A BILL to amend the Code of Virginia by adding in Title 3.1 a chapter numbered 4.9 consisting of sections numbered 3.1-22.78 through 3.1-22.82, relating to the sale of horses by dealers.
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding in Title 3.1 a chapter numbered 4.9, consisting of sections numbered 3.1-22.78 through 3.1-22.82, as follows:
Chapter 4.9.
Equine Sales by Dealers.
§ 3.1-22.78. Definitions.
As used in this chapter, unless the context requires a different meaning:
"Dual agent" means a person acting as representative for both the buyer and the seller in any sale, purchase, or transfer of an equine. Auction companies shall not be considered dual agents.
"Equine" means a horse of any breed used for racing or showing, including prospective racehorses, breeding prospects, stallions, stallion seasons, broodmares, yearlings, or weanlings, or any interest therein.
§ 3.1-22.79. Written bill of sale required.
A. Any sale, purchase, or transfer of an equine over $10,000 shall be: (i) accompanied by a written bill of sale or acknowledgment of purchase and security agreement that includes the purchase price; and (ii) signed by both the purchaser and the seller or their agent or, in a transaction solely relating to a season or fractional interest in the stallion, the syndicate manager or stallion manager.
B. If the equine is sold, purchased, or transferred at public auction, the requirements of this section may also be satisfied by the issuance of an auction receipt generated by the auction house, and signed by the purchaser or his agent. An agent who signs an auction receipt on behalf of the principal shall do so only if authorized in writing. When presented with such authorization, all other parties to the transaction may presume that an agent signing on behalf of the principal is authorized to act for the principal. For transactions at public auction, this section shall not require disclosure of the reserves, the identity of the principals, or the auctioneer's commissions.
§ 3.1-22.80. Dual agency; consent required; agency; consignor; disclosure of compensation.
A. Any person acting as a dual agent in any sale, purchase, or transfer of an equine shall acquire the prior written consent of both the buyer and the seller.
B. Any person acting as a dual agent, consignor, or agent for either a purchaser or a seller in a transaction involving the sale, purchase, or transfer of an equine who may receive compensation, in any form, with a value in excess of $500 shall disclose the payment in writing to both the purchaser and seller; and acquire the written consent for such compensation from each principal for whom the agent is acting.
C. Any person acting as a dual agent, consignor, or agent for either a purchaser or a seller in a transaction involving the sale, purchase, or transfer of an equine shall, upon request by the principal, furnish copies of all financial records and financial documents in the possession or control of the agent pertaining to the transaction with the principal. Financial records shall not include the agent's or owner's work product used to internally evaluate the equine.
§ 3.1-22.81. Civil action for violation of chapter.
A. Any person who violates this chapter shall be civilly liable for damages in treble the amount of the damages sustained by the complaining party. The prevailing party in any litigation under this section shall be entitled to an award of costs of the suit, reasonable litigation expenses, and attorney's fees. As used in this section, treble damages shall equal three times the sum of: (i) the difference, if any, between the price paid for the equine and the actual value of the equine at the time of sale; and (ii) any compensation received in violation of subsection B of § 3.1-22.80. No person shall be held liable under this section unless that person has actual knowledge of the conduct constituting a violation of this section.
B. No contract or agreement for payment of a commission, fee, gratuity, or any other form of compensation in connection with any sale, purchase, or transfer of an equine shall be enforceable by way of a civil action or defense unless: (i) the contract or agreement is in writing and is signed by the party against whom enforcement is sought; and (ii) the recipient of the compensation provides a written bill of sale for the transaction.
§ 3.1-22.82. Penalty.
Any person who knowingly commits a violation of this section is guilty of a Class 1 misdemeanor.
Next we will look at each section in detail. It wont look scary at all when we are done!
Tuesday, January 6, 2009
Are you for Fraud or Against it? New laws debated.
The laws of agency are common law principals that date back to before there were any United States. In “olden times” there were no cell phones, no e-mail and no internet. In fact, there were not even any cars or methods of rapid communication. This meant that if you wanted to do business, you had to hire others to represent you since you could only be in one place at one time. Thus, the laws of agency were created out of need and still exist because without laws, people will just rip you off and leave you broke.
Here is a primer on agency in plain English as it relates to real estate. http://www.ired.com/buymyself/agency/970312.htm It is actually pretty much how agency relates to any situation, because, frankly, an agent is an agent. Real estate agents must be licensed and often have their own code of ethics, but although horse dealers are not real estate agents, they still are bound by the laws of agency.
Now we are going to pick a state that is considering enacting laws to cover the sales of horses. Except, we are really not going to be looking at new laws—the laws of agency are already on the books and already apply—we are just looking at extra words so that everybody clearly understands that these ancient rules DO apply to horses because a lot of horses cost more then a house. One of the things these laws do is include attorneys fees so that the person who was just been ripped off for $20,000 does not have to pay $30,000 to try and get her money back. In certain cases of fraud there is a small criminal charge. Like the one that is already there in another section. Nothing new, just the same thing in a different section of the code so its clear that it applies to horses. Judicial clerks could google horse+agency+fraud and find the right code. And if you commit a criminal act, shouldn’t you be punished? Why would anyone argue against that? How does less crime cut into their profits?
