University of Vermont AAHS

What to Do When There Is an Accident

by

Robert O. Dawson

Professor of Law

University of Texas School of Law

The major emphasis of any risk management program should be upon how to avoid having accidents. If steps are taken by the riding instructors and other staff that prevent only one serious accident, they will have been well worth their cost and trouble. A serious accident, even if the student fully recovers with minimal pain and suffering, is a major blow to the safety reputation of the stable and lesson program. It will certainly adversely affect staff and student morale. It is also very likely to hurt business.

When to those consequences of an accident one adds a lawsuit, the adverse impact on the business and the people involved becomes multiplied many times.

Here, we are going to talk about what should be done when there is an accident. The advice given here reflects legal, business and moral judgments. Some are my own personal opinions, which you are, of course, free to accept or reject as you see fit.

A. Your Initial Reaction

1. First Steps

1) Secure the area so that further accidents are not caused by panicked horses or students. Advanced students or other staff, if present, can do this for you while you concentrate on the injured student. But, they must have been previously trained in emergency procedure to do this for you, and those procedures should be in the staff manual.

2) Examine the injured student in an effort to determine the nature and extent of the injuries. Do not move the injured student until the nature and extent of the injuries have been determined because moving her may aggravate those injuries. Current, certified first aid and CPR training are essential to making this preliminary evaluation correctly. If possible, all staff should have this training.

3) Have someone call the emergency medical service if that seems required by your preliminary evaluation. The EMS phone number and directions to give to EMS so they can locate your stable should have already been posted by each phone. Check out your 911 service in advance as it is not unheard of that your 911 service is connected to the wrong EMS unit. This is especially likely if you live close to a county line or city limit.

4) Take the necessary steps of a first aid or CPR nature while awaiting arrival of the EMS. Use the first aid kit that is available in the barn or that was taken with the instructor on the trail ride. It is essential that the instructor have taken and be certified in a First Aid coarse and a CPR course. Without that training, more harm than good can be done by attempting first aid beyond the obvious step of attempting to stop any bleeding.

5) Have someone notify parents or other relatives or friends of the injured student. It may become important that those persons be consulted by medical staff concerning allergies to medicines, past injuries or illnesses, so they should meet the injured person at the emergency room.

6) If the injured student is a minor child, have someone get the book in which Medical Consents are filed. Give the student's Medical Consent form to the EMS driver or take it with you to the emergency room or clinic if you are transporting the injured student.

2. Your Attitude Toward the Accident

Your attitude toward the injured student and the accident is very important. The first priority is to obtain prompt and appropriate medical attention for the student and to make certain that the accident does not result in further accidents involving other horses and students. In an ideal world, that would be the instructor's ONLY concern. But, in the real world, the instructor must also be concerned about a possible lawsuit.

1) What you say about the accident is very important. You cannot avoid talking about the accident to EMS personnel, medical personnel in the emergency room or clinic, parents, other students or customers, employer, and other instructors.

2) While you cannot avoid talking about the accident and how it happened, you must avoid assuming fault yourself or attempting to assign it to others, such as the injured student, other students, observers, or the horse. You must describe the accident and how it happened. You must NOT attempt to assign a cause for the accident because that inevitably leads to the question of fault. You can describe an accident fully and accurately without trying to describe why you think the accident occurred.

3) There is a strong desire on the part of compassionate people to want to assume fault for an accident in which they have been involved. You may feel better saying to a parent, "My God, I am so sorry this happened to your child; it's all my fault. I should have ....."Unfortunately, when you examine the accident calmly later, you may conclude it wasn't really your fault after all, or only partially your fault, but the damage will have been done. If there is a lawsuit, your initial statement, made in the stress of the moment, will almost certainly come back to haunt you. It will be used against you in the lawsuit.

4) It is also important that you talk about the accident only to certain people. You may safely talk about the accident to your spouse, if any, because confidential communications to a spouse are legally privileged and cannot be compelled to be divulged. You may also freely talk about the accident to an attorney who is representing you concerning the accident or whom you have contacted for the purpose of securing legal representation. Those communications are also confidential and may not be compelled to be divulged. In fact you should talk freely and candidly to your attorney, because he or she cannot effectively represent you without such information.

You will also have to talk with your employer about the accident even though that information may not be a privileged communication. A formal written report should promptly be given to the employer. Again, it is very important that the report state only the facts and not attempt to determine the cause of the accident or to assume or assign fault.

B. Insurance: What It Does and Doesn't Do

Most riding instructors have insurance to cover their instruction or are employees of stables that have insurance to cover them. You may believe that if there is an insurance policy in the picture, you need not be concerned about lawsuits. If so, you are wrong!

1. Independent Contractor Versus Employee

Unfortunately, some stables seek to avoid the expense of providing insurance for instructors by attempting to make the instructors "independent contractors" rather than "employees." If the riding instructor is an employee of the stables, then the stables is liable along with the instructor, for any injury to a student that is the fault of the instructor.

