Liability, Risk, Insurance

[Disclaimer: The Sustainable Economies Law Center provides periodic updates to this site, however, information presented may be out of date. We encourage you consult with a professional before taking action based on the information here.

Welcome to the Liability, Risk, and Insurance section. This page answers frequently asked questions for food enterprises and urban farms.

Why is insurance important? 

Even if you are responsible and careful to take every precaution to ensure your practice is safe and your food isn’t going to make anyone sick, you should still be insured. The fact is that anyone who runs a business or organization–no matter how small–is at risk of being sued.  Even if you didn’t do anything wrong, you’ll spend a lot of money proving that.  A good insurance policy will cover those legal expenses.  And accidents can and do happen, even if you’re careful.

Remember:  Anyone can sue you for anything.  Even if the claim is frivolous and gets dismissed, you’ll still spend money on lawyers.

What kind of insurance do I need?

Before you decide what kind(s) of insurance to buy, you should identify the risks associated with what you’re doing and how you operate. For example:

  • Do you sell food at a farmer’s market?  You probably need “slip and fall” insurance to cover you for any accidents that occur in your booth or space.
  • Do you use a delivery vehicle?  You’ll need an automobile insurance policy.
  • Do you have employees?  Then you’ll need workers’ compensation insurance.
How LAND affects your choice:

The type of land you’re using to grow food is also a factor to consider when deciding what kind of insurance you might need.  If gardening on someone’s private property, you could use the landowner’s homeowners insurance to cover liability due to injury, to an extent.  If you’re growing food on land leased from the city, then the city will likely require you to obtain general liability insurance.  If gardening on a vacant lot, then general liability insurance could be important.

Farming on Government Property:

If you are implementing an urban garden through local government property or programs, then it is possible that the government will provide for liability insurance against personal injury.  In turn, the gardeners might accept responsibility for garden maintenance on the city-owned lot.  Sometimes, use of public lands is conditioned on gardeners acquiring liability insurance, including insurance covering personal injury and damages from gardening on the land.  In Philadelphia, farmers are required to carry all of the liability when farming on leased city land.

Farming in Private Backyards:

(For information related to Non-Profits and farming in private backyards, see the Non-Profit Urban Ag Issues and Models section)

If you’re working primarily on privately-owned yards, in most cases, everyone on the grounds must be a “guest of the resident” and the “resident must be present,” and there can be no commercial gain from the project in order for homeowners insurance to cover any accidents. So, if you are just gardening for your personal use and giving produce to others, there is no need for additional insurance.  If you are allowing others to use your land to garden, and the produce is not being sold, then there may be no need for extended homeowners coverage, either.  If you are renting your land to gardeners, you may need additional coverage under your homeowners policy.

Basically, homeowners insurance includes personal liability for the homeowner on the premises.  Business operations are usually excluded, and coverage limits to personal property for businesses are typical and may be no more than $2,500.  Some homeowners policies have endorsements that can be added, which are modifications to the general policy that add or remove provisions to serve particular needs.  The same endorsements are available in many states and can increase the price of the homeowners policy.  There are only a few endorsements available to add “business” liability coverage, and their intent is to cover non-professional employee operations with no customer traffic, and limited equipment.  The applicability of endorsements can also depend on the size of your farm or garden, and the particular insurance company’s classification scheme (and if the insurance underwriters are willing to extend the coverage to include endorsements!) For example,

HO 24 71, or “Business Pursuits Coverage” (See here) note that this endorsement, like the others that will be discussed, may be labeled differently under different companies’ policies) removes the exclusion for business pursuits in the homeowners policy, and extends liability coverage for business pursuits of the insured.  The business, however, cannot be owned or financially controlled by the insured or a partnership involving the insured, and must be described in the endorsement.  A common example would include an office in the home that is maintained for the convenience of the employee at the request of the employer.  Thus, if you are growing food on your property to supplement a larger urban farm network which you are not in charge of, you might be able to add this endorsement to your homeowners insurance.  This endorsement would only provide coverage for you as the homeowner.

If you are planning to teach gardening classes from your backyard, homeowners insurance endorsements are not intended to cover professional liability for you as a teacher.  If bodily injury or property damage occurs involving any draft or saddled animal, any motorized vehicle, or any attached “vehicle” (such as a wagon or cart), HO 24 71 will not cover the damage, and will not provide coverage for fellow employee bodily injury.  If the garden is not being operated by a business or partnership, then the HO 24 71 form might cover the homeowner for injuries sustained by others in her garden.

