By Kimbrell J. Hines, Esq.
Although frequently used, many horse owners and professionals remain unaware their liability waivers would not protect them from a lawsuit. Often horse persons and professionals treat waivers as a mere formality and remain unsure of their effectiveness. Since not all waivers are useful, you may be wondering whether your program needs one. And the answer is yes, all horse programs should use a properly drafted waiver to protect against liability in the event of an accident. As many of us know, horses—even the most gentle and well-trained—involve some risk, and accidents do happen. And because a horse-related accident can result in severe injury, it is important for clients, guests, and spectators to sign a waiver before engaging in any horse-related activity.
Waivers benefit equine professionals in two significant ways. First, waivers provide a defense if there is a lawsuit. When adequately drafted in compliance with state law, signed waivers can result in complete dismissal of a lawsuit. Second, waivers discourage people from filing lawsuits in the first place. It is important to note that waivers do not entirely prevent a lawsuit—a person can still file a lawsuit, even if they signed an enforceable waiver. However, once the lawsuit begins, the waiver can be used as a defense. Additionally, reading and signing a document causes a person to think twice before engaging in risky horse-related activities.
A collateral benefit of waivers is people are discouraged from suing. Attorney’s representing those seeking damages for horse related injuries generally work on contingency arrangements – meaning they get paid a percentage of the money their client wins. Attorneys recognize waivers as an obstacle to success. Consequently, those seeking to file such suits, may find that in order to proceed they would have to, at a minimum, pay out of pocket for an attorney to take the case outside of a contingency arrangement.
For a waiver to be successful in court, the waiver must have clear language, specify the parties, comply with state law, and be signed. When using waivers in their programs, horse persons should keep the following in mind:
Use Clear Language
The first element of a good waiver is clarity. A reader should be able to pick up the document and quickly determine its purpose. It is best to keep a waiver to a single page and have the terms typed in standard-sized print. Waivers should avoid complicated and unclear language. A well-written waiver makes it more difficult for someone to argue they did not understand what they were signing.
Be Specific
Waivers must have clear and unambiguous terms; generally, with a waiver’s language, the more specific, the better. A waiver should inform the participant of the inherent risks related to equine activities. A vague statement such as “horseback riding can be dangerous” does not adequately tell the risks. The waiver should also include an explanation of why horseback riding can be dangerous. A good starting point for coming up with this language could be your state’s equine activity statute, which likely defines equine-related activities’ inherent risks. An equine activity statute is a state law designed to limit liability for injuries and deaths connected with horse-related activities. The idea behind these laws is that people dealing with horses “assume the risk” inherent in horse-related activities. Some horse persons and organizations believe that because they posted a sign with their state’s equine law, they are immune from liability. Unfortunately, this is not the case. Waivers and equine laws offer different protections. Even though posting a sign with the state’s equine law is a great practice, horse professionals should still require people who use their services or enter their property to sign a waiver.
Generally, waivers only protect the parties specifically named. The waiver should clearly state the name of each person or entity exempted from liability, so there is no uncertainty about who is covered.
Comply with State Law
To be enforceable, a waiver must comply state law. The legal requirements of a waiver vary from state to state, and failure to comply with state law can make the waiver unenforceable. It is crucial to keep state law in mind, as many people use liability releases obtained from a friend or downloaded from the Internet. These generic documents typically contain broad language not in compliance with state law or specific to the equine program. A court may find such generic forms unenforceable.
Get a Signature
It is important for a waiver to be signed. A signature demonstrates the person signing read and understood the agreement. Before having a person sign, ensure the person has adequate time to read the entire document.
Additionally, a person can only sign away his or her rights. It is important to have family members, guests, and spectators on the property sign their own liability releases. If the participant is a minor, the minor’s parent or guardian should also sign the waiver.
Remember, a waiver is no substitute for other risk-management practices. Create and maintain safe practices to reduce the likelihood of accidents. Further, obtain proper liability coverage for all equine activities. Finally, obtain a well-drafted waiver, and have counsel lined up to answer any questions that come up regarding using a waiver in your horse program. While it may take a little time and money to use a proper waiver, it will undoubtedly be less expensive and less time consuming than a lawsuit.
5 Tips on Horse Buying from An Equine Lawyer
For most horse people, few things are as exciting as purchasing a horse. Unfortunately for some, buying a horse can be a difficult experience– emotions cloud buyer’s judgment, sellers misrepresent, and your new horse may feel more like an adversary than a partner. To avoid a bad purchase, buyers should keep in mind the following:
- Use a Contract. Even if not required in your state, it is always a good idea to have a written sales contract signed by both parties stating the rights and duties of the buyer and seller. The contract allows the parties to have a written record of the horse that was agreed upon.
- Get a Pre-Purchase Veterinary Exam. Always get a pre-purchase veterinary exam performed by your vet. It is also a good idea to drug test the horse during the prepurchase.
- Verify. Confirm the horse’s registration number and show record with the applicable breed association or equine organization.
- Obtain a Second Opinion. Buying a horse is incredibly exciting. Try to take an experienced horse professional with you when looking at a horse. An objective horse professional will be able to tell you if the horse you’re looking at is a good fit.
- Take a Break. After looking at a horse, try to go look at other horses or take a short break from shopping altogether to give yourself time to reflect on whether a particular horse is right for you. If the seller consents, videotape the horse and watch the video a few days after you visited the horse. Doing so will allow you to look at the horse again without time constraints or pressure from the seller.
Kimbrell J. Hines is an active equestrian and an attorney with Williams Parker in Sarasota, Florida. She obtained her law degree and bachelor’s degree from the University of Florida, where she competed for the University of Florida Equestrian Team. She also has a Master of Science in Human Resource Management from the University of Tennessee. Kimbrell may be reached at khines@williamsparker.com or (941) 366-4800.
This article is provided as a guide for educational purposes only. It is not intended to serve as legal advice and should not be used as a substitute for consultation with an attorney.
