Pennsylvania Agritourism Activity Protection Act 27 of 2021

The regulatory environment for agritourism in Pennsylvania will likely improve significantly with the Pennsylvania Agritourism Activity Protection Act, which will be effective on August 29, 2021. This is a significant development as liability issues and the associated costs and availability of insurance are a major concern for agritourism operators in Pennsylvania. We sent out a survey in 2019 to identify the success factors and challenges that agritourism operators face in Pennsylvania. The majority of the respondents operated a farm store/stand, offered tours, and u-pick. Almost 80 percent indicated that they are full-time farmers. Most of the respondents were interested in offering tours, school tours, workshops, and u-pick in the future. One question in the surveys asked respondents to rank a set of challenges they face in operating or starting an agritourism business. The results show that that 38% and 37% of respondents indicated that cost/availability of insurance and concern about agritourism liability issues are very and extremely challenging for them as operators, and 28% and 35% respectively indicated these issues as moderately challenging. This was followed by state and local regulations.

How much do the following present challenges to you in operating your agritourism business?

Source: 2019 Penn State Extension Agritourism Survey

One of the most important aspects of the new law is that it codifies a legal definition of agritourism in Pennsylvania law where one did not exist before. North Carolina (2005), Virginia (2006), and Hawaii (2006) were the first states to enact official agritourism definitions, followed recently by New York (2017), Washington (2017), and West Virginia (2018). Over 48% percent of the survey respondents felt that the lack of a definition was extremely and very challenging. The legal definition of agritourism is important because without an official state-wide or national definition agritourism operators do not know what regulations or zoning rules to follow, what taxes apply to their operation, or who is even considered an agritourism operator. Generally, the definition tends to become a standard relied upon in other contexts such as the interpretation of zoning ordinances.  It remains to be seen if that happens on a township-by-township basis going forward but anything that could create uniformity like that across municipalities is a positive development for farmers and landowners.

It is important to note that Pennsylvania's Act is different from other state agritourism liability statutes in a few significant ways. Unlike every other state statute, Pennsylvania specifically excludes liability protections for injuries that occur during weddings or concerts. In addition, Pennsylvania's Act will not apply to injuries sustained during overnight stays or as a result of food and beverage service.

In order for liability protection to apply under this statute, all four essential elements of the law must be met. Agritourism operators who are interested in the liability protections offered by Pennsylvania's Agritourism Activity Protection Act should carefully review each of the four essential requirements, as described below.

1. The injury must occur while the visitor is participating in an activity that meets the definition of agritourism in the law.

The Agritourism Activity Protection Act defines "agritourism activity" as:

a. "A farm-related tourism or farm-related entertainment activity that takes place on agricultural land and allows members of the general public, whether or not for a fee, to tour, explore, observe, learn about, participate in or be entertained by an aspect of agricultural production, harvesting, husbandry or rural lifestyle that occurs on the farm."

2. The agritourism activity must occur on land which is used for a so-called "normal agricultural operation" as defined in Pennsylvania's Right to Farm Law.

Pennsylvania's Right to Farm Law defines "normal agricultural operation" as:

a. "The activities, practices, equipment and procedures that farmers adopt, use or engage in the production and preparation for market of poultry, livestock and their products and in the production, harvesting and preparation for market or use of agricultural, agronomic, horticultural, silvicultural and aquacultural crops and commodities and is:

1. not less than ten contiguous acres in area; or
2. less than ten contiguous acres in area but has an anticipated yearly gross income of at least $10,000."

3. The required warning signs must be posted on the property at the required locations.

The Pennsylvania statute requires operators to post signs at every entrance or at all activity locations. The signs should be placed in a way so that they are easily observable by the participants of the agritourism activity. The statute specifically requires the sign to be “three feet by two feet" and must include the exact language as seen below:

a. “Warning: Read your written agreement or the back of your ticket. Under Pennsylvania law, except for limited circumstances, an agritourism activity provider is not liable for any injury to or death of a participant resulting from an agritourism activity. Do not participate in the activity if you do not wish to waive liability."

4. The required acknowledgment agreement of limited civil liability must be signed by the visitor before engaging in the agritourism activity.

Agritourism operators who wish to benefit from the Pennsylvania statute, must have visitors sign a written agreement prior to their participation in the activity. This written agreement must be typed in at least 10-point bold font, or larger.

a. "Agreement and Warning: I understand and acknowledge that, except for limited circumstances listed below, an agritourism activity provider is not liable for any injury to or death of a participant resulting from an agritourism activity. I understand that I have accepted all risk of injury, death, property damage and other loss that may result from an agritourism activity. I understand that an agritourism activity provider is not protected from liability if the provider:

1. Performs an act in a grossly negligent manner and causes injury or damages to a participant.
2. Purposefully causes a participant's injury.
3. Acts or fails to act in a way that constitutes criminal conduct.
4. Recklessly fails to warn or guard against a dangerous condition that causes injury or damages to a participant. A dangerous condition is a condition that creates an imminent and substantial risk of injury or damages to a participant."

Alternatively, the statute also allows the agritourism operator to print the "Agreement and Warning" language on a ticket. This option would allow participants to purchase a ticket that they would use in order to participate in the activity. The statute does not include requirements for the ticket to be a certain size or shape, however, the statute does say that the ticket must be “required for access…" to the activity. In other words, an agritourism operator must devise some process that requires participants to receive the ticket and then present the ticket before they could participate. This process is going to look different for every operation and it may require some adjustments to an operator's current business procedures.  

Guests who do not agree to release the agritourism operator from liability as stated on the ticket or written agreement, should not participate in the activity. 

Application of the Act to Minors

The law states that a parent or guardian must sign the acknowledgment agreement on behalf of a minor or care-dependent person. Generally, children do not have legal capacity to sign liability waivers and a waiver signed by a child may be voidable.

Pennsylvania case law suggests that waivers signed by a parent on behalf of a child are unlikely to waive the child's potential claim in this state. A parent's signed waiver would, however, waive the parent's claim for compensation relating to their child.

Additional Information

Agritourism operators who are interested in gaining the benefits from Pennsylvania's statute should carefully review the statute language and should consult an attorney to determine if this law will apply to their operation. The exact language of the Agritourism Activity Protection Act can be found online from the Pennsylvania General Assembly.

For additional information, operators may also review the available guidance (with an option to purchase signs with the required statute language) offered by the Pennsylvania Farm Bureau. Pennsylvania Farm Bureau, along with affiliated groups and advocates have been very instrumental in pushing the Agritourism Activity Protection Act forward in Pennsylvania.

References and Additional Resources

Penn State Extension. Agritourism in Pennsylvania - Legal and Regulatory Issues