Ellen S. MacFadyen injured her elbow when she tripped over a snow-covered tree stump while selecting a Christmas tree at the Star of the East Christmas Tree Farm, owned and operated by Robert L. Maki. Mr. Maki cited M.G.L. c. 128, § 2E, as an affirmative defense to the plaintiff's claims of negligence and gross negligence.
M.G.L. c. 128, § 2E states:
No owner, operator, or employee of a farm who allows any person to enter said farm for the purpose of agricultural harvesting, including the cutting of Christmas trees under a so-called “pick-your-own” agreement shall be liable for injuries or death to persons, or damage to property, resulting from the conduct of such operation in the absence of wilful, wanton, or reckless conduct on the part of said owner, operator, or employee.Unfortunately, Mr. Maki did not post a sign with that warning.
Said owner or operator of said farm shall post and maintain signs which contain the warning notice specified herein. Such signs shall be placed in a location visible to persons allowed to enter said farm for the purpose of agricultural harvesting. The warning notice shall appear on a sign in black letters, with each letter to be a minimum of one inch in height and shall contain the following notice:WARNING
Under section 2E of chapter 128 of the General Laws the owner, operator, or any employees of this farm, shall not be liable for injury or death of persons, or damage to property, resulting out of the conduct of this “pick-your-own” harvesting activity in the absence of wilful, wanton, or reckless conduct.
So, the Massachusetts Appeals Court held that "an owner of a tree farm must post a warning sign in accordance with G. L. c. 128, § 2E, in order to avail himself of the protection of the statute."
If you own or operate a pick-your-own Christmas tree farm, make sure you have your warning sign posted and that the warning matches that statute.
If you are going to a pick-your-own Christmas tree farm, watch where you are walking.