This article was written by Julie I. Fershtman, Attorney at Law (www.equinelaw.net). She offers expert comment on a timely question regarding liability waivers.
Dear Ms. Fershtman:
My friend gave me some form liability releases and boarding contracts. Will they hold up?
– K.B. (No state specified)
My office receives inquiries like this often. Since many people in the horse industry still buy, sell, board, train, lease, or breed horses with nothing in writing, it is always commendable when people at least recognize the importance of using written contracts. In difficult economic times, however, horse owners and stables might want to save money by using standardized, “one-size-fits all” form contracts. Proceed cautiously. Form contracts can run a serious risk of including illegal or unenforceable provisions or failing to include certain language required under the applicable state’s law.
This article explains why people should be cautious about using form contracts.
State Laws Vary, and So Can Contracts
Where equine matters are involved, “one size fits all” rarely applies. One of the most important reasons for this is that state laws can vary considerably. In recent years, state laws regulating equine activities and transactions have become more diverse than ever.
Equine Activity Liability Statutes
As of January 2009, 46 states have passed laws that, in some way, control or limit certain liabilities for equine activities. Most of these laws require equine professionals, sponsors of equine activities, and others to include special language in their contracts and waivers/releases. Language requirements can differ widely from state to state. For example, Colorado’s equine activity liability law requires “equine professionals” to include the following notice within their contracts:
Under Colorado Law, an equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to section 13-21-119, Colorado Revised Statutes.
Rhode Island’s equine activity liability law, by comparison, requires “equine professionals” to use this language:
Under Rhode Island Law, an equine professional, unless he or she can be shown to have failed to be in the exercise of due care, is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities, pursuant to this chapter.
In Arizona, the equine activity liability law requires persons who “take control of the equine from the owner or agent” to sign a “release.” The law provides that the release document should “acknowledge that the person is aware of the inherent risks associated with equine activities, is willing and able to accept full responsibility for his own safety and welfare and releases the equine owner or agent from liability unless the equine owner or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.”
Among the provisions in West Virginia’s Equestrian Activities Responsibility Act, participants in certain equine activities must sign a special statement, much of which is based on language that is provided in the law.
As wide variations like this make clear, a “one size fits all” form contract cannot possibly account for these state provisions. Also, compliance with equine activity liability laws can be especially important for those who seek to benefit from the laws’ liability limitations. Laws in a few states specify that those who fail to include the appropriate warning language within their contracts or those who fail to post required “warning” signs can lose the liability limitations benefits in the law.
New Equine Sales Laws
Laws in some states, such as Florida’s new equine sales law, require that certain language be included within contracts and bills of sale.
New York’s helmet law requires “horse providers,” such as rental facilities, riding instructors, and trainers who give occasional lessons, to offer equestrian helmets to riders as well as “appropriate helmet safety information.” This law could also affect language found in contracts provided by certain equine professionals.
Form contracts can provide a good starting point for people and their lawyers to develop customized legal contracts. A knowledgeable lawyer can assess your needs, advise of state legal requirements that affect your operations, and prepare customized contracts for you. This article does not constitute legal advice. When questions arise based on specific situations, direct them to a knowledgeable attorney.
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 48025-0696.
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 more information.