Injuries to People & Damage to Property
Injuries to people and damage to property might be the two greatest risks any farmers market faces. These risks are likely to materialize at some point, and when they do, they are likely to be expensive. Fortunately, many farmers markets are well aware of these risks and their options to manage them. Farmers markets have many options to reduce the likelihood that a personal injury or property damage claim will have a significant negative impact on the farmers market.How to Manage This Risk
Injuries to People Can Happen in a Variety of Ways
Here are a few of the most common avenues for injury and property damage at a farmers market:
Slip and fall
One of a farmers market’s most likely risks is a slip-and-fall incident where a customer or vendor trips over an obstruction, falls, and is injured. Potential sources for slip-and-fall incidents include:
- wet grass;
- ice and/or snow;
- spilled liquids;
- electrical cords;
- tent stakes, lines, or weights; and
- potholes or cracks in concrete.
For an explanation of how one market's risk management strategy helped shield against a slip and fall lawsuit, read the Capital City case study.
Tents, canopies, and umbrellas
Canopies, tents, and umbrellas (“tents”) serve multiple purposes at farmers markets. They shield products from the sun and rain. They provide vendors and customers with shade and shelter. Despite their many uses, tents can also be hazardous. For example:
- A tent can become dislodged by wind and damage others’ property, products, and/or injure people.
- A customer may trip over, or otherwise harm themselves on, stakes, lines, and/or weights used to secure a tent.
- An umbrella can jut out into the market walkway and injure a passerby.
With many people and vehicles often in close proximity, it’s easy to see how accidents occur. Vendors and customers may cause accidents that hurt someone, damage customers’ cars, or damage vendors’ vehicles and vending materials.
A vendor injures a customer:
Here is a real-life lawsuit involving vehicle traffic. These examples are useful for illustrating how accidents might occur. At the same time, they are a great opportunity to understand how liability is assigned in a typical personal injury or property damage case.
After a market closed for the day, a vendor drove into the market to take down his booth. In the process, the vendor ran over a customer.
When something like this traffic collision occurs, generally all potentially responsible persons or entities will be sued. In an incident where a vendor hits a customer, we can expect that the vendor, the farmers market, and potentially the landowner will be sued. In the ideal case, each of these entities would report the incident to their insurer, and the insurer would appoint an attorney to manage the case.
Generally speaking, the injured party will claim that negligence occurred. Negligence, legally, is the failure to do what a reasonable person/entity would have done under similar circumstances. Using the case of the vendor who struck a customer, the injured customer would claim that the vendor was negligent because he didn’t see the customer, that the market was negligent for setting up a situation where this could happen, and the property owner was negligent (perhaps) for allowing the market to operate without proper safety precautions. During the lawsuit process, all sides will argue their points as to why the various parties were or were not negligent, and thus are or are not legally responsible. In the ideal scenario, the persons found to be negligent will have an insurance policy limit that is high enough to cover the award to the injured person.
Here’s what actually happened. The injured person claimed that the farmers market was negligent because its rules were insufficient. Although the market rules said that vendors couldn't bring a vehicle inside the market until 15 minutes after the market closed, the injured party argued that they also should have specified in the rule that no vehicles could enter the premises until all shoppers had exited it. The court agreed, and the market was liable, in part, on those grounds. (Of course, the vendor was also responsible in part.)
It can be extremely challenging for any individual farmers market to determine what might and might not be found negligent in court! A farmers market can’t be expected to predict that the rules have to also include the exiting of customers. This is why insurance is so vital. A market can’t predict the outcome of the huge variety of injury cases that could occur, and thus can’t construct rules and procedures that would cover every scenario. Insurance exists to address these unknown contingencies. Insurance companies are experts in assessing the likelihood of negligence overall, they provide an attorney for a defense, and they pay on successful claims up to the limits of the policy. When insurance agents inspect farmers market sites, they are looking for things that may cause liability, based on their extensive involvement in litigation around such cases.
Risk Management Tools
Market rules and procedures
Markets can reduce the likelihood of personal injury and property damage incidents by establishing market rules and policies regarding vendors’ responsibilities for their spaces.
Specific to slip-and-fall injuries, markets can require vendors to:
- reduce or manage ground obstructions, like equipment, produce, electric cords, and tent weights, stakes, and lines;
- maintain clear walkways around booth/stalls;
- require booth/stall alignment and cleanliness; and
- require reporting of observed hazards.
Specific to tent-related injuries and damage, markets can require vendors to:
- use specific types, weights, and placements of tent stabilizers;
- position tent stakes/lines in certain ways; and
- assess penalties for non-compliance with tent and canopy violations, as these are such common areas of risk.
Specific to traffic risks, markets can require vendors to:
- be completely set up and have vehicles in permanent, pre-established locations by a specific time;
- begin breakdown and vehicle transportation only after a specified closing time; and
- prohibit vendors from moving vehicles when customers are present, regardless of whether the market is open or closed.
