Thursday, December 08, 2011

Equine liability laws go only so far

Yvonne Ocrant

Forty-six states, including Illinois and Wisconsin, have equine liability statutes. The laws are intended to shift many of the responsibilities of taking part in equine activities away from stable owners and back to the participants.

States value the social and economic benefits of equine pursuits, so laws are on the books to protect and enhance horses businesses, said Yvonne Ocrant, attorney with Chicago law firm Hinshaw & Culbertson.

But states' love for horse businesses goes only so far.

"What the state gives, the state can take away," Ocrant said during a seminar at the recent Equestrian Lifestyle Expo in Grayslake, Ill. "While the equine liability law shifts risk to participants, there are exceptions. It's not a zero-liability law."

A hallmark feature of the law is its signage requirement. Signs must be posted where they are clearly visible and where equine activities are taking place. The language, explaining that participants ride at their own risk, must be the exact words of the law and posted with one-inch black letters, she said.

"There's really not much ambiguity about the signage posting requirement," Ocrant said. "Saying ‘the horse ate the sign' isn't going to cut it."

Everything in the law also is subject to interpretation. If there's trouble, defining an equine activity can become an issue. Who is doing what and where can become suddenly important.

"Is mom standing by the door watching her daughter take a lesson a ‘participant' in an equine activity?" Ocrant said. "The law generally doesn't apply to spectators or bystanders."

Owners and managers of equine stables and businesses are encouraged to have contracts with all participants, clients, spectators and anyone else using their property for any reason. A properly drafted and executed written liability release can reduce liability exposure.

There are five major exceptions to liability protection for stable owners: Faulty tack or equipment, mismatched horse and rider, dangerous or latent conditions, willful or wanton disregard, and intentional acts.

"You're required to keep your tack and equipment in good working order," Ocrant said. "It's a good idea to have a schedule of equipment maintenance. Keep a record of when the tack is cleaned and examined and replaced."

Equine professionals have to properly match horse and rider. A poor or inexperienced rider paired with a horse known to have a bad attitude is a liability wreck waiting to happen.

"And if someone falls off a horse and gets hurt you're probably going to learn about this exception," Ocrant said.

Dangerous or latent condition exceptions are difficult to define. Snow piles up on the arena roof; it warms up during the day and then during youth lessons slides off with a loud crash. What happens next can introduce you to the nuances of the dangerous and latent condition clause, she said.

"And willful and wanton disregard?" Ocrant said. "Act reasonably."

Contracts and proper insurance are the best way to extend risk management for the operator of an equine business. A legal contract should contain the exact wording of the equine liability law in every case. Additional details are then spelled out based on the nature of the business covered by the contract.

"Insurance is important to be sure even if you win your case you don't lose the farm," Ocrant said. "You're still going to have to pay legal costs and attorneys' fees to defend yourself."

Seek some professional legal help when selecting insurance and writing contracts, she advised. Often the best defense is preparation and awareness of potential risks and using the resources available to minimize risk exposure.

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