HO 23 41, or “Permitted Incidental Occupancies,” allows limited liability coverage for “permitted incidental occupancies” used by an insured for a specifically described business.  This endorsement will cover the person who is self-employed for liability and medical payments arising out of “business pursuits” while on the residence premises.  Again, this endorsement would cover you, the insured with the homeowners policy.

HO 24 72, or “Incidental Farming; Personal Liability,” (See here) is intended to extend coverage for specifically defined farming operations conducted at the residence premises, and/or conducted away from the premises at other specifically described locations.  Medical payments to others do not apply to the other described locations, but if a community garden is located on your property this endorsement is likely appropriate to cover you for general liability.  This endorsement is designed for hobby farmers; companies are unlikely to extend coverage to a small farm where a minor amount of land is leased from others for feed or cash cropping.

HO 24 73, or “Farmer’s Personal Liability,” (See here) is roughly the equivalent of liability protection found in comprehensive farm packages.  If you are operating a farm on your property with employees (and even livestock) this endorsement can be added to your homeowners policy.  The homeowners insurance carrier may not want to cover large personal farms with this endorsement, however, and property coverage for barns, livestock, crops, and farm equipment is not adequately covered by the homeowners policy with any endorsement.

Typically, if you are growing food to sell and employing people to work in your yard, then you will likely need a general liability policy for your organization, as well as workers comp, and perhaps products liability.  If you are simply the homeowner and gardeners are using your land, whether for their nonprofit or commercial pursuits, then the gardeners will likely need to have a general liability policy of their own, and you can look into adding HO 24 72 or HO 24 73 under your policy.  A wise homeowner would probably require anyone gardening on her property who was paid to have workers comp, as well.  Property owners should consider asking garden organizations to add them as “additional insured” under the organization’s policy.  This addition would cover the property owner’s legal defense and judgment in case an action is brought against her for an accident that happened while participating in the garden’s program (unless the accident is the result of the property owner’s negligence).

How OPERATIONS affect your choice:

If you’re involved with an urban farm or garden, insurance considerations should be based on how you operate. For example, if your model is for personal use, you don’t employ anyone, and you are donating all your food, your insurance needs will primarily involve a general liability policy.  On the other hand, if you have a commercial model where you are growing food to sell, then you will need to consider a general liability policy, as well as workers compensation and products liability. In most cases, you should consider general liability insurance, workers comp, and products liability.

Let’s take a look at the most common types of insurance:

  • General Liability Insurance

    General liability insurance covers bodily injuries, property damage, and a handful of losses that could occur as a result of the operation of your business. The main purpose of this insurance is to protect the organization that owns the policy from losing all of his/her assets if s/he is sued, though it may secondarily protect the person who gets hurt.

    General liability is also sometimes known as “slip and fall” insurance, and it is particularly important if you have a “premises,” like a farmers’ market booth or shop, where the public will visit your business.  Even if you are leasing your space, it is likely the owner will require you to have this insurance, and may ask you to add him/her to your policy as an “additional insured.”  You’ll need to check with your insurance provider to see how and if you can add another person or organization to your policy.

    Both non-profit and for-profit businesses should have general liability coverage to protect the assets of the organization or business from lawsuit.  This coverage will depend on your particular business situation and costs will depend on the specifics of your operation and your location.  General liability insurance is all local, so you must familiarize yourself with your state’s insurance scheme.

    How much does general liability insurance cost?

    The type of insurance typically depends on the type of business.  Schools, for example, tend to require higher coverage than most other garden locations.  Other variables to consider are size, the presence of animals, and if children are involved.

    What are some options for nonprofit community gardens?

    If your community garden project is a nonprofit, one economical approach is to find an existing nonprofit organization to fiscally sponsor your project and include you under the umbrella of their general liability insurance.  Otherwise, insurance purchased by a small organization can be much more expensive than asking a larger organization to sponsor your garden, such as a local gardening association, church, or other community group.

