Statute in Full:
§ 3.1-796.130. Definitions
As used in this chapter, unless the context requires a different meaning:
"Engages in an equine activity" means (i) any person, whether mounted or unmounted, who rides, handles, trains, drives, assists in providing medical or therapeutic treatment of, or is a passenger upon an equine; (ii) any person who participates in an equine activity but does not necessarily ride, handle, train, drive, or ride as a passenger upon an equine; (iii) any person visiting, touring or utilizing an equine facility as part of an event or activity; or (iv) any person who assists a participant or equine activity sponsor or management in an equine activity. The term "engages in an equine activity" does not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area and in immediate proximity to an equine or equine activity.
"Equine" means a horse, pony, mule, donkey, or hinny.
"Equine activity" means (i) equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, driving, pulling, cutting, polo, steeple chasing, endurance trail riding and western games, and hunting; (ii) equine training or teaching activities; (iii) boarding equines; (iv) riding, inspecting, or evaluating an equine belonging to another whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine; (v) rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; (vi) conducting general hoofcare, including but not limited to placing or replacing horseshoes or hoof trimming of an equine; and (vii) providing or assisting in breeding or therapeutic veterinary treatment.
"Equine activity sponsor" means any person or his agent who, for profit or not for profit sponsors, organizes, or provides the facilities for an equine activity, including but not limited to pony clubs, 4-H clubs, hunt clubs, riding clubs, school- and college-sponsored classes and programs, therapeutic riding programs, and operators, instructors, and promoters of equine facilities, including but not limited to stables, clubhouses, ponyride strings, fairs, and arenas at which the activity is held.
"Equine professional" means a person or his agent engaged for compensation in (i) instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon an equine or (ii) renting equipment or tack to a participant.
"Intrinsic dangers of equine activities" means those dangers or conditions that are an integral part of equine activities, including but not limited to, (i) the propensity of equines to behave in ways that may result in injury, harm, or death to persons on or around them; (ii) the unpredictability of an equine's reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals; (iii) certain hazards such as surface and subsurface conditions; (iv) collisions with other animals or objects; and (v) the potential of a participant acting in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the equine or not acting within the participant's ability.
"Participant" means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.
Acts 1991, c. 358; Acts 2003, c. 876.
§ 3.1-796.131. Horse racing excluded
The provisions of this chapter shall not apply to horse racing, as that term is defined by § 59.1-365.
Acts 1991, c. 358.
§ 3.1-796.132. Liability limited; liability actions prohibited
A. Except as provided in § 3.1-796.133, an equine activity sponsor, an equine professional, or any other person, which shall include a corporation, partnership, or limited liability company, shall not be liable for an injury to or death of a participant resulting from the intrinsic dangers of equine activities and, except as provided in § 3.1-796.133, no participant nor any participant's parent, guardian, or representative shall have or make any claim against or recover from any equine activity sponsor, equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the intrinsic dangers of equine activities.
B. Except as provided in § 3.1-796.133, no participant or parent or guardian of a participant who has knowingly executed a waiver of his rights to sue or agrees to assume all risks specifically enumerated under this subsection may maintain an action against or recover from an equine activity sponsor or an equine professional for an injury to or the death of a participant engaged in an equine activity. The waiver shall give notice to the participant of the intrinsic dangers of equine activities. The waiver shall remain valid unless expressly revoked in writing by the participant or parent or guardian of a minor.
Acts 1991, c. 358; Acts 2003, c. 876.
§ 3.1-796.133. Liability of equine activity sponsors, equine professionals
No provision of this chapter shall prevent or limit the liability of an equine activity sponsor or equine professional or any other person who:
1. Intentionally injures the participant;
2. Commits an act or omission that constitutes negligence for the safety of the participant and such act or omission caused the injury, unless such participant, parent or guardian has expressly assumed the risk causing the injury in accordance with subsection B of § 3.1-796.132; or
3. Knowingly provides faulty equipment or tack and such equipment or tack was faulty to the extent that it did cause the injury or death of the participant.
Notice the provision for "any other person" and see how this contrasts with the SC act. Any other person is not defined, but I would guess it means non-commercial establishments and private owners.
