Agricultural Law in the Spotlight: Federal Court Rules against Application of Pennsylvania Equine Activity Immunity Act

Written by M. Sean High—Staff Attorney

On September 26, 2016, the United States District Court, M.D. Pennsylvania denied a motion for summary judgement seeking dismissal of an injury claim involving a Pennsylvania equine facility.  (Melendez v. Happy Trails and Riding Center, Inc., 2016 WL 5402745).  The claim alleged that the plaintiff, Wilberto Melendez, suffered an injury at Happy Trails and Riding Center due to defective equipment supplied by the equine facility.  The motion, filed by the defendant owner of the equine facility, sought dismissal of the case due to immunity protection resulting from: (1) a signed waiver and (2) the Pennsylvania Equine Activity Immunity Act (EAIA).

Background

On May 31, 2014, Melendez visited defendant’s equine facility for the purpose of engaging in horseback riding.  Prior to taking part in any equine activity, Melendez signed an agreement assuming the risk of all activities relating to horseback riding.  Additionally, signs were prominently posted at defendant’s facility stating: “You assume the risk of equine activities pursuant to Pennsylvania Law.”

While at the defendant's equine facility, Melendez engaged in horseback riding with a horse and saddle supplied by the defendant.  During this time, a stirrup on the saddle Melendez was using broke and Melendez fell to the ground.  According to Melendez, the fall resulted in his suffering fractured ribs and pneumothorax.  Subsequently, Melendez brought suit alleging that the defendant had negligently furnished defective equipment which directly resulted in his injury.

In response, the equine facility owner sought to dispose of the claim, through summary judgement, on two separate grounds.  First, the defendant argued that the waiver Melendez signed covered broken equipment and provided immunity under the facts presented.  Second, the defendant claimed that as a qualifying equine facility, it was entitled to liability protection under EAIA.

Ruling

Regarding the signed waiver, the court agreed that the document contained language protecting the defendant from negligence.  Melendez, however, contended that the defendant’s conduct “amount[ed] to recklessness and exculpatory agreements cannot immunize reckless conduct.”

The court agreed that the waiver only provided immunity for negligence and not for recklessness.  The court stated that the defendant’s “bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to the material fact.” As a result, the court ruled that the signed waiver did not provide “a sufficient basis for summary judgement.”   

Next, the court addressed the application of EAIA. 

Under EAIA, a qualifying equine facility that demonstrates proper signage, and that a plaintiff knowingly assumed the risk of the equine activities, is granted immunity from liability. (4 P.S. §§ 601-606).  Melendez acknowledged that signage at defendant’s equine facility was proper.  Nevertheless, Melendez argued that EAIA did not apply because he was not aware that the stirrup could possibly be defective, and thus could not have knowingly assumed the risk. 

The court agreed, maintaining that under EAIA a "Defendant must show that [a] Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge." The court stated that this was not “a case where the risk is so obvious that the knowledge could be inferred.” The court ruled that because the defendant did not show that Melendez decided to use the equipment with knowledge that the stirrup could possibly fail, the defendant was not entitled to EAIA protection.

Conclusion

The court’s ruling raises the issue of how Pennsylvania equine facilities are to establish the assumption of risk for possible equipment failure under EAIA.  Significantly, because the decision was issued by a federal court, Pennsylvania courts are not bound by the holding.  Nevertheless, equine facility owners should be aware that Pennsylvania courts may find the decision persuasive and choose to rule in similar fashion.  

