How Good is Your Release Form? – Release Form
A Guide to Release Forms : How Good Is Your Release Form?
By: Robert O. Dawson – Professor of Law – University of Texas School of Law
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How Good Is Your Release Form?
Almost all riding stables have a prospective student signs a “release from liability” before permitting the student to mount a horse. Some of these forms protect the stables from lawsuit in the event of an accident. Others do not. Whether you have an effective release form depends upon (1)what state your stable is in and (2) the exact wording of the form. You probably cannot control where you are doing business, but you can control what the form says because it’s your form.
As a general matter, the consequences of an accident fall upon the person injured and only in extraordinary circumstances can those consequences be shifted to another. Just because a student or rider was injured at your stable does not mean that you are liable for the injury. If the injury was the fault of the person injured or was nobody’s fault, then the injured person must suffer the burden alone.
If the injury was the fault of the horse, then the injured person must suffer the burden alone, unless you were at fault as trainer or caretaker of the horse or at fault in matching the rider up with the horse.
However, if the injury was wholly or partly your fault–perhaps by your using unsafe teaching procedures, or teaching a lesson in an unsafe environment or using a lesson horse which you knew has unsafe habits–then the injured person may believe that misery loves company and may sue you, the stables, and the insurer for money to compensate for the injuries. That is where your “release from liability” comes into play.
Almost always, the fault that is claimed to have caused the injury is “negligence.” Negligence means carelessness, but only carelessness of a type that a reasonable member of your profession (trainer, instructor, etc.) would not have permitted.
If the carelessness is particularly severe, it may be called “gross negligence” or “willful negligence.” At best, a release from liability can prevent a successful lawsuit for ordinarily negligence; but, even a perfect release from liability form cannot, in most states, protect you from a lawsuit for gross or willful negligence.
Almost all courts take the position that releases from liability “are not favored and must be strictly construed against the benefiting party, particularly one who drafted the release.” Harris v. Walker, 519 N.E.2d 917 (Ill. 1988).This means that if the language of the release is at all vague, it will be interpreted in favor of the injured person. So, it is imperative that the language employed in a release from liability be precise.
Some releases from liability forms try to do too much and, therefore, encounter strong resistance from courts that are asked to enforce them. For example, one release form stated that the riding student agreed “to assume full responsibility and liability for any and all personal injury associated with the riding of any horse or horses” at the stables. When that language was raised in defense to a lawsuit, the court stated that the release “purports to cause [the rider] to assume full responsibility for anything that may happen to [the rider] or anyone else while riding. It purports to provide such comfort for everyone in the world. Such a clause is so general as to be meaningless.” Tanker v. North Crest Equestrian Center, 621 N.E.2d 589(Ohio App. 1993).
It is important that the form release the stables, owners, and employees from liability for ordinary negligence in the operation of the stables. It should also specifically exclude releasing from liability for gross or willful negligence, so as not to appear over-broad and encounter a court’s resistance for that reason. For instance, the language recommended by the North American Horsemen’s Association is excellent. It releases the stables from liability “due to this stable’s ordinary negligence” and states: “that except in the event of this stable’s gross and willful negligence, I shall bring no claims, demands, actions and causes of action, and/or litigation, against this stable for any economic and non-economic losses due to bodily injury, death, property damage, sustained by me and/or my minor child or legal ward in relation to the premises and operations of this stable,[including] while riding, handling, or otherwise being near horses owned by or in the care, custody and control of this stable.”
In some states, such as New York, releases for recreational activities have been invalidated by the legislature enacting a statute that simply declares invalid releases from liability when a customer pays a fee to enter onto the land of another for recreation. These statutes have been applied to riding stables so as to invalidate releases signed by riders. Brancati v. Bar-U-Farm, Inc., 583 N.Y.S.2d 660 (App.Div. 1992).
It is important that the rider read the release from liability before signing it. Therefore, it should be signed in the presence of an employee of the stables. The employee would be available to answer any questions the prospective student has about the form before signing it and could if necessary testify that the rider read the release before signing it.
Further, it is important that no employee of the stables should in any way downplay the importance of the release. Thus, statements such as, “This is just a formality,” “This doesn’t mean anything,” or “This is just for my insurance company” may, and have, come back to haunt the stables in the event of an accident with injuries and a lawsuit. Those and similar statements permit the injured person to claim that he was misled as to what he was signing and therefore cannot be held to it.
Releases from liability are usually accompanied by warnings about how a person can become injured when on or near a horse. These warnings are just as important as the release from liability and in some states–where releases from liability are invalid or at best shaky–they are more important.
First, the release from liability can operate only as to risks that are in some sense known by the person signing the release. The warnings prove that the person signing the release was aware of those risks because they were explained in black and white.
Second, even if releases from liability are invalid in your state in some or all situations, if you can prove the rider was informed of typical horse hazards and chose nevertheless to ride at your stable, you can sometimes show that the rider by his or her own conduct has assumed the risk of such an accident occurring.
Third, those warnings may become important in assessing to what extent, if any, the injured person was in part at fault in the accident. If a riding hazard is explained in a warning and the rider nevertheless engaged in the warned-against conduct, then a good case can be made that he was at fault in the accident. In many states, if the injured person was more at fault than the stables, the stables wins.
Fourth, even if the judge or jury concludes that the stable was more at fault than the rider, the amount of the money awarded as damages is reduced in accordance with the assessment of fault. Thus, if the damages were assessed at $100,000 and the judge or jury found that the rider had 40% of the fault and the stables 60%, the stables and/or insurer would be required to pay $60,000 instead of $100,000.
The written warnings are so important they should be stressed to the prospective student. They should be read and signed in the presence of an employee of the stables. In addition, the prospective student should be required to write out in his own hand a statement that he has read and understood the warnings.
Further, the initial lesson should focus on educating the rider on safety hazards and procedures. Stress on safety throughout the lesson program is important to the prevention of accidents. When an accident occurs, your stress on safety can also be your best defense to a lawsuit. How Good Is Your Release Form?