Inadequate Exculpatory Language and Facility Improvements After an Incident Involving Possible Negligence

By Doyice Cotten

Lisa Garvine fell from her horse during a charity horse ride offered by Oxford Grain & Hay Company on land owned by the State of Maryland. This suit ensued (Garvine v. Maryland, 2019).

While moving to the start line, Garvine and her horse fell into a creek that was lower than the trail and hidden by undergrowth. There were no barriers or warning signs to warn riders of a culvert, creek, and deep drop-off.

In this post, we will address only a couple of issues of interest. The first is whether the waiver signed by Garvine contained language that exculpated the defendants. The second relates to the federal statute that comes into play when plaintiffs intend to use evidence of safety improvements instituted after an injury as evidence the the provider was negligent.

Did the Waiver Language Exculpate?

The court examined the exculpatory language used in the waiver to determine if it protects the defendants from liability for their own negligence; it consisted of two phrases:

  1. Defendant “is not responsible for any person, horse or your property” and
  2. Entrants “participate at your own risk”

The court sought to determine if the language clearly and specifically indicated the intent to release the defendant from liability for personal injury caused by the defendant’s negligence. It determined that the waiver was not sufficient under Maryland law to bar the claim of negligence. Many sport, recreation, and fitness businesses rely on the “participate at your own risk” language. That language may suffice in some states, but certainly not in Maryland and many other states. The court stated that the language “falls short of the legal standard demanded of exculpatory waivers.”

Admissibility of Subsequent Safety Improvements by the Defendant

Following the incident, the State of Maryland made a number of improvements to the property to prevent more incidents of the same nature. They added some fences, railings, and warning signs near culverts and bodies of water.

The State made a motion to preclude evidence of the subsequent installation by the State of a wooden fence across the top of the culvert at issue as evidence of negligence (citing Federal Rules of Evidence, Rule 407 – see below). Plaintiff noted that it would be evidence of ownership or control of the property by the state; the court, since neither was at issue, granted the motion to preclude.

Federal Rules of Evidence Rule 407.    Subsequent Remedial Measures

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: 1) negligence; 2) culpable conduct; 3) a defect in a product or its design; or 4) a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

The State also moved the court to preclude evidence concerning other fences, railings, or warnings at the facility that are near other culverts or bodies of water. They argued that this is necessary because the “Plaintiff will be unable to provide the requisite context or background to properly evaluate the history and purpose of fences, railings, or warnings throughout Fair Hill;” therefore, such evidence would be prejudicial.

The court was unconvinced of a blanket exclusion’s necessity. It felt that with an appropriate foundation when evidence is introduced, that objections, cross-examinations, and the introduction of other evidence can sufficiently prevent any undue confusion or prejudice. The court denied the motion to preclude.


This case presents more important input as to language that might result in the failure of your waiver to protect against provider negligence. The language ruling applies to some states including Maryland, but not to all.

The author thought the second point regarding Rule 407 might be of interest to providers who have been involved in a negligent incident and are considering making changes to correct the cause of accidents or injuries. This is a federal statute and applies in every state.

Photo Credit:  Thanks to  Steve Jurvetson via Flickr.