HorseLaw: The Uneasy Relationship Between Equine Activity Statutes and Releases from Liability
Robert O. Dawson
Professor of Law
University of Texas Law School
[reproduced from Summer 2004 issue of Caution:Horses]
Before equine activity statutes were enacted beginning in the mid-1980s, the primary means an equine professional or sponsor had to protect from liability for negligence was a release from liability previously signed by the injured customer or participant. Such releases—because they are an agreement to protect the professional or sponsor from financial accountability for his or her own negligence—were not honored in some states, were almost always invalid when the injured person was a child, and were, in virtually all states, interpreted against the professional whenever they presented ambiguous language. In other words, many courts demonstrated hostility toward releases from liability.
Releases ordinarily protect a person from legal liability who has injured another person by negligence—careless conduct that an ordinary person would not have engaged in—but not from gross negligence, willful or wanton conduct, or intentional conduct. Equine professionals are persons who are paid for performing services related to horses, such as riding instructors, horse trainers, and barn employees or managers. Equine sponsors are usually individuals and groups that put on equine events, such as the U.S. Pony Club, 4-H horse clubs, and horse show management.
The horse industry convinced legislatures in forty-four states that releases were not sufficient to protect the industry from unjustified lawsuits and that restoring the industry to economic health required the enactment of statutes specifically designed to protect equine professionals and sponsors. Courts were said to be compensating injured persons who were hurt not by the negligence of the professional or sponsor but by the risks inherent in any equine activity. Accordingly, equine activity statutes were enacted which define the inherent risks of equine activities and which prohibit lawsuits for injuries that are the result of such risks.
Unfortunately, some professionals in the horse industry believe themselves to be totally immune from liability as a result of these statutes. To be sure, the statutes have been applied by some courts to protect the industry from liability. However , in many other situations, courts have not applied them in that fashion and lawsuits are permitted as before enactment of the statutes. Interpretation and application of the statutes vary greatly from state to state, depending upon the attitudes of courts toward granting immunity for financial accountability for injuries resulting from equine professional or sponsor negligence.
The problem from the very beginning is that the statutes say one thing, but were enacted with the hope within the industry of accomplishing a totally different objective. The statutes grant immunity for injuries that result from inherent risks of equine activities, but many in the horse industry believed that the negligence of equine professionals or sponsors is one of those risks. However, many courts say that negligence is not an inherent risk of an equine activity and that the statutes do not protect against injuries resulting from negligence.
Equine activity statutes and releases from liability interact at several levels.
1. Mandatory warnings in releases. Statutes in over half of the states require that specific language warning about the effects of the statutes must be inserted in all written contracts entered into between an equine professional or sponsor and a customer or participant. Certainly, a release from liability qualifies as such a written contract. In those states, the specified language should be placed conspicuously in releases.
What happens if your state requires specific language in releases but your release does not contain that language? There are three possibilities: (1) there is no legal consequence attached to not including the mandatory warning language; (2) the failure to include the warning means you cannot take advantage of the equine activity statute but has no other effects; or (3) the failure means you cannot take advantage of the statute and that your release is also invalid.
In a few states, the statutes themselves provide for option (2). They specify that failure to include the warning in written contracts means the professional or sponsor cannot obtain the protection of the statute. In those states, probably the inability to benefit from the statute is the sole consequence of failure to include the specified language since that is the only consequence provided by the statute.
Except for those few states, the statutes themselves do not specify what happens if the release does not include the mandatory language. No court has conclusively addressed what happens in those circumstances. It seems unlikely that a court would opt for (1) because that would require it to conclude that although the legislature mandated that certain words be included in written contracts the failure to include the mandatory language will have no legal consequence. The tradition in law is for a court to attach legal consequences to failures to comply with mandatory legislative provisions. Although it is possible that a court could opt for (3), that seems less likely since it is an extreme consequence to invalidate a release when lesser remedies, such as removing the protection of the statute, are available. However, the statute specifies the contents of written contracts, including releases, so it would not be shocking if a court were to say that failure to include mandatory content invalidates the document. That is a risk too great for one to assume.
