Holly C. Rudolph, J.D. has produced a product that can be of great interest to those in sport, recreation, and fitness industries. She has collected all Equine Activity Liability Statutes as well as all Recreational Land Use statutes and put them in one convenient place. sport lawyers, sport law professors, and recreation professors should find this an invaluable resource.
Holly is a recent graduate of Lewis and Clark Law School, a Dean’s Fellow, member of the Cornelius Honor Society, and clerked for the Animal Legal Defense Fund. A summa cum laude graduate of Rutgers University with over twelve years of experience in the health care field, Ms. Rudolph created The Hoofway Project in conjunction with the Equine Land Conservation Resource. Holly can be contacted at [email protected].
A client walks into your office. She may be a horse owner looking to ride through the undeveloped land behind her barn, or she may be the owner of that land. Or worse, she may be a rider who was injured on that land while riding a horse, or by someone who was. Where do you start?
Every state in the country has had Recreational Land Use (RLU) statutes in place for a long time, and most likely you will be familiar with these. But do you know that 46 states also have Equine Activity Liability Act (EALA) statutes? Do you know where to find them and how to use them in any of these situations? More importantly, do you know how the RLUs and the EALAs differ and which one appropriately applies to your client’s situation?
The fact is, most EALAs appear to have been enacted without consideration of existing RLU laws, which can result in overlap and conflict between the two. Adding to the difficulty, most judges are reluctant to embark on an uncharted road with new laws when they can take the road oft-travelled.
How can you best counsel your client in these situations, and how can you craft your case, knowing that two separate statutes could apply?
Two Laws, One Source
While any number of sites collect either RLU or EALA statutes (usually by transcribing the language into a static document), there had never been a site that put both laws side-by-side and outlined the relevant information in a cohesive way. In 2009, the Equine Land Conservation Resource was looking for someone to create just such a document, which became The Hoofway Project. The Hoofway Project looks specifically at the overlap between EALA and RLU laws: the landowner who allows riders to cross his land, but is not otherwise involved with the rides or riders. EALA laws are designed with an eye toward traditional equine professionals, facilities, and activities like shows and lessons. RLU statutes are much broader, but may at times conflict with EALA statutes in cases where both could arguably apply. For a lawyer, the language of your local law may be the crucial factor in how you protect and represent your client.
Using Equine Liability Statutes
To evaluate liability exposure, you will need to pay particular attention to two elements of EALA laws: sign posting requirements and “dangerous latent condition of land” exceptions. The major difference regarding “dangerous latent condition of land” exceptions is the use of “known” or “should have known” language. States that use “known or should have known” impose a duty on the landowner to inspect the property for non-obvious perils. If a reasonable inspection would have revealed the existence of a condition (such as hidden sinkholes, rotting branches, or an eroding stream bed), then the owner may not be insulated from liability by the EALA. If your state uses “known dangerous latent conditions of land,” a landowner would only be liable for conditions that he had actual knowledge of, with no duty to inspect or discover. This language may be an important factor in granting permission to ride or where to place a trail.
States also differ in their language and printing requirements for signs and contracts. Some states dictate specific language that must be included, and some are very specific regarding font size and color. The Hoofway Project provides direct links to the statutory sections that outline these specifications. These requirements are generally geared toward making riders aware of the EALA. In some states with sign posting and contract language requirements, a client who fails to follow them precisely may find herself unable to claim any protection under the EALA.
It is also critical to advise any client that most states expressly exclude willful or wanton misconduct from coverage, and many will not cover recklessness or gross negligence. The Project notes these limitations, but carefully review any local decisions interpreting the statutes.
One tricky element of the EALA laws is a tendency for the laws to be circular in their definition of an “equine activity.” While most statutes apply protections to “any person,” many also define an “equine activity” as (among other things) an informal ride sponsored by an “equine activity sponsor.” An “equine activity sponsor” who can potentially derive protection from the EALAs, in many states, may be a person who “sponsors or provides facilities for an equine activity.” While no state defines what it means to “sponsor” an activity or what “facilities” are, it appears that landowners would be able to argue that because they have provided land (“facilities”) for an activity, that they should be protected as “equine activity sponsors.” However, in West Virginia this would mean arguing that the landowner is a “horseman,” which also imposes extensive duties that you should review closely. No court has yet addressed this circular definition, so advising clients under both EALA and RLU statutes will provide them (and you) the best chance of protection under either theory.
Using Recreational Use Statutes
Where the EALA statutes will arguably extend protection to a landowner as a provider of facilities, the RLU laws in most states will almost certainly do so. Many states with EALAs have also retained ‘horseback riding’ or similar language in their RLU statutes, so the laws will often overlap where equestrian activities are involved. Other states have significant restrictions in their recreational use statutes that will force landowners to seek protection in the equine activity statutes.
Most RLU laws are broad, covering activities “including but not limited to” specified activities. Some states, though, impose significant restrictions on who can claim protection. For example:
- The Mississippi statute only applies to the activities listed, and does not include riding animals. However, there is conflicting language that appears to be the result of two or more statutes being cobbled together. “Outdoor recreational activity” does use “including, but not limited to” language, but later elements, such as duty of care provisions, do not use the defined term, leaving the statute vague and contradictory.
- Alaska, New Jersey and Tennessee limit their recreational use protections to landowners enrolled in specific state programs
- Texas has specific insurance requirements.
- Missouri limits their statutory protections for recreational use to land that is not within corporate boundaries, which may cause difficulty for some users.
- Oklahoma does not apply recreational protection to farm or ranch land, or to adjacent lands.
In states with these types of restrictions, landowners may have to seek protection for a particular activity under the equine activity statutes.
It will also be crucial for purposes of evaluating application of the RLU to know whether your state permits charging a fee to use land for recreational purposes without destroying the protection of the laws. In most states, charging a fee or receiving non-incidental consideration of any kind will destroy the recreational use protections. However, it is possible that in most of these states, the charging of a fee could actually strengthen the argument that a landowner “provided facilities” for an equine activity, strengthening their position as an “equine activity sponsor” who can potentially benefit from the state’s EALA. Depending on how the state law is written, this may be more or less desirable for a landowner. In West Virginia, for example, the equine statute imposes significant obligations that would make it undesirable to use that statute for protection.
Know Your Laws to Choose Your Laws
In any given situation, both RLUs and EALAs may provide protection to your client. It is critical to know what is required of an owner under both types of laws, as certain situations may preclude protection, or may impose specific obligations to invoke the law’s protections. Whether advising clients beforehand or after a problem has arisen, the Hoofway Project’s summary and direct links to the statutes make this easier than ever for practitioners and the public alike.