STOP HORSIN’ AROUND AND USE A WAIVER

CHEAPER THAN LAWSUITS, AND BECAUSE STUFF HAPPENS

Written 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 that people are discouraged from suing. Attorneys 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 horserelated activities. The idea behind these laws is that people dealing with horses “assume the risk” inherent in horserelated 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 with 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