Robert O. Dawson
Professor of Law
University of Texas School of Law
from Summer 2002 Caution:Horses]
These conditions must be met for the immunity from liability provided by an equine activity statute to apply: (1) a person protected by the statute (2) caused (3) an injury (4) to a person covered by the statute (5) as a result of (6) an inherent risk (7) of an equine activity. If all seven conditions are met, the statute applies and the person who caused the injury is not legally liable to the injured person.
This HorseLaw article focuses on (4) the person covered by the statute. Not all persons injured by horse accidents are covered by equine activity statutes. If the injured person is not covered by the statute, then the statute does not apply to the lawsuit and cannot be used as a defense. In that circumstance, ordinary civil liability principles apply to determine the outcome of the dispute. The fact that the statute does not apply because the injured person is not covered does not mean that the injured person wins; but it does mean that the statute does not require that the injured person lose.
Assuming the risk. How should the law define those persons who although injured by a horse accident should be precluded from obtaining compensation from the person who caused the injury? The basic concept underlying equine activity statutes is that the injured person in some respect voluntarily and knowingly assumed the risk of injury. That, in turn, means that the injured person must have believed that the benefits of the equine activity to him or her outweighed its risks and, therefore, chose to accept those risks to achieve those benefits. In equine and other sporting activities, sometimes the pleasures of participating derive in part from the very same conditions that make the activity hazardous: risk and pleasure are interwoven and cannot be separated. Humans often find risk-taking to be pleasure-producing. Except, of course, when injury occurs.
For the statute to apply, the injured person must have made a choice to associate in some fashion with the equine activity. Otherwise, there is no voluntary and knowing conduct that can be identified as demonstrating an assumption of the risks involved. This concept of choice is underscored by the numerous states that require notice about the statute through signage or contract language or both. Those signs and contract notices are the equivalent of a construction area sign that reads “Danger: Hard Hat Area.” They are intended to be warnings to emphasize the choice being made.
Relation of injured person to equine activity. Suppose a person is lawfully strolling on a public sidewalk on a Sunday afternoon in a residential neighborhood when a horse being ridden out of sight on nearby property suddenly breaks into a gallop and runs into the pedestrian causing serious injury. Would anybody claim that the pedestrian in any sense sought or consented to the risks created by the equine activity and therefore should be precluded from seeking to be compensated for his injuries? The pedestrian may or may not be able to win a lawsuit depending largely upon whether the equestrian or some other person was negligent with respect to causing the injury, but his attempt to do so should not be prevented by some notion that by walking on the sidewalk when and where he did he consented to the risk of such an injury.
On the other hand, suppose a person is lawfully strolling along a marked, public bridle path when a horse gets out of control and injures him. That might present a different situation. By choosing to walk on a marked bridle path, it might be reasonable to assume that the person has decided that although there may be horses also using the same space the benefits to him of using that space outweigh the risks of injury from those horses.
Finally, suppose a person decides to take riding lessons and in the course of doing so is injured when his mount bolts for the barn. That person has made a choice in weighing the benefits and risks to him of engaging in an equine activity and that choice should count against him in assessing his ability to seek compensation for his injury. We still might permit compensation if the instructor or horse provider was negligent in causing the injury, but the injured person’s choice to participate in a hazardous activity is an obstacle he must somehow overcome if he is to prevail in the litigation.
Spectator rules. The great majority of equine activity statutes attempt to define the class of persons who if injured may not be compensated in a lawsuit. A few do not. All statutes agree that if the injured person is a “participant” in the equine activity that caused the injury, the statute applies and, if the other six requirements are met, precludes compensation. Definitions of “participant” vary. Consult the definition in the statute in your jurisdiction.
Spectator exclusive states. Many statutes provide that a spectator is not covered by the statute on the rationale that by merely spectating a person has not made the risk/benefits choice that one who participates in the equine activity has made. In these spectator exclusive states, a person does not come within the scope of the statute by voluntarily becoming a spectator of an equine activity. Those statutes ordinarily, however, make an exception to the spectator rule: a spectator who is where he is not permitted to be loses the benefit of being a spectator. The statute can be applied to a spectator in such circumstances if the other conditions for its application are met.
These spectator exclusive states implicitly assert that a spectator is entitled to more protection from the risks of equine activity than is a person who chooses to participate in that activity. After all, while a spectator consents when viewing an equine activity, he or she is consenting only to being a spectator, with those risks, not to being a participant, with significantly greater risks. On a practical level, those statutes mean that sponsors of equine activities in such jurisdictions must take extra care in designing facilities and running programs to provide for the protection of spectators. If a spectator is injured, protection provided by an equine activity statute is withheld.
Spectator inclusive states. A few states have adopted exactly the opposite rule. They specifically include spectators in the scope of the statute. Again, consult the statute in your jurisdiction. These states take the position that by choosing to be a spectator of an equine activity, a person has voluntarily assumed some of the risks created by that activity. Those states lump spectators in with participants as persons covered by the statute and so do not provide for extra protection for spectators.
