Dressage Law Lecture from the 2004 USDF Convention Courtesy of German Dressage

Dressage Law—How to Avoid Liabilities and Legal Disputes Affecting Dressage
Wednesday, November 30, 2004
By Julie I. Fershtman, Esquire

Ms. Fershtman is an equine law specialist, and the author of two books, (Equine Law & Horse Sense, and MORE Equine Law & Horse Sense) and has had articles published in such national publications as Equus, The Quarter Horse Journal, and National Horseman.

Examples of legal cases that got facilities/trainers into trouble: a boarder was feeding in exchange for board/training, when a horse bit her, severing the tip of her finger. She sued the facility owner because they “should have known that the horse was at increased risk of biting.”

In another case, a student fell, and was injured. The expert for the student said that the instructor, “never should have used a dressage saddle in a lesson setting.” Unfortunately, that statement is now on that state’s law books.

And in the Massachusetts law books, during a lesson, a horse reared. Named in the lawsuit were the riding academy and the riding instructor. The instructor lost the suit automatically because they were unlicensed and Massachusetts law requires licensure.

Today’s discussion will focus on:

Legal concept of NEGLIGENCE
Equine Liability Laws: what they do and don’t do
8 Effective strategies for avoiding liability
Question and Answer

What is Negligence?

Negligence is a legal standard of liability. The lawyer definition is complicated: “failure to use such care as a reasonably prudent person would use under similar circumstances, or doing what a reasonably prudent person would not do under similar circumstances…” At best, it is rather vague.

In California H/J case law, there was an amateur hunter student that told their trainer that they wanted to be a champion, and hired an instructor. They told the instructor that they wanted to be challenged, particularly in their jumping courses. The student fell one day, and was injured. Despite the concept of the “assumption of risk” the instructor was found to be negligent because the judge found that the jumps were placed too close together and too close the corner, so that the instructor took the risk to an unacceptable level. The instructor lost the case. There are, thankfully, no dressage cases on the law books in California.

In Michigan, a facility that was experienced in giving tons of lessons gave a girl a leg up. She went right on up and over the horse, and broke her arm. No incident report was filed. No list of witnesses was available, and there was no knowledge of who the instructor was. They had to settle the case because there wasn’t enough information available to allow defense of the case.

In another case, a horse without a history of biting bit off the ring finger of a woman who just happened to be a lawyer. In the lawsuit, the woman claimed that the incident occurred while she was leading the horse. The emergency medical report, however, stated that it occurred while she was feeding the horse. The report filed by the woman’s attorney said that the horse was dangerous because as a western riding horse, it was lame and crabby. They hired an “expert” who examined the horse, then placed an ENGLISH saddle on the horse, cinched the horse very tightly, then placed his hand beneath the saddle/girth, after which the horse turned towards the expert. This was videotaped—but what exactly the expert did was not visible on the video. The expert claimed that he proved that the horse was dangerous, and a “biter.”

Negligence is a frightening concept, because it is easy to manufacture a case that someone was negligent. However, there are ways to protect yourself.

What do the Equine Liability Laws do?

Some states are exceptions, but in general, an equine activity participant cannot sue a sponsor, organization, professional, stable or another person if injured as a result of an inherent risk involved in engaging in an equine activity unless one of the following 6 exception exist:

Faulty tack: if you provide faulty tack or equipment and knew or should hve known that it was faulty, and that tack was the proximate cause of the injury, then you can still be held liable for the injury.
Mismatched horse and rider: THIS IS A BIGGY!!! If you provide a horse and you fail to make a reasonable effort to determine the participants ability to safely manage that horse, you can be held liable. However, in Massachusetts, you must disclose bucking, bolting, rearing, etc., and it is also your continuing duty to make sure that the horse and rider can work together—you must stop the ride if the horse is having a “bad day.”
Dangerous Land: if you own/rent/lease/possess land with a dangerous or latent condition for which you didn’t post a warning sign, you can be held liable. An example of this would be an open trench.
Intentional wrongdoing
Wreckless conduct or wanton misconduct
In some states, you can sue for negligence even though you can’t sue for inherent risks, so this is NOT a ZERO liability law. These states include especially UT, MO, FL, KY, but also MI, NJ, NM and NC. ME was also on the list, but no longer is. The Equine Liability Law does not apply in Arizona UNLESS a specific waiver is signed.

