A century ago, most personal injury claims were governed by a -common-sense legal principle called “assumption of the risk.” The idea is a simple one: If an individual knows that an activity is potentially dangerous but voluntarily takes part in the activity anyway, the participant is responsible for injuries he or she might suffer. The participant, in other words, assumes the risk of being -injured.
Although assumption of the risk remains a viable defense in a personal injury lawsuit, responsibility for one’s actions has taken a legal hit in recent years. -Aggressive personal injury attorneys, television advertisements that treat an accident like a winning lottery ticket, and even so-called reality courtroom shows like Judge Judy and The People’s Court have contributed to a litigious culture that devalues personal -responsibility.
Implications for the horse industry are clear. Horses are frequently seen as accidents waiting to happen; being sued for a client’s injuries is a real threat to farm owners, trainers, event sponsors, and other industry professionals; and losing a personal -injury lawsuit can bankrupt a business.
Thinking outside the box has become a shopworn cliché for creative thinking. Insulating your horse business from liability requires creative thinking inside a protective box using a combination of strategies: an emphasis on prioritizing safety, acting reasonably, complying with state equine liability laws, using signed liability waivers and releases, and obtaining commercial
Everyone has a legal obligation to act like a reasonable person under whatever circumstances happen to be at hand. This might be an obligation to do something, such as checking a lesson horse’s girth tightness before a ride, or to refrain from doing -something, like never putting an inexperienced rider on a green horse. It’s a flexible, fact-specific standard of conduct that shifts from situation to situation.
In legalese, this requirement for reasonable conduct is called a “duty,” and its existence is the first thing an injured plaintiff must prove before establishing negligence in a personal injury lawsuit. The other elements of a successful negligence claim are breach of legal duty, harm of some kind (usually a physical injury to an individual), and a direct relationship between the breach and the harm. To win a negligence lawsuit, an injured plaintiff must establish the existence of all four elements. Only three won’t do.
Here’s an example illustrating all the elements of negligence: A harried groom at a trail riding facility fails to ask about a client’s riding ability and assigns the novice rider to a fractious young horse. (This almost certainly is a failure to act reasonably on the groom’s part, satisfying both the “duty” and “breach” requirements of a negligence claim.) Due to his inexperience and apprehension, the rider is unable to control the horse on a trail. The horse unexpectedly breaks into a gallop and the rider tumbles off and suffers several broken bones in the fall. (The rider’s injuries satisfy the “harm” element; there also is a clear causal link between the breach and the harm, the “causation” element.) A jury is likely to find the riding concession operator, who is responsible for the employee’s actions, negligent and liable for the rider’s injuries.
Emphasizing safety around horses always is a good idea. You might be able to short-circuit a personal injury lawsuit simply by proving in court that you acted reasonably under the circumstances leading to the accident. More important, though, is that being careful is proactive—an accident that never happens cannot be the basis for a lawsuit.
“Using a waiver is good public relations for the business because pointing out the risks of the activity shows a concern for the participant’s safety.“
Doyice J. Cotton
State Laws That Actually Help
Forty-six states—all except California, Maryland, Nevada, and New York—have statutes on their books that limit individuals’ liability for horse-related injuries suffered by someone else. These liability laws vary from state to state in both language and effect, and the best way to learn about your state’s laws is to talk with a local attorney familiar with the horse -business.
Julie Fershtman is a shareholder in Foster Swift Collins & Smith PC, a law firm in Farmington Hills, Mich. She is past president of the State Bar of Michigan, a leading equine law attorney, a popular speaker, and a prolific author. Fershtman has been tracking state equine liability laws since their inception in the 1990s.
“Unlike the common law, which is based on court decisions, state equine liability laws help streamline the understanding of liability by defining the inherent risks associated with working around horses,” Fershtman says. An inherent risk is a hazard so integral to an activity that the two cannot be separated. Some of the inherent risks of equine activities are easily identified: falling off a horse; being kicked, bitten, or stepped on; the inability of another participant to control his or her mount; the tendency of horses to shy away from just about anything.
State equine liability laws typically acknowledge that working with horses carries inherent risks and recognize that those risks cannot be eliminated. The effect of these laws is to shift the legal duty of an equine professional from the nearly impossible task of making the activity completely safe to simply warning participants about the existence of the inherent risks. If an individual then decides to participate in the activity despite the warning, he or she has assumed the risk of being injured.
The laws can create an effective legal defense against a personal injury claim, but they are not always a get-out-of-jail-free card for equine professionals; they -apply in some, but not all, situations. Understanding when the state law applies can be the difference between winning and losing a personal injury lawsuit.
“The perception of some people in the industry is that the state laws eliminate their liability,” Fershtman says, “and that is not the case.” The laws typically include specific requirements for the posting of signs warning participants of inherent risks and the use of the same language in contracts. There also are exceptions—-certain situations in which the laws cannot be used as a legal defense. “The exceptions are very important when you are reading the laws,” she says, “because they narrow the protection provided by the statutes.” Exceptions also provide valuable direction when taking proactive steps to decrease the risk of injury and liability, she adds.