Agricultural Law Weekly Review—November 22, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Zoning: Court Says Horse Farm Excluded from Land Development Requirement

On November 21, 2016, the Commonwealth Court of Pennsylvania filed an unreported opinion ruling that  a proposed Upper Saucon Township (Lehigh County, Pennsylvania) equine operation qualifies as a farm under the Township’s ordinances and is therefore exempt from submitting a land development plan (Ebert v. Upper Saucon Township, 2016 WL 6833081).  According to the court, under the Township’s Subdivision and Land Development Ordinance (SALDO) farms are excluded from the requirement of submitting a land development plan.  Additionally, both SALDO and the Township’s Zoning Ordinance contain language defining a farm to include the raising of livestock and that “[a] ‘farm’ shall be understood to include a dwelling unit as well as all structures necessary for the housing of animals, storage of feed and equipment, and other operations customarily incidental to farm use.” The Township argued that because the proposed equine operation only consisted of a barn, six permanent horse run-ins, and access roads, but did not include a dwelling, a land development plan must be submitted in order to obtain a zoning permit for the proposed barn construction.  The court disagreed and held that “[r]ead as a whole, it is clear the intent of the definition was to ensure that a property was not excluded from the definition of a farm merely because it contained a dwelling unit.”

Realty Transfer Tax: Governor Signs Law Exempting Preserved Farms

On November 21, 2016, Pennsylvania Governor Tom Wolf signed into law legislation clarifying recent changes made to the Tax Reform Code regarding the taxation of Agricultural Conservation Easements (Act 175).  According to the House Co-Sponsorship Memoranda, previously, “the Department of Revenue [had] taken the position that agricultural conservation easements were not subject to the Realty Transfer Tax [RTT] since they were not “true easements.” Nevertheless, in 2014 a Tax Appeal decision found that a conservation easement was subject to RTT and “cast doubt on whether other agricultural conservation easements would also be subject to the RTT.” To provide clarity, “the tax code portion of this year’s budget added language to specifically exempt agricultural conservation easements from the RTT…[but] the new language did not include a retroactive effective date.” Under Act 175, the RTT exemption for agricultural conservation easements applies retroactively to January 1, 2013.

Dairy: PA Milk Marketing Board Reschedules Meeting

On November 19, 2016, the Pennsylvania Milk Marketing Board published notice in the Pennsylvania Bulletin that the December 7, 2016, meeting of the Milk Marketing Board has been rescheduled for December 8, 2016, at 12 p.m. in Room 202, Agriculture Building, Harrisburg, PA 17110 (46 Pa.B. 7422). 

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Agricultural Law Weekly Review—November 3, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Food Law: PA Supreme Court Decides Not to Use Power to Hear Phila. Soft Drink Tax Challenge

On November 2, 2016, the Pennsylvania Supreme Court denied a motion requesting an exercise of King’s Bench Powers to hear a challenge to Philadelphia City’s recently passed tax on sweetened beverages (Williams, et al., Pets. v. City of Phila., et al. - No. 148 EM 2016).  Scheduled to go into effect on January 1, 2017, the tax is being contested by beverage retailers and distributors on grounds that it unlawfully generates revenue for Philadelphia at the expense the state.   Because the court chose not to take-up the case under its plenary jurisdiction, the case continues in the Philadelphia Court of Common Pleas.

Food Safety: FDA Issues FSMA Draft Guidance Document for Describing a Hazard

On October 28, 2016, the United States Food & Drug Administration (FDA) issued a document entitled:  Draft Guidance for Industry: Describing a Hazard That Needs Control in Documents Accompanying the Food, as Required by Four Rules Implementing FSMA. According to FDA, “[t]his guidance is intended for any entity that is subject to certain provisions (in part 117, part 507, the produce safety regulation, or the FSVP regulation) that require a disclosure statement, in documents accompanying food, that certain hazards have not been controlled by that entity.”  FDA stated that the document contains non-binding recommendations and is being distributed for comment purposes only.

Food Safety: FDA Issues FSMA Guidance Documents

On October 31, 2016, the United States Food & Drug Administration (FDA) issued a document entitled: Guidance for Industry: What You Need to Know About the FDA Regulation: Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food; Small Entity Compliance Guide.  According to FDA, “[t]his guide was developed to inform domestic and foreign food facilities about the [Preventive Controls for Human Food] regulation and how to comply with it.” Additionally, on October 31, 2016, FDA issued a document entitled: Guidance for Industry: Small Entity Compliance Guide - Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Food for Animals.  According to FDA, “[t]he intent of this guide is to inform domestic and foreign animal food facilities about the [Preventive Controls for Food for Animals] regulations and enable them to better understand the requirements of the rule.”

