Liability is a huge issue for horse owners | TheFencePost.com

Liability is a huge issue for horse owners

Robyn Scherer, M.Agr.
Staff Reporter

Nate Adams competes in the team penning at the 2011 Delta County Fair. If Adam were riding another horse other than his own, if something happened, the horse owner could be liable.

It only takes a second. The horse spooks, and someone falls off a horse at a training facility. Many trainers think that they may be covered by the equine liability law, but in fact, they may be looking at a potential lawsuit if the proper steps are not taken.

Julie Fershtman, Attorney at Foster Swift Collins and Smith, P.C. in Michigan, is one of the top equine law attorney’s in the country. She recently spoke to horse owners at the Equine Business Conference on the issue of legal liability and contracts, a very important topic for horse owners.

“Nation wide, 46 states have equine liability laws. Every single one of the laws differs in many different ways,” Fershtman said.

In Colorado, the equine liability warning signs must be posted by every equine professional. The goal of the sign is to warn people about the risks involved with an equine activity, and to help the equine professional avoid lawsuits.

When referring to “Engages in an equine activity,” it means riding, training, assisting in medical treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted or any person assisting a participant or show management. The term “engages in an equine activity” does not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area and in immediate proximity to the equine activity, according to Colorado law.

The law states that the inherent risks are: (I) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them; (II) The unpredictability of the animal’s reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals; (III) Certain hazards such as surface and subsurface conditions; (IV) Collisions with other animals or objects; (V) 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.

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However, exceptions do exist. “In just about every state with an equine liability law, there are exceptions. This is where your lawsuits will come from,” said Fershtman.

She continued, “The first exception is that you could be liable if you provide faulty tack or equipment. This has been a litigation issue around the country.”

The first exception in Colorado law states is, “Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury.”

The best way to avoid this lawsuit is to always provide equipment that is in good shape and is taken care of, according to Fershtman.

The second part of the first exception reads, “Provided the animal and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity or llama activity and determine the ability of the participant to safely manage the particular animal based on the participant’s representations of his ability.”

Fershtman said, “This is the mismatched horse and rider exception. That seems to be the essence of it. That is what most of the lawsuits around the country tend to involve.”

To avoid this, anyone providing a horse for someone else to ride must assess the rider’s skills through questioning and a riding test. “Know your animals, and ask a lot of questions to people that are about to ride or handle your horse,” she said.

The second exception states, “Owns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known to the equine activity sponsor, equine professional, llama activity sponsor, llama professional, or person and for which warning signs have not been conspicuously posted.”

“What is a latent condition? That’s a condition in the land you just can’t see. If someone is injured from that, and you fail to put up a noticeable warning sign telling people about that dangerous latent condition, you could be liable,” Fershtman said.

If such a condition exists on a property, the area should be clearly marked, or fenced off so that people are not injured.

The third exception reads, “Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury.”

Fershtman said, “That is a pretty tough standard, because willful or wanton disregard is almost setting out something to cause someone to be injured.”

The fourth and final exception in Colorado law is pretty simple. It states, “Intentionally injures the participant.” If an equine professional intentionally injures someone, they are liable.

One of the biggest issues the equine liability law is in the exception of negligence. However, in Colorado, this is not a listed exception.

“A claim under negligence boils down to this. A claim against you under negligence is a claim that says you didn’t act reasonably, or act as a reasonable person should. Negligence is a standard loaded with trouble because it is often up for discussion and dispute as to what a reasonable person does and doesn’t do. Negligence is a very difficult standard to deal with,” said Fershtman.

Liability is also very important when it comes to a release of liability, or waiver. “Of all of the business contacts that you use regularly, the most important is, in my opinion, the liability release, also referred to as waivers. This document merits serious attention,” said Fershtman.

She gives a few suggestions when drafting a liability release. Those are: readability, title stating Release of Liability, the parties being released, who is signing, risks and equine liability act language.

She noted, “On a national level, contracts signed by minors, alone, are not legally binding. Be sure that child’s parents or legally appointed guardians sign.”

When speaking about contracts, she reminded people to be clear in what they have in their contracts. “Make it clear what people are signing. You don’t want them to think they are being tricked,” she said.

Liability is a very serious issue for equine professionals in most states, including Colorado. Knowing and understanding the law and the exceptions are the key to avoiding lawsuits.