Ag Law Test #2

Liabililty

the quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment

Tort

-A wrongful act which injures another person's body, property, or reputation.

-A civil wrong, other than a breach of contract, for which the law provides a remedy

What are the four general areas of tort law

-Intentional torts

-Strict liability

-Negligence

-Nuisance

Intentional torts

Require a voluntary act that is designed to bring about some specific consequence

What are some examples of intentional torts

-defamation/slander

-intentional infliction of emotional distress

-trespass

-battery

What is strict liability

liability without fault; a person who exposes others to certain dangerous risks should be responsible for resulting injuries, even if the person acted with utmost care

What are strict liability examples

-storing or certain types of use of dangerous explosives or chemicals

-injuries caused by animals with vicious or dangerous qualities that is known

-keeping of wild animals

What is negligence

the failure to act as an ordinary, reasonable, and prudent person under the same or similar circumstances

What are the four elements of a claim for negligence

-the defendant owed a duty to exercise reasonable care under the circumstances (duty of care)

-the defendant breached this duty of care

-the breach of the legal duty was the proximate cause of the plaintiff’s injury

-there was damage to the plaintiff’s person or property

How many elements do you have to have in order to prove negligence

four

How is duty of care established in element 1: the defendant owed a duty to exercise reasonable care under the circumstances

acting as a reasonable and prudent person under the circumstances

What element of negligence is this an example of: A commercial pesticide applicator will be held to a higher duty of care than some guy spreading fertilizer on his lawn

Duty

What element of negligence is this an example of: A doctor will be held to a higher duty of care than someone giving emergency CPR to an accident victim.

Duty

What element of negligence is this an example of: I owe more of a duty to a customer at my produce stand than I do to someone trespassing on my land.

Duty

What element of negligence is this an example of: I have a duty to save my kid from drowning… but not to save a stranger. If I decide to help the stranger, I can, but I can’t leave them halfway through the rescue

duty

What does element 2 in negligence mean: The defendant breached this duty of care

The defendant’s conduct fell short of the conduct of a “reasonable and prudent person” under the circumstances. Commonly referred to as a “breach” of the duty of care

What is breach of duty

-failure to meet your responsibilities

-action in violation of your duty

-something you should have done, but didn’t

What does element 3 in negligence mean: the breach of the legal duty was the “proximate cause” of the plaintiff’s injuries

there must be a close enough cause/effect connection

What is proximate cause

a cause which directly produces the specific result or effect (injury)

what is causation

the link between duty/breach and damage

What does element 4 in negligence mean: there was an actual injury

usually easy to prove, but not always

What are the two common law defenses to negligence

-contributory negligence

-comparative fault

What is contributory negligence

Built upon the principle that one has a duty to exercise reasonable care for the safety of one’s own person or property

Which is common law and written law when looking at contributory negligence and comparative fault

Contributory negligence = common law

Comparative fault = written law (statute)

What is comparative fault

Comparative fault statutes require that damages between a negligent plaintiff and a negligent defendant be divided according to their degree of fault

What is premises liability

refers to the type of liability that arises when a person suffers a personal injury or damage to personal property while upon the property of another

What must a plaintiff establish to determine premises liability

-The duty of care

-That the duty of care was breached

-The breach was proximate cause of plaintiff’s injury

-The breach resulted in injury to person or property.

How does the law divide land entrants

-Trespassers

-Licensees

-Invitees

What is a trespasser

One who is on the premises without permission and who does not confer a benefit on the landowner or occupier

What is a licensee

One who is on the premises with permission, but who does not bestow a benefit on the landowner or occupier

What is an invitee

One who is on the premises for business purposes or for mutual advantage rather than solely for the benefit of the person entering the property

What are examples of a trespasser

-A person who hunts or fishes on property without permission

-A person who walks through property without permission in order to birdwatch or follow hunting dogs

What is the duty of care owed to trespassers

to refrain from willfully or wantonly injuring the person…if you don’t even know about them then you have no duty of care.

