Tiptoe Through the Orchard: What You Should Know About the Massachusetts Pick-Your-Own Law

June 13, 2019 8:48 am Published by Robin A. DeAugustinis

Trees are in full leaf, flowers are blooming, and the Commonwealth’s orchards will soon bear fruit. It’s almost time to visit a pick-your-own produce farm for berries and peaches this summer. The pick-your-own season stretches well into the fall, with harvests of apples and pumpkins, and, for some, holiday trees as winter nears. After such a rainy spring, it’s a welcomed pleasure, at last, not only to enjoy the seasonal weather, but also to select your own produce in a natural setting.

As much fun as an outing to the orchard can be, however, it’s important to be considerate guests—treating the grounds, plants, and people with respect for their wellbeing—and to be alert to risks of accidents. The ground may be wet and slippery from rain, dew, or irrigation. It’s easy to trip over weeds, stumps, or rocks. Then there are bees, wasps, and other insects that may be more than just a nuisance to those with allergies.

Pick at Your Own Risk

What happens if you or a friend or family member is injured at a pick-your-own farm or orchard? The short answer is that, in most instances, you’re on your own. Under Mass General Laws Chapter 128, Section 2E, the owners, operators, and workers at these farms are not liable for any bodily injuries or harm sustained by guests, unless there was willful negligence on the part of the business. In other words, temporary pickers “assume the risk” as a condition of their visit.

All pick-your-own businesses must warn their guests that they are assuming this risk by posting 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 willful, wanton, or reckless conduct.” The statute further specifically requires the notice to be posted in highly noticeable black lettering that is at least one inch in height.

Forewarned is forearmed. To those who operate pick-your-own agricultural businesses: If you haven’t already done so, be sure to post the required warning sign as soon as possible. And to those who plan an orchard outing this summer: Fill your baskets with delicious bounty, but please tread lightly, watch your step, and be alert


Attorney Robin DeAugustinis counsels both lenders and borrowers regarding commercial financial transactions and real estate. She particularly enjoys the tangible nature of practicing real estate law, as well as helping others and drafting legal documents.

Tags: ,

Categorized in: , ,