In a recent Vermont case, Melissa Lenter entered her horse in a fifty-mile endurance ride. Prior to the event, Lenter signed the following waiver of liability:
[I]n consideration of your accepting this entry, I hereby for myself, my heirs, executors and administrators, waive, release and discharge the Vermont Adaptive Ski and Sport (VASS), ECTRA [(Eastern Competitive Trail Riding Association)], AERC [(American Endurance Ride Conference)], all persons assisting or connected with the ride, and all landowners, their representatives, successors and assigns, from any and all rights, claims, or liability for damage, for any and all injury to me or my property or those arising out of or in connection with my participation in this event. I further agree that I will defend, indemnify and hold harmless the Vermont Adaptive Ski and Sport (VASS), ECTRA, AERC, its members and agents, or any of them against all claims, demands and causes of action, including court costs and attorney’s fees, directly or indirectly arising from any action or other proceeding brought by me or prosecuted for my benefit contrary to this agreement. This release extends to all claims of every kind and nature whatsoever, whether known or unknown, and I expressly waive any benefits that I may otherwise have under provisions of the law of Vermont relating to the release of unknown claims. I understand that this release constitutes a limitation on my legal rights. The undersigned verifies acceptance of risks and responsibilities for the rider’s and horse’s condition….
I understand that if the horse I am riding is pulled for metabolic reasons and requires treatment on site or additional recheck by ride vet, this horse may not leave base camp until released by an authorized ride vet.[Bold added.]
The event had stops every 10 to 12 miles to check the health of the horses. During the event at the second health check, Lenter decided to take her horse from the event because she was concerned with the behavior of the horse. The horse was checked by Dr. Johnson who decided to administer so fluids to the horse. While the horse was laying down, Lenter crouched “within arm’s length of the horse’s head, and she held Emu’s lead line while the doctor attempted to administer the fluids with a catheter. After about one liter of fluids had been administered, Emu had a seizure and rolled over onto plaintiff, breaking Lenter’s leg.”
Lenter filed suit against Dr. Johnson alleging negligence in that she let Lenter so close to the horse during treatment. The trial court granted summary judgment in favor of Johnson and her veterinary practice. The case was appealed (Lenter v. Clover Acres Livestock Veterinary Services, LLC, 2022). The defense claimed protection based on the liability waiver; the trial court agreed stating “the release in question was unambiguous and sufficiently specific to bar the negligence claim here. It explained that the release covered “any and all rights, claims, or liability for damage” and its language regarding the causal nexus mirrored language in other cases where negligence claims were found to be barred.”
The appellate court agreed with the trial court “. . . that the release unambiguously bars plaintiff’s negligence claim here.” [Reread the bold phrases in the waiver to see why the court said it was unambiguous.] It explained that “. . . a valid contractual limitation on liability creates an absolute bar to a plaintiff’s recovery.” It said that waivers are disfavored and must be scrutinized closely; to be enforceable, waivers must meet “high standards for clarity.” It also made clear that waivers do not have to use the word negligence, but “that in its absence, there must be words that convey a similar intent.”
The appellate court affirmed the ruling of the trial court in favor of the defendant.
Risk Management Take Away
The waiver used proved effective in protecting the defendant. Keep in mind, however, that had the waivers used the term “negligence”, the case might not have even made it to court.
Also, keep in mind that the law varies among the states and the same waiver would not have protected in about fifteen or so states. In those states, it is clear that a waiver that does not specify protection against “negligence” will not be enforced. Know your state law – and why not include “negligence” just to be on the safe side.
Photo Credit: Thanks to Christina via Flickr.