1999 Julie I. Fershtman, Esq. All rights Reserved

WHEN IS A 'RELEASE' NOT A RELEASE?

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

 


Joe operates a riding and boarding stable.  His state
has enforced liability releases in the past, but he has never used them. 
Instead, he posts one sign on his barn that says: "Ride at Your Own Risk."  
He believes the sign operates the same as a liability waiver or release and
will completely prevent him from being sued if someone is hurt.
Jill boards a horse at Joe's stable.  Before she
left town for a vacation, Jill gave her friend permission to ride and handle
her horse in her absence.  Knowing that Joe's barn has posted a "Ride at Your
Own Risk" sign, Jill believes that she does not need anything further to
protect her from liability in case something should happen to her friend.


Does the posting of a sign make it unnecessary for Joe
or Jill to use liability releases?  Generally speaking, the answer is no. 
Signs are important and are, in fact, required under many state equine
activity liability laws.  But one sign is not the same as a release (also
called a "waiver") of liability.   This article explores the benefits of
using both.

The Difference Between a Sign and a Release
There are important differences between posting a sign
and using a release of liability that is legally valid, well written, and
properly signed.  Certainly, a sign that says "ride at your own risk"
announces, in plain language, the facility's policy and intention of limiting
its liability.  However, when an incident arises, the injured party is almost
certain to deny ever seeing the sign.
A release of liability, by comparison, is an indication
in writing that the visitor or customer has read, understood, and agreed to
accept the facility's policy of limiting its liability.  Also, as discussed
below, the release provides an excellent opportunity to educate about risks
and more.

The Difference Between an Equine Activity Liability Law and a
Release

If you live or do business in one of the 43 states with
an equine activity liability law on the books (as of April 1999), you may
have strong protection against many types of liabilities arising from certain
equine activities.  This author has written several articles and a book in
the past addressing these laws.  However, the laws were not designed to
permanently end all liability in the horse industry.  Because no "zero
liability" laws exist, a written release of liability, where allowed by state
law, is an extra attempt to avoid liability.
Most states nationwide have enforced well-written and properly
presented releases of liability.  In the states that enforce releases, courts
often (but not always) recognize that people cannot release away the right to
sue for certain types of serious wrongdoing, such as "gross negligence,"
"willful and wanton misconduct," or intentional misconduct.
Already, releases have been enforced in states with equine liability
laws.  For example, in a recent Colorado case, that state's highest court
held that a liability release remained valid even after the enactment of the
Colorado equine activity liability law.  As a result, the court held, the
release could waive liability even for claims that were based on the Colorado
law's exceptions.  Because Colorado law prevented releases from waiving
liability for willful and wanton misconduct, however, the court allowed the
lawsuit to proceed only on those claims.  The case was {Italic type here}
Riehl v. B & B Livery, Inc., {Return to regular type} 960 P.2d 134 (Colo.
1998).

Extra Benefits of a Release of Liability
Posting a warning sign, especially where required by
law, is very important.  A release of liability has the potential to do much
more.  For example:

Risks
Most of the 43 equine activity liability laws
acknowledge that certain equine activities involve "inherent risks" and state
that equine professionals, equine activity sponsors, and possibly others
cannot be sued if a participant is injured or dies as a result of an inherent
risk of an equine activity (subject to the law's exceptions).  A release of
liability can recite the inherent risks and even other risks.  This
information can be especially informative if the release is presented to
novices with little experience around horses.

Headgear Warning  
The release can advise visitors, customers, or guests
about  ASTM-standard/SEI-certified equestrian helmets.  Helmets meeting these
standards are proven to be most effective.

Health Insurance
A small number of equine facilities require all
customers to maintain their own health insurance as a condition to being on
the premises.  Some of these facilities require customers to identify their
health insurance carrier and policy number.  For these facilities, the
release can make this requirement and information part of a binding contract,
not just a policy.

Binding Effect
If Jill's friend should become injured while taking a
trail ride off of the stable's property, he or she might assert that the
"Ride at Your Own Risk" policy posted on the barn does not apply.  Whether or
not this argument is valid, a release can seek to eliminate this claim by
specifying that the release is binding when the one to whom it applies rides
or is near horses at any location.

Equine Activity Liability Act Notices
Most states with equine activity liability laws require
certain persons -- usually, but not always, equine professionals -- to post
warning signs containing required language.  These laws frequently require
certain persons, groups, or businesses to include the same warning notices or
other language in contracts and releases.  In a small number of states, the
equine liability laws indicate that those who fail to adhere to these
requirements could lose the laws' immunities.

Conclusion
In conclusion, please keep the following ideas in mind:
1. Find out if you live or do business in one of the 43 states
with an equine activity liability law.  You can obtain a copy of your law by
contacting a state legislator, horse council, cooperative extension service,
or lawyer.
2. None of the equine liability laws mandates the words "ride at
your own risk" for signs.  Rather, many of the laws typically require certain
"warning" language on signs.  A sizable number of these laws also affect
language in contracts and releases.
3. States have different requirements regarding liability
releases.  A few states will not enforce them.  Before using a standard form,
make sure that it complies with your law.
4. Remember that a release will not protect you against all
lawsuits, and there is no guarantee that a court will enforce a release. 
Also, even with the best possible release, the need for insurance remains
strong.  People who sign releases can, and sometimes do, sue.
{Italics} 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.

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