However, if the riding instructor is truly an independent contractor, then the stables is not liable for an injury to a student due exclusively to the fault of the instructor. Just calling an instructor an independent contractor does not make her one. When all the dust settles, a court will look to several factors in addition to what the instructor and stables have called the relationship to decide whether the instructor was an independent contractor or an employee.

Some of the factors are whether the instructor teaches for only one stable or more than one, whether the instructor uses her own equipment and horses in teaching the lessons or those of the stables, whether the instructor is paid directly by the student and remits part to the stables as "rent" or whether the stables collects the fee and pays the instructor a part, and whether the stables controls or has the right to control any of the details of how theinstructor does her job while on the premises. To the extent the instructor teaches at more than one stable, uses her own equipment and horses, receives payment directly, and is not controlled by the stables as to how she teaches, the relationship begins to look like an independent contractor relationship. To the extent those factors are not present, the relationship looks more like an employee relationship.

If the contract between the instructor and the stables characterizes the relationship as being one of an independent contractor, that may be a clue that the stables either does not have insurance or has insurance that protects only the stables and not also the instructor. Either possibility should be of grave concern to the instructor.

2. What Insurance Does

Liability insurance does two things for the person covered: First, up to the amount of the policy limits, it pays any judgment that may be obtained against the insured person for an activity covered by the policy. It also pays, up to the policy limits, any amounts negotiated to settle the lawsuit without an actual trial of the case. Second, it provides an attorney to defend a lawsuit against an insured for a covered activity. The insurance company selects and pays the attorney, but he or she is representing the injured person as well as the company.

Some instructors may have the attitude, "I am covered by insurance, so I don't have to worry about an accident." That's a big mistake.

First, some insurance policies have important exclusions from coverage. They may cover accidents only if they occur on the premises of the stables, and exclude accidents that may occur at a show, or while hauling, or on a trail ride off the premises. If that happens, you are not insured.

Second, if you are covered, you are covered only up to the policy limits. So, if the insurance policy has a$100,000 limit but a judgment of $200,000 is obtained, you and your employer are each personally liable for the additional $100,000. If the accident resulted in serious injuries with extensive medical treatment or has permanent consequences, it is easy for a judgment to exceed typical policy limits.

Third, some policies contain rather large deductibles, so that you may have to pay several hundred or even several thousand dollars of the judgment even if it is covered by insurance.

3. The "I'm Judgment Proof" Fallacy

There also may be an attitude exhibited by riding instructors who because of youth or otherwise do not have many assets to say, "What, me worry? You can't get blood out of a turnip. Let them sue, I'm judgment proof." It maybe that you are judgment proof now because the only assets you possess are, in your state, exempt from seizure in satisfaction of judgments. However, you probably do not plan to remain in that condition for the rest of your life. Judgments can be renewed periodically so that they can be collected on indefinitely.

So, if you later inherit some wealth, or acquire a significant savings from your work, or discover oil on the back forty, you may find the judgment from your past rearing its ugly head to seize some of your assets. Also, the existence of an unpaid judgment on file against you is very detrimental to your personal credit rating and business reputation. You may be required to take bankruptcy to restore your ability to borrow money for business or personal use.

C. What to Do If You Are Sued

A lawsuit can be filed against you for an accident anytime before the applicable "statute of limitations" expires. This will ordinarily be at least two years after the accident and can, under some circumstances, be significantly longer. Some injuries do not become apparent until years later, especially some back injuries.

1. How You Know You Are Being Sued

The first indication that you are going to be sued may come in the form of a "demand letter" from an attorney. This is likely to be somewhat nasty in its tone and to demand immediate payment of a large amount of money or a lawsuit will be filed. Do not respond to that letter.

Another, more direct, way in which you will learn about the lawsuit will occur when a deputy sheriff or constable serves you with the papers in the case. In some states, you may receive a certified letter, return receipt requested, containing the papers in the case. Don't worry, you won't be arrested and taken to jail.

2. Immediately Contact Lawyer

Either way, contact your insurance company if you have not already done so. If you or your employer are not insured, contact a lawyer as soon as possible. While lawyers' services tend to be expensive, a brief, initial consultation to assess your situation can usually be arranged for a reasonable fee. It is clearly worth that fee, in peace of mind if for no other reason, to have that initial consultation.

It is very important that you NOT attempt personally to deal with the lawyer for the injured student. If you attempt to do so, you will almost certainly do yourself legal damage. Get your own lawyer and let him have all contact with the other side. That's what you are paying him for and that is what he is trained to do.

It is also very important that you do not talk about the case with anyone except your own lawyer. Remember, anything you say can be used against you in a court of law.

3. Cooperate With Your Lawyer

From that point on, do what your lawyer tells you to do. He's the expert. Be completely candid with your lawyer. He cannot effectively represent you unless you have told the whole truth, the bad as well as the good.

Being sued is never pleasant but it can be survived with body, soul and assets intact.


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