1999 Julie I. Fershtman, Esq. All rights Reserved

LEGAL PROBLEMS FREQUENTLY ENCOUNTERED & H9OW TO AVIOD THEM

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

 


I have been a lawyer for 13 years and have practiced Equine Law for
most of them. In November 1998, the American Riding Instructors Association
invited me to speak at its Annual Convention. I was asked to share a few of
my personal observations about cases that I have handled and to offer ideas on
how people in the horse industry can avoid legal battles. This article will
briefly share some of my comments to the Association from that speech.

"Get it In Writing." In the horse industry, these truly are words to live by. Of the many calls my office receives, about 80% come from people who encountered serious problems with verbal contracts. For example, a disgruntled horse buyer wants to sue because a horse allegedly fails to live up to the seller's verbal promises about the horse's condition or qualities; a horse seller in a verbal installment sale arrangement wants to collect several months of missed payments or repossess a horse; or, a virtual "custody battle" brews when the one keeping a horse claims that it was a gift and refuses to return it, but someone else demands the horse's return, claiming that the horse was merely leased or loaned to the other. With verbal contract disputes, one guarantee is certain: they are rarely resolved quickly, easily, or cheaply. When they are the focus of a lawsuit, they create a shouting match because the two parties to the transaction never agree on the contract's terms, or even whether a contract existed! Written contracts, by comparison, can prevent disputes altogether or can help narrow the grounds of a dispute, if one should arise. The investment in a good written contract, especially when drafted by an experienced lawyer, can be well worth it.

Try to Develop and Keep Paperwork & Reports. A large part of my law practice involves defending the horse industry from lawsuits brought by people who have been injured while riding, handling, or near horses. One of my clients is a very busy riding academy. During a lesson one day, a child lost her balance, fell off of a horse, and broke her arm. The stable arranged to give the child proper medical attention at a nearby hospital, returned to business, and the matter was soon forgotten. Three years later, however, the child sued the stable. By that time, the stable had no recollection of the incident. There were no known witnesses and no incident reports. This lack of paperwork placed my client at a distinct disadvantage. If the academy had, at a minimum, taken down the name, address, and phone number of the injured child and of each witness, this problem would have been prevented. A description of the incident, made close in time to when it happened, could have helped, as well. Stables can develop procedures and forms for this.

Liability Releases. Releases of liability (also called "waivers") are probably the most misunderstood documents in the horse industry. In the many states that enforce liability releases, the courts demand that the releases be properly worded and signed. Here are a few noteworthy problems with releases that I have encountered from actual cases in my law practice and lessons to be learned from them:

Accept No Excuses. The best release form is worthless if it is unsigned. A few years back, I defended a lawsuit in which the plaintiff (the one suing) happened to be a lawyer. Over her many weeks of lessons from an equine professional, the lawyer made several excuses for not signing the liability release. "I left my copy at home today," she would say. "I'll bring it to my next lesson." Over time, the busy equine professional
forgot all about the lawyer's promises -- until the day when a horse bit the lawyer, seriously injuring her. Only after the lawyer sued did the
professional realize that no signed release existed. Although the professional had many valid defenses to the case, a signed release would have
been among the most powerful ones.

Remember Who Can Sign Them. In a personal injury case I defended, a 16-year-old was rendered a quadriplegic after falling from a horse in a freak accident. The stable assumed that victory was assured because the minor had signed its release of liability. A painful lesson the stable learned, however, was that minors might be old enough to drive a car but, in the eyes of the law, the minor's signature on the liability release is
usually not legally binding.

Guard Important Contracts Under Lock and Key, If Necessary. Stables I have served in three different areas of the country had one thing in common: each stable was certain that the plaintiff had signed a release of liability before they were sued; yet, the releases were nowhere to be found. The stables' unconfirmed suspicions in each case were that the plaintiffs had access to the stables' filing cabinets and snuck out the signed
releases just before filing suit.

Fill In The Blanks. Over the last several years, my articles and speeches have suggested that form releases found in books and sold in stores are, at best, a starting point. Why? One case on which I worked provides a case in point. There, a stable merely photocopied and used a one-size-fits-all equine release from a form book. The form stated, in part: "In exchange for the privilege of riding horses at XYZ Farm, I agree to release and hold harmless __________________." Unfortunately, nobody bothered to fill in the second blank, leaving the release empty as to whom was released from liability!

Sympathy Within Reason. I assisted on one case in which an equestrian was seriously injured from a fall during a lesson and later sued the stable. The horse at issue was known to be "bomb-proof." A day or two after the incident, a stable worker -- apparently acting out of a desire to console -- allegedly told the plaintiff's relatives that the plaintiff "never should have been paired with that horse." The plaintiff's lawyers, seizing upon this statement and arguably twisting it beyond its intended meaning, tried to use it to build a case against the stable that the horse was unsuitable. Certainly, sympathy and kindness are desirable human traits. For businesses, the key is to advise workers that "so sorry" and a sincere hug might do just fine to break an awkward silence.

Partnerships Are Businesses Too. My law office receives an alarming number of calls from equine business partners who assert that their fellow partners engaged in unauthorized or fraudulent activities. In one dispute, for example, a partner was accused of selling off horses that supposedly belonged to the partnership, without the other partner's approval. In many of the calls my office receives, the problems are worsened by the
total lack of a written partnership contract and the partnerships' horses were only registered under one partner's name. This scenario creates costly legal battles. Carefully drafted contracts can make all the difference; the cost to develop one could save far more money in legal expenses.


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.