Sunday, January 25, 2015

A Guide to Liability Releases for the Equine Professional

Most boarding barns and equestrian facilities require riders and guests to sign liability release forms (and those that don’t should!). They are also known as hold harmless agreements or liability waivers. These forms are meant to protect the business from liability – but do they really?

Purpose of a liability release

There are two essential purposes to having people sign a liability release form:

1.     Discourage people from suing in the first place
2.     Help prevent them from winning if they do sue

Most states now have Equine Activity Statutes, which are laws designed to limit liability for injuries and deaths connected with horse-related activities. However, just because this statute exists does not mean that it will automatically give you immunity from liability! You can still be liable for negligence and for willful misconduct. Having a liability release fills gaps left by an Equine Activity Statute and ensures that the barn owner and the rider understands their duties.

What makes a liability release enforceable?

Here’s some good news: courts in most states have enforced liability releases – as long as the documents were properly worded and signed. Form contracts found online or in a book are only a starting point for a good liability release – there is no substitute for having a knowledgeable attorney. An effective liability release has two basic effects:

1.     Informs the signer of the risks of the activity they’re about to engage in
2.     Gets the signer to agree to accept those risks

This is known in legalese as “assumption of the risk.” In order to properly inform the signer of the risks, the release should be as specific as possible. For example, there should be specific provisions about the dangers involved in trail riding, such as wildlife spooking horses or low-hanging branches. If the release is for a student leasing a specific horse, there should be a paragraph stating that if the horse has any known dangerous behaviors – do they buck, kick, bite, and so on. Here are some examples of well-written and poorly written clauses:

Well-written
Poorly written
“The undersigned acknowledges that a horse may, without warning or any apparent cause, buck, stumble, fall, rear, bite, kick, spook, or otherwise behave in a manner which may cause the rider to fall, which can result in serious injury or death.”
“Horseback riding is dangerous.”
“While trail riding the undersigned acknowledges that wild animals may spook the horse and there may be low hanging branches and other natural obstacles which could cause the rider to fall, which can result in serious injury or death.”
“Trail riding is dangerous.”
“The undersigned agrees to release and hold harmless the facility, its employees and agents, and any independent contractors from any injury or death resulting from horse-related activities, including but not limited to: riding, longeing, leading, grooming, cleaning stalls, and trailering.”
“The undersigned agrees to release and hold harmless the facility and its employees from any injury or death resulting from horseback riding.”

To advise the right person and get them to accept the risks of working with horses, the right people must be named in the release, meaning the people who might sue. For example, when parents sign for minor children (children under 18), there should be a clause stating that the parent is accepting the risks on their own behalf and on behalf of their minor child.

Even if a spectator – parent, friend, spouse – will not be directly interacting with horses, they should still sign a release! A release of liability should specify that it applies to people who are on or near the premises. This will protect the facility in case a bystander or spectator is injured. It is known as “spectator liability.”

Additionally, in order to protect the right people, everyone who could be sued should be listed in the release. For example, a boarding barn release should include the following people and entities as being released from liability:

·      The barn itself
·      The barn owners
·      Any employees of the barn – barn manager, stable hands, grooms, trainers, assistant trainers, and so on
·      Any independent contractors – farriers, veterinarians, outside trainers, and so on

It is best to release parties by categories – “all employees” or “all independent contractors.” If you are not sure whether your help qualifies under the classification of “employee” or “independent contractor,” be sure to either ask an attorney or, to be safe, include both in your release. Releasing parties by category ensures that if the individual people change they will still be covered under the original release.

Helmet related liability issues

It’s common knowledge that wearing a helmet can help prevent head injuries. Even so, many boarding barns do not require helmets while mounted, and many people choose not to wear helmets.

You can protect yourself without requiring helmets by highly recommending helmets rather than requiring them. This way, you advise riders that safety helmets are recommended, but leave the ultimate decision to the individual.

Always include in your liability release a clause spelling out the dangers of not wearing a helmet to ensure the person signing the release assumes the risk of not wearing an appropriate helmet while mounted. If they are injured while not wearing a helmet and sue, you will have a defense. You might also want to include in the helmet clause whether the rider or the facility will provide the helmet. If it is the rider’s own helmet, you should indicate that the rider agrees to provide a helmet that complies with appropriate ASTM and SEI certifications, and that if their helmet does not comply then they understand that their choice of helmet may not be as protective as the helmet you could provide. The helmet policy can be its own document, or it can be written into the liability release – that is entirely up to you.

Is the liability release enough?

Remember that a signed liability release is not a substitute for having good insurance. While insurance will not prevent liability, it can protect your home, or savings, and your property if you are sued, and it could spare you the enormous cost of a legal defense. In addition to having insurance, consider establishing your equine business as a corporation or LLC (Limited Liability Company). This will separate your business from your personal assets, and can protect your private funds if your business is sued.

Summary

What do you need in a liability release for it to be enforceable?

1.     Name of the party signing the release, who is giving up their right to sue if they or their child becomes injured as a result of engaging in horse-related activities
2.     Parties who are being released from liability: the barn or facility, its employees, any independent contractors, and so on
3.     Details: the particular risks of engaging in horse-related activities
4.     Helmet policy: signer understands the risks of not wearing a helmet, and agrees to assume those risks if they choose not to wear one
5.     Important dates: when the release was signed, how long it will remain in force
6.     Language required by the Equine Activity Statute in your state – for example, Tennessee requires this: “WARNING: Under Tennessee Law, an equine professional is not liable for an injury to or death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to Tennessee Code Annotated, title 44, chapter 20.”

A licensed attorney should look at your release of liability to determine its effectiveness. I also want to note that private horse owners should not expect to be covered under a barn’s liability release in the event their horse bites, kicks or otherwise injures someone on the barn’s property. Horse owners may want to look into liability insurance for such an occurrence and make sure the barn staff is aware if your horse has any bad habits so they can warn other clients and their guests.


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