Equine Activity Statutes: Part Two of An Update
By Robert O. Dawson
Professor of Law
University of Texas
School of Law
[reproduced from Caution:Horses, Vol. 4, No. 3, Fall 1999]
In a previous HorseLaw article, I discussed the questions what persons and organizations are protected by Equine Activity Statutes and what are equine activities. Each of the 44 states with an Equine Activity Statute limits the protection of the statute to injuries resulting from an "inherent risk of an equine activity" or when the injured person has taken control of an equine.
A Broad Definition of Inherent Risk. One of the first cases to address the question what is an inherent risk was Halpern v. Wheeldon, 890 P.2d 562 (Who. 1995) from the Supreme Court of Wyoming. The Halpern family contracted with the Wheeldons to go riding. Mr. Halpern had very little riding experience but was assured that the horses were gentle. A ranch employee held the reins for Mr. Halpern while he attempted to mount his horse. When Mr. Halpern had difficulty mounting the horse, Mr. Wheeldon helped him by lifting him up onto the horses back. The horse started to circle and back up, and eventually it began to buck. The horse pulled the reins away from the ranch employee and threw Mr. Halpern to the ground. Mr. Halperns left ankle was severely broken as a result of the fall. A lawsuit was filed but the trial court dismissed it on the ground that the Wyoming Recreation Safety Act, which included equine activities, protected the defendant.
At the time of this accident, the Wyoming Recreation Safety Act provided that a sports participant assumes any inherent risk of the sport and that a sport provider is "not required to eliminate, alter or control the inherent risks in that sport." The Wyoming Supreme Court said that under that language a risk must satisfy two requirements to be classified as inherent: "The risk must be characteristic of or intrinsic to the sport or recreational opportunity, and it must be one which cannot be reasonably eliminated, altered, or controlled." The court took some liberties with the legislatures language in that the legislature by its definition implied that an inherent risk can be, but is not required to be, eliminated, altered or controlled by the provider, while the court stated that a risk is inherent only if the provider could not by taking reasonable steps eliminate, alter or control it. As a matter of logic, the courts definition is preferable since it does help to define an inherent risk one that cannot be eliminated or controlled by taking reasonable steps, while the legislatures concept is much less clear if a provider can eliminate or alter an inherent risk, then what makes a risk inherent?
In any event, the Wyoming Supreme Court concluded that the statute does not preclude liability in this case because "genuine issues of material fact exist with regard to whether the risks encountered by Mr. Halpern are intrinsic to the sport of horseback riding and whether the Wheeldons could have reasonably altered, eliminated, or controlled those risks. A genuine issue of material fact exists as to whether the Wheeldons could have assisted Mr. Halpern in mounting the horse in a different manner and, thereby, reduced or eliminated the risks which are associated with mounting." Therefore, it sent the lawsuit back for trial.
After the Supreme Courts decision in Halpern v. Wheeldon, the Wyoming legislature in 1996 amended the Recreation Safety Act to re-define inherent risk. That amendment was important in a later Wyoming case in federal courtCooperman v. David, 23 F.Supp.2d 1315 (D.Wyo. 1998). This case involved a guided trail ride in which the defendant David provided both horse and tack. On return from a campsite where lunch was eaten, Mr. Cooperman stopped his horse in order to wait for others in the group. While stopped, his saddle slipped sideways causing him to fall to the ground and injuring his shoulder. A lawsuit was filed and defendant David argued that he was not liable because slipping saddles are an inherent risk in horseback riding.
Although the lawsuit was filed in federal court, that court was required to apply Wyoming law in deciding it. As re-defined by the Wyoming legislature, inherent risks are "those dangers and conditions which are characteristic or, intrinsic to, or an integral part of any sport or recreational activity." The federal court said that an inherent risk is one of two things: "It is either a characteristic which is an anticipated part of the recreational activity that helps to make the activity the experience that it is, or it is an undesirable risk which is simply a collateral part of the recreational activity." The federal court found that slipping saddles are an inherent risk of equine activity. This conclusion was based on deposition testimony by the plaintiffs expert that a slipping saddle is "always something that is a possibility of happening, regardless of whether it being the build of the horse or riding of the rider." The expert also stated that saddles have a tendency to loosen after they are initially secure and that possible causes of slipping saddles are stretching leather, the tensing or relaxing of a horse, the horse losing weight from sweat, compression of certain types of saddle pads and loosening of the cinch due to the movement of the horse.