2. Inherent risks do not include negligence by the equine professional or sponsor. Equine activity statutes protect against only those injuries that are the result of the inherent risks of equine activities. The typical statute defines inherent risks as “those dangers or conditions which are an integral part of equine activities.” It then lists six or seven circumstances as examples of inherent risks. Typically, that list contains one entry that speaks to injuries from negligence: “the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability.” It important to note that this example speaks only to the negligence of a participant in an equine activity and does not address negligence by an equine professional or sponsor.
The typical statute also lists circumstances that are not inherent risks of equine activities. Examples are providing faulty tack that contributed to an injury, failing to determine the ability of a participant to safely participate in the equine activity or of an equestrian to manage a particular horse, failing to correct or warn against a land condition that caused injury to a participant, and injuring a person by willful, wanton or intentional conduct. Each of these conditions identifies an accident that was at least partially the fault of an equine professional or sponsor.
Courts in Colorado and Texas have held that the definition of inherent risks does not include injuries that result from the negligence of equine professionals or sponsors. In those jurisdictions, professional or sponsor negligence is not protected by the statutes. Only a valid release from liability will protect such a professional or sponsor from the legal consequences of his or her own negligence.
In addition, thirteen equine activity statutes specifically exclude equine professional or sponsor negligence from the protection of the statute: Connecticut, Hawaii, Kansas, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Utah, Virginia, and Wyoming.
Therefore, over one third (15 of 44) of the states with equine activity statutes exclude professional or sponsor negligence from protection of the statute. In those jurisdictions, equine activity statutes have been rendered much less effective by the negligence exclusion since ordinarily a lawsuit must be based on negligence to have any chance of success. In those 15 states, a release from liability is the only way a professional or sponsor has to protect from his or her own negligence, which was the state of affairs before the statutes were enacted.
3. When equine activity statutes invalidate releases. Ironically, courts in three states have held that the existence of an equine activity statute invalidates a release from liability that would otherwise have been valid. Courts in Hawaii, New Mexico and Missouri have held that because their equine activity statutes exclude equine professional or sponsor negligence from the protection of the statute, they express a public policy that professionals or sponsors should be held financially accountable for the consequences of their own negligence. A release from liability is not consistent with that public policy because it attempts to protect from negligence. At least in the absence of an explicit expression of a purpose to override the statute, the release will not be held to be valid in those states.
In those three jurisdictions, the equine industry is worse off in terms of protection from negligence after enactment of their equine activity statutes than before. This clearly was not the purpose of industry lobbyists in seeking enactment of these statutes.
4. What should you do? If you are doing business in one of the 28 states that requires specified language to be placed in written contracts with customers or participants, you should make certain that the language is conspicuously included in your release from liability form. If you continue to use your old form without including the language from the equine activity statute, you risk either losing whatever protection the statute provides or whatever protection your release from liability provides, or both. Complying with the statute does not require the services of a lawyer. Just find out whether your state requires specified language in written contracts and if it does copy that language into your release form. This is not rocket surgery! You can find out whether your state includes a requirement of specified language in written contracts from the AAHS web site: http://tarlton.law.utexas.edu/dawson/. From the home page, go to Statutes for Horsemen and then to Equine Activity Statutes. If your state does require specified language, simply copy that language into your release form.
If you are doing business in one of the 15 states that excludes negligence from the protection of the statute, then your life is more complicated. You cannot rely on the statute to protect you from the financial consequences of your own negligence because the statute excludes that protection. That makes your release from liability even more important. However, there is a risk that a court in your state might follow the lead of the Hawaii, Missouri and New Mexico courts to invalidate your release as violating the public policy of the state in holding equine professionals and sponsors liable for their own negligence. You should consider including language in your release form that expressly refers to the statutory language excluding negligence and provides that the customer waives (gives up) the protection of the statute for an injury resulting from professional or sponsor negligence as specified in the statute. That may not work, but it is the best you can do under the circumstances. You probably should consult a local attorney to do this.
If you are interested in reading some of the court cases dealing with equine activity statues and releases from liability that have been discussed in this article, you may find them on the web site: http://tarlton.law.utexas.edu/dawson/. From the home page, go to Law Cases for Horsemen. The cases are in two categories under that heading: Equine Activity Laws and Releases from Liability.
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