Ohio Laws Affecting Small

1
Ohio Laws Affecting Small New Farms

• Peggy Kirk Hall
• OSU Agricultural Resource Law Program

2
Laws Pertinent to New Small Farms

• For our discussion
• Premises liability law
• Nuisance law
• Animal laws
• Roadway laws
• Line fence law
• Environmental laws
• but note that this is not a complete listing

3
Premises Liability Law

• See OSU Extension Fact Sheet, Liability for
  Visitors to Farm Property

4
Premises Liability

• Liability of the possessor of property for
  injuries to property visitors.
• Possessor includes landowner, tenant or party
  in control of the property.
• A negligence cause of action
• Possessor was negligent by breaching his/her duty
  of care to the property visitor, which caused
  harm to the visitor.

5
Premises Liability

• Ohio law creates different duties of care based
  upon the type of visitor.
• Ohio law classifies types of visitors as
• Invitee highest legal duty
• Licensee
• Child trespasser
• Trespasser lowest legal duty

6
Liability for Invitees

• Invitee An invited visitor providing financial
  or business gain for the landowner or possessor.
• Customers, sales, repair, and delivery people.
• Duty of care
• To discover and eliminate all known and unknown
  dangerous conditions,
• Or to warn the invitee of the dangerous
  conditions.

7
Child Trespassers

• Ohio now recognizes a duty to protect child
  trespassers on the property.
• Duty is
• To protect foreseeable child trespassers
• From harm caused by dangerous artificial
  conditions on the property
• See OSU Fact Sheet Ohios Attractive Nuisance
  Doctrine.

8
What is a Dangerous Condition?

• A condition that
• Creates an unreasonable and unnecessary risk of
  harm
• And is not readily apparent
• For child trespassers, it must be an artificial
  dangerous condition.
• What is not a dangerous condition?
• Minimal or trivial defects
• Situations ordinarily encountered
• Open and obvious conditions

9
Meeting the Duty of Care

• Where a dangerous condition exists, the possessor
  must
• Take steps to eliminate the condition
• Or, provide a warning about the condition
• Such as verbal or written instructions, signs,
  blockades, fences, etc.
• Not meeting the duty of care liability for
  injury or harm.

10
Special Immunity Laws

• Recreational Users
• U-Pick Customers

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Ohio Recreational Users Statute

• Landowner of non-residential property has no
  liability to a recreational user if
• The recreational user has permission to use the
  property
• For recreational activities such as hiking,
  fishing, boating, etc.
• And the landowner does not receive a benefit or
  fee from the recreational user
• Except for lease fees
• ORC 1533.18 181.

12
U-Pick Immunity

• Provides immunity for an owner, renter or
  operator of premises open for direct access to
  growing agricultural produce.
• If the harm results from
• The natural condition of the terrain.
• Conditions resulting from cultivation of the
  soil.
• ORC 901.52.

13
Nuisance Law

14
Ohio Nuisance Law

• Common law nuisance
• A common law nuisance is an unreasonable
  interference with anothers use and enjoyment of
  property.
• A person can be liable for any damages resulting
  from creating a nuisance, or can be forced to
  stop doing the nuisance activity.

15
Ohio Nuisance Law

• Statutory nuisances Ohio Revised Code 3767.13
• (A)  No person shall erect, continue, use, or
  maintain a building, structure, or place for the
  exercise of a trade, employment, or business, or
  for the keeping or feeding of an animal which, by
  occasioning noxious exhalations or noisome or
  offensive smells, becomes injurious to the
  health, comfort, or property of individuals or of
  the public.  (B)  No person shall cause or allow
  offal, filth, or noisome substances to be
  collected or remain in any place to the damage or
  prejudice of others or of the public.  (C)  No
  person shall unlawfully obstruct or impede the
  passage of a navigable river, harbor, or
  collection of water, or corrupt or render
  unwholesome or impure, a watercourse, stream, or
  water, or unlawfully divert such watercourse from
  its natural course or state to the injury or
  prejudice of others. 

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Ohio Nuisance Law

• But the law provides an exemption for agriculture
  in 3767.13 (D)
• (1) persons who are engaged in agriculture-related
  activities,
• (2) and who are conducting those activities
  outside a municipal corporation, in accordance
  with generally accepted agricultural practices,
• (3) and in such a manner so as not to have a
  substantial, adverse effect on the public health,
  safety, or welfare.

17
Ohio Nuisance Law

• Exemption, cont.
• are exempt from divisions (A) and (B) of this
  section, from any similar ordinances,
  resolutions, rules, or other enactments of a
  state agency or political subdivision, and from
  any ordinances, resolutions, rules, or other
  enactments of a state agency or political
  subdivision that prohibit excessive noise. 

