In the horse industry, misunderstandings and myths abound
regarding important legal topics. This three-part series of articles
explores some common myths in the horse industry. Part one discussed
the equine liability acts, part two discussed insurance, part
three, the conclusion of the series, will discuss releases of
liability.
What are Some of the Myths Regarding Releases of Liability?
Over the years, releases have been the target of numerous misunderstandings.
The following are the most common. Over the years,
releases have been the target of numerous misunderstandings. The
following are the most common.
"Releases are Not Worth the Paper on Which They're
Printed"
Contrary to rumor, most states will enforce written releases
(also called "waivers") of liability used in connection
with equine-related activities. The release is someone's agreement
to sign away (or "waive") what would otherwise be a
legal right to sue another for potentially millions of dollars.
When a lawsuit is brought involving a release, the courts typically
subject the release to very intense scrutiny. Contrary
to rumor, most states will enforce written releases (also
called "waivers") of liability used in connection with
equine-related activities. The release is someone's agreement
to sign away (or "waive") what would otherwise be a
legal right to sue another for potentially millions of dollars.
When a lawsuit is brought involving a release, the courts typically
subject the release to very intense scrutiny.
Over the years, many people who use releases have failed
to treat them as the very serious documents they are. When this
happens, the release can become worthless if a legal challenge
arises. Here are a few of the settings in which releases have
failed across the country:
The release was poorly drafted and failed to comply
with legal requirements of the appropriate state.
The release was signed only by a child under the
legal age.
Someone who was not a parent or legally-appointed
guardian attempted to sign the release on the child's behalf.
The release inadequately described risks involved
in equine activities.
The stable lost the release and had no record that
the injured party ever signed it.
"A Good Release Can Eliminate All Types of Liability"
Even where releases are enforceable, they cannot eliminate liability
for everything. Most states, for example, make is unlawful for
someone to release another from liability for "gross negligence"
or "willful and wanton misconduct." These legal theories
involve serious wrongdoing. Even where releases
are enforceable, they cannot eliminate liability for everything.
Most states, for example, make is unlawful for someone to release
another from liability for "gross negligence" or "willful
and wanton misconduct." These legal theories involve serious
wrongdoing.
"A Form Release is Just as Enforceable as One Drafted
by a Knowledgeable Attorney"
Some states have unique requirements for language that must be
included in releases of liability; the standard, "one size
fits all" release forms run a serious risk of missing this
language. In California, for example, courts have indicated that
releases should state, among other things, that the signer is
releasing the other parties from the consequences of their ordinary
negligence. Also, most of the 38 equine liability acts across
the country require that a specially-worded warning notice be
included in contracts and releases. Some states
have unique requirements for language that must be included in
releases of liability; the standard, "one size fits all"
release forms run a serious risk of missing this language. In
California, for example, courts have indicated that releases should
state, among other things, that the signer is releasing the other
parties from the consequences of their ordinary negligence.
Also, most of the 38 equine liability acts across the country
require that a specially-worded warning notice be included in
contracts and releases.
"If I Use a Release I can Cancel My Insurance"
Having a release does not eliminate the need for proper insurance.
Insurance is designed to pay for your legal defense and (up to
policy limits) settle a claim or pay any damages that you may
be legally ordered to pay if you are sued by someone who has signed
your release. Unfortunately, even if your state has enforced releases
in the past, there is never an absolute guarantee that all courts
will accept and enforce your release. Having a
release does not eliminate the need for proper insurance. Insurance
is designed to pay for your legal defense and (up to policy limits)
settle a claim or pay any damages that you may be legally ordered
to pay if you are sued by someone who has signed your release.
Unfortunately, even if your state has enforced releases in the
past, there is never an absolute guarantee that all courts will
accept and enforce your release.
"Posting A Sign is the Same as Using a Release of
Liability"
Some people believe that releases are unnecessary if they post
signs that state: "Ride At Your Own Risk" or a warning
sign required under an equine activity liability law. However,
as this author mentioned in part one of this series, there are
important differences between a sign and a well-written release
of liability. While a sign may plainly reveal policy of a person
or facility of limiting liability, the injured person often denies
having seen or read it. Unlike a sign, a release of liability
is an affirmation in writing that a guest or visitor
has read, understood, and agreed to release and hold the other
harmless from the consequences of negligence or other asserted
wrongdoing. Some people believe that releases are
unnecessary if they post signs that state: "Ride At Your
Own Risk" or a warning sign required under an equine activity
liability law. However, as this author mentioned in part one of
this series, there are important differences between a sign and
a well-written release of liability. While a sign may plainly
reveal policy of a person or facility of limiting liability, the
injured person often denies having seen or read it. Unlike a sign,
a release of liability is an affirmation in writing that
a guest or visitor has read, understood, and agreed to release
and hold the other harmless from the consequences of negligence
or other asserted wrongdoing.
"Children Can Sign Releases"
Children not of legal age (typically, under the age of 18) certainly
can sign releases but, to be legally valid in most states, the
child's parent or legally-appointed guardian must also sign on
his or her behalf. Children not of legal age (typically,
under the age of 18) certainly can sign releases but, to be legally
valid in most states, the child's parent or legally-appointed
guardian must also sign on his or her behalf.
"Anyone Can Sign a Release on Behalf of a Child"
The signature of a trainer, uncle, or family friend will not suffice,
unless they are a parent or legal guardian who is expressly signing
on behalf of a child. As applied to children, the law of releases
becomes especially complex. Under the law in many states, even
if a child's parent or legal guardian has signed the release on
the child's behalf, the release might only prevent the parent
or guardian from bringing suit on the child's behalf. years later,
typically once the child reaches legal age, he might still be
permitted to pursue a lawsuit on his own. States may vary on how
old the child must be for this to occur. The signature
of a trainer, uncle, or family friend will not suffice, unless
they are a parent or legal guardian who is expressly signing on
behalf of a child. As applied to children, the law of releases
becomes especially complex. Under the law in many states, even
if a child's parent or legal guardian has signed the release on
the child's behalf, the release might only prevent the parent
or guardian from bringing suit on the child's behalf. years later,
typically once the child reaches legal age, he might still be
permitted to pursue a lawsuit on his own. States may vary on how
old the child must be for this to occur.
Conclusion
In conclusion, please keep the following ideas in mind:
In conclusion, please keep the following ideas in mind:
- Our litigious society makes it more important than ever to
consider using liability releases, where allowed by law.
- States have different requirements regarding the enforceability
of liability releases and what language they can or cannot include.
a small number of states will not enforce releases where recreational
activities are involved.
- Form releases run a serious risk of being unenforceable. Because
a release is a very important legal document, it is important
to consult with a knowledgeable attorney to draft, review, or
update your release.
This article is not intended to constitute legal advice.
When matters arise based on specific situations, direct your questions
to a knowledgeable attorney.
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