P: 479-363-6171 | 105B W. Van Buren Eureka Springs, AR 72632

Fruit Picker’s Sorrow

Crop farmers had some good lobbyists in the 80s, as Arkansas Code 18-60-607 indicates.

Subsection (a) provides that a person on property to pick crops cannot make a claim against the owner or lessee of the property unless it was gross negligence or willful misconduct.

Subsection (b) provides protection from claims for negligence for the owner, tenant or lessee at a farm or “u-pick” operation from any person there to pick up equipment or purchase agri products unless that person is an employee or a contractor. To maintain a claim there must be a condition creating an “unreasonable risk” AND ALL of the following:

1. Owner knew of the risk;
2. Owner failed to exercise reasonable care or warn;
3. The injured party did not have reason to know or warning of risk.

I want you to think about that. Let’s say you, Ordinary Joe with Mrs. Joe, and little Jill and little Joe Jr., stop at an orchard with a sign out that says “Pick Your Own Blueberries!”. That’ll be fun, you think, something for the family to do outside, let the kids get a better idea of where food comes from, and blueberries will be great in my Corn Flakes next week.

While you’re there, happily picking your fruit, the owner drives his tractor by and accidentally runs over Jill, causing extensive injuries. Complete accident, but he wasn’t looking where he was going, and now you’ve got an injured child and some serious medical bills. Easy case, right?

Probably not – you’re on a farm. Getting run into by a tractor is not necessarily an “unreasonable risk”. Moreover, how do you argue that the child shouldn’t have been aware of a noisy tractor?

Another scenario – let’s say it’s your JOB to pick blueberries on the farm (subsection (a) of the statute). Owner isn’t looking where he’s going and runs you over. You’re terribly injured, never work again. No case – not even a possibility. Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care. Ordinary negligence and gross negligence differ in degree of inattention. This wasn’t an “extreme” act by the owner, he just wasn’t looking where he was going, maybe only for a moment.

Terrible accident, and you feel bad for the owner, but he SHOULD be responsible for the damages. Under this statute, he’s not. There really is no justification for this level of protection.

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