Notice Racing is excluded but not defined. Does this include training tracks and farms where horses are trained to race?
I have no idea what the difference between 132 and 133 means, but that's key to this act. We would need to look up some case law here to figure that out.
And once again spectators are free to sue you.
Lastly, notice the posting requirements for the signs. Where are they?
Saturday, December 27, 2008
Friday, December 26, 2008
Next Up: Virginia
This space will have a waiver and comments for VA soon. The holidays are getting in the way of blogging, but of course all VA people will have looked up their state statute by now, right?
Tuesday, December 23, 2008
Time Out to Think About Liability
The object is to promote the good of society as a whole. That means protecting some from harm and protecting others from lawsuits. The trend is that the"others" are commercial establishments. Because business is good for society. Commerce is good for society.
Many non-commercial horse owners think they are covered when they may not be. Now go read your state's equine liability statute and see if it covers you? Some exclude racing establishments. Some exclude stallions.
Some states have strict liability which means if it happened you are at fault--no reasons or excuses allowed. Is your state like that?
And the nagging thing about spectators still bugs me. Last year I offered to help draft a plan to limit liability for a local horse related event. The best idea I could come up with was a ticket. On the back of the ticket is the assumption of the risk stuff. That's pretty common in concerts, baseball and other places people gather and may get hurt. If I were organizing any event where horses often run loose through the crowd--steeplechase, point to point, eventing, barrel racing (you-tube it). . .I would take the time to set up a gate and issue tickets.
Its is important to understand and customize each situation and I just can't say enough how much I worry about releases being passed around the internet from person to person and state to state. I actually think most of the time the lawyer drafting the release should come out and do a liability inspection because lets face it, we see liability all over!
If you rally cannot afford a lawyer then do your homework. Read the statutes. Read some recent cases. Look at many examples. Think it through. Lawyers win and lose cases based on where a comma is placed or just one word. Its that nit-picky.
If you knew or should have known is powerful stuff. You can't deliberately not know because you should have known. So how do you know what you should have known? What standards are applied?
Some of it is just custom. In a H/J barn you should have known helmets were mandatory. In a western barn they are not used at all. An up down lesson has different risks that something called a suicide race. Its all relative to what is customary and normal for your area and your sport. Do you teach Western and English lessons? How do you know when helmets are a must and when they are a maybe?
Look around. Do what the majority does. Do more is you want, but never be in the minority.
Many non-commercial horse owners think they are covered when they may not be. Now go read your state's equine liability statute and see if it covers you? Some exclude racing establishments. Some exclude stallions.
Some states have strict liability which means if it happened you are at fault--no reasons or excuses allowed. Is your state like that?
And the nagging thing about spectators still bugs me. Last year I offered to help draft a plan to limit liability for a local horse related event. The best idea I could come up with was a ticket. On the back of the ticket is the assumption of the risk stuff. That's pretty common in concerts, baseball and other places people gather and may get hurt. If I were organizing any event where horses often run loose through the crowd--steeplechase, point to point, eventing, barrel racing (you-tube it). . .I would take the time to set up a gate and issue tickets.
Its is important to understand and customize each situation and I just can't say enough how much I worry about releases being passed around the internet from person to person and state to state. I actually think most of the time the lawyer drafting the release should come out and do a liability inspection because lets face it, we see liability all over!
If you rally cannot afford a lawyer then do your homework. Read the statutes. Read some recent cases. Look at many examples. Think it through. Lawyers win and lose cases based on where a comma is placed or just one word. Its that nit-picky.
If you knew or should have known is powerful stuff. You can't deliberately not know because you should have known. So how do you know what you should have known? What standards are applied?
Some of it is just custom. In a H/J barn you should have known helmets were mandatory. In a western barn they are not used at all. An up down lesson has different risks that something called a suicide race. Its all relative to what is customary and normal for your area and your sport. Do you teach Western and English lessons? How do you know when helmets are a must and when they are a maybe?
Look around. Do what the majority does. Do more is you want, but never be in the minority.