These types of laws have already been passed in several states. Life as we know it did not end. The sky did not fall. Things went along pretty much as they had. Now a new bill is being debated for Virginia. Oddly, many are against it. They are against a law that is already the law. The new section’s sole purpose is to make sure its easy to enforce the laws against fraud in horse sales. There is much debate going on, because, I guess, a lot of people are for fraud?
Some of the pro-fraud people will no doubt be very cross with me for being in support of anti-fraud legislation. They will write nasty messages that they will never hire me! Well, that’s OK. See, I am a lawyer. In the best case scenario I can only represent half of all the available clients. I am not Wal-mart. I cannot run all the other lawyers out of business or there could be no lawsuits for me to try. I only have to please a small fraction of the people all the time and I am the one who is suing you if you violate the law, so it’s the other guys business I want anyway. And I practice in SC. We have the toughest consumer protection laws around. If the things these laws addressed were to happen in my state the guilty would not only have to pay me for my services, but all the damages are tripled. I can make much more money suing crooks down here. So, not only is VA not the state were I make my living, but if it were, I would be on the other side. So save the threats of never hiring me for someone who actually cares. If you are pro-fraud, the person you stole from needs a lawyer too. That lawyer still will not be me, but if the pay is high enough, the lawyer will always appear. And we do not scare easy. Frown away.
I grew up in Northern Va. I saw with my own eyes that fraud and theft and deceit were not an uncommon occurrence in the horse business. I certainly saw honest horse people trying to make an honest living, but they had to work 3 times as hard to make half as much then the competition who would lie, cheat and steal. Honest horse folk drop out of the race leaving the pool even more concentrated with the bad eggs. I was told in no uncertain terms that if I wanted to play in the Hunter Jumper world I had to drug horses, cheat clients and do whatever I was told and never say anything was wrong. I didn’t shut up then and I won’t shut up now. It was bad, probably worse then you even know. I saved evidence from those days in case someone, somewhere at some time actually cared enough to do something about the cheaters. The fact I still have those VHS tapes laying around should tell you how bad I thought it was.
However, there were those that worked very hard and did nothing wrong. I do not paint all horsemen with the same brush, but as far as I know the good ones were not pro-fraud then and are not pro–fraud now. I also knew many good and honest horse people who were perpetually broke. Hmmmm.
Next up is the actual proposed code. I assume some of the discomfort about the proposed laws must be due to not understanding it or understanding how it applies. Clearly people that understood it would not be signing their names to petitions to allow fraud. That makes no sense.
Here is a primer on agency in plain English as it relates to real estate. http://www.ired.com/buymyself/agency/970312.htm It is actually pretty much how agency relates to any situation, because, frankly, an agent is an agent. Real estate agents must be licensed and often have their own code of ethics, but although horse dealers are not real estate agents, they still are bound by the laws of agency.
Now we are going to pick a state that is considering enacting laws to cover the sales of horses. Except, we are really not going to be looking at new laws—the laws of agency are already on the books and already apply—we are just looking at extra words so that everybody clearly understands that these ancient rules DO apply to horses because a lot of horses cost more then a house. One of the things these laws do is include attorneys fees so that the person who was just been ripped off for $20,000 does not have to pay $30,000 to try and get her money back. In certain cases of fraud there is a small criminal charge. Like the one that is already there in another section. Nothing new, just the same thing in a different section of the code so its clear that it applies to horses. Judicial clerks could google horse+agency+fraud and find the right code. And if you commit a criminal act, shouldn’t you be punished? Why would anyone argue against that? How does less crime cut into their profits?
These types of laws have already been passed in several states. Life as we know it did not end. The sky did not fall. Things went along pretty much as they had. Now a new bill is being debated for Virginia. Oddly, many are against it. They are against a law that is already the law. The new section’s sole purpose is to make sure its easy to enforce the laws against fraud in horse sales. There is much debate going on, because, I guess, a lot of people are for fraud?
Some of the pro-fraud people will no doubt be very cross with me for being in support of anti-fraud legislation. They will write nasty messages that they will never hire me! Well, that’s OK. See, I am a lawyer. In the best case scenario I can only represent half of all the available clients. I am not Wal-mart. I cannot run all the other lawyers out of business or there could be no lawsuits for me to try. I only have to please a small fraction of the people all the time and I am the one who is suing you if you violate the law, so it’s the other guys business I want anyway. And I practice in SC. We have the toughest consumer protection laws around. If the things these laws addressed were to happen in my state the guilty would not only have to pay me for my services, but all the damages are tripled. I can make much more money suing crooks down here. So, not only is VA not the state were I make my living, but if it were, I would be on the other side. So save the threats of never hiring me for someone who actually cares. If you are pro-fraud, the person you stole from needs a lawyer too. That lawyer still will not be me, but if the pay is high enough, the lawyer will always appear. And we do not scare easy. Frown away.