18
Ohio Nuisance Law

• Ag activities as nuisances?
• Complaints about agriculture odors, dust,
  pests, noise.
• Livestock are often the basis of nuisance claim.
• But other agricultural activities have been
  alleged as nuisances
• Spraying, agri-tainment, bird guns, trucks.

19
Minimizing Nuisance Liability

• Meet the statutory nuisance exemption in
  3767.13(D).
• Be a good neighbor.
• Comply with permits, regulations, rules.
• Use Best Management Practices, generally accepted
  agricultural practices.
• Enroll in the Ohio Agricultural District Program.

20
Ohio Agricultural District Program

• Also known as the Right to Farm law.
• Provides a defense to a nuisance claim if
  operator meets all requirements.
• Operator must raise the defense (if sued) and
  prove all requirements.

21
Requirements for Nuisance Defense

• (A) The agricultural activities were conducted
  within an agricultural district
• (B) And were established within the agricultural
  district prior to the plaintiff's activities or
  interest
• (C) The plaintiff was not involved in
  agricultural production and
• (D) The agricultural activities were not in
  conflict with federal, state, and local laws and
  rules or were conducted in accordance with
  generally accepted agriculture practices.

22
Animal Laws

23
Animals Running at Large

• Male breeding animals
• No person, who is the owner or keeper of a
  stallion, jackass, bull, boar, ram, or buck,
  shall permit it to go or be at large out of its
  own enclosure. ORC 951.01 

24
Animals Running at Large

• Other livestock
• No person, who is the owner or keeper of horses,
  mules, cattle, sheep, goats, swine, or geese,
  shall
• permit them to run at large in the public road,
  highway, street, lane, or alley,
• or upon unenclosed land,
• or cause such animals to be herded, kept, or
  detained for the purpose of grazing on premises
  other than those owned or lawfully occupied by
  the owner or keeper of such animals. ORC
  951.02 

25
Confinement of Strays

• Animals found running at large may be confined by
  the finder or law enforcement.
• Notice must be given to animal owner or published
  in newspaper.
• If owner doesnt claim the animal in ten days and
  pay compensation, keeper has a lien on the animal
  and may sell it at public auction.
• Compensation 5 reasonable expenses.
• Residue from sale goes to county fund.

26
Animals Running at Large

• Liability for animals found running at large
• Statute Liable for all damages caused by the
  animal on the premises of another.
• Also negligence exposure duty to keep animals
  from running at large.
• Criminal liability fourth degree misdemeanor.

27
Dogs

• A dog may be killed at the time if
• chasing or approaching in a menacing fashion or
  apparent attitude of attack
• attempting to bite or otherwise endanger
• killing or injuring a person
• chasing, injuring, or killing livestock, poultry,
  another animal that is the property of another
  person, except a cat or another dog.
• ORC 955.28.

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Dogs

• Owner or keeper of dog is liable
• For injury, death or loss
• To people or property
• Unless person was committing a trespass or other
  criminal offense
• Or unless the person was teasing, tormenting or
  abusing the dog on the dog keepers property.

29
Dog and Kennel Fund Claims

• Owner may claim compensation from the county fund
  for
• Injury or death of horses, sheep, cattle, swine,
  mules, goats, domestic rabbits, or domestic fowl
  or poultry
• With an aggregate fair market value of 10
• Caused by anothers dog
• Must notify county commissioners or dog warden
  within three days of loss
• Dog warden will investigate, determine cause and
  value
• County commissioners award value, not to exceed
  500 per animal
• But no award will be given to livestock owner who
  has unregistered dogs. ORC 955.29.

30
Predator Claims

• An owner may claim compensation for
• Injury or loss of horse, mule, sheep, head of
  cattle, swine, goat, domestic rabbit, or domestic
  fowl or poultry
• Caused by a predator, defined as a coyote or
  black vulture
• After reporting to the county dog warden
• With investigation and proper filing of claim
• Claim goes to ODA. ORC 955.51.

31
Equine Liability

• Sponsors of equine activities are not liable for
  harm that
• An equine activity participant allegedly sustains
• During an equine activity
• Resulting from an inherent risk of an equine
  activity.
• Exceptions
• Mismatched horse and rider
• Faulty equipment or tack
• Latent (unseen) conditions on the premises
• ORC 2305.231

32
Roadway Laws

33
Left of Center Violations

• A vehicle shall be driven on the right half of
  the roadway. ORC 4511.25.
• Exceptions passing, obstruction on road, center
  lane turn, one way street, directed by police.

34
Left of Center Violations

• Height, width and length maximums for motor
  vehicles on the road. ORC 5577.05.
• Farm machinery and equipment is exempt from these
  maximums.
• Court of appeals
• Farm machinery should then also be exempt from
  left of center law.

35
Left of Center Violations

• Farm vehicles of oversize width that are lawfully
  on the highway are exempt from left of center if
  they are to the right as far as possible.
• Ohio Supreme Court Ohio v. Leichty.
• But many police do not know of this exception
  must be raised in defense.