    Another option is to contact a land trust in your state, or the Land Trust Alliance (LTA), as these organizations have a discounted insurance package for members.  If you are part of the LTA, then members get discounted general liability insurance and possibly workers comp and products liability.  Your group can qualify for the discounted rate as long as you have LTA membership and have 501(c)(3) status, or are in the process of obtaining 501(c)(3) status.  You will also have to adopt the LTA’s “Standards and Practices,” which is a nonbinding legal resolution of guidelines for the responsible operation of a land trust.  These guidelines will most likely be automatically met by any urban garden or farm.  LTA’s annual membership fees are based on your organization’s annual budget.  For example, if your budget is less than $10,000 per year, then you won’t be paying more than $250 for membership.

    Currently, there are 1800 land trust groups, but if your organization is not a member, you can still go through LTA for insurance, but rates more than double (the starting rate for general liability insurance is $650 per year for members and $1500 for nonmembers).  Milwaukee Urban Gardens (MUG), which includes five gardens and 16 leased properties on public land, only one of which is on a vacant lot that will soon be acquired by the city, gets their insurance package from LTA.  Their gardens vary from a few hundred square feet to a couple acres, and LTA provides general liability insurance, directors and officers insurance, business insurance (to protect against losses and ensure the business is able to operate), auto insurance, and property insurance covering the office premises and gardens for $689 per year as part of their package.  MUG, however, sells none of its produce.

    If your organization’s a 501(c)(3) nonprofit, you can also go through insurance companies that work exclusively with nonprofits, such as First Nonprofit Insurance Company.  If you’re located in California, the Nonprofits Insurance Alliance of California (NIAC) can be helpful.  City Slickers Farm in Oakland, CA recommends them as a resource.  Costs for general liability insurance start around $700 to $800 per year with NIAC.

    If you’re in the Los Angeles area, community gardeners can obtain inexpensive policies from Metro Farm Gardens’ insurance.  Metro Farm Gardens owns the policy, and the gardens are the location of the policy.  The sole purpose of Metro Farm Gardens is to provide low cost general liability insurance for community gardens in Los Angeles, Ventura County, and some parts of Orange County. This insurance does not include workers comp or products liability; some of the gardens under this coverage do sell their produce, so it is likely they have their own products liability and a license to sell their produce.   Coverage is $2 million per year for all gardens, and is solely for the landowner’s sake.  In other words, if the city leases land to the garden, then this insurance would cover the city if anyone sued (since people are more likely to sue “deep pockets”).  The cost of the coverage depends on several variables; the most prominent being the size of the garden.

    What about liability for backyard farms?

    These days, many people are using backyards to grow food for the community or for a business.  Generally, homeowners insurance policies cover injuries that take place on the property if the injured party is the guest of a homeowner and if the activity is not for a commercial purpose.  Injuries related to casual and non-commercial backyard garden projects are probably covered by homeowners insurance, but it is a good idea to verify this with your homeowners insurance carrier.

    But what if you want to sell your backyard produce?  Now that cities like San Francisco, Berkeley, and Oakland are allowing people to sell vegetables grown in backyards, it will be important for such backyard farmers to revisit their homeowners insurance policies to make sure they are covered for garden-related injuries.  Most homeowners policies have endorsements that can be added, which are modifications to the general policy that add or remove provisions to serve particular needs. Some homeowners policies can be amended to include certain home businesses.

  • Product Liability Insurance

    Product liability insurance protects you if a customer gets sick from your food product.  Whether you purchase this type of insurance probably depends on what type of food product you’re providing and the level of risk associated with that product.  Products liability in the realm of urban agriculture involves the liability of gardeners for selling produce or value-added products that are unsafe for consumption.  For example, if you’re selling bread or granola, your risk may be low enough that you can forego this type of insurance.  If you’re selling  animal products like cheese, products liability insurance is much more appropriate.

    Farms usually have products liability, while gardens usually don’t since the cost benefit ratio doesn’t work out favorably for volunteer supported non-income generating endeavors.  If you’re not selling produce, it’s not necessary for a garden to worry about products liability.  Plus, the Bill Emerson Food Act protects people from liability for food they donate to charity; no one is going to require products liability in order to accept donated food.  Workers comp and general liability are more often required in certain urban agriculture operations than products liability, although it is not be advisable to go without this insurance if you are selling your processed or preserved food, or value-added products.

    If you’re selling produce, products liability insurance is recommended by most commercial urban farmers.  If you’re planning a production agriculture program, you should also consider products liability insurance.  To give an idea of cost, we spoke to two medium-sized commercial urban farms (one of which is Dig Deep Farms in Alameda County, CA ) and learned that they pay between $700 and $1000 per year for product liability insurance coverage with limits of $1 to $2 million. Some customers even require products liability.