I grew up in Northern Va. I saw with my own eyes that fraud and theft and deceit were not an uncommon occurrence in the horse business. I certainly saw honest horse people trying to make an honest living, but they had to work 3 times as hard to make half as much then the competition who would lie, cheat and steal. Honest horse folk drop out of the race leaving the pool even more concentrated with the bad eggs. I was told in no uncertain terms that if I wanted to play in the Hunter Jumper world I had to drug horses, cheat clients and do whatever I was told and never say anything was wrong. I didn’t shut up then and I won’t shut up now. It was bad, probably worse then you even know. I saved evidence from those days in case someone, somewhere at some time actually cared enough to do something about the cheaters. The fact I still have those VHS tapes laying around should tell you how bad I thought it was.
However, there were those that worked very hard and did nothing wrong. I do not paint all horsemen with the same brush, but as far as I know the good ones were not pro-fraud then and are not pro–fraud now. I also knew many good and honest horse people who were perpetually broke. Hmmmm.
Next up is the actual proposed code. I assume some of the discomfort about the proposed laws must be due to not understanding it or understanding how it applies. Clearly people that understood it would not be signing their names to petitions to allow fraud. That makes no sense.
Your Turn
Lets pretend this "club" is a registered charity of some sort. They are non-profit and for the public good. In applying the laws, how do you think that will matter to a judge? Might they carve out an exception for non-profits? Would they treat them just the same as private non-commercial establishments? What factors would they consider?
I am now going to struggle for a few hours trying to figure out how to turn the comments back on. You have had lots of examples and some background not liability issues, so how would you rule if someone came into your court with this release and an injured adult?
*** – Participation Agreement
Assumption of Risk, Release of Liability, Promise Not To Sue,
Indemnity and Hold Harmless Agreement
BY SIGNING THIS AGREEMENT, YOU ARE GIVING UP CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO RECOVER DAMAGES IN CASE OF INJURY, DEATH, OR DAMAGE TO PROPERTY. READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT. YOUR SIGNATURE INDICATES YOUR UNDERSTANDING OF AND AGREEMENT TO ITS TERMS.
1. I understand and acknowledge that my voluntary participation in activities organized by or sponsored by *** bears known and unknown or unanticipated risks which could result in injury, death, physical or mental illness or disease, or damage to myself, my horse, my property, spectators, and other third parties. Some of these risks are described below:
a. Horse handling, including but not limited to handling a horse from the ground, riding, mounting and dismounting, leading, feeding, grooming, and trailering, is a dangerous activity. Horses are unpredictable animals that may behave irrationally regardless of training or past behavior. A horse may, without warning or any apparent cause, buck, stumble, fall, spook, jump, rear, flip over, bite, kick, suddenly stop, accelerate, back up, or move to the side, make sudden movements, push or shove a person, collide with a person, another horse, or an object, or step on a person or object, all of which may cause injury or death to the rider, handler, spectator, or other third parties and/or cause damage or destruction of the horse or other property.
b. Participants in activities organized by or sponsored by *** may encounter hazards such as wild and restrained or unrestrained domesticated animals including but not limited to horses, poorly maintained or improperly installed fencing or other facilities, uneven or slippery footing, equipment on and around horses such as saddles, bridles, halters, ropes, sticks and whips, objects such as tarps, balls, jumps, barrels, and the like, equipment on and around horses that may make noise, move, shift, loosen, or break, all of which may cause the behaviors and actions described in paragraph a or which may otherwise cause injury or death to the rider, handler, spectator, or other third parties and/or cause damage or destruction of the horse or other property.
2. I understand and acknowledge that *** is a peer group and in the context of my participation in activities organized by or sponsored by ***, no *** director, officer, or member is acting as a professional or giving instruction. Accordingly, while participating in activities organized by or sponsored by ***, my participation in any activity or task is voluntary, and I am the sole judge of the safety of my participation in any activity or task and of my fitness and my horse’s fitness to participate in any activity or task.
3. I voluntarily assume all risks, known and unknown, inherent in and related to my participation in activities organized by or sponsored by ***.
4. In consideration of my participation in events organized by or sponsored by ***, I hereby release ***, its directors, officers, and members, their representatives, executors, heirs, and assigns from any claims of negligence, loss, liability, damage, or cost arising out of or related to (a) my participation in activities organized by or sponsored by *** and/or (b) any acts or omissions of ***, its directors, officers, and members, including but not limited to acts of negligence relating to handling horses or equipment, or directing activities.
5. I promise not to sue ***, its directors, officers, and members, their representatives, executors, heirs, and assigns for any negligence, loss, liability, damage, or cost arising out of or related to (a) my participation in activities organized by or sponsored by *** and/or (b) any acts or omissions of ***, its directors, officers, and members, including but not limited to acts of negligence relating to handling horses or equipment, or directing activities. I agree to indemnify and hold harmless ***, its directors, officers, and members, their representatives, executors, heirs, and assigns against any claims, demands, and causes of action, including court costs, and actual attorney fees, arising from any proceeding or lawsuit brought by me or prosecuted for my benefit, in which this Participation Agreement is upheld.