The SC release from Farm X
STATE OF SOUTH CAROLINA )
RELEASE AND HOLD HARMLES
COUNTY OF CHARLESTON )
PLEASE READ CAREFULLY BEFORE SIGNING.
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
NOTICE AND WARNING
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.
RELEASE AND HOLD HARMLES
COUNTY OF CHARLESTON )
PLEASE READ CAREFULLY BEFORE SIGNING.
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
NOTICE AND WARNING
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.
First up, Barn X in SC
FIRST READ THE LAW: me in bold italics
Title 47. Animals, Livestock and Poultry. Chapter 9. Livestock Generally. Article 7. Equine Liability Immunity.
Citation: SC ST § 47-9-710 - 730
Citation: Code 1976 § 47-9-710 - 730
Summary: This South Carolina section provides that an equine activity sponsor or an equine professional right there. Bam! Professional. No payment no coverage. is not liable for an injury to or the death of a participant resulting from an inherent risk of equine activity. Liability is not limited by this statute where the equine professional knowingly provided faulty tack or equipment, failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, owns or otherwise is in lawful possession of the land or facilities upon which the participant sustained injuries because of a known, dangerous latent condition, or if he or she commits an act or omission that constitutes willful or wanton disregard for the safety of the participant or intentionally injures the participant. The statute also requires the visible displaying of warning signs that alert participants to the limitation of liability by law. Failure to comply with the requirements concerning warning signs and notices provided in this section prevents an equine activity sponsor or equine professional from invoking the privileges of immunity provided by this article. You must post those signs and they must meet the requirements.
Statute in Full:
§ 47-9-710. Definitions.
As used in this chapter:
(1) "Engages in an equine activity" means riding, training, providing, or assisting in providing medical treatment of, driving, or being a passenger upon an equine, mounted or unmounted, or a person assisting a participant or show management. It does not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area and in immediate proximity to the equine activity. IT does not include spectators. Spectators rarely sign releases. Uh oh!
(2) "Equine" means a horse, pony, mule, donkey, or hinny.
(3) "Equine activity" means:
(a) an equine show, fair, competition, performance, or parade that involves a breed of equine and an equine discipline, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games, and hunting;
(b) equine training or teaching activities, or both;
(c) boarding equines;
(d) riding, inspecting, or evaluating an equine belonging to another, whether the owner has received monetary consideration or another thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine;
(e) a ride, trip, hunt, or other equine activity, however informal or impromptu, that is sponsored by an equine activity sponsor;
(f) placing or replacing a horseshoe on an equine;
(g) examining or administering medical treatment to an equine by a veterinarian.
(4) "Equine activity sponsor" means an individual, a group, a club, a partnership, or a corporation, whether the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for an equine activity, including, but not limited to, a pony club, 4-H club, hunt club, riding club, school and college-sponsored class, program, and activity, therapeutic riding program, and an operator, instructor, and promoter of an equine facility, including, but not limited to, a stable, clubhouse, ponyride string, fair, and an arena at which the activity is held.
(5) "Equine professional" means a person engaged for compensation in:
(a) instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine;
(b) renting equipment or tack to a participant; or
(c) examining or administering medical treatment to an equine as a veterinarian.
(6) "Inherent risk of equine activity" means those dangers or conditions which are an integral part of equine activities, including, but not limited to:
(a) the propensity of an equine to behave in ways that may result in injury, harm, or death to a person on or around the equine;
(b) the unpredictability of an equine's reaction to sound, sudden movement, an unfamiliar object, a person, or another animal;
(c) certain hazards such as surface and subsurface conditions;
(d) collisions with other equines or objects; and
(e) the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, as failing to maintain control over the animal or not acting within the participant's ability.
(7) "Participant" means a person, amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity. This is confusing but it applies to the rider—not the person using this to CTA. I run no type of equine business so if someone comes to ride my horses for free I am not covered.
HISTORY: 1993 Act No. 182, § 1, eff July 1, 1993, and applies only to causes of action arising on or after this act's effective date.
§ 47-9-720. Equine liability immunity; exceptions to grant of immunity.
