Many attorneys recommend including in boarding contracts an exculpatory clause in which the boarder agrees to a waiver of the farm’s liability for personal injuries or injuries to the horse. This is important due to the nature of a boarding transaction. When one party (in this case the horse owner, or bailor) delivers property to another (the farm owner, or bailee), a bailment is created. A bailment generally does not create a fiduciary relationship between the parties, such as that of a trustee or guardian, in which a duty to act for the benefit of the horse owner would be imposed by law on the owner of the farm. A bailment does impose upon the person accepting the property (the farm owner) the duty to exercise ordinary care.

The common law rule is that when a bailment is created, the farm owner into whose care the boarding horse is entrusted is presumed to be responsible for any harm suffered by the horse. If a lawsuit arises, the presumption that the farm was at fault can be overcome by evidence that, more likely than not, the farm exercised ordinary care. A few states have adopted statutes that shift the responsibility for loss to the owner of a boarded horse, and in recent years, many states have imposed limitations on liability (often for personal injury) for harm suffered while engaging in equine activities. An attorney familiar with the laws of your state can advise you whether such statutes should affect the decision to include an exculpatory clause in your boarding contract

There is no required wording for an exculpatory clause. The parties should agree that so long as the contract is in force, the owner of the horse assumes all risk of loss for the animal. The owner also should agree to hold the farm harmless for any and all injuries to the horse.

Depending on the state in which your farm is located, such exculpatory clauses might, or might not, be strictly enforceable. Exculpatory clauses can be valuable nevertheless. Your liability insurance carrier might require such a clause as a prerequisite for coverage, and the fact that a boarder has agreed to a waiver of liability might discourage a lawsuit. (For more comprehensive coverage of liability issues, see The Horse of August 1998