    After they have donated to their volunteers and those in need, Seeds of Success in Duluth, MN, sells food to restaurants to sustain their program.  This system of community gardens pays about $1000 per year in products liability insurance.  Seeds for Success does not need workers comp or insurance coverage for their volunteers; they rely on waivers to cover volunteers’ personal injury or property loss.  This organization is a subset of Community Action Duluth, and thus they get general liability insurance coverage through Community Action.   For their paid employees, they have workers comp covered by FICA.

    If there’s minimal exposure from an organization with minimal assets, you might consider going without products liability unless there is a requirement by a landlord or other party to have this insurance in place.  At the very least, you should contact other agriculture operations in your area to see if they have obtained products liability.

  • Commercial Automobile Insurance

    Commercial automobile coverage protects you from losses incurred while employees and volunteers are using your vehicles for purposes of your business, and for damage done to the vehicles.  Most policies address each individual vehicle separately, and coverage and costs vary depending on factors such as vehicle size and intended use.

  • Workers’ Compensation Insurance 

    If you have employees, you will likely be required to get workers compensation.  In the state of California, if you have even one part-time employee, you need workers’ compensation insurance.  Not having workers’ compensation insurance in CA is a criminal offense, and you can’t require your employees to help pay the cost of the policy.

    Volunteers: In general, if you are working with volunteers, it may be beneficial to cover volunteers in your workers comp plan to eliminate the potential for tort claims by injured volunteers against employers.  Workers comp for volunteers, however, is not mandatory in most states, and some states don’t even allow workers comp to cover volunteers.  Employers in California, for example, can cover volunteers through workers comp.  In Virginia, volunteers are not considered employees and thus are not covered under the Virginia Workers Compensation Act.  Employers should look into how their state considers volunteers for the purpose of workers comp insurance.

    Using Liability Waivers for Volunteers: You can also include a waiver in a volunteer policy packet if you plan to work primarily with volunteers.  See the pertinent portions of the volunteer packet of Seeds for Success (Duluth, MN) here.  You should also look into whether your jurisdiction has a minimum age for volunteers.  If the volunteer is under 18, you’ll likely need a signed waiver from a parent, as well.  These waivers mostly serve as a reminder that volunteers should be careful and need not involve you if they stub their toes, for example.  Liability waivers likely won’t provide protection if you are negligent.

    If your state allows volunteers to be covered under workers comp, then medical benefits will be the same for both volunteers and workers.  Indemnity benefits, however, which typically involve more significant problems, are handled differently by different states.  Premium calculations are based on the gross payroll, and therefore, volunteers, receiving no salaries, are not included in these calculations.  The insurer’s exposure to claims is increased, however, so employers should provide volunteer worker information to insurers in case of a work comp claim.  Your workers comp premium will increase, but this cost is likely far less than a liability lawsuit or tort action by an injured volunteer!

    Workers comp cost depends on what the employees do, their classification, and your local situation. In the state of California, for example, insurance can be obtained from an agent or broker, the State Compensation Insurance Fund, or you can “self-insure” if you qualify.  Policy rates are based on the size of your payroll and the types of tasks your employees perform. If employees spend most of their time running tillers or power tools, or even just doing physical work, the price will be higher than if employees are working from an office.  Costs can also depend on how your employees’ work is represented.  If, for example, a gardener spends most of her time weeding, you wouldn’t want to classify her in such a way that it would seem she’s frequently using power equipment, as a landscaper might.  Your agent can help you classify your employees.  Be aware, however, that if you claim a worker never uses anything bigger than a shovel, and she gets hurt driving a tractor, you could be in trouble.

    If you are using the LTA (Land Trust Alliance discussed in the General Liability Insurance segment above) for its discounted insurance package, you can acquire workers comp through their program.  The LTA also covers volunteers through their general liability insurance. This general liability policy includes volunteers as insured through endorsements for “third party bodily injured” which protect your garden or farm if you’re sued by a volunteer.  The LTA also offers a volunteer accident policy which covers death, injury, and medical expenses for volunteers.  Under this policy, volunteers’ medical insurance is primary; the accident policy responds on an excess basis.  The cost of the policy will depend on the number of volunteers you have and the kind of work they are doing.

    A word to the wise for urban farms.