(A) Except as provided in subsection (B), an equine activity sponsor or an equine professional is not liable for an injury to or the death of a participant resulting from an inherent risk of equine activity, and no participant or participant's representative may make a claim against, maintain an action against, or recover from an equine activity sponsor, or an equine professional, for injury, loss, damage, or death of the participant resulting from an inherent risk of equine activity.
(B) Nothing in subsection (A) prevents or limits the liability of an equine activity sponsor, or an equine professional, if the equine activity sponsor, or equine professional:
(1)(a) provided the equipment or tack and knew or should have known that the equipment or tack was faulty, and the equipment or tack was faulty to the extent that it caused the injury; or
(b) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to manage safely the particular equine based on the participant's representations of his ability;
(2) owns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known or should have been known to the equine activity sponsor, equine professional, or person and for which warning signs have not been conspicuously posted;
(3) committed an act or omission that constitutes wilful or wanton disregard for the safety of the participant and that act or omission caused the injury; or
(4) intentionally injured the participant.
(C) Nothing in subsection (A) prevents or limits the liability of an equine activity sponsor or an equine professional under liability provisions as set forth in the products liability laws.
(D) The provisions of this article shall not cover or apply to any liability arising from the ownership, maintenance, or use of any motor vehicle. WTF? What about the golf carts and vans parked on CC courses? Tractors? Hmmmmmm/
HISTORY: 1993 Act No. 182, § 1, eff July 1, 1993, and applies only to causes of action arising on or after this act's effective date.
§ 47-9-730. Warning signs; contract to contain warning notice; immunity revoked for failure to comply.
(A) An equine professional and an equine activity sponsor shall post and maintain signs which contain the warning notice specified in subsection (B). These signs must be placed in a clearly visible location on or near stables, corrals, or arenas where the equine professional or the equine activity sponsor conducts equine activities. The warning notice specified in subsection (B) must appear on the sign in black letters with each letter a minimum of one inch in height. A written contract entered into by an equine professional or by an equine activity sponsor to provide professional services, instruction, or rental of equipment, tack, or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the business of the equine professional or the equine activity sponsor, must contain in clearly readable print the warning notice specified in subsection (B).
(B) A sign and contract described in subsection (A) must contain the following warning notice:
WARNING
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 resulting from an inherent risk of equine activity, pursuant to Article 7, Chapter 9 of Title 47, Code of Laws of South Carolina, 1976.
(C) Failure to comply with the requirements concerning warning signs and notices provided in this section prevents an equine activity sponsor or equine professional from invoking the privileges of immunity provided by this article.
HISTORY: 1993 Act No. 182, § 1, eff July 1, 1993, and applies only to causes of action arising on or after this act's effective date.
Title 47. Animals, Livestock and Poultry. Chapter 9. Livestock Generally. Article 7. Equine Liability Immunity.
Citation: SC ST § 47-9-710 - 730
Citation: Code 1976 § 47-9-710 - 730
Summary: This South Carolina section provides that an equine activity sponsor or an equine professional right there. Bam! Professional. No payment no coverage. is not liable for an injury to or the death of a participant resulting from an inherent risk of equine activity. Liability is not limited by this statute where the equine professional knowingly provided faulty tack or equipment, failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, owns or otherwise is in lawful possession of the land or facilities upon which the participant sustained injuries because of a known, dangerous latent condition, or if he or she commits an act or omission that constitutes willful or wanton disregard for the safety of the participant or intentionally injures the participant. The statute also requires the visible displaying of warning signs that alert participants to the limitation of liability by law. Failure to comply with the requirements concerning warning signs and notices provided in this section prevents an equine activity sponsor or equine professional from invoking the privileges of immunity provided by this article. You must post those signs and they must meet the requirements.
Statute in Full:
§ 47-9-710. Definitions.
As used in this chapter:
(1) "Engages in an equine activity" means riding, training, providing, or assisting in providing medical treatment of, driving, or being a passenger upon an equine, mounted or unmounted, or a person assisting a participant or show management. It does not include being a spectator at an equine activity, except in cases where the spectator places himself in an unauthorized area and in immediate proximity to the equine activity. IT does not include spectators. Spectators rarely sign releases. Uh oh!