Equine: PA Governor Signs Law Reinstating Breeding Fund Payments

On October 28, 2016, Pennsylvania Governor Tom Wolfe signed legislation reforming the Pennsylvania Breeding Fund (HB 2303).  According to a press release issued by the Pennsylvania Department of Agriculture, the new law “fixes an unintended consequence of the equine racing industry reforms enacted in February 2016 that changed the criteria for payments under the state Breeding Fund award program…[which historically had] awarded breeders of registered Pennsylvania-bred thoroughbred horses that placed first, second or third in races at the state’s licensed racing tracks.”  The press release stated that the February 2016 reforms “inadvertently changed the eligibility criteria for those awards, removing the Pennsylvania-bred requirement and instead only required winning horses to have been sired in the state.” As a result, the “unintended change essentially rendered the program unable to be administered, thus preventing the payment of awards earned since Feb. 23, 2016.” HB 2303 restored the program’s qualifications to their original form for both the remainder of 2016 and retroactive to February 2016.

GMOs: APHIS Approves Two Biotech Potatoes

On October 28, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) announced that the agency had approved two genetically engineered J.R. Simplot Company potatoes.  Known as Ranger Russet variety (X17) and Atlantic variety (Y9), the two potatoes have been genetically engineered for: (1) late blight resistance; (2) low acrylamide potential; (3) reduced black spot bruising; and (4) lowered reducing sugars.  According to APHIS, the two varieties do not pose a risk to the environment and/or plant pests.

International Trade: Canada and EU Sign CETA Trade Deal   

On October 30, 2016, the European Commission (EC) announced that the European Union and Canada had signed a trade agreement, known as the Comprehensive Economic and Trade Agreement (CETA).  According to EC, CETA will eliminate 99% of tariffs and create new opportunities for EU farmers and food producers by increasing exports of “cheese, wine and spirits, fruit and vegetables, processed products and geographical indications” while at the same time fully protecting the sensitivities of the EU by requiring that Canada satisfy EU rules and regulations.

Agricultural Law Weekly Review—September 29, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Liability: Court Rules against Application of Equine Activity Immunity Act

On September 26, 2016, the United States District Court, M.D. Pennsylvania denied a motion claiming immunity protection under the Pennsylvania Equine Activity Immunity Act (EAIA) regarding an injury suffered at an equine facility due to a broken stirrup (Melendez v. Happy Trails and Riding Center, Inc., 2016 WL 5402745).  Under EAIA, to receive negligence protection, a qualifying defendant must demonstrate that their equine facility had proper signage and that the plaintiff assumed the risk of the equine activities (4 P.S. §§ 601-606).  According to the court, a “Defendant must show that [a] Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge.” The court stated that because the equine facility failed to point to anything in the record to show that the injured party knew of the risk of equipment failure “and voluntarily disregarded it, EAIA provides no relief.”

Fertilizer Sales: Court Rules New OSHA Retail Facilities Safety Standard Must Go Through Rulemaking Process

On September 23, 2016, the United States Court of Appeals, District of Columbia Circuit ruled that the Occupational Safety & Health Administration (OSHA) violated the Occupational Safety and Health Act when the agency issued a new safety standard designed to narrow the exemption for retail facilities that deal in toxic chemicals (Agricultural Retailers Association and The Fertilizer Institute v.United States Department of Labor and Occupational Safety & Health Administration, 2016 WL 5315200).  According to the court, OSHA’s action was a modification of an existing safety standard, and as such, could only be validly accomplished by complying with the notice and comment procedures required by the Administrative Procedure Act.

