as a registered agritourism operator posts a notice in a conspicuous location on the premises, then under North Dakota law they are not liable for injury or death of a participant in the agritourism activity, if the injury or death results from an inherent risk.

"Inherent risk" is defined as a condition or danger that is an integral part of agritourism, including surface and subsurface conditions of the land, surface and subsurface conditions of the water, and natural conditions of land, vegetation, and water. Inherent risk also includes the behavior of wild or domestic animals and structures and equipment ordinarily used in farming or ranching.

Finally, the definition of inherent risk includes the potential of a participant to act in a negligent manner, including failing to follow instructions or failing to exercise reasonable caution while engaging in an agritourism activity.

That's a broad definition. If you go to a corn maze and are attacked by a rabid wild animal, then under North Dakota law the corn maze operator has statutory protections from liability. If you go to a pumpkin patch and break your ankle in a gopher hole, the pumpkin patch operator may not be liable for your injury, so long as they've posted the statutory notice in a conspicuous location on the premises.

But the statutory protections only belong to "registered agritourism operators" or those participating in a "registered agritourism activity." Strangely enough, a registered agritourism operator does not register with the Department of Agriculture. Rather, they register with the Division of Tourism for the State of North Dakota. The registration of their activity must include a description of the agritourism activity that the person provides or intends to provide. There is no fee for registration; it's free. And a registration under NDCC Chapter 53-13 is effective for five years from the date of registration.

The Division of Tourism is tasked with maintaining a list of all registered agritourism operators. The same division is also tasked with maintaining a list of all registered agritourism activities.

Except as otherwise provided under NDCC 53-13, a participant in an agritourism activity assumes all inherent risks of agritourism. That means if an agritourism operator is sued for damages for an injury to a participant, then the agritourism has a defense of "assumption of risk" in the lawsuit. It's similar to "self defense" in a criminal matter.

Please note, NDCC 53-13 doesn't protect an agritourism operator for willfully injuring a participant in their activity, or for gross negligence that results in an injury. It requires an agritourism operator to exercise ordinary care in remedying dangers on the operation.

It's a good idea to seek legal counsel before beginning an endeavor like an agritourism operation. It's another example where an ounce of prevention can be worth a pound of cure.

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