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2008 SESSION
083231596Be it enacted by the General Assembly of Virginia:
1. That §§ 3.1-796.137, 3.1-796.138, and 3.1-796.139 of the Code of Virginia are amended and reenacted as follows:
§ 3.1-796.137. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Agricultural or marine products" means any fish, shellfish, livestock, aquaculture, poultry, horticultural, floricultural, viticultural, silvicultural, or other farm crops.
"Agritourism or marine tourism
activity" means any activity carried out on a farm
or ranch that allows members of the general public, for
recreational, entertainment, or educational purposes, to view or enjoy rural or
marine activities, including farming, fishing, wineries,
ranching, historical, cultural, harvest-your-own activities, or natural
activities and attractions. An activity is an agritourism or marine tourism activity whether or not the
participant paid to participate in the activity.
"Agritourism professional" means any person who is engaged in the business of providing one or more agritourism activities on a farm or a ranch, whether or not for compensation.
"Farm or ranch" means one or more areas of land used for the production, cultivation, growing, harvesting or processing of agricultural products.
"Inherent risks of
agritourism activity" mean those dangers or conditions that
are an integral part of an agritourism or marine tourism
activity including certain hazards, including surface and
subsurface conditions; natural conditions of land, vegetation, and waters; the
behavior of wild or domestic animals; and ordinary dangers of boats,
structures, or equipment ordinarily used in
farming, fishing, and ranching operations.
Inherent risks of an agritourism or marine tourism
activity also include the potential of a participant to act in a
negligent manner that may contribute to injury to the participant or others,
including failing to follow instructions given by the agritourism or
marine tourism professional or failing to
exercise reasonable caution while engaging in the agritourism or
marine tourism activity.
“Marine tourism professional" means any commercial fisherman, as defined in subsection D of § 28.2-241, or any person supervised by a commercial fisherman who is engaged in the business of providing one or more marine tourism activities, whether or not for compensation.
"Participant" means any person, other than an
agritourism or marine professional, who engages in
an agritourism or marine tourism activity.
§ 3.1-796.138. Liability limited; liability actions prohibited.
A. Except as provided in subsection B, an agritourism or
marine tourism professional is not liable for
injury to or death of a participant resulting from the inherent risks of
agritourism or marine tourism activities,
so long as the warning contained in § 3.1-796.139 is posted as required and,
except as provided in subsection B, no participant or participant's
representative is authorized to maintain an action against or recover from an
agritourism or marine tourism professional
for injury, loss, damage, or death of the participant resulting exclusively
from any of the inherent risks of agritourism or marine tourism
activities; provided that in any action for damages against an
agritourism or marine tourism professional
for agritourism activity or marine tourism
activities, the agritourism or
marine tourism professional shall plead the
affirmative defense of assumption of the risk of the agritourism
or
marine tourism activity
by the participant.
B. Nothing in subsection A shall prevent or limit the liability of an agritourism or marine tourism professional if the agritourism or marine tourism professional does any one or more of the following:
1. Commits an act or omission that constitutes negligence or willful or wanton disregard for the safety of the participant, and that act or omission proximately causes injury, damage, or death to the participant;
2. Has actual knowledge or reasonably should have known of a dangerous condition on the land or water, or in the facilities or equipment used in the activity, or the dangerous propensity of a particular animal used in such activity and does not make the danger known to the participant, and the danger proximately causes injury, damage, or death to the participant; or
3. Intentionally injures the participant.
C. Any limitation on legal liability afforded by this section to an agritourism or marine tourism professional is in addition to any other limitations of legal liability otherwise provided by law.
§ 3.1-796.139. Warning required.
A. Every agritourism and marine tourism
professional shall post and maintain signs that contain the
warning notice specified in subsection B. The sign shall be placed in a clearly
visible location at the entrance to the
agritourism location and at
the site of the agritourism or marine tourism
activity. The warning notice shall consist of a sign in black
letters, with each letter to be a minimum of one inch in height. Every written
contract entered into by an agritourism or marine tourism
professional for the providing of professional services,
instruction, or the rental of equipment to a participant, whether or not the
contract involves agritourism or marine tourism activities
on or off the location or at the site of the agritourism or marine tourism
activity, shall contain in clearly readable print the warning
notice specified in subsection B.
B. The signs and contracts described in subsection A shall contain the following notice of warning:
"WARNING: Under Virginia law, there is no liability for
an injury to or death of a participant in an agritourism or marine tourism
activity conducted at this agritourism location
if such injury or death results from the inherent risks of the agritourism or
marine tourism activity. Inherent risks of
agritourism and marine tourism activities
include, among others, risks of injury inherent to land, equipment, and animals,
as well as property and the potential for you to
act in a negligent manner that may contribute to your injury or death. You are
assuming the risk of participating in this agritourism or marine tourism
activity."
C. Failure to comply with the requirements concerning warning signs and notices provided in this section shall prevent an agritourism or marine tourism professional from invoking the privileges of immunity provided by this chapter.