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Legal Focus
Children and Horses— Legal Considerations for Equine Professionals
By Julie I. Fershtman, Attorney at Law
Many equine industry professionals have students and customers who are minors (children under the age of majority). Misunderstandings and myths have existed for years when it comes to liabilities involving minors. This article exposes three common myths. Make sure to separate fact from fiction. Plan ahead and protect yourself.
Waivers/Releases
Myth: All states enforce waivers/releases signed by parents on behalf of their minor children. Myth: Equine businesses, such as riding instructors, can require their minor students to sign liability waivers/release forms, with no parent signing, and these documents will be enforced.
Where minors are involved, the law of waivers/releases can be complicated. Never assume that the applicable state law allows a minor’s claims to be waived or released away by a parent. Nationwide, in fact, states have disagreed on whether a properly worded waiver/release, signed by a parent or legally appointed guardian can bar the injured child’s personal injury claim. Consequently, a waiver/release that might be enforced under Colorado law might fail under Michigan law. Check the law in your state and where you do business.
Also, it is practically universal that contracts entered into by minors are void or voidable. Make sure to contract with the minor’s parent or legally appointed guardian. The relative, babysitter, or family friend who drove the minor to your stable for his or her lesson is rarely the legal guardian.
Scenario: A 10 year-old student is injured in a lesson, and your staff prepare an incident report. Someone told you the statute of limitations for personal injury lawsuits in your state was three (3) years so after three years passed, you threw away all of your paperwork. Nine years after the accident, to your surprise, you are served with a lawsuit arising from the accident, but your records are gone and nobody recalls anything about the accident. How could this happen?
If a minor is injured, don’t expect your state’s typical personal injury statute of limitations to apply. It may surprise you to learn that in many states, the statute of limitations is “tolled” (paused) for minors to allow them an opportunity to file a lawsuit when they reach the age of majority (usually age 18), with an added year or more, depending on state law. As a result, in some states a childhood accident sustained by a 5 year-old could result in a lawsuit 16 years later when he or she is 21! In Pennsylvania, for example, minors have two years after reaching age 18 to sue for childhood accidents.
Because of the lengthened statute of limitations for injured minors, equine professionals can consider the following: • Keep incident reports that provide details that you may need years into the future such as: date, time, and location of the accident; stable staff involved (instructor, supervisor); a clear and understandable description of the accident; names and contact information for witnesses; which horse was involved (and information regarding the horse, age, breed, and history), a sequence of the accident; equipment (if any) worn by the student; injuries; first aid given at the scene, if any, and who gave it; and procedures that followed, if any. • Store your original reports and documents securely, preferably out of the barn office (so that nobody can steal the documents). Also, consider scanning and storing good-quality back-up copies. • Don’t discard your incident reports and waiver/release forms until you have confirmed with your lawyer that they are no longer necessary.
Negligence of a Child
Scenario: Your 6 year-old riding lesson student wasn’t paying attention and failed to steer the pony away from the gatepost, as you clearly instructed. The pony tried to exit the gate, but the child’s leg collided with the gatepost, causing injuries. You believe the child should bear some responsibility for this accident based on his inattentiveness during the lesson. Can he?
Probably not. Legal concepts of “comparative negligence” and “contributory negligence,” which can apply in defense of lawsuits when an argument is made that the injured person bears legal responsibility, are inapplicable with a minor of age 6. When minors are under age seven, several state laws provide that they are too young to be negligent.
Risk Management
Stables, instructors, and even individual horse owners looking to protect themselves from liability from claims involving injured minors can consider the following: • Liabilityinsurance. Insurance cannot prevent problems from happening, but it ➢ continued on page 29