36
Manure/Mud on Road

• No person shall place or knowingly drop any
  article which may damage or injure a person or
  vehicle on the roadway. ORC 4511.74.
• Shall immediately remove.
• Violation first degree misdemeanor.

37
Manure/Mud on Road

• No personal shall place any earth or mud on a
  public highway without authority to do so. ORC
  5589.10.
• Violation Fourth degree misdemeanor.

38
Obstruction of Roadway

• County and township has duty to keep the right of
  way clear. ORC 5579.04.
• Fences, signs, mailboxes, etc. are placed at the
  pleasure of the county or township.
• But, landowner can be liable if obstructed right
  of way causes an accident.
• Court cases have allocated liability to
  landowner, especially where warned by
  county/township.

39
Ohio Line Fence Law

• See OSU Fact Sheet, Ohio Line Fence Law

40
Ohios Line Fence Law

• The owners of adjoining lands in unincorporated
  areas shall
• Build and maintain in good repair
• All partition fences between them
• In equal shares.
• ORC 971.02.

41
Exceptions to the Law

• The law does not apply
• To land laid out in lots-- platted and approved
  in accordance with Ohio subdivision laws.
• To railroad lands.
• Where landowners agree otherwise.
• And record an executed agreement.
• Where a landowner proves that the cost of the
  fence outweighs the benefits to the property.

42
Constructing Line Fences

• Certain types of fences may not be constructed as
  line fences
• Living fences, except osage and blackthorn.
• Electric fences, unless have written permission
  of adjoining landowner.
• All barbed wire fences, but barbed wire at the
  top of another fence is permitted if at least 48
  from ground.

43
Maintaining Fence Rows

• When requested by an adjoining landowner, a
  landowner must clear
• Brush, briars, thistle and noxious weeds within 4
  feet of a line fence .
• But not trees and vines.
• If landowner doesnt comply, trustees may decide
  to clear the row and assess costs against
  landowners tax record.

44
Administration of the Law

• Township trustees have original authority over
  line fence issues.
• A landowner may request trustees to conduct a
  fence viewing and make a fence assignment.
• Assignment may be appealed to county court of
  common pleas.

45
Selected Environmental Laws

46
Ohio Agricultural Pollution Abatement Law

• A farm operator must
• Voluntarily comply with local SWCD
  recommendations,
• Or comply with orders of the Chief of SWCD
• To abate agricultural pollution.
• Agricultural pollution is
• The failure to use management or conservation
  practices to abate degradation of the waters of
  the state by animal waste.

47
Ohio Agricultural Pollution Abatement Law

• Potential consequences of violation
• Criminal misdemeanor charges.
• Repair or restoration orders.
• Reimbursement of governments costs to
  investigate, mitigate, minimize, remove or abate.
• Ohio Division of Soil Water administers this
  law.

48
Ohio Water Pollution Law

• No person shall place sewage or waste in a
  location that causes pollution of any waters of
  the state.
• Manure and storm water from an animal feeding
  facility fall under this law until ODA receives
  approval for its NPDES program, then will be
  exempt.
• Land application of animal waste is exempt.

49
Ohio Water Pollution Law

• Liability for violating the law
• Civil fines or imprisonment.
• Any necessary, reasonable, additional or
  extraordinary costs in investigating, mitigating,
  minimizing, removing or abating a spill, release,
  discharge or contamination.
• OEPA administers this law.

50
Ohio Stream Litter Act

• No person shall place or dispose of any
  waste in any ditch, stream, river, lake, pond or
  other watercourse or upon the bank thereof.
• Liability for violating the law
• Criminal fines and/or imprisonment Misdemeanor.
• ODNR administers the law.

51
Ohio Wildlife Laws

• Two laws administered by ODNR
• 1) No person shall take or kill any wild
  animals contrary to any rule of the Division of
  Wildlife.
• 2) No person shall cause or allow an
  unauthorized spill, release or discharge of
  material into or on any ground or surface water
  or into the air that results in the death of a
  wild animal.

52
Ohio Wildlife Laws

• Liability for violating the laws
• Criminal fines and/or imprisonment.
• Misdemeanor charges
• Payment of minimum value of animal.
• Costs incurred in the investigation of the death
  of animals, if convicted or pleads guilty.

53
Minimizing Environmental Liability

• Obtain approved management plans (required in
  some programs).
• Manure management plan, nutrient management plan,
  compost management plan, etc.
• Use Best Management Practices, etc.
• Keep waste from water/riparian areas.
• Obtain insurance?

54

• Peggy Kirk Hall
• OSU Agricultural Resource Law Program
• http//www.aede.osu.edu/programs/aglaw
• aglaw_at_osu.edu