A GUIDE TO EQUINE LIABILITY RELEASES & WAIVERS
By Brent Allen
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 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:
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.
Commercial general liability ("CGL") policies provide the broadest coverage available to entertainment and sports businesses for liabilities involving bodily injury and property damage. Typically, insurance most insurance policies contain an exclusion for "Participants in Athletic or Entertainment Events" . Courts have interpreted these exclusions as barring coverage for injuries sustained by athletes and performers during athletic competition or other live events.
Even though courts have applied these exclusions to injuries sustained by participants of athletic or entertainment events, the general rules of policy interpretation require courts to construe all ambiguities in an insured's favor. Therefore, when the injured party is not clearly a "participant" in an athletic or entertainment event, a number of courts have found the exclusion inapplicable.
Many specialty insurance companies will offer participant liability coverage for an additional premium and may require a layer of Accident Medical coverage. Accident Medical coverage pays for the medical bills of an injured participant or staff member * incurred while participating in sponsored activities.
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