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  • Marlene

U-Pick Liability

As the holiday season peaks, we take a second look at agritourism with an emphasis on u-pick Christmas tree operations. Farms that have u-pick operations typically lead excited farm visitors out to a field of Christmas trees supplied with tree saws, visitors then choose their own tree, cut it down, and have it trimmed to take home.

These operations are quite common in Pennsylvania, but that may be because Pennsylvania is also one of the top Christmas tree producing states. The u-pick operations may also further diversify a farm’s profile and income, with common attractions such as holiday shops in barns and pictures with Santa Claus. So getting a Christmas tree can range from the full Griswold experience to picking up a saw at the entrance and cutting down a tree together before heading home for some hot chocolate.

From a liability prospective, u-pick operations bring to light two issues - inviting the public to the farm, rides (if applicable), and sharp saws. As discussed in October’s blog, Pennsylvania does not have a specific statute addressing agritourism liability. However, Pennsylvania does have an agricultural immunity statute for u-pick operations. (42 Pa.C.S.A. § 8339(a)).

This statute states “[n]o cause of action shall arise against the [farm] owner, tenant or lessee of land or premises for injuries to any person, other than an employee or contractor … who is on the land or premises for the purpose of picking and purchasing agricultural or farm products at a farm or “u-pick” operation….” This statute is applicable to any operation where visitors pick agricultural and farms products, including but not limited to fruit, flowers, and trees. Thus,in addition to u-pick strawberry, blueberry, and pumpkin farms, Christmas tree operations are covered under this statute, and all u-pick farms are afforded a certain level of liability protection.

However, there are a few exceptions to this agricultural immunity. If the visitor’s injury was (1) caused by a condition involving an unreasonable risk of harm, (2) the farm owner, tenant, or lessee knew or had reason to know of the condition or risk, and (3) failed to exercise reasonable care to make the condition safe or to warn the person of the condition or risk, the visitor may bring a cause of action against the farm, and the farm may be found liable. For a successful claim though, all three elements above must be met.

The immunity exception is particularly applicable to u-pick Christmas tree operations, as there are likely sharp saws involved in order to cut the tree down. A Christmas tree farm can limit their liability by informing visitors of the proper way to use a saw while cutting a tree and of the known or potential dangers of using a saw to cut down a tree. The most effective way to warn visitors includes displaying a sign where the saws are located. By ensuring visitors are aware how the saws should be used and that saws are dangerous, a farm’s liability risk is decreased significantly in accordane with the u-pick statute.

Farms should also make sure to have attendants at the entrance to instruct visitors as to how to access the tree section they would like to pick from, how to carry the saw, and to answer any questions visitors may have. It is also important to understand the relationship of the u-pick law to other agricultural liability provisions.

The u-pick liability limitation only applies to the Christmas tree cutting activities and not to the other agritainment activities that may be on the farm such as rides, Santa photos, or a market. Farms should review our October blogpost as to ways to best prevent liability for activities not covered under Pennsylvania’s u-pick statute and make sure they are compliant with all local laws and regulations for all activities.

U-pick operations are abundant, and there are a variety of products one can pick throughout the year. Just keep these few tips in mind, whether you’re a visitor or the farm owners, to have a safe and happy holiday, all the while making memories with family and friends!

For more information on where you can choose your own tree, or find tree disposal tips, visit the National Christmas Tree Association’s website.

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