University of Vermont AAHS

 

Equine Activity Statutes: Part Three of an Update
By Robert O. Dawson
Professor of Law
University of Texas
School of Law
Secretary/Treasurer AAHS
[reproduced from Caution:Horses, Vol. 4, No. 4, Winter 1999]

 

Equine activity statutes protect equine providers from liability for injuries that have resulted from an inherent risk of an equine activity—under some circumstances and with certain exceptions. There are now equine activity statutes in 44 states.

In the first update part, I discussed the history of equine activity statutes, which states have them, what the statutes are intended to do, who or what is a protected person or organization, and what is an equine activity within the scope of the statutes. In the second update part, I discussed the question what is an inherent risk of equine activities and the different approaches used by legislatures and courts to answering that question. Both previous articles are on the AAHS web site in the HorseLaw segment.

Exceptions to Protection. In this update part, I will discuss some of the major exceptions to protection from liability under the statutes. Almost all equine activity statutes provide a list of exceptions to the rule granting immunity for injuries resulting from inherent risks of equine activities. Put differently, the legislatures are saying that an injury resulting from one of the exceptions is not an inherent risk, but is a risk that the equine provider is expected to eliminate or minimize.

The Louisiana statute’s list of exceptions is typical:

C. Nothing in Subsection B of this Section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person either:

(1) Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury.

(2) Failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to safely manage the particular equine based on the participant's representations of his ability.

(3) Owns, leases, rents, or otherwise is in lawful possession and control of the land or facility upon which the participant sustained injuries because of a dangerous latent condition which was known or should have been known to the equine activity sponsor, equine professional, or person and for which warning signs have not been conspicuously posted.

(4) Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury.

(5) Intentionally injures the participant.

We can reduce these exceptions to four: injuries resulting from (1) defective tack, (2) failing to match horse with rider, (3) dangerous land conditions, and (4) willful, wanton or intentional conduct.

Defective Tack. One of the exceptions to the protection of the statute is providing defective tack that contributed to the injury. The idea behind this exception is that this is a cause of injury that can and should be controlled by the equine provider. Use of defective tack is not a risk of horseback riding that an equine provider is unable to eliminate. It is, therefore, not an inherent risk.

The Louisiana statute quoted above is typical of these provisions. The tack (1) must be defective (broken, worn or inappropriate), (2) the tack provider knew or should in the exercise of reasonable care have known of the defective condition of the tack, and (3) the defect in the tack must have caused or at least contributed to the accident or injury. Tack is not defined, but presumably means saddle and bridle and normal accessories, such as girths, cinches and saddle pads. In Easterling v. English Point Riding Stables, 1994 WL 99543 (E.D. La 1994), the plaintiff was injured as a result of falling from a horse during horse back riding lessons provided to her by the defendant stables. A martingale on the horse broke but it was not clear what role, if any, that played in the accident and injury. The United States District Court said there was a question for trial whether the martingale was faulty and contributed to the injury:

factual questions exist concerning whether the martingale which broke during plaintiff’s fall was a faulty piece of tack; if so, whether defendant knew or should have know that the martingale was faulty; and , if so, whether the faculty tack was the cause of plaintiff’s injuries. It is undisputed that the martingale was broken during plaintiff’s fall, and defendant concedes that the martingale was ‘well used.’ Also, [the riding instructor] testified that she told plaintiff she could use the martingale to ‘help her stabilize her balance.’

The United States District Court said that because these questions remained about the condition of the tack and its role, if any, in the accident, the case could not be dismissed on a motion for summary judgment. It is possible the martingale contributed to the accident; it is also possible it broke as a result of the accident and did not contribute to the injuries.

Of course, the defective tack exception applies only when the defendant is the one who provided the tack in question because liability is based on it being his carelessness in failing to inspect and care for the tack that may have contributed to the injury.