6. I agree that the foregoing assumption of risk, release of liability, promise not to sue, indemnity and hold harmless agreement is governed by the State of California and is intended to be as broad and inclusive as permitted by California law, and that in the event any portion of this Participation Agreement is determined to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the balance of the Participation Agreement shall not be affected or impaired in any way and shall continue in full legal force and effect.
MY SIGNATURE BELOW INDICATES THAT I HAVE READ THIS ENTIRE DOCUMENT, UNDERSTAND IT COMPLETELY, UNDERSTAND THAT IT AFFECTS MY LEGAL RIGHTS, AND AGREE TO BE BOUND BY ITS TERMS. I UNDERSTAND IT IS AN ASSUMPTION OF RISK, PROMISE NOT TO SUE, AND RELEASE OF LIABILITY AND INDEMNITY FOR ALL CLAIMS.
Signature: Date:
Printed Name:
I, the undersigned parent or legal guardian of the above identified minor, in consideration of my minor’s participation in activities organized by or sponsored by ***, agree that the terms and conditions of this Participation Agreement shall be binding on me and my minor.
Parent/Guardian Signature: Date:
Printed Name:
I am now going to struggle for a few hours trying to figure out how to turn the comments back on. You have had lots of examples and some background not liability issues, so how would you rule if someone came into your court with this release and an injured adult?
*** – Participation Agreement
Assumption of Risk, Release of Liability, Promise Not To Sue,
Indemnity and Hold Harmless Agreement
BY SIGNING THIS AGREEMENT, YOU ARE GIVING UP CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO RECOVER DAMAGES IN CASE OF INJURY, DEATH, OR DAMAGE TO PROPERTY. READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT. YOUR SIGNATURE INDICATES YOUR UNDERSTANDING OF AND AGREEMENT TO ITS TERMS.
1. I understand and acknowledge that my voluntary participation in activities organized by or sponsored by *** bears known and unknown or unanticipated risks which could result in injury, death, physical or mental illness or disease, or damage to myself, my horse, my property, spectators, and other third parties. Some of these risks are described below:
a. Horse handling, including but not limited to handling a horse from the ground, riding, mounting and dismounting, leading, feeding, grooming, and trailering, is a dangerous activity. Horses are unpredictable animals that may behave irrationally regardless of training or past behavior. A horse may, without warning or any apparent cause, buck, stumble, fall, spook, jump, rear, flip over, bite, kick, suddenly stop, accelerate, back up, or move to the side, make sudden movements, push or shove a person, collide with a person, another horse, or an object, or step on a person or object, all of which may cause injury or death to the rider, handler, spectator, or other third parties and/or cause damage or destruction of the horse or other property.
b. Participants in activities organized by or sponsored by *** may encounter hazards such as wild and restrained or unrestrained domesticated animals including but not limited to horses, poorly maintained or improperly installed fencing or other facilities, uneven or slippery footing, equipment on and around horses such as saddles, bridles, halters, ropes, sticks and whips, objects such as tarps, balls, jumps, barrels, and the like, equipment on and around horses that may make noise, move, shift, loosen, or break, all of which may cause the behaviors and actions described in paragraph a or which may otherwise cause injury or death to the rider, handler, spectator, or other third parties and/or cause damage or destruction of the horse or other property.
2. I understand and acknowledge that *** is a peer group and in the context of my participation in activities organized by or sponsored by ***, no *** director, officer, or member is acting as a professional or giving instruction. Accordingly, while participating in activities organized by or sponsored by ***, my participation in any activity or task is voluntary, and I am the sole judge of the safety of my participation in any activity or task and of my fitness and my horse’s fitness to participate in any activity or task.
3. I voluntarily assume all risks, known and unknown, inherent in and related to my participation in activities organized by or sponsored by ***.
4. In consideration of my participation in events organized by or sponsored by ***, I hereby release ***, its directors, officers, and members, their representatives, executors, heirs, and assigns from any claims of negligence, loss, liability, damage, or cost arising out of or related to (a) my participation in activities organized by or sponsored by *** and/or (b) any acts or omissions of ***, its directors, officers, and members, including but not limited to acts of negligence relating to handling horses or equipment, or directing activities.
5. I promise not to sue ***, its directors, officers, and members, their representatives, executors, heirs, and assigns for any negligence, loss, liability, damage, or cost arising out of or related to (a) my participation in activities organized by or sponsored by *** and/or (b) any acts or omissions of ***, its directors, officers, and members, including but not limited to acts of negligence relating to handling horses or equipment, or directing activities. I agree to indemnify and hold harmless ***, its directors, officers, and members, their representatives, executors, heirs, and assigns against any claims, demands, and causes of action, including court costs, and actual attorney fees, arising from any proceeding or lawsuit brought by me or prosecuted for my benefit, in which this Participation Agreement is upheld.