    Some urban farms have found that their worker’s compensation policies are unusually expensive, in spite of the fact that there is a low risk of injury in urban farming.  This is because insurers often liken an urban farm to a large commercial farm that involves trucks, tractors, chemicals, repetitive motion activities, or other activities with a higher risk of injury.  It’s a good idea to call around until you find an insurer or broker that understands urban farms. One suggestion is to tell the insurer or broker that you are an urban “garden,” rather than a “farm.”  Of course you should still be honest about what activities you are engaged in, including growing food for sale, if applicable. However, reframing the activity as a garden might prompt insurers to choose an insurance policy that better fits your activity.

    Additional Resources:

    Employer Fact Sheet: Details on CA workers’ compensation requirements for employers

    CA Department of Insurance Website

  • Other Types of Insurance

    There are other options, such as professional liability, premise liability, and directors and officers insurance if you have a board of directors.  Just because you can buy insurance for something, however, doesn’t necessarily mean you should.  You could go “insurance poor” by getting all options available!  You could get products liability coverage in case someone thinks she got sick eating a tomato you grew.  Or, you could get professional liability coverage in case someone gets injured operating machinery in the manner in which you taught that person.  Or, you could get coverage in case you have a fundraiser where you serve alcohol, and someone leaves and gets in a car accident.  Or, you could get coverage as an employer in case you’re accused of hiring discrimination.  You could consider premise liability, or liability to cover the property owner responsible for a visitor’s injury, if you are planning an urban farm to operate a CSA, and you anticipate shareholders will visit the farm or work on the farm.  Many options exist, and should be considered based on your assets and the degree of risk involved.

  • How are farms similar to yours insured?

    You should first contact other urban farms in your area, or urban farms in existence that are similar in size (also consider land type and number of volunteers and employees) to see what they are doing to insure their operations.  Ask them to steer you to a good insurance agent, or consider getting assistance from your state’s farm bureau, farmers’ market association, or department of agriculture.  Specialized policies are often available, which cater to your specific program and are defined by your local situation.

How much insurance should I buy?

This is a business decision only you can make.  There are a lot of types of insurance available, and your business could go broke if you buy them all.  Think about the risk level associated with your particular product, and talk to a good broker who’s familiar with urban farming.

What can I do to reduce the cost of insurance?

Find out if you can associate with or become a member of a larger entity, who may be able to provide discounted insurance rates.  For example, the Land Trust Alliance (LTA) has discounted insurance packages for its members:

  • You’ll need to have 501(c)(3) status, or be in the process of obtaining 501(c)(3) status.
  • You will also have to adopt the LTA’s “Standards and Practices,” which is a nonbinding legal resolution of guidelines for the responsible operation of a land trust.
  • LTA’s annual membership fees are based on your organization’s annual budget.

If you’re a 501(c)(3) nonprofit, consider contacting insurance companies that work exclusively with nonprofits, such as First Nonprofit Insurance Company.  The Nonprofits Insurance Alliance of California (NIAC) can be helpful.

What else can I do to protect myself?

  • Liability Waivers

    Depending on your activities and who is involved, you may also want to ask some participants to sign a liability waiver.  For example, if your organization operates a community garden, you could ask volunteers and gardeners to sign a liability waiver, which states that they will not hold you responsible or sue you in the event that they are injured in the garden.  The waiver should be very clear in informing gardeners of the risks they are taking and about the fact that they are voluntarily waiving their right to sue you.  In practice, courts often refuse to uphold liability waivers, on the grounds that it would be poor public policy for businesses and organizations to waive their duty to be careful.  Nevertheless, if you carefully craft your waiver, there is a good chance it will protect you, either in court or in setting clear expectations that volunteers should be careful to avoid injury and not sue you. Below are a few sample volunteer liability waiver documents:

  • Indemnification Agreements

    Indemnification, or “hold harmless” agreements, can provide additional protection by requiring someone else to pay your legal fees and expenses if you are sued by a third party.  Whether you can get this type of agreement may depend on your power position in the relationship.  For example, a farmer’s market may require a vendor to indemnify the market if the market is sued because of an injury sustained in that vendor’s stall.  The indemnified party should also make sure to ask to be named as an “additional insured” on the indemnifying party’s insurance policy – you want the party indemnifying you to have the financial resources to make good on that promise.