GMO: APHIS Determines GE Apple Unlikely Environmentally Harmful

On September 23, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) announced that regarding the deregulation of the genetically engineered apple line known as Arctic® Fuji, the agency was making available: (1) the final Determination and plant pest risk similarity assessment and (2) the Finding of No Significant Impact (FONSI).  According to APHIS, Arctic® Fuji apples, which are engineered to resist enzymatic browning, “are unlikely to pose plant pest risk and are no longer to be considered regulated articles under APHIS’ Biotechnology Regulations.” As a result, APHIS stated that a determination of nonregulated status of the apple line “will have no significant environmental impacts.”

GMO: AHIS Extends Preliminary Determination of Nonregulated Status on GE Potatoes

On September 24, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register that the agency “has reached a preliminary decision to extend [a] determination of nonregulated status of J.R. Simplot Company's (Simplot) InnateTM Potato designated as Russet Burbank event W8 (the antecedent potato event) to Simplot's Ranger Russet variety (X17) and Atlantic variety (Y9) potatoes” (81 FR 65622).  According to APHIS, “Simplot’s X17 and Y9 potatoes have been genetically engineered for late blight resistance, low acrylamide potential, lowered reducing sugars, and reduced black spot using the same genetic constructs used to transform the antecedent potato event.” The comment period on the preliminary decision closes October 24, 2016.

Labeling: FDA Announces Industry Guidance and Comment Docket Regarding Use of Term “Healthy”

On September 28, 2016, the United States Food and Drug Administration (FDA) published notice in the Federal Register “announcing the availability of a guidance document for industry entitled “Use of the Term ‘Healthy’ in the Labeling of Human Food Products: Guidance for Industry” (81 FR66527).  According to FDA, “the guidance advises manufacturers who wish to use the implied nutrient content claim ‘healthy’ to label their food products as provided by [FDA] regulations.” Relatedly, on September 28, 2016, FDA published notice in the Federal Register that the agency has established “a docket to receive information and comments on the use of the term ‘healthy’ in the labeling of human food products” (81 FR 66562).  Comments must be received by FDA on January 26, 2017. 

Equine: APHIS Announces Proposed Rule to Amend Horse Protection Regulations

On September 22, 2016, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register that the agency is extending the comment period regarding the “proposed rule to amend the horse protection regulations to provide that [APHIS] will train and license inspectors to inspect horses at horse shows, exhibitions, sales, and auctions for compliance with the Horse Protection Act” (81 FR 65307).  The revised comment period closes October 26, 2016.  Additionally, APHIS announced that the agency is “also making a clarification to the proposed regulations pertaining to specific prohibitions concerning exhibitors.”

Apples: Secretary Publishes Referendum Order on Continuation of the Pennsylvania Apple Marketing Program

On September 24, 2016, Pennsylvania Secretary of Agriculture Russell Redding published a notice in the Pennsylvania Bulletin entitled “Referendum Order on Continuation of the Pennsylvania Apple Marketing Program” (46 Pa.B. 6023).  According to the Referendum Order, “[t]he Pennsylvania Apple Marketing Program was established under the provisions of the Agricultural Commodities Marketing Act…[and] requires that the Secretary of Agriculture call a referendum of affected producers every five years to determine whether or not a majority of those voting still desire the program.” Eligible referendum voters include “[a]ll apple producers who produced, grew, or caused to be grown 500 or more apple trees for sale or marketing in the Commonwealth in calendar year 2016 and intend to produce, grow, or cause to be grown 500 or more apple trees for sale or marketing in the Commonwealth in calendar year 2017.” The referendum period runs from October 17, 2016 through October 31, 2016.

Agricultural Law Weekly Review—May 26, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Labeling: FDA Revises Nutritional Labels

On May 20, 2016, the Food and Drug Administration (FDA) issued an unpublished notice in the Federal Register regarding revisions to the regulations governing nutritional and supplemental facts labels (2016-11867).  According to the pre-publication final rule, the amendment “updates the list of nutrients that are required or permitted to be declared; provides updated Daily Reference Values and Reference Daily Intake values that are based on current dietary recommendations from consensus reports; amends requirements for foods represented or purported to be specifically for children under the age of 4 years and pregnant and lactating women and establishes nutrient reference values specifically for these population subgroups; and revises the format and appearance of the Nutrition Facts label.” The final rule is scheduled for publication on May 27, 2016, and becomes effective on July 26, 2016.

