Thursday, December 18, 2008

When is a breach Negligence or Just bad Luck?

Now lets talk about how it is decided if you have breached your duty. We’ll get to the causation part later, but we need to keep these in small chunks because none of it is bright line tests that can be calculated with accuracy, its just what a judge or a jury might decide—even if they have never seen a horse. Its all based on the facts in your particular case and under the law in your particular state.

Lets start with a lesson on a school horse and a novice rider. What kinds of duties can you think of? I could see a duty to make sure they are as safe as possible, so that means a suitable mount, good, safe tack, constant vigilance by the instructor and setting the lesson time and place to avoid major known distractions. In addition, putting that student on a horse known to trip or duck out the ring gate could be a breach. If your neighbor, in an unprecedented move, decides to test out his new rocket launcher right when you have student trot for the first time and horse spooks then you might not have breached your duty. If your neighbor is like mine and he tests a new incendiary device or explosive on a daily basis then you should have known that was a risk and you may have breached your duty.

Some of the underlying principals are if you knew or should have known, if your actions fell below and accepted standard, and if you were responsible for whatever went wrong. If you knew or should have known means if your school horse has ever done X before you knew. If your school horse is new but you have no solid foundation for knowing that horse is bombproof and safe you should have known its possible it was not safe. If you check your tack daily and replace and worn parts and care for it well and it breaks, you have lived up to a prudent person standard. If you check your tack once a year and your girth has become frayed and breaks you failed. If you are responsible for the safety of a student and you decide to chat on the cell phone or leave that beginner student out in the ring to warm up alone while you go off to find a fresh cup of coffee you might be responsible. If you have done everything you can to be as safe as possible and Dobbin bucks for the first time ever and the brand new girth snaps while you are standing in the ring doing your job then you might not be liable for any negligence.

In order to prove you were not negligent you should have a standardized business approach that shows you do your job. For example, all tack is cleaned and checked very day after lessons. You have a system and it never varies. There is nobody who has ever been to your barn you can testify that you do not do this. Dirty unchecked tack would keep you awake and night and make you go clean it in your jammies at 3 am. That tack broke you had no way to prevent it and you should not have known with more diligence that it was about to go then you have an honest to god accident. Contrast that with an approach of you do what you can when you can or leave it to your novice students to check and clean tack that is meant to keep people safe. Or you clean it once a year whether it needs it or not. Then you have negligence.

As you can ascertain, the less you are in charge of the reason something went wrong the less of a duty you have. If student is riding her own horse how much a duty for suitability do you have? You did not pick the horse or make any promises as to its safety. Own horse own tack? Again, the burden for safety is shifting toward the student and away from you. Own horse, own tack own farm? Are you in the clear? Not really, you could still ask too much or set up a gymnastic designed to kill people, but your duties are just to your teaching and not to all the other possible things that could go wrong and may have been prevented with a little more foresight and care.

Nothing will protect you from negligent acts. The equine liability statutes will not protect you, waivers will not protect you and in many cases your insurance will not protect you. Negligence is bad and everyone is against it. The laws and statutes and insurance is there to protect you from accidents—things you should not have known about and could not foresee. None of it is there to give you cart blanche to run a sloppy, dangerous business. And deciding if it’s your fault lies in the in hands of non-horsefolk. They don’t know a gallop from a jog. They assume people don’t just fall off at a standstill unless someone is at fault. People in the movies and on TV don’t just fall off!

Here are some of the things that make me scream internally when I see them that may or may not be negligence. In a horse trails the rider walks the course to decide where and how to approach and get over obstacles. They have a plan. The have been diligent in scoping out where they must ride. The next day, at a high speed they come around a turn out of the woods to find a van parked in the approach area. The van was not there when the course was walked and they have been given no warning that people will be allowed to park on the course so close to the jumps. The rider has very little time to come up with a plan B and has to make a split second choice as to how to get to the jump now. They hesitate, the horse runs out and wipes out 2 jump judges, 3 spectators and the rider comes off and suffers permanent injury. Is negligent to allow the course to secretly change with no warning to the riders? Should someone have forseen that changing the course with no warning by placing large automobiles in the path of competitors might cause some harm? I could argue yes.

I school horse has become sick of beginners kicking and pulling randomly on it so it begins to buck off riders. Instructor decides that school horse is no longer suitable for beginners and moves horse up to intermediate riders because they are less likely to piss horse off and more likely to stay on when horse bucks. Intermediate rider is not told about horses bucking and gets bucked off and suffers injury. Negligence? Instructor knew horse bucked and tried to limit the risk by having horse buck less, but she knew or should have known it was an unacceptable risk. Reducing the number of bucked off riders from 10 to 3 does not mean one has been a model of safety and diligence.

Rider A attends clinic with Hellbent Guts, a famous 3 day eventer. Rider A has paid for and signed up for a Novice clinic. Guts tells rider A to gallop down a hill and jump a Preliminary jump. All other riders in the group have already done it. Rider A says he does not want to do that as it is above his and his horse’s level and he fears he may be hurt. Hellbent Guts humiliates and embarrasses rider A telling him no Guts no glory and maybe he is better off on a dime store plastic horse. Rider A relents and follows Guts’ instructions and slams head over heels in a rotational fall. Is Hellbent responsible for that fall? I would argue yes.

When I say I would argue yes, I do not mean I would write about my feelings on that situation. I mean I would haul that person into court and sue them on behalf of a client and argue to the jury that a duty existed, it was breached the breach caused the damage and my client needs to be made whole again and the wrong doer punished to discourage such events from happening again in the future. That’s my job. It’s also my right as a former instructor who did everything possible to prevent and avoid preventable and avoidable injuries.

Next we will discuss the many flavors of comparable negligence and assumption of the risk. The stuff the other side will argue to save your bacon after the fact.

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