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In addition to a maintaining a
commercial equine liability policy, using a well written and properly
executed liability release is essential if you want to protect yourself and
your business. Most states will enforce liability waivers and releases if
they are properly worded, executed and comply with state law and equine
statutes if they exist. Even if a release does not result in dismissal of a
lawsuit it can function as a powerful defense in litigation. Never use a
generic release without customizing it to your unique operations and
exposures. It is always advisable to consult with your attorney.
The state(s) in which you operate
will determine the form and content of your agreements and releases but
there are many common characteristics found in effective forms. Failure to
apply these tests to your release could weaken it or render it useless in
court.
Almost all equine facilities now use
some form of liability release with clients and visitors. As a general
matter the consequences of an accident should fall upon the person injured
and only in extraordinary circumstances can those consequences be shifted to
another. If an injury is the fault of the rider or a simple accident where
nobody is negligent the injured person must suffer the consequences alone.
If an injury is wholly or partly the
fault of the stable owner or trainer then the injured person can sue you,
the stable, and the insurer for money to compensate for the injuries. The
grounds for the suit may be using unsafe teaching procedures, or teaching a
lesson in an unsafe environment or using a lesson horse which you knew has
unsafe habits. That is when a well written liability release and waiver is
essential.
1.
State Equine Statutes – As of March 2009,
46 states have an equine statute offering some degree of protection to the
equine professional or facility. These statutes can vary dramatically
between states with several requiring the use of specific language in a
release or even the posting of signs on the equine premises. Failure to
comply with these statutory requirements will eliminate any protection you
hope to receive under the law. A list of equine statutes and requirements
can be found at
http://americanequestrian.com/equinelaws.htm
2.
Document Clarity & Readability – A release
or equine agreement must be clearly written with key language clearly
highlighted. The document should be printed in a reasonable type face as
documents have been disallowed in court when the type size was too small or
key language was buried in a large document.
3.
Document Form & Title – The document should
be clearly titled in large type so the client knows exactly what they are
being asked to sign. Use terminology such as LIABILITY WAIVER & RELEASE or
specific to the activity such as BOARDING & TRAINING AGREEMENT AND LIABILITY
RELEASE.
4.
Specify Parties Released From Liability –
Be certain to name all parties being released from liability in the
agreement. If a party is not named they will probably not gain any
protection in court. It is not always possible to name every party to a
contract so agreements will often describe additional releasees as
“employees, agents, members, managers, officers, directors and related
persons or facilities”. Organizations should also consider including
“affiliated persons, volunteers, sponsors and groups”.
5.
Recitation of Risks – Fully executed
liability releases have been disallowed in court because the hazards the
plaintiff faced were not spelled out in the release. Plaintiffs have
maintained that they either had no prior knowledge of the risk or the
provider did not intend to be released from that exposure. Including a
bullet list of potential equine hazards such as bucking, running, biting,
kicking, rolling or being stepped on clarifies the hazards involved with
horses. Many state equine statutes already include examples of these
inherent riding risks.
6.
Clearly Identify Signers & Releasees – Make
certain that the agreement clearly identifies who is signing the release and
who the release affects. Include the signer’s full name, address and
telephone number. If the Releasee is signing on the behalf of himself and
his minor child (under 18) specify that the release also pertains to legal
wards, heirs, representatives and assignees. Make sure that the person
signing the release has the legal right to sign on the behalf of the minor.
It is also desirable to have a parent indemnify the equine professional as
not all minor releases are legally binding in court and a minor could sue
when reaching the age of 18.
7.
Use The Word “Negligence” - In many states
a release can include a clause that the customer, guest or visitor is
releasing the Insured and related parties from liability from the
consequences of ordinary negligence. In California this is an absolute
necessity for the agreement to be enforceable. In most states, a release
that attempts to relieve a provider from liability for gross negligence,
willful and wanton misconduct or intentional acts will not be enforced for
those claims.
8.
Do Not Use Signup Sheets – Courts have
consistently disallowed the use of signup sheets as liability waivers. They
are unenforceable as the plaintiff can claim they did not have an
opportunity to fully read and understand the document. This is one of those
documents that is truly “not worth the paper it is written on”.
9.
Document Dates – Be certain that the
document clearly indicates when it was executed, when it will take effect
and how long it will remain in force. Some equine activities in schools and
universities require a new release to be executed every year to remain in
force.
Spectator Liability
Spectator liability exposures are
the most difficult to control and defend against. It is not usually
considered reasonable or practical to request a liability release from every
event spectator. The best defense option is a good risk management program
with clear safety guidelines that are strictly enforced.
A spectator that becomes injured
during the course of a sporting event will generally commence an action
against the occupier of the facility where the sporting event was held.
Occasionally, the action will include the individual participant, team,
league, or others that may be appropriate in the circumstances.
The
injured spectator as plaintiff has the burden of proving that the occupier
was negligent. For an action to succeed, the plaintiff must prove the
following elements:
-
that the defendant was the occupier of the
property were the incident occurred;
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that the defendant breached his duty of care
owed to the plaintiff;
-
that the breach caused the injuries that the
plaintiff sustained; and,
-
that the plaintiff suffered injury or
damage.
The
plaintiff must prove that the defendant, as event promoter or occupier of
the premises, breached it’s standard of care in the given case. The
standard is one of reasonableness and prudent, not perfection. The occupier
is not automatically liable by virtue of the fact that someone was on it’s
premises and sustained injuries.
The operator of a sporting event or
facility is under a duty to exercise reasonable care in organizing and
supervising the event to ensure that both participants and spectators are
reasonably safe. The occupier of the premises or the operator of the event
or facility thus has a statutory duty towards spectators that enter the
premises.
Spectators at sporting events
generally accept the ordinary risks associated with attending a given event.
Nonetheless, if a spectator that is injured at an event can prove that the
occupier failed to exercise reasonable care to ensure the premises were
safe, then the injured spectator may succeed in proving that the occupier
was negligent in the circumstances.
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