Imagine a warm summer day at market, with fresh produce glistening in the sun and happy milling crowds. Who could possibly take the fun out of such a picture? Why, a person would need a lawyer to do that.

As a lawyer myself, I can assure you that a beautiful day at market does carry some risks. In this article, I will examine liability exposure for market growers who sell their own produce at farmers’ markets.

Imagine a three-legged stool where each leg of the stool is a source of risk for the grower. The first leg represents injuries caused to people, the second represents injury to the property of others and the third represents risk involved in failure to follow governmental regulations. Each leg could be a source of risk and loss to the grower. However, each leg does not carry the same potential for loss.

Food poisoning presents, by far, the largest, most serious and most potentially damaging source of liability for the grower-marketer. For example, everyone knows that E. coli outbreaks can be devastating events because of the potential frequency and severity of the claims resulting from such outbreaks.

Clearly, avoiding the risk through proper handling of food stands out as the best strategy for dealing with this risk. If there were never an injury, then there would never be a claim against the grower. But even if a customer does get sick from a grower’s produce, a lawsuit against the grower is far from automatic. The injured person will have to be able to remember what they ate and from whom they purchased it. Then, the injured party will need to bring an action against the grower which requires hiring a lawyer or doing it themselves. After the action is filed in court the grower or his or her attorneys will probably file a motion for summary judgment. The motion for summary judgment tests the sufficiency of the injured person’s (plaintiff’s) case, and the judge must find the case has a sufficient legal basis for it to survive. Then the action would have to be tried, and survive trial on the merits, and finally, the injured party has to get an award for damages, or judgment.

Many people who would become ill would have medical insurance. In that case, the sick person will go to get medical treatment, and then file a claim with their medical insurance company. Then, the insurance company might investigate the claim, and find out the person got food poisoning from the grower. If that happened, then the insurance company can assert its rights under the legal theory of subrogation. Under the legal doctrine of subrogation, the insurance company may stand in the shoes of the injured party. This allows the insurance company to bring a claim in the name of the injured person in order to recover money the insurance company spent on the medical claims. This doctrine is a bad thing for the grower because while the parties might be able to work things out amongst themselves, the insurance companies are really only interested in getting their money.

Some farmers’ markets may require a grower to carry product liability insurance in order to sell at the market. Product liability insurance protects the policy’s named insured from the loss if there is a claim. If an event occurs which triggers coverage under the terms and conditions of the policy, the company also has a duty to provide legal representation to defend its named insured under the policy. Often, the insurance company will try to limit the claim amount by negotiating a settlement before the incident ever reaches a trial in court. The insurance company has a duty to defend its insured party, and, thus, the insurance company will probably be providing the lawyer. The insured party has a duty to cooperate with the insurance company and its attorneys in defending the claim.
Other markets may require the grower to sign a “hold harmless” agreement, or indemnity agreement. This agreement means that the organizer will be held harmless from claims that may arise because the grower has assumed the organizer’s liability.

Opening a booth to the public means opening up exposure to liability for injuries to patrons who visit it. Growers have a duty to maintain a safe booth. If a patron slips and falls on a piece of produce, they can try to sue the grower and the organizer. The organizer will probably have purchased a Special Events policy to cover the farmers’ market. Growers should be aware that the Special Events policy covers the organizer not the grower. So it would be wise for the grower to have his or her own insurance and not to try to rely on any insurance that the organizer of the market might take out.

Visitors to the booth might also be injured if a stiff wind caused the structure to collapse. If that happened, the grower might well expect to be held liable for their injuries.

The second leg of the stool represents injuries to property. In addition to the grower’s duty to conduct his or her affairs so as not to cause harm to other people, the grower also has a duty not to injure the property of others. For example, if the grower’s tent blows over and damages another grower’s property, the grower whose tent caused the damage must expect to have to pay for the damage. Likewise, if the visitors parked their cars near the tent and the grower’s tent blew over and damages their cars, then the car owners will probably sue as well.

If the grower caused a fire, which spread to the tents of other growers, then the results and analysis would be similar. If the grower used fire in his or her area and it spread to another tent, the grower would be liable to any people injured in the fire or to anyone whose property was damaged by the fire.

Employee-employer relationships also expose the grower to liability. If a grower employs people – even the neighbor’s kid just hired for the summer, the grower now has an employee with all of the liabilities that employees bring. The grower as employer is liable for the injuries his or her employee inflicts under the legal doctrine of respondeat superior. Respondeat superior literally means let the master answer for his servant. If the employee injures someone or something during the course of his or her employment, the employer can be forced to pay damages to the injured party. Employees can damage the property, person or reputation of fellow growers or customers in a multitude of ways.

The last leg in the stool represents any liability imposed by state local or federal regulations. For example, the grower might face criminal and or civil liability for failing to meet state requirements governing accurate weights and measures. The government also regulates how the employer must behave toward his or her employees. The employer must expect to have to answer for injuries to the employee during the course of his or her employment. Many states require employers to carry workers compensation insurance to compensate injured employees.

Any business has risks. Growers should balance the three legs of the stool carefully to make sure they are all on firm ground so as to avoid an unpleasant upset.

Copryright@2002 by Rich Schell. All rights reserved, This article does not constitute legal advice; nor does it form an attorney-client relationship.

Rich Schell is a lawyer in Des Plaines Illinois. He grew up in a farm family and has a special interest in organic farming. Visit his firm’s website at http://firms.findlaw.com/usalawyer. He can be reached at 847-635-0551 and schellville@excite.com.