By Doyice J. Cotten
Stefana Pecher took riding lesson at Showtime Stables which was owned by Rhea Distefano. After about six lessons, the horse ridden by Pecher was acting lazy, was not obeying commands, and was reacting slowly. She was told by the instructor to use the crop to tap lightly on the shoulder of the horse; the horse bolted, causing her to fall and injure herself.
During the trial, the defense entered into evidence a photo of a warning sign posted at eye level at the barn door and a liability waiver signed by the plaintiff. Part of the waiver read:
The Undersigned assumes the unavoidable risks inherent in all horse-related activities, including but not limited to bodily injury and physical harm to horse, rider, and spectator.
In consideration, therefore, for the privilege or riding and/or working around horses at , located at , the Undersigned does hereby agree to hold harmless and indemnify and further release them from any liability or responsibility for accident, damage, injury, or illness to the Undersigned or to any horse owned by the Undersigned or to any family member or spectator accompanying the Undersigned on the premises.
The defense stated that “The purpose … is to demonstrate that the plaintiff knew about the inherent risks of riding at the stable… .” The trial court allowed the defense to enter the photo and the liability waiver signed by Pecher. Regarding the waiver, the court admitted it with the an admonishment to the jury. Part of the jury instructions was the following:
Now, ladies and gentlemen of the jury, … I’m instructing you that the law does not allow somebody to waive claims for somebody else’s negligence in advance. You know, you can do it, technically, afterwards, but you—if you go into a restaurant, you can’t be required to sign a release that, if I get food poisoning because the food’s been out for three days, you know, the customer can’t sue the restaurant. This exhibit is only being accepted by the court and may only be used by you as basically notice of the hazard. It is not a release of liability. It is not claimed to be a release of liability by the defense. The court then asked the plaintiff’s attorney if it left “anything out.” The plaintiff’s attorney replied: “I think that was perfect, Your Honor,” and the defendant’s attorney replied: “I think that’s what we discussed in chambers, Your Honor. [Bold added.]
[NOTE: The Connecticut Supreme Court has on two occasions entered rulings that make most liability waivers against public policy and unenforceable (Hanks v. Powder Ridge Restaurant Corporation, 2005; Reardon v. Windswept Farms, LLC, 2006].
Ultimately, the trial court returned a verdict in favor of the defense. Pecher appealed claiming that admitting the document was an error and asked for a new trial (Pecher v. Distefano, 2017).
The appellate court stated that the appeal was hindered by the fact the record of the trial provided by the plaintiff was incomplete and inadequate. It added that it is the plaintiff’s burden to provide a complete record on appeal. Further it pointed out that the Supreme Court has granted trial courts broad discretion in ruling on admissibility of evidence.
The appellate court stated that because of the inadequacy of the record “. . . we need not decide whether the actual purpose for which the evidence was offered provided a sufficient basis upon which to admit this evidence or whether the trial court appropriately balanced the probative value of the evidence against its prejudicial effect.” In view of the fact that the court could not conduct a full and complete analysis of harm done by the admission of the document, the court affirmed the judgment of the trial court in favor of the defense.
Risk Management Take-Away
The reason the trial court allowed the document to be entered into evidence was because it warned the signer of the risks of horseback riding. It is important that participants in all activities understand the inherent risks of the activity. Note that the warning in the waiver was very brief: “The Undersigned assumes the unavoidable risks inherent in all horse-related activities, including but not limited to bodily injury and physical harm to horse, rider, and spectator.” The author recommends a much more complete warning of risks that includes listing several examples of inherent risks and types of injuries that can result from the activity.