6. I agree that the foregoing assumption of risk, release of liability, promise not to sue, indemnity and hold harmless agreement is governed by the State of California and is intended to be as broad and inclusive as permitted by California law, and that in the event any portion of this Participation Agreement is determined to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the balance of the Participation Agreement shall not be affected or impaired in any way and shall continue in full legal force and effect.
MY SIGNATURE BELOW INDICATES THAT I HAVE READ THIS ENTIRE DOCUMENT, UNDERSTAND IT COMPLETELY, UNDERSTAND THAT IT AFFECTS MY LEGAL RIGHTS, AND AGREE TO BE BOUND BY ITS TERMS. I UNDERSTAND IT IS AN ASSUMPTION OF RISK, PROMISE NOT TO SUE, AND RELEASE OF LIABILITY AND INDEMNITY FOR ALL CLAIMS.
Signature: Date:
Printed Name:
I, the undersigned parent or legal guardian of the above identified minor, in consideration of my minor’s participation in activities organized by or sponsored by ***, agree that the terms and conditions of this Participation Agreement shall be binding on me and my minor.
Parent/Guardian Signature: Date:
Printed Name:
Friday, January 2, 2009
NH Waiver
I am just gonna post it. I challenge the author to re-write and re-submit it and see if they can make it. . . .more effective now? What, you didn't know you would be graded on this assignment?
Nice statute, but what goes in the ". . . . " part? Has it held up in court against negligence? Sigh. Find out here http://asci.uvm.edu/equine/law/cases/release/wright.htm.
Release and Hold Harmless Agreement
As per NH State Code Section 508:19, an equine activity sponsor, an equine professional, or any other person engaged in an equine activity, shall not be liable for an injury or the death of a participant resulting from the inherent risks of equine activities and … no participant's representative shall make any claim against, maintain an action against, or recover from any other person for injury, loss, damage, or death of a participant resulting from any of the inherent risks of equine activities. Each participant in an equine activity expressly assumes the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in an equine activity. Each participant shall have the sole responsibility for knowing the range of his or her ability to manage, care for, and control a particular equine or perform a particular equine activity, and it shall be the duty of each participant to act within the limits of the participant's own ability, to maintain reasonable control of the particular equine at all times while participating in an equine activity, to heed all posted warnings, and to refrain from acting in a manner which may cause or contribute to the injury of any person.
1. I,_____________________________,the undersigned have read and understand, and freely and voluntarily enter into this Release and Hold Harmless Agreement with [Me]. I understand that this Release and Hold Harmless Agreement is a waiver of any and all liability(ies).
2. I have read and fully understand the warning printed above.
3. I understand the potential dangers that I could incur in handling, mounting, riding, walking, boarding, and/or feeding said horse; including, but not limited to, any interactions with other horses. I understand that the inherent risks of equine activities include those dangers and 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 persons on or around them.
b) The unpredictability of an equine's reaction to such things as sounds, sudden movements, and unfamiliar objects, persons, or other animals.
c) Certain hazards such as surface and subsurface conditions not obvious to the equine participant or not known and reasonably not known by the equine professional or sponsor.
d) Collisions with other equines or objects that can be reasonably foreseen as a result of normal equine activities.
e) The potential of a participant to act in a negligent manner that may contribute to injury of the participant
or others, such as failing to maintain control over the animal or not acting within the participant's ability.
4. Understanding those risks I hereby release, indemnify, and hold harmless [Me] and her agents or assignees from any liability whatsoever in the event of injury or damage of any nature (including but not limited to personal injuries both minor and severe, death, or property damage) to me or anyone else caused by or incidental to my electing to handle, mount and/or ride [My Horse(s)], [description of My Horse(s)] owned by [Me].
NOTICE: A helmet, approved by the ASTM/SEI for equestrian use, must be worn at all times when mounted.
Person voluntarily entering into this Release and Hold Harmless Agreement:
Signature_____________________________________________________ Date:_______________________
Printed Name_________________________________________________
Address____________________________________
____________________________________
DOB, if Minor_____________________________________
If minor, person representing himself/herself to the lawful Guardian under this Release and Hold Harmless Agreement:
Signature:___________________________________________________Relationship:___________________
Printed Name:_______________________________________________
Nice statute, but what goes in the ". . . . " part? Has it held up in court against negligence? Sigh. Find out here http://asci.uvm.edu/equine/law/cases/release/wright.htm.
Release and Hold Harmless Agreement
As per NH State Code Section 508:19, an equine activity sponsor, an equine professional, or any other person engaged in an equine activity, shall not be liable for an injury or the death of a participant resulting from the inherent risks of equine activities and … no participant's representative shall make any claim against, maintain an action against, or recover from any other person for injury, loss, damage, or death of a participant resulting from any of the inherent risks of equine activities. Each participant in an equine activity expressly assumes the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in an equine activity. Each participant shall have the sole responsibility for knowing the range of his or her ability to manage, care for, and control a particular equine or perform a particular equine activity, and it shall be the duty of each participant to act within the limits of the participant's own ability, to maintain reasonable control of the particular equine at all times while participating in an equine activity, to heed all posted warnings, and to refrain from acting in a manner which may cause or contribute to the injury of any person.
