Julie I. Fershtman, Attorney at Law gives accurate answers to some important questions about waivers.
A few years ago, a major equine magazine interviewed me on the topic of releases of liability (sometimes called “waivers”) that are used in equine-related activities. I have long said that liability waivers and releases are, in my opinion, the most misunderstood documents in the equine industry. To explain this further, I am re-printing a portion of my interview in this article.
Question: Why do some people believe releases and waivers are not worth the
paper they’re printed on?
Fershtman: There seems to be a perception among many in the horse industry that
liability waivers (also called “releases”) have no value. That perception is simply not true under
the law in most states.
I can look at my own caseload, where I have persuaded judges to dismiss some lawsuits
on the strength of a liability release. But I am not alone; as long as the document is properly
worded and are properly signed, and as long as the document is presented under the right
circumstances, it stands a good chance of being enforced. The problem is, when people and
businesses fail to give these documents the serious attention they deserve and fail to use them
properly, the documents run a greater risk of failure.
To maximize the chances that a release or waiver will succeed, it takes a well-written
document. Form contracts, such as those shared with others, found in books, or purchased
somewhere, are, at best, a starting point. Because of the fact that releases are continually tested
in the court system, I strongly believe that these documents deserve the attention of a lawyer; the
lawyer’s job will be to make sure the document matches up to the state’s current legal standards.
After that, it takes the consistent and proper use of that document.
Remember, too, that the equine industry is not the only one that uses waivers and releases. Recreational industries – such as skiing, auto and bike racing, white water rafting,
hiking trips, parachuting, fitness clubs – have used them for decades.
Question: When are waivers and releases needed?
Fershtman: Whether a waiver or release is “needed” really depends on whether a person
wants to seek protection that the law may provide to him or her. I leave it to the individuals to
decide whether they “need” these documents and are willing to use them properly. But, more
than anything, I suggest that the decision be made after people understand the benefits of these
documents and after they overcome the long-held myths surrounding them.
For equine professionals, such as instructors, trainers, boarding stables, dude ranches,
horse rental facilities, a well-written liability release or waiver can be an essential business form
that all customers, as well as parents or legally-appointed guardians of minors, can sign as a basic part of doing business.
Even the back yard horse owner could potentially benefit from a liability release. More
and more average horse owners have come to me seeking liability releases to use, for example,
when they have visitors on their premises or when they allow friends or relatives to go trail riding on their horses.
Question: Do equine liability laws make waivers and releases unnecessary?
Fershtman: No. Presently 46 states across the country have equine activity liability
statutes. The laws, in various ways, limit or control certain liabilities that involve horses and
horse activities. All of the laws differ but most share common characteristics.
It has been a dozen or so years since the first state law was passed. Since then, the laws
have helped some lawsuits get dismissed promptly, without even a trial. However, certain other
lawsuits have managed to proceed based on exceptions in some of the laws that, under the
circumstances of a particular incident, might allow liability. Although these exceptions can differ
depending on the state, exceptions in many of these laws can be described as follows:
* “Faulty tack or equipment” on the equine that causes injury.
* A dangerous latent (non-obvious) condition of the land where an equine activity takes
place for which no conspicuous warning sign was posted.
* An equine was provided to another, but the provider allegedly “failed to make reasonable
and prudent efforts to determine the ability of the equine activity participant to safely manage the
* Serious wrongdoing such as gross negligence or “willful and wanton misconduct.”
* Intentional acts committed against the equine activity participant.
In three states thus far (Colorado, Wyoming, and Florida), courts have issued rulings that it is
legal for a liability release to disclaim away liability for most of these exceptions.
Question: Can a child sign a waiver? What happens if a child does sign a waiver?
Fershtman: In the eyes of the law, children pose unique challenges when it comes to
liability releases. Courts in the overwhelming majority of states have spoken out that a waiver or
release signed by a child under legal age (typically, 18) will be voidable, and the courts will not
enforce them if the minor brings a challenge later on. This actually happened in a few cases
across the country where a stable gave a minor a release and tried (but failed) to enforce it in
order to block a lawsuit from the injured minor.
Complicating the issue even more, courts in several states have ruled that a minor’s parent
or legally-appointed guardian cannot sign away the minor’s right to sue based on the law of that
state. Because these issues are complex, and new cases are issued every year, a knowledgeable
lawyer can explain how the law affects your individual situation.
Question: Can everything be released away?
Fershtman: It is not that easy, unfortunately. The answer depends on the particular laws
of the state. Courts in most states have already issued rulings on what can and cannot be released
away. For example, in almost all states a valid claim of intentional wrongdoing cannot legally be
released away. Many state courts have ruled that claims of wrongdoing that border on intentional, such as “gross negligence” or “willful and wanton misconduct,” cannot be released away in a liability waiver or release.
In addition, claims of fraud in connection with a waiver or release will almost always
prevent the release from being enforced immediately. A few years ago, in fact, I represented a
stable that used a well-written liability release but was later sued by someone who signed it. The
problem was, the signer claimed that she was given the release to sign after she was seriously hurt and while she was in the hospital on mind-altering drugs. She argued that the stable asked her to sign the release and back-date it. The stable I represented insisted this lady was a liar.
Regardless, the judge would expect the case to proceed to trial so that a jury could decide whom
to believe. Obviously, in that setting the release could not bring immediate success.
Question: Can waivers be thrown out after a year?
Fershtman: In my opinion, people should keep these documents for as long as possible
and not throw them out until after they have received advice from a lawyer that it is safe and legal to do so.
This article does not constitute legal advice. When questions arise based on specific
situations, direct them to a knowledgeable attorney. (C) 2003, Julie I. Fershtman. All rights reserved.
About the Author
A lawyer for 23 years, Julie Fershtman is one of the nation’s most experienced Equine
Law practitioners, has successfully tried equine cases before juries in four states, has drafted
hundreds of equine industry contracts, and is a Fellow of the American College of Equine
Attorneys. For more information, visit www.equinelaw.net or www.equinelaw.info.
Julie Fershtman’s books, MORE Equine Law & Horse Sense and Equine Law &
Horse Sense, help people avoid disputes. Order both for $42.90, first class shipping
included. To order, call Horses & The Law Publishing at 866-5-EQUINE. Or, send check
or money order to Horses & The Law Publishing, P.O. Box 250696, Franklin, MI 48025-
Attention Lawyers and Paralegals: This year the American Bar Association published
Julie’s new book on Litigating Animal Law Disputes. The book covers a wide variety of legal
issues involving horses and other animals and includes sample court filings. Horses & The Law
Publishing sells the book for a large discount off the ABA’s $130 cover price. Contact Ms.
Fershtman directly for information.