Matching Rider with Horse. Most equine activity statutes except from protection an accident resulting from a failure to match the rider’s ability with her mount’s characteristics. In the words of the Louisiana statute, "Failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to safely manage the particular equine based on the participant's representations of his ability." This means the equine provider must inquire about the level of skill presented by the rider and take care not to provide a horse that is not manageable by someone of that skill level. Ordinarily, this will take the form of a written or oral representation by the rider of the extent of experience she has had riding and some assertion (beginning, intermediate, or advanced) of the skills she possesses. In the context of riding lessons, the duty to determine skills levels is a continuing one that involves determining whether the student has achieved a skills level sufficient to undertake the next step in her training.

While it is the duty of the equine provider to make the skills level inquiry, he or she is entitled initially to rely upon the information provided by the rider. However, there is a continuing duty to determine skills level and should it become apparent (perhaps as a result of observing mounting efforts) that the rider does not possess the skills she initially represented, then the equine provider has a duty to take remedial action by stopping the ride, providing a different mount or taking other appropriate action.

This exception applies only when the person being sued provided the equine to the person injured. It has no applicability when the horse causing the injury is owned or leased by the person who was injured. Muller v. English, 472 S.E.2d 448 (Ga.App. 1996).

Dangerous Land Conditions. Land owners or occupiers have duties to protect persons invited onto the land for commercial purposes from dangerous conditions that are not obvious to a visitor. It is a common exception to the protection of equine activity statutes that the injury resulted from such a dangerous condition. In the words of the Louisiana statute, the protection does not extend to an injury resulting from "a dangerous latent condition which was known or should have been known to the equine activity sponsor, equine professional, or person and for which warning signs have not been conspicuously posted."

Plaintiff English attempted to come within this exception in Muller v. English, 472 S.E.2d 448 (Ga.App. 1996). She, Muller and others were fox hunting. While on land owned by Muller, his horse kicked her leg. When she sued for the injury, Muller set up the Georgia equine activity statute in defense. She countered with the claim, based on Georgia case law, that a landowner can be liable for injuries inflicted by a vicious animal "permitted … by careless management to go at liberty." The Court of Appeals first observed that the precedent was inapplicable to this case because Muller’s horse was not at liberty, but under saddle. But then the court observed that to adopt the construction urged by English would gut the statute because it would make it inapplicable to "most stables, riding schools, colleges, horse show sponsors, instructors, and trainers, … providing immunity only for trespassers conducting equine activities on another’s property…."

Willful, Wanton or Intentional Conduct. Equine activity statutes commonly except from their protection circumstances in which the injury resulted from willful, wanton or intentional conduct. Obviously, if an equine provider deliberately injured another in the course of an equine activity there would be no public policy served by granting immunity from liability. But there are circumstances that fall between ordinary negligence and intentional conduct—willful and wanton conduct. This colorful phrase deals with circumstances in which the risk is greater than usual and the measures needed to avoid it not particularly burdensome but the person chooses for whatever reason to incur the risk anyway. When the injury is inflicted by behaviors, such as biting or kicking, of the defendant’s equine, the issue often comes down to whether the horse had engaged in that conduct previously, whether the conduct was unusual for a horse, and whether the defendant knew or should have known about the dangerous propensity in his horse.

Conclusion. These four exceptions—defective tack, failure to match rider to horse, latent dangerous land condition, and willful, wanton or intentional conduct--limit the protections of the statutes. Courts are free to interpret these exceptions narrowly or broadly and thereby affect the scope of protection afforded by the statute in your jurisdiction.

You can download the full text of the equine activity statute in your jurisdiction from the Equine Activity Statutes segment of the Statutes for Horsemen part of the AAHS web site. You can read the full text of any law cases interpreting equine activity statutes in the Equine Activity Laws segment of Law Cases for Horsemen part of the web site. The address is www.law.utexas.edu/dawson/.

Next time. The final installment of the update--posting and notice requirements.


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