Horses and the Law
Avoiding Liability for Horse Related Incidents

Disclaimer - This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

The unthinkable has just happened and you just got sued! Don’t panic–this article will review various defenses and strategies available to the horse owner in these situations.

Prevention is first and foremost in avoiding lawsuits. The best defense is a liability release or waiver. A liability release is simply a signed document by the participant stating that the participant is aware of the dangers of horse-related activities and, if injured, the participant will not hold the horse owner responsible for any reason. If a lawsuit is filed, a legal release is a complete defense, and the lawsuit will be dismissed.

The key is that the release must be legal! Using fill-in-the-blank generic forms is not the answer. A release must be fact specific and tailored to the special needs of the horse owner. This is because liability releases or waivers are closely scrutinized by judges. Although properly drafted releases are valid and binding, defects in the document will cause the release to be void and of no legal consequence.

The law closely reviews releases because a release transfers the responsibility of a negligent act from the wrongdoer to an innocent party. For example, if a horse owner is giving hay rides and goes on a busy highway for the first time with a green team and causes an accident, the injured passengers could not sue the horse owner if the horse owner had the passengers sign a release before the ride. In essence, the release simply means “you can ride, but if anything happens, you waive your right to sue no matter what.”

A valid and binding release must clearly identify the parties or legal entities to the agreement. Once the parties have been identified, the release should describe the activities to be performed and contain a statement that the participant acknowledges and is aware of the dangers of horse-related activities. Of critical importance is the waiver language itself. The language must be clear, concise, conspicuous and unambiguous. I have made it a practice to use bold type with capital letters so there is no mistake that the waiver language is emphasized in the document.

It is a good idea to use a liability release in all situations involving horse-related activities. It is also important to consult an attorney before using a release to be certain that the release you use complies with the law of the state where you reside. Not all states are the same. Some require very specific language, where others are more relaxed.

Now a test–go to the premium book of the last show you entered. Does it contain a liability release? If so, is it legal? Is that your final answer?

Another defense is found in states which have limited liability laws for equine activity. (For a description of these laws and states which have passed these laws, see the author’s article in the Autumn 1999 issue of the Draft Horse Journal). Equine limited liability laws protect the horse owner from lawsuits involving “inherent risks of equine activity.” Generally this means any unpredictable reaction of a horse. However, once again check your state law as “inherent risks of equine activities” is specifically defined in most of these statues. The caveat about enforcing the defense is that WARNINGS must be used and placed on and about the premises of the horse owner. If warnings are not used, the defense established by the law is waived and cannot be used in court.

The warnings are very specific and must be precisely followed in order to invoke the protection of the law. The warnings are different from state to state, so again, check your state law, however, the following discussion is a general view of what is consistently seen in the warning requirements.

First, the warnings must be posted and maintained in a clearly visible location in close proximity to the horse-related activity. Second, the warning language must appear in large black letters, with each letter to be a minimum of one inch in height. Third, the content of the warning must contain language set forth in the law. For example–

“WARNING: Under (state) Law, an equine activity sponsor, participant or professional or any other person is not liable for an injury or loss to or the death of a participant in equine activities resulting from the inherent risks of equine activities under the Equine Activity Liability Act.”

If your state has an equine liability law, and if you follow the posting requirements, you will be able to take advantage of the defenses established by the law.

A third defense to lawsuits is what the common law refers to as contributory or comparative negligence and assumption of the risk. These are technical legal concepts, and contributory or comparative negligence essentially means that the injured party is responsible for or causes his or her own injury by an improper action or inaction. Assumption of the risk is different. Here, although the fault of the problem is not that of the injured party, the injured party discovers the problem and proceeds in the face of known danger and, therefore, legally assumes the consequences. Assumption of the risk is based on the legal maxim “volenti non fit injuria”, which means a person proceeding in the face of known danger cannot later complain of injury.

The following example will illustrate the difference between the two concepts.

A participant is harnessing and hitching a team. The participant confuses the draught line (continuous line) and the coupling line (long line) so the coupling line is on the outside of the team and the draught line is crossed between the horses. Upon leaving the barn, the participant realizes he does not have proper control because of his mistake in reversing the lines. This is an example of contributory or comparative negligence.

Now let’s change the example. Participant one is hitching the team for participant two, and in so doing, confuses the lines as above. Participant two checks the lines before driving and discovers that the draught line and the coupling line are reversed. Participant two decides to drive without correcting the problem. This is an example of assumption of the risk.

In many cases, the cause of the problem is an action or inaction of the injured party. In a court of law, if an injured party substantially contributes to the problem or proceeds in the face of a known danger, the horse owner will be relieved of responsibility.

The most troublesome situation continues to be the “innocent bystander.” Although some equine liability laws cover innocent bystanders, others do not. In this situation, there is no liability release, and the focus of any investigation would be on the horse owner or handler. The best defense in these cases is common sense and caution. If your team is going to be in close contact with the public, make sure the horses and the equipment are fit for the task. Remember, in order to be held responsible, you must be negligent. If you proceed in a cautious manner and check your equipment and horses, you will not be held responsible for unforeseen acts or circumstances.

In conclusion, a legal release or waiver is the strongest defense to a lawsuit. If you do not have a release, then look to state law to see if you have defenses available by statute. Be certain that you have complied with all posting requirements. Closely view the actions or lack thereof of the parties suing–have they contributed to the problem or proceeded knowing that something was wrong? If so, you have a defense to such a lawsuit. Finally, never forget to use common sense and caution–the foundation of good horsemanship.

Enough legal talk–it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, Pennsylvania, where a good bit of his practice involves negligence cases. Ken and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six horse hitch for the past few years at most major shows in the east.