This is the fourth and last in a series of update discussions of equine activity statutes, which have now been enacted in various forms in 44 states. The first update dealt with who is protected by the statutes and what is a protected equine activity. The second discussed what eventsusually described as "inherent risks of equine activities"are covered by the statute. The third described the various exceptions to the protection afforded by the statutesdefective tack, failure to match rider with horse, exposing rider to dangerous land conditions, or intentionally injuring the equestrian. Each of those three articles is available on the AAHS web site in the HorseLaw category.
This final installment deals with posting and notice requirements. Many of the statutes require the equine provider to include specific language in contracts with customers informing them of the protection of the statute. Many other statutes require that specific language be provided on signs posted on the premises where the equine activity occurs. Still other statutes require both. The legal theory underlying these requirements is that the customer may wish to decline participating in the equine activity at all when informed of the limitation on liability imposed by these statutes. Normally, of course, the lure of the horse overcomes all sensible caution that might be induced by the contract language or posted sign.
The Required Language. Statutes that require contract notice or sign posting specify the exact language that must be posted or included in the contract. The Michigan statute is typical. It requires a warning in substantially the following language to be posted on a sign in "conspicuous letters no less than 1 inch in height:" UNDER THE MICHIGAN EQUINE ACTIVITY LIABILTIY ACT, AN EQUINE PROFESSIONAL IS NOT LIABLE FOR AN INJUJRY TO OR THE DEATH OF A PARTICIPANT IN AN EQUINE ACTIVITY RESULTING FROM AN INHERENT RISK OF AN EQUINE ACTIVITY. When both contract notice and sign posting are required, the same language typically is required for each.
Statutes require that signs be placed at locations where they are likely to be seen by the relevant public. For example, the Michigan statute requires, "The signs shall be placed in a clearly visible location in close proximity to the equine activity." The Georgia statute requires that signs be placed "on or near stables, corrals, or arenas where the equine professional or the equine activity sponsor conducts equine activities."
How Many Signs Must There Be? Many statutes use the plural "signs" in prescribing this requirement. Does that mean that one sign is never enough? If not, then how many signs must there be?
The plaintiff in Amburgey v. Sauder, 605 N.W.2d 84 (Mich.App. 1999) was bitten by a horse as she passed its stall while walking in the aisle of defendants barn after observing a friend take a riding lesson. The trial court ruled in favor of defendant Sauder on a motion for summary judgment on the ground liability was precluded by the Michigan Equine Activity Liability Act. On appeal, plaintiff Amburgey argued that the statute was not applicable because defendant had not complied with its signage requirement. The evidence was that there were two entrances to the barn that the public might usea main entrance and a side entrance. Signs conforming to the requirements of the statute were placed at both entrances, but, before the accident, a goat ate the one at the side entrance, which was the entrance plaintiff used. Plaintiff argued that the Act requires more than one sign and that a sign must appear at every entrance to an area where an equine activity occurs. The Court of Appeals rejected this argument:
The posted warning serves the purpose of placing an individual entering areas of equine activity on constructive notice of the owner or operator's limited liability and presents that individual with a choice regarding whether he wants to venture further at his own risk. The language of the [statute] is ambiguous, however, with regard to whether the posting of multiple signs is required or whether a single sign or notice in one location on the premises provides adequate warning. Although subsection 6(1) of the [statute] refers to "signs" in the plural form, placement is to be in a "clearly visible location in close proximity to the equine activity," and "the warning notice shall appear on the sign" in conspicuous letters. Because subsection 6(1) does not expressly require that a sign be placed at every entrance to an equine facility but rather that it be placed "in a clearly visible location in close proximity to the equine activity," we conclude that under the present circumstances the single sign posted conspicuously at the main entrance "in a clearly visible location in close proximity to the equine activity" was sufficient to satisfy the warning requirement. As this Court has previously suggested in an analogous context, the focal point in determining compliance with a posted warning requirement should be whether the responsible party has taken reasonable measures to satisfy the statutory mandate.
605 N.W.2d at 91. Looking at the situation from the viewpoint of the equine provider, she took reasonable steps to notify the public and her customers of the liability limits imposed by the statute. Taking the viewpoint of the injured person, that effort was not successful because of the intervening action of the goat. The Michigan Court of Appeals, understanding that the purpose of the statute is to protect equine providers, said that reasonable efforts, even when not successful, are sufficient.
Where Must Signs Be Placed? To use a silly example, suppose a lesson barn posts a conforming sign out in the pasture where riders rarely go; nobody would argue that action is sufficient to comply with a signage requirement. Muller v. English, 472 S.E.2d 448 (Ga.App. 1996) raises the interesting question where signs must be placed when the equine activity in question is a fox hunt. Plaintiff English was injured on a fox hunt when she was kicked by another participants horse. The defendant claimed that the lawsuit should be dismissed because it was barred by the Georgia equine activity statute. The trial court denied the defendants motion, but the Court of Appeals reversed, finding that the lawsuit was barred by the equine activity statute. In the course of doing so, it discussed the posting requirement in the context of a hunt:
English contends that Shakerag [Hounds, Inc.] failed to comply with the Code because it posted "a single sign" rather than "signs" at the start of the day's hunt, and that the sign was not "conspicuously posted" because English and some other members of the hunt did not recall seeing it.