(2) "Equine" means a horse, pony, mule, donkey, or hinny.
(3) "Equine activity" means:
(a) an equine show, fair, competition, performance, or parade that involves a breed of equine and an equine discipline, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, three-day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games, and hunting;
(b) equine training or teaching activities, or both;
(c) boarding equines;
(d) riding, inspecting, or evaluating an equine belonging to another, whether the owner has received monetary consideration or another thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine;
(e) a ride, trip, hunt, or other equine activity, however informal or impromptu, that is sponsored by an equine activity sponsor;
(f) placing or replacing a horseshoe on an equine;
(g) examining or administering medical treatment to an equine by a veterinarian.
(4) "Equine activity sponsor" means an individual, a group, a club, a partnership, or a corporation, whether the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for an equine activity, including, but not limited to, a pony club, 4-H club, hunt club, riding club, school and college-sponsored class, program, and activity, therapeutic riding program, and an operator, instructor, and promoter of an equine facility, including, but not limited to, a stable, clubhouse, ponyride string, fair, and an arena at which the activity is held.
(5) "Equine professional" means a person engaged for compensation in:
(a) instructing a participant or renting to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine;
(b) renting equipment or tack to a participant; or
(c) examining or administering medical treatment to an equine as a veterinarian.
(6) "Inherent risk of equine activity" means those dangers or conditions which are an integral part of equine activities, including, but not limited to:
(a) the propensity of an equine to behave in ways that may result in injury, harm, or death to a person on or around the equine;
(b) the unpredictability of an equine's reaction to sound, sudden movement, an unfamiliar object, a person, or another animal;
(c) certain hazards such as surface and subsurface conditions;
(d) collisions with other equines or objects; and
(e) the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, as failing to maintain control over the animal or not acting within the participant's ability.
(7) "Participant" means a person, amateur or professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity. This is confusing but it applies to the rider—not the person using this to CTA. I run no type of equine business so if someone comes to ride my horses for free I am not covered.
HISTORY: 1993 Act No. 182, § 1, eff July 1, 1993, and applies only to causes of action arising on or after this act's effective date.
§ 47-9-720. Equine liability immunity; exceptions to grant of immunity.
(A) Except as provided in subsection (B), an equine activity sponsor or an equine professional is not liable for an injury to or the death of a participant resulting from an inherent risk of equine activity, and no participant or participant's representative may make a claim against, maintain an action against, or recover from an equine activity sponsor, or an equine professional, for injury, loss, damage, or death of the participant resulting from an inherent risk of equine activity.
(B) Nothing in subsection (A) prevents or limits the liability of an equine activity sponsor, or an equine professional, if the equine activity sponsor, or equine professional:
(1)(a) provided the equipment or tack and knew or should have known that the equipment or tack was faulty, and the equipment or tack was faulty to the extent that it caused the injury; or
(b) provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to manage safely the particular equine based on the participant's representations of his ability;
(2) owns, leases, rents, or otherwise is in lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition which was known or should have been known to the equine activity sponsor, equine professional, or person and for which warning signs have not been conspicuously posted;
(3) committed an act or omission that constitutes wilful or wanton disregard for the safety of the participant and that act or omission caused the injury; or
(4) intentionally injured the participant.
(C) Nothing in subsection (A) prevents or limits the liability of an equine activity sponsor or an equine professional under liability provisions as set forth in the products liability laws.
(D) The provisions of this article shall not cover or apply to any liability arising from the ownership, maintenance, or use of any motor vehicle. WTF? What about the golf carts and vans parked on CC courses? Tractors? Hmmmmmm/
HISTORY: 1993 Act No. 182, § 1, eff July 1, 1993, and applies only to causes of action arising on or after this act's effective date.
§ 47-9-730. Warning signs; contract to contain warning notice; immunity revoked for failure to comply.
