Contractually Managing Risks
Many horse trainers, instructors, facility owners, and even private horse owners have participants sign assumption of risk agreements, liability waivers, and/or hold harmless agreements in an attempt to avoid or minimize their liability for injuries that occur to horses under their care and to humans while at their farm. Many participants and facility owners, however, are unaware of certain constraints courts have placed on the enforceability of these types of documents in their state.
In some states, only property damage, not personal injury, can be contemplated by the agreement and some states do not allow parties to be released from their own negligent conduct at all. In most states, gross negligence and intentional misconduct can never be released, and attempting to do so, even inadvertently, may render the document unenforceable.
In at least 45 states, a well-written waiver that is voluntarily signed by an adult can, under many circumstances, protect a service provider from liability for injuries resulting not only from the inherent risk of the activity, but also from the provider’s own negligent conduct.
These types of agreements, however, are not typically favored by law, so they are strictly construed against the party drafting the document.
Factors to Consider
When deciding whether to enforce a particular waiver/agreement, courts may consider, among other factors:
Whether the releasing party had a clear understanding of the rights that are being relinquished;
Whether the document serves a dual purpose, such as, an application, registration, or sign-up sheet;
Whether the exculpatory language is conspicuous;
Whether the agreement is a contract of adhesion;
Whether the release of liability was bargained for;
Whether a full disclosure of inherent risks has been made in order for the releasing party to properly assume such risks;
Whether the language is over-broad; and
When, and the circumstances surrounding the signing of the agreement.
In one case, although a stable had a rider sign a document titled “Liability Waiver” prior to the rider’s first lesson, the document failed to protect the stable from the rider’s negligence claim after the rider was injured.
The rider and his daughter went to retrieve a horse owned by the stable from its stall to be used in a lesson. As the rider entered the horse’s stall, he was kicked in the face and the incident was witnessed by his daughter. The stable’s liability release which had been signed by the rider stated, in pertinent part: “Rider hereby agrees to abide by the rules of the stable. Rider further agrees to hold Stable and anyone connected with Stable, free from claims, demands or expenses that may be occasioned by me or the horse used by me. Stable will not be responsible for any accident, injury, or loss which may occur to any rider, spectator, or property at the stable.”
When the rider sued the stable for his injuries, the stable moved to dismiss the case based on the language in the release but was unsuccessful because, according to the court, the document did not adequately specify that the rider was releasing the stable from the stable’s own negligence.
In another case, during a lesson, a rider was cantering when the horse went too close to the side of a corral which caused the rider to hit her leg on a post. The rider’s foot then became stuck in the stirrup, the rider fell and was dragged several paces before her foot became dislodged. The rider suffered major injuries in the event and sued the stable for negligence. The stable moved to dismiss the suit based on the 6-page liability waiver it had the rider sign before she began riding at the stable which stated, in pertinent part, that: “Rider releases the Stable from any liability or responsibility for any accident, damage, injury or illness, and not merely injuries from horse-related activities.”
The court rendered the document unenforceable because it released the stable from ANY injury to the rider. According to the court, the language in this release was too broad and because it included (although probably inadvertently) gross negligence, willful or wanton conduct, and/or intentional misconduct, enforcing the document as written would be against public policy. The case was allowed to proceed to trial because the stable was not protected by its liability waiver, but ultimately ended in a pre-trial settlement.
It is common among service providers in the equine industry to look to the internet for help in drafting these types of documents. Many professionals also utilize “form” documents which have been passed along from another equine professionals, despite being unaware whether the document was properly drafted and pursuant to their state’s laws.
If you plan to utilize these types of agreements in your equine business, consider having a knowledgeable attorney licensed in your state draft a document tailored to your operation’s specific needs.
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