  • Limited Liability Business Structures

    Incorporating, or forming a Limited Liability Company (often called a “LLC “) for your business can limit your liability and provides an extra layer of insurance.  If you are sued, the claim will be limited to the assets owned by the company, and your personal assets – such as your home, car, and personal bank accounts – are protected.
    Remember:  this “shield” over your personal assets is not absolute.  For example, you wouldn’t be protected if you commit intentional fraud, and you can destroy the limited liability protection if you treat the LLC bank account as your own personal account.  So act fairly and legally, fund your LLC adequately, and keep LLC and personal business separate.

Is there anything else I should know?

  • Shop around for coverage.  Find an insurance broker or agent who understands your business and the particular risks associated with what you’re doing.  Rates can vary widely from one insurance company to another.
  • Ask lots of questions.  Make sure your insurance provider understands what you’re doing, so that you get the coverage you need.  For example, a products liability policy might cover your sales of produce, but not meat and dairy.  And your policy might not cover “temporary structures” like tents or tables used in your farmer’s market stall.  You don’t want to find this out after you submit a claim.
  • Manage risk. Be safe.  One of the best ways to manage risk is to adopt safety practices and policies – a little care goes a long way in preventing injury and avoiding liability. For example:
  1. Include liability waivers when working with volunteers or employees
  2. Train people on safety, remove hazards, post warnings
  3. Adopt safety policies, like the Safety Policies of Seeds for Success (Duluth, MN)
  4. Test your soil to reduce risk of harm to consumers: If you happen to be planning for raised beds on a particularly polluted site, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, a purchaser of property with contamination on site can be an “owner” of contamination and responsibility to clean the site.  To seek protection from environmental liability, conduct a Phase I Environmental Site Assessment in accordance with ATSM 1527 (“All Appropriate Inquiry” or the Due Diligence most lenders require) prior to acquisition or acceptance of a property.  This assessment provides a defense against liability under CERCLA. For more information on soil safety, see UrbanAgLaw’s Soil section.

Homeowner Liability Concerns

Liability concerns may be one of the greatest worries of property owners who could potentially participate in a project such as this.  While gardening is not a highly risky activity, there is still potential for injuries due to, for example, lifting heavy items, stepping on a rake, twisting an ankle in a hole, or falling off a ladder while harvesting fruit.

As described below, there are ways to shield the homeowner from liability; in fact, state law might even make the homeowner immune from liability for allowing the public to use the yard for “recreational purposes.”  Even with these protections, however, the homeowner and non-profit should strategize to eliminate hazards and risks as much as possible.

Protecting the Homeowner from Liability

In order to create incentives for homeowners to lend their yards for gardening, it would be wise for the nonprofit to indemnify the homeowner from liability.  In doing so, the nonprofit should purchase a general liability insurance policy to cover injuries to volunteers.  Even with an indemnity clause, an individual gardener may still sue the homeowner.  If this happens, the organization should step in to defend the homeowner.  Or, in the event that the organization does not step in, the homeowner could then proceed against the organization to recover the amount it was required to pay to the gardener.  This would thereby transfer the cost of the loss to the organization’s liability insurance.

The written lease/easement agreement between the homeowner and organization could include language to the following effect:

ORGANIZATION agrees to indemnify and hold harmless HOMEOWNER from any claim, action, liability, loss, damage or suit arising from the following:

  • Injury of an ORGANIZATION volunteer while gardening in HOMEOWNER’S yard,
  • Etc.

ORGANIZATION agrees to maintain a policy of comprehensive liability insurance of at least $1 million in coverage to cover all gardening activities of ORGANIZATION.

In the event of a claim or asserted liability against HOMEOWNER arising from the above injuries, HOMEOWNER shall promptly notify ORGANIZATION of such a claim. ORGANIZATION agrees to defend and hold harmless HOMEOWNER from any loss or liability.  If ORGANIZATION fails to defend HOMEOWNER, HOMEOWNER has the right to defend or settle claim on his/her own behalf, then be reimbursed by ORGANIZATION for the cost and expenses of the defense or settlement.1

Immunity of the Homeowner under the California Recreational Use Statute

It is quite possible that the homeowner will be immune to liability under CA’s recreational use statute.  Every state in the U.S. has a recreational use statute, which is a law that protects landowners from liability if they open up their land for others to use for recreational purposes.2  CA’s recreational use statute includes recreational gardening in the definition of “recreational purpose:”

“A ‘recreational purpose,’ as used in this section, includes such activities as fishing, hunting, […] recreational gardening […]. An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, […] or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section.”3