Labor: DOL Finalizes “White Collar” Overtime Regulations

On May 23, 2016, the Department of Labor (DOL) Wage and Hour Division published notice in the Federal Register of a final rule revising “regulations under the FLSA [Federal Labor Standards Act] implementing the exemption from minimum wage and overtime pay for executive, administrative, professional, outside sales, and computer employees” (81 FR 32391).  Commonly known as the “EAP” or “white collar” exemptions, DOL’s final rule increases the current annual salary threshold for the exemption from $23,660 ($455/week) to $47,476 ($913/week).  The new regulations become effective December 1, 2016.

GE Food: Canada Approves AquaAdvantage Salmon for Livestock Feed

On May 19, 2016, the Canadian Food Inspection Agency (CFIA) issued Decision Document DD2016-117 regarding the approval of the genetically engineered AquaAdvantage Salmon for use as livestock feed.  According to CIFA, the “feed ingredients derived from this animal with a novel trait does not present livestock feed safety or nutrition concerns when compared to feeds derived from salmon currently permitted to be used as livestock feed in Canada.” As a result, as of May 19, 20016, feed ingredients derived from AquaAdvantage Salmon are authorized for use in livestock feeds in Canada.

Transportation: Proposed PA Legislation Assigns Gross Weight for Milk Hauling

On May 23, 2016, Pennsylvania governor Tom Wolf was presented with legislation that would amend Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes (SB 1108).  Under the proposed legislation, vehicles “hauling milk to or from a manufacturer…may be permitted by the department and local authorities to move upon highways within their respective jurisdictions 24 hours a day, seven days a week, except during inclement weather as defined in department regulations, if the gross weight does not exceed 95,000 pounds and the weight of any nonsteering axle does not exceed 21,000 pounds.”

Equine: Clarifying Legislation Introduced for PA Breeding Fund

On May 23, 2016, Pennsylvania House Representative John A. Lawrence introduced House Bill 923 which is “legislation to clarify language in the recently passed Administrative Code regarding the eligibility of thoroughbreds receiving payments from the Pennsylvania Breeding Fund, a restricted account within the State Racing Fund that provides incentive awards for winning Pennsylvania born/bred thoroughbred race horses.” Accordingly, the proposed legislation was referred to the House Agricultural and Rural Affairs Committee.

Agricultural Law Weekly Review—April 28, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Litigation: Court Rejects Contract Grower Claims against Pilgrim’s Pride

On April 22, 2016, the United States District Court, E.D. Texas, Marshall Division granted summary judgement and dismissed claims brought by more than 200 poultry growers alleging that Pilgrim’s Pride Corporation (PPC) violated the Packers and Stockyards Act (PSA) by closing two processing facilities (Sheila Adams, et al, v. Pilgrim’s Pride Corp., 2016 WL 1615700).  The court disagreed with the poultry growers’ assertion that PPC’s facility closures had violated PSA through an attempt to increase prices by keeping as much chicken off the market as possible.

GMO Ingredients: Court Permits Chipotle Advertisement Lawsuit to Move Forward

On April 20, 2016, the United States District Court Southern District of Florida ruled that a class action lawsuit, alleging that Chipotle Mexican Grill, Inc. (Chipotle) “misrepresented to customers that its food products contain only non-GMO products,” may proceed (Reilly v. Chipotle Mexican Grill, Inc., Case No. 15-Civ-23425-COOKE-TORRES).  Specifically, the court stated that the plaintiffs are permitted to proceed with their “allegation that Chipotle’s ‘Non-GMO’ claims ‘mislead consumers into paying a premium price…for inferior products or undesirable ingredients or for products that contain ingredients that are not disclosed.”