Common exceptions include injuries resulting from the use of faulty tack or other equipment, the failure to assess a participant’s ability or mismatching horse and rider, and negligence. Another typical exception involves spectators and employees, whom state equine liability laws frequently exclude from coverage because they are not considered “participants” in an activity. Fershtman cautions employers about the importance of determining whether workers are employees for whom workers’ compensation insurance might be required by law or if they’re independent contractors, along with acquiring necessary coverage.
State equine liability laws can provide valuable protection against liability for personal injuries, but they are no excuse for lax safety procedures.
“Everyone should make safety a consistent practice,” Fershtman advises.
We learn at an early age that an apology—a simple “I’m sorry”—is the appropriate response when something goes wrong and another person is injured. Doing what seems right might carry unintended consequences, though, in the event an accident leads to a personal injury lawsuit. If a riding instructor apologizes after a student is injured in a fall from a lesson horse, for example, a jury might interpret the teacher’s apology as an admission of responsibility for the incident. If the jury feels that the instructor was at fault, the injured individual should win in court.
There is compelling evidence, in human medicine at least, that an apology might actually reduce the number of malpractice lawsuits. At least 35 states have statutes protecting doctors from civil liability based on an apology for a failed medical procedure. So far, similar legal protection does not extend to service providers in the equine industry. Instill an “apology policy” based on advice from your liability insurance carrier and an attorney familiar with the laws in your state before things go wrong.
There are several things you should do in the event of an accident: Seek immediate medical help for the victim, preserve any broken tack or other equipment, take photographs, obtain statements from any witnesses, and save signed waivers or other relevant paperwork. “I’m sorry,” on the other hand, might be better left unsaid.
Milton C. Toby, JD
Waivers and Releases
A liability waiver is a contract between an equine business operator and an activity participant in which the latter agrees to release the business owner from liability for injuries. Common in the horse -business, waivers typically include injuries resulting from the ordinary negligence of the owner or of his or her employees or agents—-injuries sometimes excluded in state equine liability laws. (The terms “waiver” and “release” often are used to mean the same thing. Some courts make a distinction between the two, however, using “waiver” to refer to an agreement signed before participation in an activity and “release” to refer to an agreement entered into after an injury.)
Doyice J. Cotton is author with his wife, Betty, of Waivers & Releases of Liability, an authoritative guide to the law of waivers for the horse industry and other recreational activity providers. He cautions against borrowing a fill-in-the-blank waiver form from a book or the Internet.
“I don’t like the term ‘generic’ waiver,” he says. “To be effective, a waiver should be specific to your particular business.” He recommends hiring an attorney to draft a waiver, but adds that “the attorney should be knowledgeable about waivers, state law, and the horse business. Most of the waivers I’ve seen fail were written by lawyers.”
Waivers provide an added layer of protection against liability and are perhaps the main protection in those few states without equine liability laws. They are not foolproof, however. A few states refuse to enforce liability waivers as a matter of law, and even in states where waivers can be enforced, courts might be reluctant to do so, citing public policy. The concern is that an enforceable waiver of liability for negligence eliminates the incentive to be careful.
Waivers signed by minors—individuals under the age of 18 who lack the legal capacity to enter into a binding contract—-also are problematic. Further complicating matters, liability laws are unclear about the effectiveness of a waiver signed by an adult on behalf of a minor.
Cotton advises service providers to always use properly drafted waivers, even if there is a question about whether the agreements can be enforced in court.
“Once a person signs a waiver, even if it can’t be enforced, the individual often believes that she cannot file a lawsuit,” he says. “A signed waiver also provides evidence that the individual knew about the inherent risks of the activity, understood the risks, and took part anyway. Even if a court will not enforce the waiver, the agreement can be used as evidence that the injured plaintiff assumed the risks inherent in the activity. Finally, using a waiver is good public relations for the business because pointing out the risks of the activity shows a concern for the participants’ safety.”
Insurance: Final Brick In the Wall
Commercial liability insurance is the final component of the protective box around your equine business. Typical liability policies include coverage for injuries resulting from ordinary negligence, which state equine liability laws or liability waivers might not cover.
There are no shortcuts to comprehensive coverage. Homeowner insurance, even if your home and business share the same property, generally does not provide coverage for business activities, and some general farm owner insurance coverage might exclude personal injuries resulting from equine activities. A reputable insurance agent with expertise writing policies for the horse industry should be able to recommend a package that fits your business’ needs.
Insulating your equine business from personal injury liability requires a multi-faceted approach. Successful risk management is not a do-it-yourself project and should involve an attorney familiar with the horse business and relevant laws in your state and a reliable insurance agent. Goals should be reducing the possibility of lawsuits wherever possible and doing everything necessary to prevail in court.