Of course, it does not follow that equine activity sponsors can ignore spectator safety or significantly lessen their efforts to maximize it in those states. There are moral and very practical business reasons to prevent accidents whenever that can reasonably be done—questions of legal liability aside. In spectator inclusive states, an injured spectator must seek to escape from the reach of the statute by showing that not all of the other six conditions apply.
Statutes in the spectator inclusive states raise the question whether impliedly there are three categories of injured persons: participant, spectator and other person. If not, then all persons, including our Sunday sidewalk stroller, come within the scope of the statute as spectators even though there is no claim such a person consented in any sense to assuming any of the risks of the equine activity. If there is an “other person” category, then one who comes within that category could seek compensation without having to overcome the obstacles posed by the statute. It then becomes necessary to distinguish between a spectator and “other person.”
States with no statutory spectator rule. Finally, a few states do not address the spectator issue at all in their statutes. Again, consult your statute. In those states, it is up to the courts to determine what spectator rule to have. They are free to adopt a spectator exclusive rule, spectator inclusive rule or some other rule.
Case law applications of spectator rules. There are a handful of court opinions that deal with spectator rules. Michigan is a spectator exclusive state. In Amburgey v. Sauder, 238 Mich.App.228, 605 N.W.2d 84 (Mich.App. 1999), plaintiff Amburgey was bitten by a horse as she passed by its stall in the defendant’s barn. The trial court granted summary judgment for the defendant under the equine activity statute. On appeal from that decision, plaintiff argued that the statute does not apply to her because she was a spectator at the time of the injury. At the time of the injury, plaintiff (an experienced equestrienne) was watching her son’s girlfriend’s riding lesson at defendant’s stable. Plaintiff observed the lesson and then accompanied the girlfriend back to the barn, where she gave the horse an apple and briefly assisted in grooming it. Shortly thereafter, she was bitten by a different horse. She argued that she was excluded from the statute because she was a spectator, not a participant, but the Court of Appeals rejected that argument:
Plaintiff’s undisputed involvement in touring the facilities and assisting [the girlfriend], albeit briefly, in the care of her horse following “an organized event or activity” ([the girlfriend’s] lesson) rendered plaintiff a “participant” in equine activity pursuant to the express language [of the statute].
Plaintiff next argued that she was not a participant with regard to the horse that bit her so the statute should not apply to her. The court also rejected that argument:
[The statute is] not amendable to such a narrow application of the immunity provided therein. The Legislature broadly defined engagement in an equine activity to include “visiting, touring, or utilizing an equine facility...” obviously recognizing and anticipating that in an environment involving equines, potential liability could arise out of innumerable situations, including those spontaneous instances such as the present case in which, prior to the incident or accident, the participant had no direct or meaningful interaction with the particular equine that caused the injury.
In Michigan, feeding an apple to a horse is enough.
Iowa is also a spectator exclusive state. It excludes spectators from the scope of the equine activity statute if the spectator “is in a place where a reasonable person who is alert to the inherent risks of domesticated animal activities would not expect a domesticated animal activity to occur.” The plaintiff in Snider v. Fort Madison Rodeo Corporation, UNPUBLISHED, 2002 WL 570890 (Iowa App. 2002) was viewing a parade when she attempted to cross the street during a gap in the parade. While in the street, she was struck by a pony that threw its 8 and 4-year-old riders and bolted into her. The trial court granted summary judgment for the defendant rodeo corporation. The Court of Appeals agreed that plaintiff did not come within the spectator rule:
The undisputed evidence shows that [plaintiff] crossed the street carrying a lawn chair during a parade at a time when an organized group of horses was proceeding towards her. Further, there was no officially designated break in the parade; rather, she simply crossed during what she perceived as a gap between parade participants.... [T]he parade must be seen in its entirety and its participants given protection from liability for injuries sustained by any domesticated animal activity occurring during the course of the parade on the designated route.... [N]o reasonable juror could have concluded that while crossing the street mid-parade a reasonable person would not expect a domesticated animal activity to be occurring.
By contrast, Ohio is a spectator inclusive state. In Allison v. Johnson, UNPUBLISHED, 2001 WL 589384 (Ohio App. 2001), Ms. Allison was injured while watching defendant Johnson return a horse to its stall on Johnson’s property, where she was a social guest. While being led, the horse bolted, struck a gate, causing a board from it to hit plaintiff, inflicting serious injury. The trial court granted the defendant’s motion for summary judgment on the theory that Ms. Allison was a spectator at the time of the injury and thus was covered by the equine activity statute. Plaintiff argued that “spectator” should be restricted to persons who purposively spectate on some formal equine activity, such as a horse show, and should not include persons who are casual observers of unorganized horse activities—mere bystanders. The Court of Appeals rejected this argument. The statute included “being a spectator at an equine activity.” Equine activity was defined very broadly to include almost everything having to do with horse/human interaction. The court said that under the statute “spectator” included anybody who would be thought to be merely a bystander. It defined a spectator as one who is “an observer, watcher, or bystander to the normal daily care of an equine.” In this case, watching Johnson lead the horse from the arena to the barn made her a spectator. It is even possible that our Sunday sidewalk stroller could come within the statute as it is interpreted in Ohio—assuming he saw the horse moments before he was struck.
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