University of Vermont AAHS

HorseLaw:  What Do You Mean Written Notice?  I Posted the Sign!

by
Robert O. Dawson
Professor of Law
University of Texas
School of Law
AAHS Secretary/Treasurer

[reproduced from Spring 2002 Caution:Horses]

Many equine professionals know that 44 states have enacted Equine Activity Statutes.  That also know that in many of those states (27 to be exact) an equine professional must post in a conspicuous place a notice about the state’s specific statute (with exact language) in order to obtain the legal benefits the legislature has extended to the horse industry.  Feed stores, tack shops, and farm and ranch supply stores all sell signs that contain the language required to be posted for the particular jurisdiction in which they are sold.

            But apparently many equine professionals do not know that in 28 states an equine professional is required in addition to posting (or instead of it) to provide specific language in all written contracts with customers in order to obtain the benefits offered under the legislation. 

This is really puzzling to a lawyer because the statutes make written contract notice just as important as signage, yet in many well-run horse businesses there are signs posted but no required language appears in written contracts.  In such businesses, there is a substantial risk that in the event of a serious accident horse professionals will not have the benefits of the statute because although they have posted signs, they have not also provided notices in written contracts.

            That point was first made by AAHS Vice-President for Legal Services Larry Shallcross in a brief article titled simply “Statutes” that appeared in the Summer 2001 issue of Caution:Horses.  This article is an expansion of that one. 

            What does the language say?  The language varies from state to state, so the law of the state in which you operate your business or carry on your horse activity must be consulted.  However, most statutes follow the same pattern.  The Texas statute is typical of most.  It requires posting signs and notice in written contracts in the following language:

WARNING

UNDER TEXAS LAW (CHAPTER 87, CIVIL PRACTICE AND REMEDIES CODE), AN EQUINE PROFESSIONAL IS NOT LIABLE FOR AN INJURY TO OR THE DEATH OF A PARTICIPANT IN EQUINE ACTIVITIES RESULTING FROM THE INHERENT RISKS OF EQUINE ACTIVITIES.

            Who should worry about this?  Who should be concerned about providing written notice?  Boarding, training and lesson barns obviously should.  Also persons providing horse breeding services, lay ups for race horses, recreational carriage services, horse clinics or seminars or horse shows.  Not only should for profit operations be concerned, but also must such non-profits operations as pony clubs, 4-H horse clubs, county and state fairs and any other person, partnership, corporation, limited liability company or association that in any way presents horses to the public or allows the public to come into contact with horses.

            What qualifies as a written contract?  Most statutes simply require that statutory language be added to any written contract used by the horse professional or sponsor.  However, they do not require the professional to use a written contract.  The written contract might be a release from liability for injuries from accidents, a boarding contract, a lesson contract, a training contract, a contract for breeding services, a liability release for a rent-a-horse or guided trail ride experience, a written entry form for a horse show, a pony club rally, or a 4-H horse club mounted meeting.  It might also be a consent to medical treatment of a minor that a parent would sign before a child participates in a horse activity or the consent to take the child on a trip to a horse event.  It is difficult to image a horse event of any importance that does not involve some written agreement of some kind between a horse professional or sponsor and someone else.  If such a paper is signed, there is a good chance specific statutory language must be in that contract in order for the professional or sponsor to benefit from the statute.

            How do you add the required language to your existing contracts?  You can just add the required language to existing contracts by typing it in as an addition to your paperwork and photocopying new copies of the form with the language added.  Just make certain that the statutory language is part of the paperwork and not a separate document so you cannot be accused of not incorporating the required language into your existing forms.  Don’t conceal the language in your contract.  A good rule of thumb is to make that language at least one font size larger than the surrounding language.

            What language must be added?  Every state has slightly different language.  The easiest way to locate the language is to go to the AAHS web site [www.law.utexas.edu/dawson/] and look for your state under Statutes for Horsemen: Equine Activity Statutes.  If you don’t know how to get internet access, ask your kid or any 14-year-old neighbor to download and print out your statute.  Public libraries have Internet access and librarians are usually willing and able to show you how to do this thing.  It’s about time you learned anyway, isn’t it?

            What states require what?  Six states do not have equine activity statutes of any kind so if you are doing business in those states, you need do nothing because there is nothing you can do.  The states without equine activity statutes are Alaska, California, Maryland, Nevada, New York, and Pennsylvania.

Ten states have statutes that do not require signs or written notices.  If your horse operation or activity is in Connecticut, Hawaii, Idaho, Montana, New Hampshire, North Dakota, Oklahoma, Utah, Washington, or Wyoming, then you don’t have to do anything to obtain the benefits offered by your state’s statute.

            Four states require signs but not written notices.  If your horse operation is in Arkansas, Minnesota, New Jersey, or New Mexico then you must have signs, but need not also have notices in your written contracts.

            Twenty-three states require that the same language be posted on your property and appear in your written contracts.  If your operation or activity is in Alabama, Colorado, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Missouri, Mississippi, Nebraska, North Carolina, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Vermont, or Wisconsin then the same language must be posted on signs and placed in any written contracts used.  For those states, you can just copy language from a sign and put it into your contracts and you’ll be okay.

            Two states—Florida and Maine—require that specified language appear either on a sign or in a written contract.  In those states, you have a choice, but a wise professional will adopt the belt and suspenders approach and put the mandatory language on both.  If you have the language in your contracts in addition to the sign, then you are covered even if your pet goat eats the sign.

            Two states—Ohio and West Virginia—do not require a sign, but do require notice in written contracts. 

            Three states—Arizona, Oregon and Virginia—require that any release of liability form must contain the mandatory language.

            So, what are you waiting for?  You can ignore the Equine Activity Statute that exists in your state.  You are also free to sky dive without a parachute if you choose.  But, why would you want to do that?  The costs of obtaining the protection of these statutes is almost free and the inconvenience of obtaining protection is small.  You don’t even need a lawyer.  It really is a no-brainer.  If in your state notice is required in addition to or instead of posting, then put the mandatory language in all your written contracts.


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