Thursday, December 18, 2008

31 Flavors of Defenses:>

Ok. So someone got hurt. Now you have hired me to defend you. The plaintiff has argued you had a duty, breached it, your breach caused the harm and the harm is permanent injury and they are asking for 5.6 million dollars. Instead of ignoring the lawsuit (which is why I have so much time to blog today—stupid stupid stupid as just a return phone call might see a painless and cashless settlement) you have hired me to find a way to get you out of trouble.

You were negligent. Not grossly negligent, but you turned your back on a beginner student to watch a fellow trainer jump a large course. You heard your student say she needed help, but you said “just one minute Honey, look up and keep your heels down” right before Honey landed in a thump at your feet. You are hoping the jury does not find you at fault, but you are not paying me to cross my fingers for you. You want a defense! And you very well might have some.

States differ in how they apportion blame. They have several choices of comparative ans contributory negligence to choose from and many different flavors of assumption of the risk covered in a nice sauce of wavers and releases law. The most draconian of all schemes is strict contributory negligence. In VA, at least last time I looked in 2006, SCN was still the law. That means that if the plaintiff is even 1% at fault the defendant is off the hook. Just that smidgeon of fault and you are free from a judgment. That’s sort of unfair, so juries usually do their own calculations to find a more rational balance, but being 100% free from contributing to you own injury is rare. VA makes up for this by not recognizing any form of waivers. You can’t change one bit of your potential liability by having someone sign away their rights. I guess they figure if they are going to be so strict on comparative negligence you don’t need any additional protections? So in a state like VA you want many pages of the potential risks so they are clearly informed and fewer pages of all the liability they waive since they aren’t waiving anything. Of course you need to check with a VA lawyer on this because it could change at any time. Its 400 years old and you never know when that radical forward thinking state might move into the 18th century. I am going to argue that Honey was partially at fault for riding horse in the first place and not following instructions. Its 10% her fault. See?

Now we move to South Carolina. Here we have comparative negligence with a 50/50 split. If plaintiff’s actions contributed 51% or more to the injuries they lose. Say your back was turned so you were negligent, but Honey had decided to practice trotting with eyes closed and went over a jump without permission. Could a jury see that as more then half her fault? Maybe. Certainly if Honey does the now famous Carolina standing on horse’s back move while you are tying your paddock boot. Its 30% your fault for taking your eyes off of Honey, but the trick riding caused the accident so there is either no causation or she is 70% responsible for her own injuries. You win. Waivers work better here, but you still can’t waive negligence. It is not public policy to encourage negligence by anyone that owns a pen. It is only public policy to discourage lawsuits for outright accidents.

The third common flavor is to let the plaintiff win, but reduce any judgment by the percentage of their own negligence. If they are 40% at fault and win $100K, they only collect $60K. Its nice to save $40K, but of course you still are out $60K and all your attorneys fees. No easy out by sharing the blame. This can be mixed with any kind of waiver scheme.

Next, there is assumption of the risk. Any waiver needs to have a clause that clearly states the danger of horseys and that the party willingly assumes the risks. In states with Equine Liability Acts that’s pretty much what the part you have to put in you releases says. Other examples of assumption of the risk is an eventer that is badly hurt. He cannot say he did not understand it was a risky sport. If he makes a claim that the risk had been changed unknown to him or the risks were now so high that it’s a suicide competition he might have a chance, but generally you do assume non-negligent risks when dealing with horses. Remember, part of the standard is did you know or should have known. If your cross county course has killed 5 people you should have known that is was too dangerous.

Lastly, you have to know which law is valid in your state in regard to whether a minor can sign a waiver or if their parents must sign. Counterintuitivly, the law sometimes does not allow the parent to assume the risks for the minor. In some states both the child and the parents must sign. The safest bet is to always have all parties sign.

Last time I checked there were 50 states. With so many differing schemes, each and every person hoping to limit liability needs to have a custom made release for their needs and purposes. Its just the cost of doing business. If you are negligent your release can help you some, but your insurance company doesn’t have to help you at all unless your policy covers negligence. Most do not. They cover you for the costs associated with the suits you will win due to no negligence on your part and that’s important, but many policies exclude negligence, most exclude gross negligence and all exclude intentional acts. So leaving that lame horse tied up hoping someone will steal it is not going to get you a big fat check. Nor will putting that big mouthed know it all PITA student on your bucking bronco to have a laugh and teach them some humility. No insurance or waiver or act of god will CYA if you do something on purpose.

There is no new surge of litigation and we have not turned onto a county of whinny suing babies. These laws date back centuries. You are more likely to get sued these days just because it is less socially frowned upon to assert your legal rights, but those rights have been around as long as the USA. What has changed is insurance. If you are insured you are going to have the money to pay for what you broke and people feel free to sue knowing it will not destroy and individual person they know. This also means lawyer will take cases on contingency so no out of pocket payments are needed. The lawyers have no interest in suing the uninsured assetless tortfeasor. In the end more people who have done some wrong have to pay for what they did, but more people who have done no wrong have to defend themselves when they have done nothing wrong. Baseless suits should be reported and those attorneys sanctioned, but nobody should be made to feel ashamed of asserting their legal rights.

This stuff is complicated and confusing. When I took Animal Law I sent my friend, an attorney, to the woman who taught the course. He came back with a completely new release and made a rider sign it before she mounted her already tacked up horse standing at the mounting block. The new release was that much different from the old one. In the following weeks all colts were gelded. They decided having colts on the farm was too risky. I do not know what happened in that meeting, but even an experienced lawyer learned so much in few hours he changed his whole outlook on liability and owning a horse farm.

So next, while I waste another day waiting for phone calls that will probably not come, I will look at some actual releases sent in by readers and apply all of the above to the facts of an imaginary case. I might be gone next week suing some bastards, but I did sit here for a week trying to mediate and negotiate. Sometimes you just have to get their attention and use the courts as intended because lawyers on salary do not have to save anyone’s time or money. Why talk to attorneys and work out problems when the tax payers will be happy to fund lawsuits? Taxpayers have lots of money and they don’t care how many hours they are billed!

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