These waivers are worth far more than the paper they’re written on
We’ve all heard, “Liability releases aren’t worth the paper they’re written on.” However, this old saw just isn’t true. Liability releases have provided an effective legal defense in many an equine-related case, including the following real-life examples:
- During a trail ride on rental horses, one horse bolted and another horse took off after him, causing his rider to fall off.
- At a boarding stable, a horse had broken part of a tie rack (a type of hitching post). Before it could be repaired another boarder used the tie rack, and her horse pinned her in it, injuring her.
- At a wilderness park, a horse reared as his rider was dismounting, injuring her.
How Liability Releases Work
Liability releases, also known as hold harmless agreements and waivers, do two very important things:
- They discourage people from suing in the first place; and
- They help protect the person being sued.
If someone signs a liability release at, say, a boarding barn, he or she is essentially agreeing that the released party (in this case, the facility owner) is not legally responsible for any injury suffered on his or her property.
Any liability release can discourage the person who signed it from suing in the event of an accident. Most personal injury attorneys work on contingency, which means they only get paid if their client wins the case. So, it doesn’t make economic sense for personal injury attorneys to take cases they don’t believe they can win. This would include cases where the client signed a well-drafted liability release. Therefore, the more thorough a liability release is, the more enforceable it is likely to be and, also, the more lawsuit-deterring value it has.
A liability release operates by providing what is known as an “assumption of the risk” legal defense. Essentially, the person signing the liability release agrees that they understand the risks of what they are about to do and agrees to accept those risks. For example, a person signing a liability release for riding lessons agrees that taking riding lessons is potentially dangerous and agrees to accept the risks associated with taking those lessons. Then, if the person who signs the release is injured during a lesson at that facility, and he or she sues the riding instructor, the instructor can raise the legal defense that the lesson student assumed the risks of taking riding lessons in the first place.
What a Liability Release Should Say
Because a well-drafted liability release is intended to inform the person signing the release about the risks of what they are about to do, it needs to describe what those risks are, and it needs to be specific. The release risk description should assume the person signing the release has no experience with the activity and, therefore, isn’t aware of what makes it dangerous. For example, a release for dude ranch trail rides should include the risks that trail horses, no matter how experienced and well-trained, are still highly reactive large animals that are easily frightened and might take off at high rates of speed with no warning, injuring or even killing the rider. Sound dramatic? It should. You want the liability release signer to take notice of how dangerous the activity is. Ideally, a liability release thoroughly describes all of the potential risks of engaging in that activity.
Poorly drafted liability releases tend to make generic statements of risk such as “horseback riding is dangerous.” This type of statement isn’t very informative, because it doesn’t say why horseback riding is dangerous. Therefore, this type of release doesn’t provide a strong assumption of the risk defense.
Because well-drafted liability releases are so specific about the risks, they are typically quite a bit longer than poorly drafted releases. When someone is being sued, however, he or she doesn’t need to be concerned as much with liability release length as whether the liability release has all the right provisions for protection!
Many states have “equine activity statutes,” which provide a legal defense to some types of horse-related legal claims. Each state’s statute is different in terms of whom it protects and what it covers. To take advantage of the protections offered by the equine activity statute, some states require that the liability release include specific language. If the release doesn’t include the statutory language, the equine activity statute might not protect the person being sued. However, the liability release might still provide an assumption of the risk defense.
Who Can Enforce a Liability Release
To benefit from the liability release, the person being sued must be mentioned in the release. This doesn’t, however, mean the release must list the names of each person who might be sued. Instead, it can list the released parties by category. For example, a boarding stable release might name “Stable X and its owners, employees, and independent contractors.” In fact, listing the parties to be released by category is safer. That way, if the members of the category change, the new members of the category are automatically covered by the existing release. For example, if a boarding stable hires new employees, its existing liability release form will cover the new employees, as long as the boarding stable’s employees are listed as a released party. Also remember that if the stable doesn’t own the property where it operates, the release form should also include the property owners.
Operators of boarding stables and other equine businesses often create their own liability releases using documents found on the Internet, borrowed from another equine business owner, etc. However, in creating these releases they sometimes forget to change the names of the released parties. The result? Stable B is using a liability release that names Stable A (and not Stable B)—not helpful!
Who Should Sign a Release
In most states the person signing a liability release form can only sign away their own rights. Therefore, each person who might sue needs to sign a liability release. For example, a boarder can’t sign away his or her family members’ and guests’ legal rights. The boarding stable would need to have each of the boarder’s family members and guests who visit the facility sign a separate release.
In most states minors (persons under 18 years of age) can’t sign away their legal rights. So having a child sign a liability release does absolutely no good. Even more troubling, because the statute of limitations (the time a person has to file a legal claim) is usually tolled (delayed or paused) until the child turns 18, a child who suffers an injury can sue years after the injury occurred, even if their parent or guardian signed a release on their behalf.
So what can equine businesses, such as riding stables, that have young clients and visitors do to protect themselves from liability? They can provide a separate release for the parent or guardian to sign, in which the parent or guardian waives their rights to sue if the child is injured and agrees to pay for the equine business’ legal defense if anyone later sues the business on the child’s behalf. The parent or guardian’s obligation to pay for the business’ legal defense discourages the child from suing (assuming the child does not want to cause their parent or guardian financial ruin). But if someone, such as an insurance company, does happen to sue the equine business, the business has a source of payment for its expenses. Of course, the usefulness of this provision depends upon the parent’s or guardian’s ability to pay.
Liability Releases Alone Aren’t Enough
Liability releases discourage people from suing in the first place and help prevent them from winning if they do so. But liability releases don’t pay for the cost of defending against a lawsuit or the cost of a legal judgment against you. Therefore, in addition to liability releases, equine businesses absolutely need comprehensive liability insurance, which does serve these purposes.