The federal court dismissed the claim that it should be the responsibility of the equine provider to check the cinch periodically to determine whether it is secure on the ground that the statute does not require the provider to alter an inherent risk. This approach yields the broadest possible definition of inherent risk. If it can happen and does happen then it was inherently likely to happen and the provider is not liable. This approach significantly diminishes the need for the equine provider to follow safe practices to protect his inexperienced client from harm, such as to re-check cinches after loosening them for a lunch picnic.
The federal court recognized the broad reading it had given to the Wyoming statute when it acknowledged that its reading "provides enormous protection to those in the business of providing recreational activities . Consumers in Wyoming [and those who travel to Wyoming to recreate] are now faced with an entire industry whose economic and consequent legislative power enables them to conduct business with only a passing thought to the safety of those who utilize their services."
A Narrower Definition of Inherent Risk. The Tennessee legislature defined inherent risk in a way that is very common in Equine Activity Statutesby illustration. The Tennessee statute, which is typical of most such statutes, defines inherent risks to mean "those dangers or conditions which are an integral part of equine activities, including, but not limited to:
(A) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around them;
(B) The unpredictability of an equine's reaction to such things as sounds, sudden movements, and unfamiliar objects, persons, or other animals;
(C) Certain hazards such as surface and subsurface conditions;
(D) Collisions with other equines or objects; and
(E) 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 the participant's ability."
In Cave v. Davey Crockett Stables, 1995 WL 507760 (Tenn.App. 1995), the Tennessee Court of Appeals found that the injury to 12-year-old Ashley Cave, a summer camper, resulted from an inherent risk on the following facts: She was on a trail ride when her horse fell behind the others. Suddenly, the horse lurched forward into a gallop and ran Ashley directly into a tree crushing her leg. The Court found that the inherent risks illustrated by (A), (D) and (E) of the Tennessee statute applied and protected the camp from liability.
Ashley claimed that she came within an exception to the statute because the camp failed to determine her riding ability and to match her to an appropriate horse, but she offered no evidence of that failure so lost that argument.
Control of an Equine. The Arizona Equine Activity Statute doesnt use the language of inherent risk, but instead makes coverage of the statute depend upon the injured person taking control of an equine:
"A. An equine owner or an agent of an equine owner who regardless of consideration allows another person to take control of an equine is not liable for an injury to or the death of the person if:
1. The person has taken control of the equine from the owner or agent when the injury or death occurs.
2. The person or the parent or legal guardian of the person if the person is under eighteen years of age has signed a release before taking control of the equine.
3. The owner or agent has properly installed suitable tack or equipment or the person has personally tacked the equine with tack the person owned, leased or borrowed. If the person has personally tacked the equine, the person assumes full responsibility for the suitability, installation and condition of the tack.
4. The owner or agent assigns the person to a suitable equine based on a reasonable interpretation of the person's representation of his skills, health and experience with and knowledge of equines."
The Arizona Court of Appeals in Bothell v. Two Point Acres, 965 P.2d 47 (Ariz.App. 1998) interpreted this language in the context of a case in which 10-year-old Keely Bothwell was given permission after completing her riding lesson on a substitute horse to halter her regular lesson horse for in-hand grazing. Her regular horse was in a corral with another horse, which was not completely trained. When she was leading her horse from the corral the other horse interfered, causing the lead rope to tighten around Keelys hand, resulting in a serious injury. The trial court said the case could not go to trial because the statute gave the stables immunity, but the Court of Appeals disagreed. Characterizing the events resulting in the injury (taking the horse out of the corral for in-hand grazing) as non-riding activity, the court said the statute simply did not apply in that situation:
"[We have not found] any relevant legislative records indicating an intent to immunize stable owners from claims for negligent supervision, like plaintiffs, which do not involve horseback riding or activities directly related thereto . Keely clearly had not taken control of the horse [which was in the corral with the horse she was leading] which apparently caused her injury . [W]e find the statute inapplicable to the non-riding activities in which she was engaged at the time of this particular accident."
Conclusions. The Wyoming, Tennessee and Arizona statutes each differently defines the scope of the protection for the horse sponsor or professional. How broad the protection is in a given state depends in part on the language and approach the legislature has used in the statute. But it also depends upon the attitudes of the courts toward compensation to persons injured in equine-related accidents. Statutory language is sufficiently imprecise to permit considerable latitude in interpretation by the courts.
You can download the Equine Activity Statute from your state from the AAHS web site by going to the Equine Activity Statutes segment of the Statutes of Horsemen section of the web site: www.law.utexas.edu/dawson/.
Next time. Statutory exceptions to statutory protections.
Return to Top of This Page
Return to HorseLaw Articles Page