Willful or Wanton conduct

course of action which shows deliberate intention to harm or utter indifference to, or conscious disregard of, the safety of others

What is attractive nuisance doctrine

recognizes the distinction between child and adult trespassers, arises when children are attracted to property by a dangerous condition i.e. farm equipment, old farm structures, ponds

what is the duty of care for a licensee

to warn of hidden dangers that the landowner knows about and the licensee cannot reasonably be expected to discover

example of an invitee

Someone who pays to duck hunt on landowner’s farm; custom harvester; cattle buyer; employees

What is the duty of care for an invitee

make and keep the premises safe and to warn of existing dangers

what is agritourism

a form of commercial enterprise that links agricultural production and/or processing with tourism in order to attract visitors onto a farm, ranch, or other agricultural business for the purposes of entertaining and/or educating the visitors and generating income for the farm, ranch, or business owner

why is agritourism important

-Makes use of existing resources/knowledge

-$$ for farmer, rancher, community, and state

-Teach public about agriculture

what are limits on liability in agritourism statutes

A participant “assumes the inherent risk of an agritourism activity by engaging in the agritourism activity.” m activity operator or participant is not liable for damages arising from the personal injury or death of a participant if:

-The injury or death results from an inherent risk

-The warning contained in § 2-11-107 is posted.

-The limitation of liability provided by this section is in addition to any other limitation of liability provided by law

What is inherent risk

means dangers or conditions that are an integral part of an agritourism activity

What is agritourism activity

s an interactive or passive activity carried out with or without payment to an agritourism activity operator on a farm, ranch, or agribusiness operation related to agriculture, food production, historic traditions, or nature watching conducted by an agritourism activity operator for the education, entertainment, or recreation of participants.

What does agritourism activity not inclulde

-road side fruit and vegetable stand

-an operation exclusively devoted to the sale of merchandise or foot at retail

What are the exceptions to agritourism statutes; no protection if

-Commits gross negligence in terms of safety

-Has actual knowledge of a dangerous condition but fails to make the danger known

-Intentionally injures a participant

-Commits other acts, errors, or omissions that constitute willful or wanton misconduct, gross negligence, or criminal conduct that proximately causes injury, damage, or death.

What are the requirements for agritourism statutes

-signs must be posted at at or near the main entrance to the agritourism activity and in black letters at least one (1″)

-Shall have written contracts that must also include this warning language

-At each agritourism activity, the operator must post a sign outlining any specific or known hazards in that particular area

What are recreational use statutes

state statutes that limit or eliminate the liability of landowners who allow members of the public to use their lands for recreational purposes, so long as certain statutory conditions are satisfied

Arkansas Recreational Use Statute: Ark. Code Ann § 18-11-301

The purpose of this subchapter is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.

Ark. Code Ann § 18-11-301: Owner

the possessor of a fee interest, a tenant, holder of a conservation easement, lessee, occupant, or person in control of premises

Ark. Code Ann § 18-11-301: Land

land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to realty

Ark. Code Ann § 18-11-301: Charge

means an admission fee for permission to go upon or use the land, but does not include:

-(A) The sharing of game, fish, or other products of recreational use

-(B) Contributions in kind, services, or cash paid to reduce or offset costs and eliminate losses from recreational use.

Owner + Land + Recreational Purpose =

Potential application of the AR RUS

Ark. Code Ann. § 18-11-304 (Duty of Care):

an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.

Ark. Code Ann. § 18-11-305 (Owner’s Immunity from Liability):

an owner of land who, either directly or indirectly, invites or permits without charge any person to use his or her property for recreational purposes does not thereby:

-(1) Extend any assurance that the lands or premises are safe for any purpose

-(2) Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed

-(3) Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons

-(4) Assume responsibility for or incur liability for injury to the person or property caused by any natural or artificial condition, structure, or personal property on the land.

Ark. Code Ann. § 18-11-307 (Exceptions to Owner’s Immunity):

(1) For malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition, structure, personal property, use, or activity actually known to the owner to be dangerous; and

(2) For injury suffered in any case in which the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased . . .to a third person

What is the equine activity statutes

encourage the continued existence of equine-related activities, facilities and programs, and provide the equine industry limited protection against lawsuits

What does the equine activity statutes require

-special language in written contracts and liability releases or waivers

-the posting of a warning sign at the equine facility (sometimes with specific language set out in the state’s statute)

a tort action can only be brought against an “equine activity sponsor” or an “equine professional” for personal or property damages related to:

-The use of faulty tack

-Failure to determine the injured person’s ability to safely manage a horse; OR

-Failure to post warning signs concerning dangerous conditions

What is real property

is land, and whatever is erected, growing upon, or affixed to it. Immovable property consisting of such things as land, things fixed to land such as buildings, and other things incidental or appurtenant to land.