1. I,_____________________________,the undersigned have read and understand, and freely and voluntarily enter into this Release and Hold Harmless Agreement with [Me]. I understand that this Release and Hold Harmless Agreement is a waiver of any and all liability(ies).
2. I have read and fully understand the warning printed above.
3. I understand the potential dangers that I could incur in handling, mounting, riding, walking, boarding, and/or feeding said horse; including, but not limited to, any interactions with other horses. I understand that the inherent risks of equine activities include those dangers and 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 persons on or around them.
b) The unpredictability of an equine's reaction to such things as sounds, sudden movements, and unfamiliar objects, persons, or other animals.
c) Certain hazards such as surface and subsurface conditions not obvious to the equine participant or not known and reasonably not known by the equine professional or sponsor.
d) Collisions with other equines or objects that can be reasonably foreseen as a result of normal equine activities.
e) The potential of a participant to act in a negligent manner that may contribute to injury of the participant
or others, such as failing to maintain control over the animal or not acting within the participant's ability.
4. Understanding those risks I hereby release, indemnify, and hold harmless [Me] and her agents or assignees from any liability whatsoever in the event of injury or damage of any nature (including but not limited to personal injuries both minor and severe, death, or property damage) to me or anyone else caused by or incidental to my electing to handle, mount and/or ride [My Horse(s)], [description of My Horse(s)] owned by [Me].
NOTICE: A helmet, approved by the ASTM/SEI for equestrian use, must be worn at all times when mounted.
Person voluntarily entering into this Release and Hold Harmless Agreement:
Signature_____________________________________________________ Date:_______________________
Printed Name_________________________________________________
Address____________________________________
____________________________________
DOB, if Minor_____________________________________
If minor, person representing himself/herself to the lawful Guardian under this Release and Hold Harmless Agreement:
Signature:___________________________________________________Relationship:___________________
Printed Name:_______________________________________________
Thursday, January 1, 2009
One I Really Like
http://www.journeysend-nc.com/rider_participant_release.pdf
This is not hyperlinked. You have to paste it in your browser. I do law. You do tech stuff. K?
I just love this one. Without regard to the actual law in NC, I love the format, the spacing, the wording, the comprehensiveness and most of all the fact that people will actually read it.
I would have a hard time convincing a jury that my client did not see the risks or understand what this thing is saying.
Colors, bold and caps mixed with small letters. Breaks to keep each subject in focus. Legalese mixed with plain English and some actual personality. Lawyers forget the regular humans will be judging this stuff in court. Imagine the jury on this case. They are reading this release. They LIKE the defendant after they read it. They feel the defendant could not have been more clear. They will be very inclined to follow the law no matter how sympathetic the injured party is.
Assumption of the risk? Check. They have that covered.
All parties covered? Check. They have every possible plaintiff covered down to the sperm and a ovum of those plaintiffs. They have all of their own parties covered in singular and corporate form.
Proper use of font and spacing? Check. I had to post the link because just cutting and pasting ruined the perfection. Hears a scary secret. Judges only read the paragraph headers. We spend a year in law school just working on those because we know judge swill just read down the list of paragraph headers. Everything else has to be pointed out in oral arguments.
Understandable by a reasonable person? Check. The parts about the dangers could not be more clear and pointing out that beginners are more likely to get hurt means they KNOW you do not work your way up to injuries--you learn to avoid them with time.
I AM NOT SAYING COPY THIS waiver and use it. I have no idea if its valid in either NC or your state. I am saying copy the style, the form, the brilliance of it. I would be very surprised of those really great parts are the attorney's work product. I see a horseperson in there who knows whats what.
I wanted to jump ahead to posting what I like so the poor people who have been worried about their releases I didn't like can see why.
I think anything under 15 pages is just fine. You simply cannot CYA with 1 page these days. An average modern release is going to be 5-10 pages long with proper spacing and breaks. Don't shoot yourself in the foot by getting rid of large print and breaks to get the page count down. I know its tempting, but I have to wade through much more to get my teeth cleaned or an ultrasound.
I did not ask for permission to post this link, but its publicly posted on the internet and therefore fair game for non-commercial purposes. That said, I will be happy to take it down if asked. The creator might be flattered or might want to keep such a masterpiece to themselves. I can see this took lots of hard work and thought and they may not want to share.
This is not hyperlinked. You have to paste it in your browser. I do law. You do tech stuff. K?
I just love this one. Without regard to the actual law in NC, I love the format, the spacing, the wording, the comprehensiveness and most of all the fact that people will actually read it.
I would have a hard time convincing a jury that my client did not see the risks or understand what this thing is saying.
Colors, bold and caps mixed with small letters. Breaks to keep each subject in focus. Legalese mixed with plain English and some actual personality. Lawyers forget the regular humans will be judging this stuff in court. Imagine the jury on this case. They are reading this release. They LIKE the defendant after they read it. They feel the defendant could not have been more clear. They will be very inclined to follow the law no matter how sympathetic the injured party is.