The precise wording of the Code section requires only that such signs be posted "on or near stables, corrals, or arenas where the equine professional or the equine activity sponsor conducts equine activities." Fox hunting, however, does not involve stables, corrals or arenas. The undisputed testimony in this case shows that the sport is conducted across miles of open rural country, its route and distance are not predictable because they are determined by the path of the fox or other animal, and it ordinarily begins with riders conveying their horses by trailer to a "meet" in any number of locations on the property of numerous landowners.
One of the Shakerag masters testified that she purchased seven signs before this incident. She kept one or two signs in her trailer and posted five: one at the Shakerag clubhouse and the others at various locations at which the hunt frequently met. Because the hunt on the day of the incident did not begin at one of these locations, a sign was placed on a vehicle windshield. The master particularly recalled this because at the start of the meet she "advised everyone for a period of time about the Georgia law poster, that it was clearly in sight and that this was something new and that they needed to be aware of it." Moreover, English also signed a release that contained the full text of the statutory warning sign as required by [the statute]. Substantial compliance with a statutory requirement shall be deemed sufficient. Because the unique circumstances of fox hunting were not expressly contemplated by the Act, we conclude that the efforts made to post signs and the inclusion of the prescribed language in the release signed by English amounted to substantial compliance with the requirements of [the statute].
472 S.E.2d at 451.
Exemptions from Posting Requirements. Not all persons covered by the statute are required to comply with posting or notice requirements. The Louisiana equine activity statute protects an "equine activity sponsor, equine professional and any other person" from liability if the requirements of the statute are met. In Gautreau v. Washington, 672 So.2d 262 (La.App. 1996), plaintiff Gautreau was injured when she was kicked by defendant Washingtons stallion while they were waiting to enter the show grounds arena. The trial court dismissed the lawsuit on the ground the injury was covered by the Louisiana equine activity statute. The Court of Appeals agreed with this decision, holding that an amateur participant in a horse show is covered by the statute as "any other person."
It also upheld the application of the statute even though the required sign had not been posted anywhere at the show grounds. The statute requires, "Every equine professional and every equine activity sponsor shall post and maintain a sign" at specified locations. The Court of Appeals said
[W]e find that the requirement of posting warning signs for purposes of invoking the privilege of immunity set forth in [the statute] applies only to equine professionals and equine activity sponsors. [The statute] specifically directs this requirement to post warning signs to equine professionals and equine activity sponsors, and the statute is silent as to placing this same requirement on any other person.
672 So.2d at 267. Only equine professionals or providers are required to comply with the posting requirements, but the scope of the statute is broader than that because it includes other persons as well.
Contracting Away Rights Preserved by the Statute. As the third update article discussed, equine activity statutes identify areas that are not inherent risks of equine activities and for which the statute does not exempt an equine professional or provider from liability. Examples are faulty tack, failure to match rider to horse, latent land defects, and intentional injuries. Can a contract or waiver of liability go beyond the scope of the statute and exempt from liability activities not reached by the statute? Or, does the public policy expressed in the statute impliedly place such excluded activities from the scope of any waiver of liability?
In B & B Livery v. Riehl, 960 P.2d 134 (Colo. 1998), the contract signed by plaintiff Riehl prior to her trail ride on defendants horse that resulted in her injury contained the required language from the Colorado equine activity statute. The release also provided that "I do hereby release [defendant company] from any liability in the event of any injury or damage of any nature (or perhaps even death) to me or anyone else caused by my electing to mount and then ride a horse owned or operated by B & B Livery, Inc." The Court of Appeals interpreted the release to reach only those activities that are covered by the statute, but the Supreme Court of Colorado disagreed:
This case involves the interpretation of a release agreement containing this mandatory section warning in conjunction with a broader clause limiting liability "in the event of any injury or damage of any nature (or perhaps even death)." Apparently, B & B inserted the broader clause limiting liability in its release agreement because it realized that the mandatory section warning did not limit its liability if it were negligent in committing certain prescribed acts, and/or from harm or injury to the participant resulting from "non-inherent" or other risks.
The question presented here, therefore, is whether the release agreement is ambiguous because it contains the mandatory section warning as well as a broader clause limiting liability from non-inherent risks. Because every equine release agreement limiting liability must contain the mandatory warning, we hold that, under the facts of this case, the insertion of a broader clause further limiting liability does not make the agreement ambiguous per se . The broader clause merely evinces an intent to extinguish liability above and beyond that provided in [the statute]. As we stated in Heil Valley Ranch, 784 P.2d at 785, "[t]he inquiry should be whether the intent of the parties was to extinguish liability and whether this intent was clearly and unambiguously expressed." Here, that intent was clearly and unambiguously expressed not by the [statutory] warning but as a consequence of the additional clause limiting liability "in the event of any injury or damage of any nature (or perhaps even death)."
960 P.2d at 137-38. In other words, in Colorado at least, the scope of the equine activity statute does not restrict the freedom of the parties to contract away even more rights.
For More Information. You can download the full text of the equine activity statute in your state from the Equine Activity Statutes segment of the Statutes for Horsemen part of the AAHS web site. You can read the full text of any law cases interpreting equine activity statutes in the Equine Activity Laws segment of the Law Cases for Horsemen part of the web site. The address is www.law.utexas.edu/dawson/.
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