From many of the comments I have received I think everybody is getting it! However, some are feeling they are suddenly surrounded by risks and liability. That’s normal. Its like med students suddenly self diagnosing with every disease they read about, you start to be aware and then you see liability everywhere! Do not panic. Nothing has changed, you are just more educated about your risks now.
Think about football. I sit and watch a football game and see some guy pick up the quarterback and slam him down on his head. The guy gets a 15 yard penalty. I am jumping up and down screaming that I just saw an assault and battery and a possible crime of attempted murder—all intentional and resulting a permanent injury to the quarterback--- and they do not come running in to sue or arrest anyone—they give him a 15 year penalty! But hey, that’s the game of football and anyone playing assumes the risks. The exact same behavior 1 hour later in the locker room would be a crime. On the field, it’s just a violation of the game rules. Keep context in mind and realize that there is a lot of assumption of risk if people are fully informed and accidents do not mean you will be found at fault. Deep breath. Relax. Calm happy place. Now I will scare the crap out of you some more!
Liability is not an individual game. An employer is liable for all actions of their employees while they are engaged in a work related duty. So you not only have to worry about your actions, but also those of all your employees. And let’s face it, if something happens not only will employer, employee and business get sued, but so will the land owner and any other parties who may be included in a corporate structure such as an LLC. The general rule is to sue everybody you can and see what sticks. The answer is insurance, insurance and more insurance.
While the deep pockets of the insurance companies may have something to do with increased lawsuits, do not be fooled. Those guys do not hand out cash unless they absolutely positively have to. They will pay a lawyer $30K to save $500 on a settlement. They have to. In most cases only the insurance companies can afford all that litigation. They need to stop any precedents that might allow larger settlements or extend the laws in ways that give the more exposure.
When you see case reported that has a written opinion, that means it has already reached the appeal stage. Most cases are settled. The first round courts rarely publish opinions. It is only after an appeal that a case becomes published with a written opinion. It’s just the very small tip of the iceberg and that’s were law is made. It’s hugely expensive and usually only an insurance company can afford that kind of litigation. Unless you are suing your insurance company (pretty common) those cases are in defense of YOUR interests—not the interests of the plaintiff’s attorneys. Really well funded insurance companies are out there every day fighting to keep a lid on claims and cases that make your job more risky. Its not you against the world. It’s the insurance companies against the plaintiffs’ lawyers. You are just along for the ride.
The main goal of the courts is not to favor one side over the other but to say what we as a society do and do not do. We like to think we do not let tortfeasers hurt innocent people and children without limits. And really, why would we? That rotten barn down the road where the kids ride unruly horses with no helmets with poor instruction should be closed down. There is no law against stupid. That’s what lawsuits are for. The barns get shut down because they are sued out of existence. Which is good for the honest, careful responsible people like you.
Train your horses. Train your staff. Train yourself. Be careful. Be careful enough that you do not have to feel you have harmed a person who trusted you to teach them and you will not make the kinds of mistakes that deserve civil punishment. Being really careful does take some of the fun out of horseplay. I know my riding when I was a kid was fraught with stupidity and negligence and would have been only half as fun if we had been under control. At summer camp we ran wild with the ponies and most of the time nobody had any idea where we were and whether we were galloping around with no tack playing pull the other person off the pony (pony jousting)or quietly napping in the bunkhouse. We had a blast. But kids got hurt. In my brief time as a kid in just those few months a year for 3 years I saw a girl get a horrible infection from ripping half the skin off her leg on an old rusty barbed wire fence. Of course we hid the infection so nobody would know we were riding all day in the woods unsupervised. She could have lost her leg. Then she did break her tail bone when they put her up on an unstarted colt to see what would happen. He stood up and dumped her. That’s what happened.
Then a young boy and his friend did what they saw us do and one of them died. That was not only horrible for the kid and his family, but it was pretty hard on the young girls who may have been responsible because we were the ones they wanted to be like. There was no excuse for that kid to die. He should have been supervised and never should have been allowed to disappear for hours. If you send your kid to camp you should have a right to expect someone is watching it and not letting it go off and play on wild ponies or swim by themselves. There is a duty. That duty was breached. The breach caused the damage. There is no amount of cash earth that can really make his parents whole again. Such behavior should be discouraged and no waiver should be found valid to make that OK.
Irresponsible fun behavior is still legal. But not on your horses when you are being paid to teach and train. Kids can have fun on their own time on their own ponies and that’s up to their parents, but when they are in your barn under your supervision and your duties don’t worry about being the meanie that stifles all the fun. I absolutely despised one of my first riding instructors as a full time working student, but not one of us got hurt in a whole year. Her horses, her barn, her rules. We got to run and jump and hunt and show and do all kinds of fun things, but we NEVER had the chance or the guts to do stupid things that would have been negligence. Not in her barn and not on her watch. She didn’t care if we hated her, she cared if we survived her. What I did on my own time on my own horse away from work was not her concern. But when you stepped into her barn you followed the RULES and you were never over-faced or overmounted. There were about 100 lessons a day for all levels of riders and not one injury in a whole year. And that includes the horses. Looking back I admire her, but I still don’t like her. But she took me from rough and tumble to an B pony club rating in one year and trained me to be qualified to care for Olympic level horses.
Now, if I get time I am going to go over some waivers kind and brave readers sent in for examples. They are not from my state so I have to actually look up the law in the states where they are from. That could take awhile, but check back often as I may get to one a day. And remember, this is just a basic primer on legal issues. I am not giving anyone legal advice and do not know the law in all states. This is just a quick run down on the basic principles of torts and its designed to educate so you can feel less lost and less fearful of what you do not understand. But you will be seeing liability all over for a few weeks:> A halter still attached to the wall but laying on the barn isle floor can still make the hair on the back of my neck stand up. Horse trap!!!!!! But just picking it up and making it a no no can make it all better.
But after reading about contracts and torts these many weeks, what exactly do you think a waiver is?