learn more about waivers and releases

Looking for Answers?

What is a waiver and how is it used? Does a waiver always work? Why does a waiver fail?  How do I write an effective waiver?  What if the client is a minor?  See Liability Waivers 101. . .

Waivers Upheld for Negligence in 3 of 4 Trail Ride Cases in 2013

By Doyice Cotten

Trail rides have been a risky proposition for women in 2013. As can be seen below, a well-written liability waiver for trail rides will provide protection for equine providers from liability for ordinary negligence in most states.15331546_78978270e6

Utah

In Penunuri v. Sundance Partners, LTD (2013), the rider signed a pre-injury waiver prior to a guided trail ride. Lisa Penunuri was injured by falling from her horse when the horse unexpectedly accelerated to close the gap to the next rider.

She claimed the waiver did not protect Sundance from liability for ordinary negligence because the Utah Liability for Equine and Livestock Activities Act provided that equine providers could not contractually limit their liability. Further, she claimed that the waiver was in violation of public policy. The court examined the Act and found that, unlike the ski liability statute, the act did not prohibit the use of waivers. The court also held that the waiver was not against public policy and affirmed the lower court decision in favor of Sundance Partners.

 Colorado

On another guided horseback ride, Alva Messer (Messer v. Hi Country Stables Corporation, 2013) experienced trouble with her saddle during the ride and eventually fell from the horse while descending a steep rock stair. One issue with the waiver was that the owner of the stables owned two companies with identical waivers, except for the name of company. Messer was inadvertently given the wrong waiver to sign. The court addressed mutual mistake law in Colorado and allowed reform of the waiver since it was clear that the plaintiff intended to release Hi Country.

A second issue revolved around the intent of the waiver language. The court ruled that the intent was clear and unambiguous since the waiver specifically used the word “negligence” throughout the document.  It is important to note that Colorado courts do not require the use of the word “negligence;” however, this case shows that the inclusion of the word will help to reduce ambiguity in any waiver.

The plaintiff also alleged product liability which was addressed in last week’s post – Providers Charged with Strict Liability Are Not Protected by Waivers. Willful and wanton conduct was also alleged and since there were issues of fact in that regard, the case was remanded to address that issue.

California

In Peck v. Verdi Trails West, Inc. (2013), Corrine Peck experienced difficulty with her saddle and eventually fell, injuring herself. She alleged negligence, gross negligence, and both intentional and negligent infliction of emotional distress. The trial court granted summary judgment on all claims; plaintiff did not appeal the negligence ruling but challenged the willful/wanton claim and the emotional distress claims.

The court defined gross negligence as a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” There was no evidence of such conduct as 1) the guide gave her instructions and 2) the guide was not informed of the on-going problem. The court said the conduct of the guide was no more than ordinary negligence.

Regarding the intentional infliction of emotional distress claim, to succeed on such a claim requires the defendant’s conduct to be so outrageous that it exceeded all bounds – there must have been an intent to inflict distress or injury. There was no evidence of such behavior. Regarding the negligent infliction of emotional distress claim, negligent actions were protected by the liability waiver.

The court affirmed the lower court ruling.

New York

Gail Vanderbrook signed a waiver prior to commencing a guided trail ride. She was injured when the horse brushed up to a tree, injuring her leg and hip. She subsequently sued (Vanderbrook v. Emerald Springs Ranch, 2013) alleging that Emerald Springs had knowledge of the horse’s propensity to walk too close to trees.

The court stated that the defendants failed to establish their entitlement to summary judgment based on a waiver of liability. The court stated “Even assuming, arguendo, that defendants conclusively demonstrated that plaintiff executed the release, we conclude that, under these circumstances, where the riding lesson was ancillary to the recreational activity of horseback riding, General Obligations Law § 5-326 renders the release void as against public policy.

General Obligations Law § 5-326

Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

So, generally, a stable in New York which charges for rides would not be able to gain protection via a waiver; if the business were 100% instructional, with no recreational element, a waiver would probably be enforced.

 

Photo Credit: Thanks to HandsLive at Flickr.