Assumption of the risk? Check. They have that covered.
All parties covered? Check. They have every possible plaintiff covered down to the sperm and a ovum of those plaintiffs. They have all of their own parties covered in singular and corporate form.
Proper use of font and spacing? Check. I had to post the link because just cutting and pasting ruined the perfection. Hears a scary secret. Judges only read the paragraph headers. We spend a year in law school just working on those because we know judge swill just read down the list of paragraph headers. Everything else has to be pointed out in oral arguments.
Understandable by a reasonable person? Check. The parts about the dangers could not be more clear and pointing out that beginners are more likely to get hurt means they KNOW you do not work your way up to injuries--you learn to avoid them with time.
I AM NOT SAYING COPY THIS waiver and use it. I have no idea if its valid in either NC or your state. I am saying copy the style, the form, the brilliance of it. I would be very surprised of those really great parts are the attorney's work product. I see a horseperson in there who knows whats what.
I wanted to jump ahead to posting what I like so the poor people who have been worried about their releases I didn't like can see why.
I think anything under 15 pages is just fine. You simply cannot CYA with 1 page these days. An average modern release is going to be 5-10 pages long with proper spacing and breaks. Don't shoot yourself in the foot by getting rid of large print and breaks to get the page count down. I know its tempting, but I have to wade through much more to get my teeth cleaned or an ultrasound.
I did not ask for permission to post this link, but its publicly posted on the internet and therefore fair game for non-commercial purposes. That said, I will be happy to take it down if asked. The creator might be flattered or might want to keep such a masterpiece to themselves. I can see this took lots of hard work and thought and they may not want to share.
Tuesday, December 30, 2008
More soon. . . . .
I promise to post more soon in return for the valuable consideration of you busy people taking time to read what I post and your promise to ask any questions you might have as to the general common law policies.
I am sorry, but I just can't open for comments. I do not have time to moderate them. There is a thread on COTH for liability questions and I have invited all attorneys to chime in on the hypothetical and academic nuances of Torts law and waivers. Don't take my word for it, just come here to learn enough to know what questions to ask to learn more.
Now, in upcoming posts I will be talking about a few more waivers, an example of a waiver I just adore if I get permission to post it and then we will move on to the next topic, which is dual agency and disclosure legislation being proposed in several states and already passed in several others. On that you get to comment all you want by being part of the political process and shaping the laws you want.
Lastly, since this is my blog and its about me and what I think I just want to say I WON!!!! I won 2 really hard and impossible cases this week. They have been ongoing and one might get appealed, but for 1 day I WON I WON I WON and I likey very much.
Did I mention I WON???????
I am sorry, but I just can't open for comments. I do not have time to moderate them. There is a thread on COTH for liability questions and I have invited all attorneys to chime in on the hypothetical and academic nuances of Torts law and waivers. Don't take my word for it, just come here to learn enough to know what questions to ask to learn more.
Now, in upcoming posts I will be talking about a few more waivers, an example of a waiver I just adore if I get permission to post it and then we will move on to the next topic, which is dual agency and disclosure legislation being proposed in several states and already passed in several others. On that you get to comment all you want by being part of the political process and shaping the laws you want.
Lastly, since this is my blog and its about me and what I think I just want to say I WON!!!! I won 2 really hard and impossible cases this week. They have been ongoing and one might get appealed, but for 1 day I WON I WON I WON and I likey very much.
Did I mention I WON???????
Saturday, December 27, 2008
The VA Waiver
Y FARM, INC.
RELEASE, WAIVER & INDEMNITY AGREEMENT
The undersigned (hereinafter referred to as “Participant”), being of legal age or signing in conjunction with a parent or legal guardian if not of legal age, desires to board, handle and ride their horse(s) at Y Farm, Inc. Participant, being fully aware of the risk of injury and hazards inherent in the riding and handling of horses, hereby elects voluntarily to participate in said activities, and does hereby willingly enter into the Release, Waiver & Indemnity Agreement.