(A) An equine professional and an equine activity sponsor shall post and maintain signs which contain the warning notice specified in subsection (B). These signs must be placed in a clearly visible location on or near stables, corrals, or arenas where the equine professional or the equine activity sponsor conducts equine activities. The warning notice specified in subsection (B) must appear on the sign in black letters with each letter a minimum of one inch in height. A written contract entered into by an equine professional or by an equine activity sponsor to provide professional services, instruction, or rental of equipment, tack, or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the business of the equine professional or the equine activity sponsor, must contain in clearly readable print the warning notice specified in subsection (B).
(B) A sign and contract described in subsection (A) must contain the following warning notice:
WARNING
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 resulting from an inherent risk of equine activity, pursuant to Article 7, Chapter 9 of Title 47, Code of Laws of South Carolina, 1976.
(C) Failure to comply with the requirements concerning warning signs and notices provided in this section prevents an equine activity sponsor or equine professional from invoking the privileges of immunity provided by this article.
HISTORY: 1993 Act No. 182, § 1, eff July 1, 1993, and applies only to causes of action arising on or after this act's effective date.
Soon, Very very soon.
I am working on it. Please be patient. Go back to your holiday shopping and travel. The whole thing will be waiting for you after you finish your huge holiday meals and wash all the dishes.
Nothing in the law is black and white, it’s all shades of grey and reality changes with each court decision. I am trying to be very very careful in what I post and how I post it when it come to liability because so many people fear it and very few people feel comfortable with no clear answers—just areas of suggestion. Liability is like weather. Just prepare for the worst and then go on with your life.
Hence, I am trying to find, beg or borrow the most concise way to get the next section out without either scaring people or giving them a false sense of confidence. I also have to do an update check on the laws of several states. That will take all day. That is exactly why I hate the suggestion that a free or cheap initial consultation with an attorney can give you any useful information. Short story on that and then I promise its back to reading a dissertation (and I am not kidding—its an actual PhD dissertation) on new changes in equine liability laws and get to posting those releases:>
Perfectly good general practice lawyer with a well respected firm gets a call from a person who has a horse that no board has been paid on for several years. The horse had been part of a seizure for animal cruelty and it took many years to work through the courts. Perfectly good lawyer gives the standard answer—file for a stableman’s lien and take title to the horse. Perfectly good lawyer had no idea this horse and about 70 others had been part of an appeals process that went all the way to the state Supreme Court. SC had already ruled on exactly how the horses should be handled and how the bills should be paid. The usual answer was not the right answer in this case. Context and background facts always matter. Case law matters. Experience just gets you through those things faster, but in a profession where the reality changes weekly you have to do some work to give out the easy answer. Take anything you hear with a grain of salt and understand your mileage may vary.
So now I will do some more work.
Nothing in the law is black and white, it’s all shades of grey and reality changes with each court decision. I am trying to be very very careful in what I post and how I post it when it come to liability because so many people fear it and very few people feel comfortable with no clear answers—just areas of suggestion. Liability is like weather. Just prepare for the worst and then go on with your life.
Hence, I am trying to find, beg or borrow the most concise way to get the next section out without either scaring people or giving them a false sense of confidence. I also have to do an update check on the laws of several states. That will take all day. That is exactly why I hate the suggestion that a free or cheap initial consultation with an attorney can give you any useful information. Short story on that and then I promise its back to reading a dissertation (and I am not kidding—its an actual PhD dissertation) on new changes in equine liability laws and get to posting those releases:>
Perfectly good general practice lawyer with a well respected firm gets a call from a person who has a horse that no board has been paid on for several years. The horse had been part of a seizure for animal cruelty and it took many years to work through the courts. Perfectly good lawyer gives the standard answer—file for a stableman’s lien and take title to the horse. Perfectly good lawyer had no idea this horse and about 70 others had been part of an appeals process that went all the way to the state Supreme Court. SC had already ruled on exactly how the horses should be handled and how the bills should be paid. The usual answer was not the right answer in this case. Context and background facts always matter. Case law matters. Experience just gets you through those things faster, but in a profession where the reality changes weekly you have to do some work to give out the easy answer. Take anything you hear with a grain of salt and understand your mileage may vary.
So now I will do some more work.
Sunday, December 21, 2008
Liabilty Everywhere! Oh No!
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?
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?
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