Tuesday, December 23, 2008

The SC release from Farm X


The Undersigned assumes the unavoidable risks inherent in all horse related activities, including but not limited to death, bodily injury and physical harm to horse, rider and spectator.

In consideration, therefore, for the privilege of riding, receiving instruction and/or working around horses at (Name of Farm), located at (address of farm), the Undersigned does herby agree to hold harmless and indemnify(Property Owner individual and LLC- property deeded to LLC), (Business Owner, individual and business names), (Barn Manager) their management, agents and employees of and from any liability, claims, demands or actions whatsoever arising out of or related to any loss, damage, theft, injury or death that may be sustained by the Undersigned or to the property of the Undersigned or to any family member or spectator accompanying the Undersigned while riding, receiving instruction and/or working around horses at X Farm.
By signing this agreement I signify that I have read and understand the contents.

________________________ _________________________
Signature Date

________________________ __________________________
Print Name Witness

Under South Carolina Law, an equine activity sponsor or equine professional is not liable for an injury to or the death of a participant in an equine activity, pursuant to Article 7, Chapter 9 of Title 47 Code of Laws of South Carolina, 1976.
I have read and understand the above Notice and Warning.
_____________________________ ___________________________
Signature Print Name

My comments: If this is a commercial venture the Equine Liability Act covers most of what this release leaves out. If it’s not a commercial farm then it needs to look pretty much like the statute but without the professional part. The statute wont cover anything implied if you are a private farm with guests riding.

I love that is has the proper form of a contract—therefore in consideration of—you promise to not sue and we have an implied duty to not give you reason to. A promise for a promise with consideration enforceable in a court of law. A contract. See my entries on contract if that’s all Greek to you. That’s why contracts came first. People forget this is a contract not to sue. Great job of including all the parties you might be sued.

Now, many states and SC in particular have a craving for conspicuous font EVERYTHING REALLY IMPORTANT should be in BOLD, LARGE and if POSSIBLE COLORFUL FONT. You can’t make it all large or it’s the same again, but RISKS, WARNINGS, I UNDERSTAND and AGREE and HAVE READ this should be BIGGER. The Equine liability act should be bold and often boxed.

I would also add all heirs, assigns and ect which will be seen in some future examples to bind everyone else with a possible claim too.

I am a stickler for outlining all the possible dangers of horses to bolster up the assumption of the risk. They bite kick, bolt, spook. Buck, refuse to jump blah blah blah. . . . . to get the knew or should have known in there. Remember, SC has comparative contributory negligence so plaintiffs have duties too.

I do not think the rider can release its friends and family. They need to sign their own waivers. I do not allow people to sign my rights way!

Lastly, I would add a line for parents of minors to sign. Both minor and parent should sign. In the future, why will be clear.

Lastly, I always add a clause that if any part of this contract is found void by law then the rest of the contract still stands. Look at any contract laying around your house. You’ll see that in there.

As written, would I take a case on contingency based on this release in SC if the injury was caused by negligence? Yes. I think I can break it. Here’s why, no conspicuous print, no plain clear English, no real warnings of the kinds of risks I am taking, no waiver of negligence and no coverage for damage to animals. I may lose, but depending on the facts of the case this would not scare me off. This would not discourage me from filing suit. That is the purpose of a waiver—one lawyer trying to scare some future unknown lawyer away. This would scare some lawyers away, but I would not take the case unless there was clear negligence and I can recognize negligence when I see it because of years of working with horses.

We still have the nagging problem of spectators. . . . . . . ..they are not covered under the statute and they are not signing releases. Liability. . everywhere. . . oh my!

Challenge to legal eagles. . with no other contract but his waiver, would you argue that he consideration for riding is the payment so the consideration in the contract of a privilege voids the contract?

More releases to come and they get longer and longer. When I started riding we saw a sign that said RIDE AT OWN RISK and signed a piece of paper even if we were 11. Times change.

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