Some might argue that the cultivation of a garden for food is not “recreational.”  However, the CA legislature has shown its intent in other statutes to treat “community gardening,” as a recreational activity.  The Urban Park Act of 2006 modified the definition of “recreational facilities” to include community gardens, for the purpose of implementing a grant program to fund urban park land.4

Elsewhere in the statutes, in the law requiring inclusion of parks and open space in new subdivided developments, there is the following definition of “recreational community gardening:”

“Park and recreation purposes shall include land and facilities for the activity of “recreational community gardening,” which activity consists of the cultivation by persons other than, or in addition to, the owner of the land, of plant material not for sale.”5

This portion of the statute specifies that the gardening activity is recreational only if the plants are cultivated “not for sale.”   Because these definitions come from different parts of the CA statutes, it is hard to know whether the legislature would intend them to apply to the recreational use statute.  Based on these definitions, it is possible that the homeowner will not be immune to liability if the vegetables are cultivated for sale at the local farmer’s market.  Thus, to play it safe, one way to help ensure the applicability of the recreational use statute is to ensure that vegetables grown in yard gardens are donated or consumed by the gardeners and volunteers, rather than sold.

(For more related information, see the Liability, Risk, and Insurance section)

Are there liability protections for food donated to charities?

Good Samaritan Food Donation Laws:  In 1996, Bill Clinton signed the Bill Emerson Good Samaritan Food Donation Act, (Public Law 104-210, 110 Stat. 3011, enacted October 1, 1996.) which created a federal law to protect individuals, businesses, and organizations from potential liability when they donate food to nonprofit organizations that distribute food to needy individuals (See “A Citizen’s Guide to Food Recovery”).  This law leaves “needy individuals” undefined, and also does not fully clarify whether food can be given directly to a needy individual or whether it must go through a nonprofit organization.   See, for example, the law’s definition of “gleaner,” which is “a person who harvests for free distribution to the needy, or for donation to a nonprofit organization for ultimate distribution to the needy, an agricultural crop that has been donated by the owner.” This definition was codified in the National Community Services Act, in Public Law No. 101-610, 104 Stat. 3183 (codified at 42 U.S.C. 12671-12673).

Note that nonprofit organizations, under the Act, need not be incorporated, which means that any association or informal project with charitable goals could potentially be covered by the Act.  It is nevertheless somewhat unclear whether the Act would cover a group of neighbors that collaborates to bring food to another neighbor while he is sick and unable to cook for himself.  Note, also, that states have adopted their own acts, which may provide additional protection to food donors.

See also: National Coalition for the Homeless report on laws that restrict the ability to share food


[1] “With Growing Food Gardens volunteer gardeners cultivate gardens of people who have unused garden space and local residents who have gardens grow extra produce to make harvest donations to the EGP.   The benefits of this program are breaking down social isolation for gardeners who have difficulty gardening, connecting local volunteers with their neighbourhoods and the urban environment, and teaching volunteers and new garden owners how to grow a food garden,” http://www.ediblegardenproject.com/index.htm

[2] “Sharing Backyards,” Life Cycles, Victoria and Vancouver, Canada: http://www.gworks.ca/lifecycles/initiatives/sharing_backyards/index2.php

[3] “The Secret Garden: This back-yard community farm at the home of local architect Janet McFarland is located right above the underground Temescal Creek.   The garden produces an abundance of organic vegetables for the City Slicker Farms Farm Stand and is home to our summer corn, bean and squash field.”   http://www.cityslickerfarms.org/WhatWeDo1.htm

[4] Roger Bernhardt and Ann Berkhart, Real Property in a Nutshell, 4th Edition, St. Paul, Minn: West Group, 2000 (page 195).

[5] Id. at 223.

[6] Id. at 222.

[7] Id. at 226.

[8] Id.

[9] Id. at 193.

[10] Id.

Contributors:

  • Janelle Orsi, Elizabeth Spellman, Karen Stambaugh
  1.  I drafted this sample using the example of multiple indemnity agreements available on the internet.
  2.  “Recreational Use Statutes,” University of Texas at Austin, http://tarlton.law.utexas.edu/dawson/recreate/recreate.htm.
  3. Cal. Civ. Code § 846.
  4.  California AB 1559, Urban Park Act of 2006, modifying §5642 of the Public Resources Code.
  5.  Cal. Gov. Code §66477.