Equine Disease: PDA Quarantines Barn after Horse Tests Positive for Equine Infections Anemia

On April 20, 2016, the Pennsylvania Department of Agriculture (PDA) issued a press release announcing the quarantine “of an equine barn in Halifax, Dauphin County, after a horse at the barn tested positive for Equine Infectious Anemia (EIA) on Monday, April 18.”  According to PDA, both the barn and the horses will be quarantined for at least 60 days.  PDA further stated that EIA poses no health threat to humans and that “[t]he quarantine can be lifted after the remaining horses are determined not to be infected.”

Contract Review: USDA to Continue Payments for Pork Trademarks

On April 20, 2016, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) announced that the agency “has completed its review of the 2006 asset purchase agreement between the National Pork Board and the National Pork Producers Council (NPPC) for the purchase of four trademarks…[which] include the word ‘pork’ in distinctive lettering set against a pork loin silhouette and ‘The Other White Meat’ in various forms.”  According to USDA, “[a]s a result [of the review], AMS is approving continuing annual payments of $3 million under the terms of the agreement.”

Department Structure: PDA Announces Reorganization

On April 23, 2016, the Pennsylvania Department of Agriculture (PDA) published notice in the Pennsylvania Bulletin that “[t]he Executive Board approved a reorganization of the Department of Agriculture effective April 4, 2016” (46 Pa.B. 20165).  Of note, “at the request of the Joint Committee on Documents under 1 Pa. Code § 3.1(a)(9) (relating to contents of Code)” PDA’s reorganization is published through the use of an organizational chart.   

Regulation: USDA Proposes Amendment to Voluntary Grading of Shell Eggs

On April 20, 2016, the United States Department of Agriculture Agricultural Marketing Service published notice in the Federal Register that the agency was “propos[ing] to amend the Regulations Governing the Voluntary Grading of Shell Eggs to clarify the definition of ‘condition’ and revise the prerequisite requirement for shell eggs eligible for voluntary USDA grading and certification” (81 FR 23188).  The comment period for the proposed rule closes June 20, 2016.

Pennsylvania Livery Providers Lien Bill Passes Senate, Referred to House Agriculture and Rural Affairs Committee

On November 19, the Pennsylvania Senate approved SB 995 in an unanimous vote of 49-0.  The bill was then moved on to the House Agriculture and Rural Affairs Committee.

SB 995, the “Pennsylvania Livery Providers Fair Lien Act” establishes the requirements for livery provider liens which allows for an owner of a boarding stable to attach a lien to a horse which is left for the stable owner to perform labor upon, board, furnish services, supplies or provide materials for, at the request or consent of the owner of the horse.  The lien gives the stable owner the right to detain the horse to secure payment.  The lien attaches to a horse the day it is placed in the stable owner’s care for boarding or other labor in a statement of the amount due to the stable owner for the care of the horse and a description of the horse to which the lien is attached.  Liens arising under the Pennsylvania Livery Providers Fair Lien Act would be deemed an agricultural lien subject to 13 P.A.C.S. Div. 9.

The text of the bill, accompanying memo, and status can be found on the Pennsylvania legislature’s website.

Written by Alyssa Looney – Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

November 20, 2013

North Carolina Legislature Enacts Law Limiting Farmer’s Liability for Food Safety Illnesses Among Other Protections

On July 17, 2013, the Governor of North Carolina signed a bill into law known as the North Carolina Farm Act of 2013. The Act provides several protections for farmers and farm-owners among numerous other provisions.

For example, under the Act, a commodity producer is entitled to a rebuttable presumption that the producer was not negligent when death or injury is proximately caused by the consumption of the producer’s raw agricultural commodity if the producer meets specified guidelines laid out in the Act.

In addition, the Act limits the liability of farm animal activity and agritourism operators. It also clarifies that equine recreation where the landowner receives no compensation is subject to the Recreational Use statute and not the Equine Activity Liability statute.

The Act goes in to effect on August 1, 2013.

For more information and the full text of the Act, please visit the North Carolina’s Legislative website.

Written by Sarah Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

July 24, 2013