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Friday, July 25th, 2008
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9 Dangerous Ways Equine Enthusiasts Expose Themselves To Lawsuits -- and 9 Smart Ways To Protect Yourself
By Polly Hey Panos
Equine Law Attorney and Horse Owner
Dangerous Way #1: Keeping a vicious or dangerous horse. Suppose you have a horse that does not like the farrier. Whenever the horse is shod, he tries to kick. You have recently moved stables and have a new farrier. You are not there the day your horse gets shod for the first time, and forget to mention on the phone to the farrier that your horse has tried to kick before. The new farrier tries to put shoes on your horse and your horse kicks and breaks the farrier’s leg. You are liable for the farrier’s injuries because you knew of the horse’s vicious tendency to act out when being shod.
Smart Way #1: If you have a horse that is vicious or dangerous and you do not absolutely have to keep it, get rid of it as soon as you can. The word vicious can be a little misleading in this context. A vicious horse does not mean a horse that only bites. Instead, it refers to injuries caused by kicking, stamping, knocking down and biting. If you can not get rid of the horse, then you should (1) make sure it is kept away from other horses and people, (2) warn anyone who is going to come into contact with the horse of past occurrences, (3) post signs indicating that the horse is dangerous, and (4) have a private horse owners liability insurance policy to protect your interests if the horse does injure someone.
Dangerous Way #2: Faulty tack or equipment. Suppose you run a training program and occasionally give lessons on your horses. You are in the middle of a lesson and the horse you are teaching on bolts. The student pulls back on the reins to slow the horse down, and the reins break. The student having no control over the horse tries to jump off and breaks her leg. The student claims you were negligent by providing a faulty bridle that was in disrepair.
Smart Way #2: Develop an equipment maintenance program. Lawsuits based upon faulty tack or equipment are fairly common and are easy to guard against. Establish a maintenance program that includes (1) daily or weekly review of the condition of the tack, paying particular attention to any areas where the leather could be cracked or breaking, (2) clean tack on a regular basis, and (3) repair any tack that shows signs of breaking or wearing out. Put the equipment maintenance program in writing and make sure all employees understand and follow the policy.
Dangerous Way #3: Placing a rider on an unsuitable horse. Here’s how it happens: You run a summer camp and after the initial evaluation of riders you assign everyone to a horse. In a subsequent lesson, you notice that one camper is having trouble controlling the horse; however, you think she can handle it. A few minutes later, the situation worsens, and the horse is out of control and the camper falls off and is injured. The camper claims she was a beginner and you placed her on a horse generally reserved for an intermediate rider. You end up on the losing end of a court battle, with the court finding you were negligent in determining the suitability of the horse.
Smart Way #3: Do a thorough evaluation of every rider before placing him or her on a horse. Question new riders extensively about their past riding experience. If a rider looks like they are having trouble with the horse you selected for him or her, change them onto another horse immediately.
Dangerous Way #4: Allowing a student to ride without a helmet. Here’s a typical scenario: You require people to wear a helmet when they are jumping, but not when they are riding on the flat. A student is hacking a horse that spooks and the student falls off. The student suffers a brain injury that could have been prevented by a simple rule requiring headgear.
Smart Way #4: Include in your stable rules a rule requiring anyone mounted on a horse to wear an ASTM/SEI-certified helmet. California has a bicycle helmet law, but, unfortunately, not an equestrian helmet law. In a sport where participants are traveling at high speeds -- often over uneven terrain on unpredictable animals who have minds of their own -- a helmet is an easy way to help protect both the rider’s wellbeing as well as your own liability.
Dangerous Way #5: Operating as a sole proprietorship without considering other business formations. While a sole proprietorship is the simplest and easiest business form, other business formations such as partnerships, corporations and limited liability corporations may offer a way to reduce liability and prevent a lawsuit.
Smart Way #5: Speak with an equine attorney, or research yourself the different types of business formations available to the horse industry. Every decision must consider the tax advantages as well as non-tax factors such as reducing liability, ease of ownership transfer and statutory requirements associated with each form of business.
Dangerous Way #6: Assuming your homeowners insurance protects your equine related liability. Most homeowner’s insurance policies DO NOT provide any liability protection relating to your horse ownership. Here’s what may happen to you: You let your friend ride your trustworthy mare on the trail, when out of the blue she spooks. Your friend falls off, breaking her leg. Though you’ve been friends for many years, she decides to sue you to recover for the costs of her injuries. You assume that your umbrella on your homeowner’s policy protects you and your family’s assets. But, unfortunately, in most cases, it does not -- and you’re left paying thousands of dollars in medical bills and attorneys fees.
Smart Way #6: Instead of buying an umbrella policy on your homeowners insurance, buy private horse owners liability insurance. Private horse owner’s liability insurance provides coverage for the bodily injury or property damage to others, as caused by your horse ownership on or off your premises.
Dangerous Way #7: Trailering a friend’s horse to a horseshow. Suppose you and your friend are going to a horse show. You have a two-horse trailer and offer to give her horse a lift to the show if she will pay for the gas for your truck. After a long day of showing, you are driving both horses home and get into an accident. Your horse is fine; however, your friend’s horse is injured. Your friend expects you to pay for all of the vet bills associated with her horse’s injury. You hope that your homeowners insurance will cover the costs; however, you find out that the policy excludes non-owned property in your care, custody and control. Your friend decides to take the matter to court based upon negligence and a bailor/bailee theory.
Smart Way #7: The best way to protect yourself would be not to trailer any horses that you do not own. However, if you must trailer a friend’s horse, invest in the proper insurance that will cover you in this situation.
Dangerous Way #8: Using a liability release with defective language. The courts in California have upheld release forms; however, they have given specific guidelines on what must be included in the release for it to be enforceable, such as the size of the font. Chances are you have a liability release that you have all your students’ sign; however, you probably do not understand the form. So if a student is injured during a lesson then you will likely end up in court. The court finds that your release form has defective language because it is “not simple enough for a layperson to understand,” or that the language is defective because certain headings are not bolded and indented as recent case law has dictated.
Smart Way #8: Know and understand recent case law developments regarding liability release forms. At minimum, have an equine attorney review your release form for any deficiencies.
Dangerous Way #9: Labeling your help at the barn as independent contractors instead of employees, and thus not investing in workers compensation insurance. Imagine this: Your groom is bringing in a horse from turnout and as he walks by adjoining paddock and horse, the horse he is leading rears up and kicks your groom in the head. He is in the hospital for several months and has astronomical medical bills. He applies for workers compensation and is denied because you don’t have workers compensation insurance. After all, you assumed by calling your groom an independent contractor you didn’t need to buy the insurance. Your groom then sues you to recover his medical costs, and the state penalizes you for mislabeling your employees as independent contractors.
Smart Way #9: Make sure you label your workers correctly. The courts and IRS have published several factors that help you determine whether your workers are independent contractors or employees. For example, the IRS examines the control you have over your workers. The more an employer supervises workers, and controls things such as their schedule, the less likely they are independent contractors. Another factor the IRS looks at is how the worker is paid. If they are paid by commissions or a lump sum, then they may be viewed as an independent contractor. But if they are paid weekly or by the hour, then the IRS will likely view them as employees. If you have any doubt about the status of a worker, you should contact an attorney who focuses on workers compensation. If you decide that you have employees, it is critical to obtain workers compensation insurance.You’re Invited to Call or E-mail!
“If you have questions or comments about any aspect of law relating to horses,
please don’t hesitate to call or send me an e-mail. I’ll be glad to hear from you --
and promise I will do everything I can to help you!” -- Polly