On March 2, 2022, Governor Noem signed into law Senate Bill 135 (SB135), an Act to revise provisions regarding agritourism liability. This bill strengthens liability protections for agritourism activity operators in South Dakota. With these protections, farmers and ranchers will preserve South Dakota’s rich history of family-owned and -operated agriculture operations while helping to grow their rural communities. The language in SB135 went into effect on July 1, 2022, and can be referenced within South Dakota Codified Law 20-9 (SDCL 20-9-12 through SDCL 20-9-18).

Q&A:

• What does SB135 do?
  • Our liability laws in South Dakota were strong, but they only applied to non-commercial agritourism activities. This meant that agritourism activities that charged a fee for participation were not given the same protections as those that did not charge a fee. In order to create the same level of protection to commercial agritourism activities, the changes through SB135 provide an added layer of protection by creating a commercial exemption for agritourism activities while still protecting consumers from the risk of gross negligence by the landowner. One of the more significant changes the bill has is the addition of a new section to law requiring commercial agritourism activity operators to post signage on their property and maintain a written contract with participants.
  • You can find the language needed for the sign and contract in SB135 and in South Dakota Codified Law 20-9-16.1.

• When did SB135 go into effect?
   
  • Friday, July 1, 2022.
     

• What section of South Dakota Codified Law (SDCL) does SB135 apply to?
   
  • Chapter 20-9: Liability for Torts; subsections 12-17 were amended and one new section (18) was added.
     

• How do you know if this legislation applies to your business? Operators are encouraged to seek legal counsel if wanting to clarify whether this legislation applies to them. Here are three important aspects of the legislation:
   
  • Does your operation fall under the definition of an agritourism activity?
    An agritourism activity is “any activity carried out on a farm, on a ranch, or in a forest that allows members of the public, for recreation, entertainment, or education purposes, to view or participate in agricultural activities, including farming, ranching, historical, cultural, harvest-your-own, or nature-based activities and attractions. An activity is not an agritourism activity if the participant is paid to participate in the activity” (SB 135, Section 1, or SDCL 20-9-12).
     
  • Do you post and maintain signage containing the warning stated below in a clearly visible and conspicuous location at or near the entrance to the land used for the agritourism activity?
    WARNING: Under South Dakota law, an owner of property, including lands and waters, who charges individuals an admission price or fee to participate in an agritourism activity on the owner's property, is not liable for injury to or death of a participant in the agritourism activity or damage to the participant’s property of the injury or damage resulted from an inherent risk of the agritourism activity. Inherent risks are conditions, dangers, or hazards that are an integral part of the land used for agritourism activity, including surface and subsurface conditions and natural conditions of the land, vegetation, and waters; the behavior of wild or domestic animals; the ordinary dangers of structures or equipment ordinarily used in farming or ranching operations when such structures or equipment are used for farming or ranching purposes; and the potential for you or another participant to act in a negligent way that may contribute to your injury, death or damages. You are assuming the risk of participating in the agritourism activity for which you are entering on or using the owner’s land (SB 135, Section 7, or SDCL 20-9-16.1).
     
  • Do you include the below warning in a written contract between the owner and any participant who is charged to enter on or use the land for the agritourism activity?
    WARNING: Under South Dakota law, an owner of property, including lands and waters, who charges individuals an admission price or fee to participate in an agritourism activity on the owner's property, is not liable for injury to or death of a participant in the agritourism activity or damage to the participant’s property of the injury or damage resulted from an inherent risk of the agritourism activity. Inherent risks are conditions, dangers, or hazards that are an integral part of the land used for agritourism activity, including surface and subsurface conditions and natural conditions of the land, vegetation, and waters; the behavior of wild or domestic animals; the ordinary dangers of structures or equipment ordinarily used in farming or ranching operations when such structures or equipment are used for farming or ranching purposes; and the potential for you or another participant to act in a negligent way that may contribute to your injury, death or damages. You are assuming the risk of participating in the agritourism activity for which you are entering on or using the owner’s land (SB 135, Section 7, or SDCL 20-9-16.1).

• How big should the warning sign be and where should you post it?
   
  • According to SB135, Section 7, or South Dakota Codified Law 20-9-16.1, signage containing the warning should be posted and maintained “in a clearly visible and conspicuous location at or near the entrance to the land used for the agritourism activity.”
  • The South Dakota Department of Tourism provides a creative example below. This is not meant to be copied or used as a template. We still encourage you to seek advice from legal counsel on questions you may have regarding size or placement of the required signage.

• Is there a sample contract available for me to use?
   
  • According to SB135, Section 7, or South Dakota Codified Law 20-9-16.1, the written contract between the owner and any participant who is charged to enter on or use the land for the agritourism activity must include the language found in SB135, Section 7, or South Dakota Codified Law 20-9-16.1.
  • We encourage operators to seek legal counsel if looking for additional advice on the contents of the written contract.
     

• How long should agritourism operators keep copies of the signed contracts?
   
  • We encourage operators to discuss this with their private legal counsel.
     

• Where can I get answers to questions about this law?
   
  • The South Dakota Department of Tourism can answer very basic questions about the law. For answers to questions not addressed above and other guidance, agritourism activity operators will need to consult their private legal counsel.