Equine Liability Acts: Managing Unpredictability

As equine professionals, you all know horses can be unpredictable. What you tend to forget is that people can be unpredictable too. While you may think your favorite long-term client would never take legal action against you, that can change in an instant when an injury or loss occurs. Are you protected under the law, or should you take additional steps to avoid liability? The answer depends on a host of factors, including the state where you are located.

Every state except California and Maryland has some type of equine activity act intended to absolve equine professionals from liability for risks inherent in the sport. The idea is that such professionals should not be responsible for the risks that are “inherent” whenever horses are involved. These laws are designed to balance such liability protection with the rights of participants to recover for injury caused by factors that are not “inherent” to equine activities – such as those caused by negligent or intentional conduct. The details vary widely from state-to-state, which is why it is critical for the equine professional to consult an attorney experienced in this area.

There are several questions that you should ask your attorney, regardless of your location. The answers to these may make the difference between escaping from a lawsuit unscathed and being dragged into a years-long, costly legal battle that could have devastating consequences for your business.

What are equine activities?

Some activities, such as riding, jumping, and dressage, are obviously “equine activities.” Almost all states also include training, teaching and boarding under the “equine activity” umbrella. But states vary widely as to whether other activities are, at their core, equine activities. This includes driving, pulling, inspecting, transporting, evaluating and tack selling, which are considered “equine activity” in some states but not others. An attorney familiar with this terminology can assist you in determining whether a particular set of facts is considered an equine activity in your state.

Who is an equine professional?

Most of the equine liability law state that they protect equine “professionals.” While the definition of “professional” varies, in most cases it includes instructors, trainers, owners, lessors, grooms and breeders if such individuals receive compensation for their activities. One question that arises quite often is whether a “professional” is covered by the statute if they are conducting the specific activity at issue without compensation. Is an owner who permits a trainer to ride her horse at no cost liable when the horse spooks and injures a third party? The answer depends not only on the state where the incident occurred, but also on the unique facts, which your attorney can present so as to characterize your role as an equine professional protected by the statute.

Who is a “participant” in equine activities?

Many equine liability acts contain a detailed definition of “participant” or a list of examples where someone has been considered a participant. These definitions vary widely from state to state. Obviously, a rider is a participant, but what about spectators? There are some states who include as a participant any person who steps onto a premises where equine activities are taking place. Other states exclude spectators from the scope entirely. The same is true for other types of business invitees, such as parents of juvenile riders, landscapers and delivery drivers. This question is critical because the equine liability act only protects you from injuries to “participants.”

What are “inherent risks” of equine activity?

Some equine liability acts specifically list examples of “inherent risks” associated with equine activity; however, others do not define the term. In most states, however, the following are considered such “inherent risks”:

a. The propensity of an equine animal to behave in ways that result in injury, harm, or death to nearby persons;

b. The unpredictability of an equine animal's reaction to such phenomena as sounds, sudden movement and unfamiliar objects, persons or other animals;

c. Certain natural hazards, such as surface or subsurface ground conditions;

d. Collisions with other equine animals or with objects; and

e. The potential of a participant to act in a manner that may contribute to injury to the participant or others, including but not limited to failing to maintain control over the equine animal or not acting within the participant's ability.

Notably, almost all states place some responsibility on the participant to evaluate whether their level of ability and experience allows safe participation in the activity. In some cases, such misrepresentation is a complete defense to a liability claim, while in others it is only a factor the courts will consider in determining liability.

While the definition of equine activity is generally broad, most states have identified specific situations where injury may occur due to factors other than the “inherent risks” of horse-related activities. These can include:

a.  Knowingly providing equipment or tack that is faulty to the extent that it causes or contributes to injury.

b. Failure to make reasonable and prudent efforts to determine the participant's ability to safely manage the particular equine animal, based on the participant's representation of his ability, or the representation of the guardian, or trainer of that person standing in loco parentis, if a minor.

c. A case in which the participant is injured or killed by a known dangerous latent condition on property owned or controlled by the equine animal activity operator and for which warning signs have not been posted.

d. An act or omission on the part of the operator that constitutes negligent disregard for the participant's safety, which act or omission causes the injury, and

e. Intentional injuries to the participant caused by the operator.

Even where the state’s equine liability act lists examples of these situations, there is still some room for interpretation. For example, one could argue that “faulty tack” includes not only worn or broken tack, but also tack that is not suited for the particular participant.

Likewise, “negligent disregard” can encompass a whole host of factual circumstances, including everyday decisions that typically fall within an operator’s discretion. Examples include the decision whether to ride indoor or outdoor given weather and footing conditions, whether to permit multiple riders in the ring at once and whether other animals, such as dogs or goats, are permitted in the vicinity of the equine activities. It is important to note that “negligent disregard” extends beyond the specific horse-related activity and can apply to any negligent condition that causes injury, such failing to maintain facilities in reasonably safe condition.

Due to the infinite factual scenarios that may give rise to one of these exceptions, it is critical that your attorney be familiar with your state’s equine liability act. Equally important, however, is that your attorney understand the horse world. An attorney who is familiar with the vocabulary, standards and protocols of your business will have the knowledge and experience to present the occurrence at issue as an “inherent risk” – thereby putting it within the scope of the statute and protecting you from liability.

And finally, what about those warning signs?

Every state’s equine liability act requires posting of a sign informing participants that there are inherent risks associated with equine activity and that participation constitutes an assumption of the risk. Isn’t that enough to protect you from liability?

Unfortunately, as you probably now realize, there are several nuances that may place injuries or losses outside the scope of the equine liability act’s protection. You must post the warning sign, but it is naïve to assume that you can escape liability by doing so. Some states permit equine professionals to present clients with waivers further limiting liability under certain circumstances. Other states do not permit such waivers, but allow equine professionals to have clients certify that they have accurately represented their skill level and experience. Even where such waivers are legally permitted, there may be business and/or insurance reasons weighing against their use.

Your best strategy for avoiding liability for equine-related injuries or losses is to understand the scope and application of your state’s equine liability act. An attorney who specializes in equine law can educate you as to your potential liability as an equine professional and assist you in mitigating the risk of such liability. As with horses themselves, knowledge and preparation goes a long way towards eliminating unpredictability and ensuring a safe and positive experience for all involved.

Written by Jennifer A. Guidea

Jennifer A. Guidea is the Assistant Managing Partner of the firm’s Livingston, New Jersey office and routinely handles a wide range of diverse and complex litigation. Jennifer is licensed in both New Jersey and New York and has appeared before state and federal courts in various jurisdictions across the United States.

Learn more about Jennifer here: www.grsm.com/lawyer/jennifer-a-guidea/

This article is from the October issue of Equine Business Magazine