I can’t tell you how many times I’ve heard a stable
owner tell me "They won’t sue me. They signed a liability
waiver". This statement reflects a misconception prevalent
in the horse industry – that a liability waiver will prevent lawsuits
from being filed. Nothing could be further from the truth. In
fact, many stable owners are currently using standard form liability
waivers drafted in such broad, generic terms as to be virtually
unenforceable in the event a lawsuit gets filed. How can this
be?
Most stables require participants to sign "liability waivers"
before they participate in riding activities. The waiver form,
signed by the participant, typically "holds the stable harmless"
for any accidents or injuries suffered by the participant while
on the premises. Often, a stable owner or instructor obtained
the form from a friend or from a generic form book, and started
using it without first requesting review by a licensed attorney.
The stable owner believes the waiver prevents the participant
from later suing the stable. However, the enforceability of the
waiver depends largely on the specific wording of the waiver,
as well as the particular legal requirements which differ from
state to state. In other words, that waiver is meaningless without
proper wording and compliance with applicable state law.
Consider the following example. A young boy and his father arrive
at the lesson stable, ready to begin lessons. The stable owner
gives the boy and his father a lesson contract to review and sign.
The short-form contract contains information identifying the stable,
the participant, the dates of lessons and the riding level of
the child. The agreement also contains the following clause:
"I agree to take full responsibility for myself and
the animal I am riding. I will hold the stable blameless for any
accident, injury or loss that might occur due to my participation
in these lessons, and free from all liability for accidents, injuries
or losses."
The father and boy both sign. The boy later falls off
his horse during the lesson and breaks his collarbone. The boy’s
parents sue the stable on behalf of their minor son. The stable’s
attorney files a Motion to Dismiss Petition based upon the signed
liability waiver. Will the case be dismissed by the court? Will
the waiver work?
Start off with the proposition that liability waivers are not
typically favored in the law. This is because the liability waiver
is an extraordinary method of shifting the risk of negligent conduct
away from the negligent party. It is a contractual agreement to
waive common law duties that otherwise exist between two parties.
For example, at common law, the stable owner and lesson instructor
owe the boy a duty to exercise reasonable care to protect him
before, during and immediately after his lesson or while he is
otherwise on the premises. The waiver attempts to make the boy
solely responsible for his injuries, even if the injuries were
potentially caused by the stable or lesson instructor’s negligence.
Because of this unusual shift of responsibility, some states
do not enforce liability waivers at all, holding them "void
as a matter of public policy". Other states enforce them
cautiously, asking the following questions:
1. Is the waiver clear and unambiguous?
2. Does the waiver contain clear, explicit language waiving
a person or entity’s liability?
3. Is the waiver language conspicuous within the document
or hidden in fine print?
4. Is the parties’ intent to "waive negligence"
clearly and expressly stated in the agreement?
5. Were the parties sufficiently informed about the potential
risks in order to permit a "knowing" waiver of those
risks and attendant liabilities?
If any of these questions are answered "No",
the waiver may be unenforceable.
Applying these rules to the above waiver, a court would
most likely analyze the waiver’s enforceability as follows. On
its face, the waiver language appears conspicuous given its presence
in a short form contract. The waiver appears to express the participant’s
acceptance of full responsibility for any accidents or injuries
which might occur.
On the other hand, the waiver does not mention the possible risks
of injuries related specifically to horseback riding. Accordingly,
the father and son can argue they were not aware of the inherent
risks when they signed, and were therefore unable to "knowingly
waive" the liability of the stable where the risks were an
unknown factor. In many states, this absence of risk identification
is sufficient to void the waiver. In addition, many states which
have enacted some form of the Equine Limited Liability Act require
all equine contracts and waivers to contain express wording about
the "inherent risks" of equine activities as a prerequisite
to invoking the protections of the Act.
The waiver clause in our example additionally lacks clear
language which unambiguously waives the stable’s liability for
its own negligence. Many states, prior to holding a waiver enforceable,
require that waiver to expressly state that the participant has
waived any claims of liability against the stable from acts occurring
from the "neglect" or "fault" of the stable.
These terms must be specifically set forth in the clause in order
to be enforceable. These states include, but are not limited to,
Missouri, North Dakota, Delaware, and New York. In those states,
the above waiver would probably be unenforceable.
In other states, including but not limited to Wyoming,
Florida, New Hampshire and Illinois, the clause does not require
an express waiver of negligence phrase to be enforceable. The
clause need merely contain evidence of the participant’s clear
intent to release the stable. For example, consider the following
clause: "Participant shall hold harmless and release Stable
from any and all claims and damages which may occur from participating
in any and all activities sanctioned by Stable". A similar
clause was enforced by a Wyoming court, which found the clause
to be a clear and unambiguous release of liability even though
it did not specifically mention the release or waiver of the stable’s
"negligence".
A waiver can be a strong defense tool for a stable owner
or lesson instructor, and its use should be considered in all
instances involving equine activities. However, do not automatically
assume your current waiver is enforceable under your particular
state’s laws. If you currently use a waiver in your equine business,
take another look at it. Is it conspicuous? Does it inform the
participant of the inherent risks of the activity? Does it comply
with your state’s Equine Limited Liability Act? Does it include
an express waiver of negligence clause? Can the participant understand
what he or she is reading, and its legal significance? If so,
your waiver is probably positioned to enjoy enforcement under
the law. However, as in all instances involving legal matters,
you should have your waiver carefully scrutinized by a local attorney
to ensure its compliance with your particular state’s laws before
you rest securely on its perceived protections.
About
the Author
Denise E. Farris, Esq.
The Farris Law Firm
324 East 11th Street, Suite 1304
Kansas City, Missouri 64106
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