8 Strategies for Avoiding Liability

Understand what causes liability.
1. Check your tack.
2. Keep educating yourself about the law by reading and attending seminars.
Develop your own personal safety program.
1. Hold regular equipment inspections, and repair or discard problem tack immediately.
2. Restrain dogs, since dogs chasing horses are a common cause of claims (particularly dogs that belong to students and that are not accustomed to being around horses).
3. Train your workers well, as you are liable for their actions.
4. Require safety helmets, or at the minimum educate riders about what helmets can do. The greatest liability exposure (dollar-wise) occurs from head injuries. The best way to warn is to recommend their use via a written document, and to include in it that they are not relying on you to check for compliance, proper fitting, reminders, etc. at this time or at any time in the future. You may also want to recommend helmets any time that anyone works around horses.
Liability Waivers and Releases: These are helpful except in LA, MT, NM, ND and RI. All other states have cases on the books enforcing releases of liability. When they fail, it is because:
1. State law doesn't allow for it.
2. There is a problem with the language in the document. There is always a collision course between a person's right to enter into a contract and the right to use the courts. In California, documents MUST contain the word "negligence" in order to be upheld in court.
3. Problem or defect in the way they're signed. This is particularly true in the case of minors. The aunt, uncle, family friend, etc., CANNOT sign for a minor child!!! Also, BEWARE OF FORM RELEASES. They often do not taken into account the peculiarities of a given state's laws, and it is also all to easy to forget to fill in all of the blanks, which could render them null and void.
4. At a minimum, waivers and releases MUST describe risks. Releases for minors MUST be signed by Parents or LEGAL guardians. It is not a bad idea to have the minor AND their parent or guardian sign a risk acknowledgement form.
Consider buying good insurance. Let the insurance company hire good attorneys at THEIR expense. Insurers all differ--use a reputable insurer that is financially sound and that understands the business.
Read your state's Equine Liability Law--learn which exceptions your state has.
If your state has a sign posting requirement, make sure that you follow that requirement.
Consider incorporating. This protects you (personally), your family and your home from lawsuits as long as you follow the rules.
Education: learn about safety. There are a number of organizations that have safety programs, including the CHA, ACIP, etc. Make your activities professional. A dedication to safety makes it easier for a lawyer to show that you are a reasonable person that couldn't possibly be negligent.

Question and Answer

Q: How can a breeder protect themselves when a rider comes to try a youngster for sale?

A: Question them closely regarding their ability, and regarding what level they ride. Ask how much they ride, how often, what type of riding, what types of riding experience they have. Consider insisting that they bring a trainer with them—that also helps to release you from liability. It is not necessary to get this in writing, but if you do, make sure that the person who will be showing the horse has the information IN THEIR HANDS, and REVIEWS IT WITH THE RIDER prior to showing them the horse, or it will have no value in protecting you from liability.

Q: How can you protect yourself from being sued if the buyer isn’t satisfied with a horse they purchased, particularly if you are selling a “difficult” horse?

A: Instead of a straight “Bill of Sale”, Ms. Fershtman advocates a more complete document that includes whether or not a warranty is made regarding the health, habits and condition of the horse. Documentation with problem horses that includes full disclosure of any issues is your best protection against future lawsuits.

Q: How should you handle the neighbor’s dogs who come onto your property, and pose a potential menace?

A: This is a sticky problem, since you have your own personal liability at odds with the interests of preserving good relations with your neighbor. The best approach would be to call your neighbor, and ask them very nicely to restrain their dogs. If this doesn’t work, then you have a bigger problem. The dogs are almost certainly in violation of leash laws, but if you call the police, it will result in problem relations with the neighbors. A certified letter will help to release you from liability to a certain extent, but it also causes a paper trail if a student is injured, and you don’t follow up further if/when the letter gets no result. On the hand, failure to take any action at all regarding a known hazard, also opens you to liability—your best bet is a frank talk about the liability exposure to both you and your neighbor, and to hope for the best.

Q: Does certification of instructors offer additional protection?

A: Yes and no. This is a double-edged sword. The test materials and manuals will be examined by the prosecution, and you will be held to that standard. If you fall below the standard, and that led to the injury, then they’ll nail you—the certification has become your new measuring stick, not the community standard. Because certification is NOT common, the rest of the community will not yet be held to that standard.

Q: Can traveling riding instructors be held liable for the dangerous land exception for hazards on property where they are teaching?

A: When you are teaching at someone else’s farm, you are in lawful possession, so if you know about a problem, then you are liable. Therefore, for example, if the dogs belonging to the property owner where you are teaching represent a safety issue, it is up to you as the trainer to assess the situation and if you foresee a problem, then it would be a good idea to suggest that they be restrained while you are teaching. You could not be held liable if you didn’t know something could be a problem.

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