HELMET WAIVERS FOR ADULTS Do They Work?
[reproduced from Spring 2004 Caution:Horses]
Are helmet waives for adults valid and will these waivers prevent lawsuits. The answer depends on various, common sense aspects of the situation surrounding the waiver.
First, and most important, the helmet being waived must exist. This almost always means more than one helmet as the circumstance is often a commercial trail ride or a guest ranch situation both involving multiple riders. If there are five adults on the ride and all five adults sign a helmet waiver, they cannot all waive the use of the same helmet. Why not? Because they could not all have used the same helmet.
It will ill not work even if one says that the helmet was offered to each potential rider individually because one could say that "good manners" dictated that a rider would decline the use of the helmet so that the next person could have the opportunity of choice.
The next problem with the lone helmet is that of size. Seldom do riders come with the same head size. Head size varies so much that facilities often will stock more than one brand due to a difference in fit within a size.
Second, official non-use of helmets will not work either. The most common example of this situation appears when the facility states within its release form that it does not use helmets and that in to go on the rider or participate in whatever activity they sponsor in signing the release one is also waiving the use of a helmet. This type of "waiver" is usually worded to read as an "acknowledgement of the non-use of helmets" and even sometimes as an "acknowledgement of a warning about riding without a helmet." The last one sure sounds like it should be a helmet waiver but it really isn't.
Why can one not depend on this type of a helmet "waiver?" the adult signed of his or her own accord. There may even have been a good explanation of the danger of riding without a helmet.
The problem is in the release form itself. With this type of release form what the business is telling the customer is that if you want to go on this nice ride or participate in this nice activity you have to agree to do so with out the benefit of any protective head gear. They already know the customer wants to go because the customer has arrived and is about to sign the release and get on the horse. It is safe to assume that in most cases the customer has been drawn to the activity by some sort of advertising and is really looking forward to the ride. There may even be children alone, an additional legal horror.
By this time one can say with a straight face that the customer may sign the release containing the waiver where he or she would not have before. Some customers may feel vacation time constraints and not be able to seek a competitive business. Some would just not be able to weight all the options.
Third, imbedding the waiver in the release is never the best way to get a valid waiver as the issue of the helmet waiver for an adult is a completely separate issue from a release from liability. Each needs its own explanation, its own warning and its own signature. The facility certainly would not want to have a court rule later that while a release form was valid the waiver it contained was not as there was insufficient evidence to indicate that the victim had either read or understood the meaning or the importance of the helmet waiver section.
Fourth, the waiver itself should explain in some detail the dangers presented by riding a horse without approved, protective, equestrian headgear. It should also state that by signing the waiver one is waiving an appropriately fitted, approved, ASTM/SEI equestrian helmet not over 5 years old. That protects the facility by making sure that the person admits that there were helmets, there were approved, they were not old and worn out, and that they did fit. The catch is that the facility representitive(s) have to fit the helmet to the person so that the person can then waive it. It is possible to demonstrate the fitting but that demonstration must be done absolutely correctly by someone who really knows how to fit an equestrian helmet and check them for fit.
Fifth, it is critical that the person signing the helmet waiver for adults truly understands what is being waived. While it is true that adults are supposed to understand the importance of what they are signing. That only applies to what the adult can reasonably be assumed to understand.
There is a reason that hospital consent forms have grown from being documents containing a couple of pages to ones nearly an inch thick. Is this a malpractice issue? No, it relates to the fact that a person cannot take upon himself a risk that he does not understand. In 1920 everyone knew that surgery was dangerous. Now we take that for granted.
In 1920 basic horsemanship was in the general consciousness. Most people understood that horses were dangerous. Now, due mostly to Hollywood, we developed the idea that horses are no longer dangerous. In movies and TV the only people who don't get up after a fall from a horse accident either have a bullet in the belly or an arrow in the back - or were named Red Pollard. The notable exception was Rhett's and Scarlett's daughter in Gone With the Wind.
Many of the modern horse whisperers, Ray Hunt is the notable exception, leave their followers with the idea that the instincts can be trained out of the horse.
Facility owners and promoters of recreational horse activities cannot make the assumptions that that their customers have any frame of reference from which to make reasonable decisions regarding waivers or releases.
For that reason, explanations of the dangers need to be clear, detailed and thorough.
If the provider of the horse activity follows the above carefully will that prevent the lawsuit? No, of course not.
The only way to prevent the lawsuit is to prevent the accident in the first place. But the likelihood that a suit on the adult helmet waiver will be successful will be greatly reduced.
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