What are some examples of real property

-farmland

-house

-equipment shed

-cotton, corn, or rice (crop)

-duck blind

What is personal property

everything that is the subject of ownership that is not real property. All property that is not real property

What are examples of personal property

-animals

-crops severed from ground

-farm equipment

-patent rights to genetically modified seed

-oil and gas once it is taken from the ground

-bonds

-legal judgements

what is property

That which belongs exclusively to one. An aggregate of rights which are guaranteed and protected by the government. Ownership

What is an estate

the degree, quantity, nature, and extent of interest which a person has in real property

Estates in Land

under the common law, a person is considered to hold or own an estate in land, rather than to hold or own the land itself

What are Estates

are interests in land which are now possessory or which will entitle the owner to possession at some future time when intervening estates have ended

Two types of estates in land

Leasehold estates and freehold estates

What are leasehold estates

a type of lesser estate in which a lessee is given the possessory right and use of land for a determined period of time

What are freehold estates

a type of estate with potentially infinite duration or unpredictable length

What are types of freehold estates

fee simple, life estate

The Fee simple

-most common type of estate (own a home)

-represents the highest form of ownership

-is inheritable and transferable

-can be divided into many types of lesser estates

Life estate

-a type of freehold estate that gives the holder of the estate the same type of ownership rights as that of a fee simple, but only for the life of the holder of the estate.

-Estate whose duration is limited to the life of the party holding it, or some other person

-the person cannot will it to another person

-person cannot do anything that cannot be undone when they die

What is Easement

the right of one person or property owner to use the land of another for some specific purpose

What are the basic principles of easements

-To the holder of the easement, the easement represents a right to use in a certain way the property of another

-To the owner of real property to which an easement applies, the easement represents a burden upon that owner’s estate

Dominants tenement

the land in which the certain right of use exists

Servient tenement

the land that is burdened by the certain right of use

What are the two basic categories of easements

easement appurtenant, easement in gross

Easement appurtenant

an easement that occurs when the right of use benefits the holder of the easement in the physical use and enjoyment of another tract of land. There must be two parcels of land when there is an easement appurtenant: the dominant tenement and the servient tenement

Easement in gross

the easement holder’s enjoyment of another’s adjacent tract of and does not enhance the use of land owned by the easement holder. There is not dominant tenement

an easement is created in one of 4 ways

-express grant

-reservation

-prescription

-implication

Express easement

an easement that is created by a statement contained in a deed that specifies the right of use given to another

Easement by reservation

an easement that is created by a statement in a deed that is reserved by the person selling a parcel/tract of land

What types of easements are in writing

express grant and reservation

Easement by prescription

occurs when certain use is made in the land of another that is:

-adverse

-uninterrupted

-continuous

-under a claim of right

Easement by implication

exists in which a conveyance of property (i.e., conveyance of an estate) has been made with no express reservation of an easement, BUT the underlying circumstances imply an intention to create an easement

What is nuisance

an interference with a person’s enjoyment and use of land

What are the two types of nuisance

Public and private

Public nuisance

something that bothers an entire group of people

Private nuisance

something that bothers a single family, or smaller group

What are the elements of nuisance

Fault, substantial and ongoing, reasonableness

Fault

defendant intentionally, negligently, or recklessly interfered with plaintiff’s use and enjoyment of their property

Defenses to Nuisance

coming to the nuisance: common-law defense. Says that if the nuisance pre-dated the plaintiff’s move there, then the plaintiff will lose the case

Right-to-farm laws

are codifications of the coming-to-the-nuisance doctrine as it relates to agriculture

What are scenarios that involve right-to-farm statutes

-odor

-dust from animals or cultivation

-spraying pesticides or fertilizers

-water flowing onto neighboring lands

-slow moving vehicles

-noise

What is the purpose behind a right-to-farm statute

to provide liability protection to agricultural operations from nuisance lawsuits

How do right-to-farm statutes provide liability protection

-forces the plaintiff to meet a higher burden of proof

-limit the verdict against the operation

-pay for the farmer’s attorneys feed and court costs

Automatic protection

some states create ag districts and if your operation is within one of those districts, you are automatically given right-to-farm protections

Statute of Repose

require that an operation exist, relatively unchanged, for a set amount of time before right-to-farm protects it. Between 1-3 years

When does a statute of repose start running

when agricultural operation begins

What can cause a statute of repose to be restarted

a substantial change in the operation can cause it to reset, or start the clock running from the beginning