LITIGATION CORNER: The Effect of Altering the Equine Activity -- The Altered Risk Level
[reproduced from Spring 2004 Caution:Horses]
When riders participate in an equine activity they know before they start what that activity will be. In almost all cases that is a true statement. Hopefully, they understand the risks involved either by experience or by careful warning. In a formal situation the riders will have signed a release that asked them to relate their experience, that explained the risks involved and the inherent risks of horse activities, and that asked them to assume the responsibility for injuries and damages resulting from those risks.
The release will also ask the rider to absolve the sponsor of the activity, the provider of the horse, the landowner and the organizer of any liability for negligence in the form of acts by staff or volunteers. (That is a description, not an example of how to write a release.)
The release may also contain an indemnification clause requiring reimbursement in the event of a successful suit for damages.
Any clause that is required by an applicable equine activity statute will also be included.
But what happens if the activity changes or something otherwise alters the risk level? Will the release continue to apply to the changed activity? Will the agreement among friends to participate still be valid if the activity is changed or the risk is altered?
This is an extremely complicated situation yet it is not rare. It can arise just as easily in a commercial setting or a casual setting. The controlling factor in the casual setting is the disparity of experience and ability between participants.
What situations can produce this problem? Here are some examples.
At the Ranch or on the Trail
On a guest ranch experienced riders signed up for an all day trail ride. During the ride the guide/ranch manager decided to check the ranch cattle and asked the guests to help bring the cattle out of the trees. What fun! Some guests had limited experience riding outside of an arena and had no clue what could happen gathering steers in a wooded area, although they all were experienced riders. One horse nearly turned out from under its rider and another bucked when being restrained from doing what it thought was its job. Rides must be geared to the least experienced rider in all situations.
A group left on schedule for a scenic afternoon trail ride. The guide, wanting to give the guests a special treat, went a different route because she had heard that the spring wild flowers in a certain location were all ablaze and well worth seeing. The only other way to see the spectacular blooms would be on a grueling all-day-hike. The problem was that the guide was leading a bunch of inexperienced riders with limited skills and the route to the flowers went over a trail segment that was suitable only for skilled riders.
A group of riders had signed up to drive some cattle from one pasture to another. Their skills had been checked out for the cattle drive that involved a bunch of mama cows that were accustomed to being worked from horses. After moving the cattle, the foreman then suggested that since they were all still mounted they should go round up a bunch of about 10 horses in another pasture and bring them into the main trap by the ranch house.
Not all situations involving problematic altered risks or changed activities are limited to ranch or guest ranch situations. This can also occur at riding stables.
At the Riding Stable
One can expect several group lessons on Saturday morning at a private stable or series of lessons in college program to involve students of various levels. Classes are organized by skill level. Problems arise when classes fill and someone tries to squeeze in few more students. One level lower is acceptable, higher would be an unanticipated, altered risk.
There can also be problems when one instructor is ill and another must take her place, but without the benefit of lesson plans or any record for the class. A conscientious instructor will seek out the appropriate level and teach slightly below it, watching for students with particular difficulties. A less careful instructor may listen to the students who claim to have been doing all the things they have been wanting to do - like jump cross country or even just jump. What about the one student in the class that had not yet been allowed to jump? Rides always have to be geared to the least experienced - so the instructor needs to know who this is.
Sometimes a jumping obstacle may be added to a Western trail class so it is not unusual to think that a Western rider planning to show must prepare for his eventuality. Did the release cover jumping? Is the rider mentally prepared for this changed risk? Is all the preparation being done to prepare the rider to ride the obstacle safely? After all, it is a jump. If there is an accident this will be dealt with as a jumping issue. It will be considered a changed risk. Did the instructor have jumping experience? Since these jumps are often bigger than those that area used to teach beginning jumping, is there any good argument why this should not be treated as a jumping issue?
The riding classes at the beautiful stable by the woods on the edge of town often conclude, weather permitting, with a trail ride through the woods. Are trail riding and its risks mentioned in the release? What if the advanced class is allowed to do a trail loop without an instructor? Should that be mentioned in the release? If the class is made up of adults, should the altered risk be explained to the adults?
All of these situations share certain issues:
Does it make a difference if the rider is a minor or an adult when dealing with an "altered risk" situation? It only makes a difference in that the release for the minor was probably unenforceable. If a court holds that a release is enforceable against a minor due to a parent's signature, and that sometimes happens, the release will be construed extremely harshly against the party wishing to take advantage of it. It is unlikely that unless the altered risk is mentioned in the release or unless it can be considered an inherent part of the primary activity, that the release will cover it.
Can the situation be covered by a careful explanation of all the risks in the release? As long as the risks being included and tacked on to the primary activity are reasonable there is no reason to believe that they cannot be covered. One must be careful not to attempt to tack activities and risks that do not naturally grow out of the first. It is unlikely that courts will honor a release that allows an activity sponsor change the risk level in a way that means the sponsor would ultimately be forgiven for actions that would not have been permitted in the primary activity.
It would not be possible, for example, for the activity sponsor to put a clause in the release that said that he could exchange the rider's horse for another at will without considering the suitability of the horse to the rider. We all would catch that clause if we saw it. Yet many people will argue as to whether the provider of the horse must go through the same steps with each successive horse as with the first.
If the altered risk or the second activity is inappropriate for the rider, it is doubtful that this situation can be cured by explanations in a release form. That would be asking too much of a riders ability to analyze a release form, particularly with riders of limited skills. It would be too easy to represent that the release form was written in bad faith to confuse rather than to explain.
Is there any way to write a release that would cover the guide who took the low level riders over an unscheduled, difficult route to see wildflowers? No, if this can be demonstrated to be an example of gross negligence. There is no release for gross negligence. In this example the guide departed from the scheduled route and took the ride where, for a time, no one knew where the riders were. He took the riders on a trail beyond their level of competence and failed to clear the action with the Head Wrangler first. We hope the Head Wrangler would have said "no."
Is it possible to write a release for a cattle drive that will cover an impromptu horse round up? No, the same reason as in the question above is controlling on different facts. The skills needed to drive a bunch of mama cows from one pasture to another are quite different from the skills needed to round up or gather horses. Even riding in the same pasture with a bunch of loose horses is a higher risk activity requiring different skills than a cattle drive.
Is it fair to say that in most cases the problems, in situations with altered risk levels arise because the person in charge takes the activity for granted? The person in charge, almost without exception, fails to think the situation through. In fact, it is as if this person does not stop to think about the results of his/her action at all. In most cases the person in charge behaves as an amateur might, by not taking time to remember the difference between his/her own abilities with horses and the abilities of the riders in his/her care.
The person in charge, when there is an accident, almost always has taken the horse for granted. It is one thing to count on the horse doing repeatedly what it repeatedly does, but don't change the script, especially with customers. Furthermore, the horse will not always do what it repeatedly does so that makes it doubly important to make sure that riders are out there at the risk level they can reasonably manage when the horse decides that today is not a good day to follow the script. A good school, trail or other customer horse is tolerant and manageable in most instances when in familiar surroundings performing familiar tasks.
The change of risk or activity does not even need to happen on the same ride or on the same day. It only needs to happen when a reasonable person would expect the same release to apply or when the customer would be reasonable in expecting that the same level of ability that had been sufficient would continue to be sufficient. This would apply to the activity and to the horse. If additional skills are needed on the part of the participant, then there is a problem.
All rides need to be geared to the least experienced rider at all times, in any situation.
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