Most people think a standard equine liability release will protect them, but that may not be the case. Learn how to create a solid contract.
People often ask us to review their equine liability release forms. Often, they’ve been using the same form for years without questioning its enforceability. These clients usually come to us once an accident has already happened, or because their insurer has asked to review their release. Understandably, they’re often startled when we tell them their faithful forms have critical problems.
What makes a liability release “legal”?
A liability release (also known as a hold harmless agreement or waiver) is essentially a contract saying the person signing it won’t sue if s/he is injured or killed as a result of engaging in certain activities. An enforceable liability release deters people from filing lawsuits to begin with (always useful!), and provides an “assumption of the risk” defense to a negligence lawsuit. How good the assumption of the risk defense is depends on how good the liability release is.
While you can disclaim ordinary negligence in a welldrafted liability release, you can’t successfully disclaim gross negligence or willful misconduct. What constitutes gross negligence is determined by a judge or jury on a case-bycase basis, but generally it involves doing something really stupid or failing to do something really important. Willful misconduct is somewhat clearer – doing something harmful, and doing it on purpose.
Naming the right parties
The liability release has to say who the signer agrees not to sue. This can be stated as a list of specific persons or entities, as general categories, or as a combination of specific persons and categories, such as “John and Jane Doe and their employees, agents, and independent contractors.”
An effective liability release needs to include every person or entity that could possibly be sued in connection with the activity. For example, a horse trainer’s liability release should include not only the trainer him/herself, but also his/her employees and contractors, as well as the owners of the training facility and their employees and contractors. If the person being sued isn’t named in the release, either specifically or via the category s/he belongs to, the release will provide absolutely no protection for him/her. When we review release forms that clients “borrowed” from someone else, it’s surprising how often the release actually names the people the client borrowed the forms from, instead of the clients. Oops!
Specifying the risks
We’ve all seen it – the one-paragraph release saying something like: “Horseback riding is dangerous. I agree not to sue XYZ if I get hurt horseback riding.” This type of release, while in widespread use, especially on horse show entry forms, is not worth the paper it’s written on. Why? Because it doesn’t say why horseback riding is dangerous.
A good liability release will list the factors that make riding and being around horses dangerous – such as horses stepping on human feet and breaking bones, or horses suddenly rearing, bucking, spooking and otherwise dislodging their riders, etc. The more dangers a liability release describes, the more likely it will be that the danger resulting in an injury or death will be specified. And if the person who signed the release agreed to accept that danger, the release will provide an effective assumption of the risk defense in a lawsuit.
Equine activity statute language
Almost every state now has an equine activity statute offering some protection from horse-related liability. While each statute is worded differently, all essentially say that if a person engages in certain horse-related activities, s/he agrees to accept the ordinary risks of horse behavior. In other words, equine activity statutes provide some people with some assumption of the risk defense to some lawsuits brought by some people. Loophole central? You bet, which is why equine activity statutes are no substitute for a well-drafted liability release.
On top of providing limited legal defense, some equine activity statutes are no help unless the person being sued included specific word-for-word language in a liability release that the person who is suing signed. To find out what your state’s equine activity statute requires, consult your attorney or look up the current statute on Michigan State University Law School’s website at animallaw.info.
Having the right people sign at the right time Unless a liability release has an expiration date, or is limited to a particular activity that takes place on a particular date, it is generally “evergreen”, meaning that it’s good until canceled. However, it’s important to have the release signed before an accident happens, not after. Seem obvious? Yes, but it often doesn’t happen.
A liability release won’t do any good unless the right people sign it. For example, boarding stables often have only their boarders sign liability releases. But these releases won’t be helpful at all if a boarder’s guest or family member is injured or killed at the stable.
No one can waive anyone else’s legal rights. You can only waive your own legal rights. Some boarding stable releases attempt to have the boarder waive their family members’ and guests’ legal rights, but those releases will only be effective with regard to the boarder. So, every person who might conceivably sue should sign a liability release.
The legal rights of minors
Minors can’t waive their legal rights until they turn 18. Because you can only waive your own legal rights, parents can’t waive those of minor children. That means liability releases signed by parents attempting to waive minor children’s legal rights are unenforceable, despite the fact they are widely used. Why are people using these releases if they aren’t enforceable? They simply don’t know any better (but now you do!).
So how can you protect yourself from liability related to minors? You can’t. You can only insure against it and ask the parent to sign an agreement to indemnify you if the minor gets injured and sues you, or if anyone else sues you in connection with the minor’s injury or death (such as a non-custodial parent or health insurance company). A good indemnification agreement should state that the parent signing it agrees to pay for your legal defense and any legal judgment against you. However, because an indemnification agreement is only as good as the signer’s ability to pay, it’s essential to have liability insurance, too.
Now that you know what goes into creating a proper liability release, you can get yours looked at and redrafted before something happens, rather than dealing with the aftereffects of a poor contract!
Rachel Kosmal McCart is a lifelong horsewoman, an equine attorney and the founder of Equine Legal Solutions, PC, a law firm dedicated to the equine industry. She is a member of the New York, California, Oregon and Washington State bars and is also admitted to practice before the U.S. District Court for the District of Oregon. For more information about equine liability releases, including ready-to-use equine legal forms and customized contracts, visit equinelegalsolutions.com.
AUTHOR PROFILE
Rachel Kosmal McCart is the founder of Equine Legal Solutions, P.C., a law firm dedicated to the horse industry. Equine Legal Solutions offers a full range of legal services for horsemen, from business planning and transactional work to litigation. Its website, equinelegalsolutions.com, also features a wi de selection of ready-to-use equine legal forms. A graduate of Duke University School of Law, Rachel has 15 years of experience as an attorney, and is licensed to practice law in California, New York, Oregon and Washington. Prior to specializing in equine law, she practiced securities law at major law firms in New York and Palo Alto, California as well as in-house at Intel Corporation. Rachel is a lifelong horsewoman and shows American Paint Horses at a national level.
