1998 Julie I. Fershtman, Esq. All rights Reserved

EIGHT STRATEGIES FOR AVOIDING LIABILITY

by
Julie I. Fershtman, Attorney at Law
Author of Equine Law & Horse Sense
(248) 851-4111

     We all fear liability.  Liability can meanlawsuits, trials, unpredictable jury verdicts, and the potential for serious financial liability.   Everybody has the ability to take active measures in an effort to avoid liability.   This article explores eight practical strategies for avoiding liability.

# 1 - Understand What Causes Liability

Everyone, it seems, offers opinions on liability in the horse industry.  Many, for example, call the equine liability laws "zero liability laws."  Some say that these laws have permanently ended all liability in the horse industry and have somehow made liability insurance obsolete.  These statements are pure fiction; they originate from people who have never seen the law.  Those who rely on these statements could learn the hard way that they have been seriously misinformed.

Why allow unfounded opinions to steer you wrong on something as important as liability?   In a continuing effort to avoid liability, it helps to separate fact from fiction.   In this connection, consult with a knowledgeable lawyer.  Learn about liability through books, articles, and seminars.

# 2 - Develop Your Own Personal Safety Program

A constant dedication to safety will reduce the risk of injuries and, consequently, liability. Through a series of safety-conscious habits and practices -- implemented routinely -- you can lessen the risk of liability.  Elements to consider for a safety program can include numerous things.  Here are two ideas to help get you started:

*    Regular equipment inspections.  {Regular Text}If you provide tack or equipment to others, chances are good that you are at risk for liability if the equipment is blamed for causing an injury, and the injured person claims that you knew or should have known about defects in the equipment. Many of the equine liability laws
now impose liability under these circumstances.  Knowing this risk is a good incentive to stay a step ahead.  Regular equipment inspections will help keep your equipment in good condition and avoid liability on this basis.

*     Train your workers well.  As a general rule, a business is liable for the negligent acts its employees commit during the course of their employment.  With this in
mind, your own dedication to safety is a good start; make sure that all of your workers share it.

# 3 - Don't Be Afraid to Use Liability Releases

Contrary to popular belief, most states across the country have enforced releases of liability (also called waivers) IF they are properly presented and signed.  This author has written numerous articles on this subject over the years.

Those attempting to control liability would be wise to consider using carefully worded releases of liability.  Form contracts found in books and sold in stores are, at best, a starting point; there is no substitute for a release that has been drafted by a knowledgeable attorney.  And, of course, remember that having a release is never a substitute for having good insurance.

# 4 - Good Insurance
Certainly, insurance will not prevent liability (although some insurance companies might help you find ways to avoid liability).  What insurance will do is help save your home, your savings, and your property in the event that a claim or a lawsuit is brought against you for which the policy applies.  At the very least, insurance could spare you the enormous cost of a legal defense.

# 5 - Read Your Equine Liability Law Carefully 

Chances are good that you have an equine activity liability act in your state, or in states where you do business.  As of February 1, 1999, 43 states across the country have passed laws that, in some way, limit or control liabilities in their horse industries.  Read your law very carefully.  Pay particular attention to the law's exceptions.  All of the laws differ, but the most commonly found exceptions state that an  equine activity sponsor,   equine professional,  or possibly others are at risk of a lawsuit if they:

          *  Provide faulty tack or equipment that causes injury, death, or damage;
          *  Fail to properly determine the rider or handler's ability to safely manage an equine;
          *  Have land or facilities on which equine activities take place that have a dangerous non-obvious condition but for which no noticeable warning signs were                  posted;
          *  Exceptions in some laws may allow liability for  gross negligence or intentional wrongdoing.  A small number of laws allow liability for negligence. 
    
# 6 - Watch for Equine Liability Law Sign Posting Requirements

If an equine activity liability law affects you or your business, look for sign posting requirements and make sure that you comply.  These requirements vary considerably from state to state and there is simply no  one-size-fits-all  sign for nationwide use.  To illustrate how these requirements vary, Indiana's law requires signs to state:

                                                                                           WARNING
Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of the
equine activities.
    
The Texas law, in comparison, requires citation of the statute:

                                                                                          WARNING
UNDER TEXAS LAW (CHAPTER 87, CIVIL PRACTICE AND REMEDIES CODE), AN EQUINE PROFESSIONAL IS NOT LIABLE FOR AN INJURY TO OR THE DEATH OF A PARTICIPANT IN EQUINE ACTIVITIES RESULTING FROM THE INHERENT RISKS OF EQUINE ACTIVITIES.
    
# 7 - Watch for Equine Liability Law Contract Language Requirements

Many of the equine liability laws also require that certain language (often, but not always, the language required for warning signs) be repeated in various contracts.   Equine professionals are usually targeted for this requirement.


# 8 - Consider Incorporating

Establishing and maintaining a corporation, just like having insurance, will not prevent liability, but the corporation could save your home, savings, and property if a lawsuit is brought against you.

As this author has written in past articles, those who fail to take their corporation seriously run a risk of having the corporation disregarded in a court of law.
Those who establish corporations would be wise to follow formalities typically required of corporations, such as filing annual reports with the state of incorporation, using separate corporate banking accounts, and undertaking separate bookkeeping for the corporation.

This article does not constitute legal advice.  When questions arise based on specific situations, direct them to a knowledgeable attorney.


About the Author

Julie I. Fershtman is an attorney with a law practice serving the horse industry.  In her 15 years as a lawyer, she has achieved numerous courtroom victories and has drafted hundreds of contracts.  An independent lawyer rating service gives her its highest rating for abilities.  She can be reached at (248) 851-4111.

Looking for good resources on Equine Law?  Ms. Fershtman's books are highly informative, easy to understand, and even easier to order.  MORE Equine Law & Horse Sense, the newest book, sells for $22.95 + $4 shipping and handling.  Equine Law & Horse Sense, the first book, sells for $17.95 + $4 shipping and handling.  Michigan residents add 6% sales tax.  To order, contact Horses & The Law Publishing at (866) 5-EQUINE, a toll-free number, or send check or money order to Horses & The Law Publishing, P.O. Box 250696 Franklin, MI 48025-0696.