Markets can also reduce the risk of traffic incidents caused by customers and other motorists by:
- clearly delineating parking areas and using obstructions to prevent entry into non-vehicular areas; and
- using signage or mirrors to guide customers and motorists around areas with foot traffic or limited visibility.
Before the market opens for the day, market personnel can conduct a walk-through of the market space to identify and remedy obstructions that might cause personal injury or property damage. A market-day safety checklist can prompt and guide this walk-through. These procedures reinforce that rules are being followed and safety is being proactively monitored.
If the market operates on land it does not own, market owners should walk the boundaries of the site with the landowner prior to the first market day to confirm the area that they are responsible for keeping safe. Likewise, if the market has a written lease, it should clarify who—the landlord or the tenant—is responsible for maintaining and repairing which areas of the land. If the market does not have a written lease, these responsibilities should be documented in another manner, such as by sending an email to the landowner outlining the understanding of mutual responsibilities.
That being said, farmers markets can still be held legally responsible for injuries that occur on property they don’t own. In a legal sense, the farmers market is taking on a responsibility by setting up the market and attracting customers. If the farmers market creates a situation that draws people into or across hazardous situations, that can create liability for the market. These can be complicated situations to resolve, but farmers markets have options. Certainly, a farmers market can put up signs and hazard cones around issues that can’t be or haven’t been fixed. A market can appoint a volunteer to let folks know about a hazard issue. Farmers markets should work closely with their insurer to identify means of reducing risk. Ultimately, farmers markets should focus on making sure they have adequate insurance for injury risks, as it’s not possible to control all sources of potential liability.
For more information on the complexities of a market’s relationship to property owners, click here.
The following links contain market-day safety checklist examples:
- FreshConnect Farmers Market (New York) Safety Checklist
- California Certified Farmers Market Guidelines (developed by UC Davis) Safety Checklist
- Model Safety Checklist developed by Stanford Law Professor Jay Mitchell (this document originally appeared at https://nonprofitdocuments.law.stanford.edu/. It appears here with permission of Stanford Law School.)
The following market rules are included here as examples of ways different markets have addressed rules and procedures.
- Visalia Farmers Market (Visalia, California)
- Portland Farmers Market 2016 Vendor Handbook
- Kittitas County Farmers Market 2016 Rules and Guidelines
To learn more about Market Rules and Procedures as a risk management tool, click here.
First, insure the market. Commercial general liability (CGL) insurance can protect a market from costs arising from the majority of potential personal injury and property damage claims (see the Capitol City Farmers Market Case Study). To learn more about what CGL policies typically cover, click here.
Second, encourage or require your vendors to have CGL insurance. Farmers markets may also encourage or require vendors to carry CGL insurance. In providing this encouragement or setting this requirement, the market’s hope is that if a vendor is at fault for a personal injury or property damage claim and carries their own insurance, the vendor’s insurance will pay on any claims/judgements/etc., reducing the market’s involvement overall.
To learn more about Insurance as a risk management tool, click here.
Recordkeeping is essential to reinforce each of the legal risk management steps a farmers market takes.
Regarding insurance in particular, many policies will have specific records they require or prefer to be kept if injury or property damage occurs. Farmers markets should be sure they understand any mandatory recordkeeping, as failure to comply could affect coverage. These records are often called “incident reports.” Even if a market’s insurance company does not require an incident report, it’s a best practice to fill one out. Incident reports can help farmers markets identify where accidents are occurring so rules or procedures can be revised accordingly. They will also help the farmers market in case a claim is not covered by the insurance company and the farmers market must defend itself on its own. Incident reports typically include:
- descriptions, drawings, or photos of how the incident occurred and all the parties involved in the event and response;
- descriptions, drawings, or photos of the injuries or damages suffered, and any response provided such as first aid administered; and
- identification of any witnesses.
Take a look at these sample incident reports:
To learn more about Recordkeeping as a risk management tool, click here.
A business structure is one of the most basic tools to limit liability. An LLC, corporation, nonprofit, or cooperative can insulate market owners’ personal assets from business liabilities. Of course, business assets are always available to satisfy business liabilities, and injury and property damage are generally business liabilities. Because only insurance protects business assets from business liabilities, insurance is just as important for the welfare of the farmers market.
In terms of internal governance, many bylaws or operating agreements require that the nonprofit or business provide the owners and directors with “directors and officers insurance.” These policies protect owners and directors in the unlikely event they are sued as personally responsible for injury or damage (rather than responsible in their capacity as an owner, volunteer, or agent of the farmers market). Bylaws and operating agreements often also require that the business carry commercial liability insurance at all times.
To learn more about Governance as a risk management tool, click here.