THEREFORE, IN CONSIDERATION OF BEING PERMITTED TO RIDE AND/OR HANDLE HORSES, OR PARTICIPATE AS A SPECTATOR OF HORSES AT Y FARM, INC., PARTICIPANT KNOWINGLY AND EXPRESSLY WAIVES PARTICIPANT'S RIGHTS TO SUE Y FARM INC, Y person, OWNERS & OFFICERS OF Y FARM, INC., THEIR EMPLOYEES, AGENTS, SUCCESSORS, HEIRS AND ASSIGNS, FOR ANY INJURY, DEATH, LOSS, OR DAMAGE CAUSED TO PARTICIPANT OR TO PARTCIPANT'S PROPERTY, AND PARTICIPANT AGREES TO ASSUME ALL RISKS INHERENT IN RIDING OR OTHERWISE COMING IN CONTACT WITH HORSES, INCLUDING, WITHOUT LIMITATION, THE RISKS OF INJURY, DEATH, LOSS, OR DAMAGE TO RIDER OR TO RIDER'S PROPERTY. THE VIRGINIA EQUINE LIABILITY LAW, VA CODE AN § 3.1-796.132A STATES THAT 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 PARTIPANT 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. 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 AND THE WAIVER SHALL REMAIN VALID UNLESS EXPRESSLY REVOKED IN WRITING BY THE PARTICIPANT OR PARENT OR GUARDIAN OF A MINOR. PARTICIPANT ACKNOWLEDGES THAT PARTICIPANT HAS BEEN GIVEN NOTICE OF THE INTRINSIC DANGERS OF EQUINE ACTIVITIES, INCLUDING (i) THE PROPENSITY OF AN EQUINE TO BEHAVE IN WAYS WHICH MAY RESULT IN INJURY, HARM, OR DEATH TO PEOPLE 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; AND (iii) CERTAIN HAZARDS OF 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, PARTICIPANT'S PARENT, GUARDIAN, AND/OR REPRESENTATIVE EXPRESSLY AGREES TO ASSUME ALL SUCH RISKS AND WAIVES ALL RIGHTS TO SUE FOR INJURIES CAUSED BY SUCH RISKS. THIS WAIVER AND EXPRESS ASSUMPTION OF RISKS SHALL SPECIFICALLY APPLY TO PARTICIPANT AND TO ANY AND ALL MINOR CHILDREN AND/OR WARDS OF PARTICIPANT, AND SHALL BE CONSTRUED TO COMPLY WITH ALL EXCULPATORY TERMS OF THE VIRGINIA EQUINE ACTIVITY LIABILITY LAW, VA. CODE ANN. §§ 3.1-796.130 et seq. PARTICIPANT, PARTICIPANT'S PARENT, GUARDIAN, AND/OR REPRESENTATIVE FURTHER INDEMNIFY RIDGE FARM, INC., ITS OWNERS AND OFFICERS, THEIR EMPLOYEES, AGENTS, SUCCESSORS, HEIRS, AND ASSIGNS FROM ANY AND ALL COSTS OF DEFENDING SUCH CLAIMS, INCLUDING ATTORNEY'S FEES.
Inherent Risks and Assumption of Risk: The undersigned acknowledges there are inherent risks associated with equine activities such as described below, and hereby expressly assumes all risks associated with participating in such activities. The inherent risks include, but are not limited to the propensity of equines to behave in ways such as, running, bucking, biting, kicking, shying, stumbling, rearing, falling or stepping on, that may result in an injury, harm or death to persons on or around them; the unpredictability of equine's reaction to such things as sounds, sudden movement and unfamiliar objects, persons or other animals; certain hazards such as surface and subsurface conditions; collisions with other animals; the limited availability of emergency medical care; and the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within such participant's ability. Undersigned acknowledges that horses, by their very nature are unpredictable and subject to animal whim, which may include behavior including but not limited to their propensity to kick, bite, shy, buck, stumble, bolt, rear or general unpredictability. Undersigned assumes all risks in connection therewith, and expressly waives any claims for any injury or loss arising there from. Undersigned agrees to abide by and follow Farm's rules and regulations, which shall be posted. Undersigned assumes all risks therefore.
It is expressly agreed by Riders, horse owners and their guests and any parent or guardian whose signature appears on this document that this Release, Waiver and Indemnity Agreement shall be governed and construed as being sufficient to satisfy the assumption of risk and waiver requirements necessary to relieve equine activity sponsors and equine Professionals from liability under the Virginia Equine Activity Liability Act, and that Y Farm, Inc. and its officers and owners are covered by the provisions of that Act. This Release, Waiver and Indemnity Agreement shall be governed and construed by the laws of the Commonwealth of Virginia, regardless of where any injury or loss shall occur. In the event that any portion of this Release, Waiver and Indemnity Agreement shall be declared unenforceable, such declaration shall not affect the remaining terms of this document, which shall survive intact.
CAUTION: READ BEFORE SIGNING
Signature ____________________________________________ Date:_____________
signature* ___________________________________________ Date:_____________
(Rider's Parent or Guardian*)
Printed name: __________________________________
Printed name*:______________________________
*Parent or guardian must sign in addition to rider under eighteen years of age
Ok, my comments. As a legal professional I can see the usefulness of this waiver, but who will be reading it and signing it? Who will be deciding if its clear and informative? I got bored after the first paragraph. I know that’s sad, but is a jury going to think the plaintiff read or understood any of this? This is written by a lawyer for a lawyer, but who has to understand it in the middle? The person waiving their rights! They wont understand this and it’s a risk that a jury wont believe they did either.
Next the font is not great. The parts that should be bold and large are small and the parts that should be small are all so large that they become a blur of unintelligible words. This waiver was well thought out and carefully executed, but some of the basic rules are backwards. I actually cannot tell if the waiver releases Farm from all suits by plaintiff’s entourage of hears, assigns ect because I simply cannot force myself to wade through the all cap font.
Now, I like that the VA statute, knowing its in VA, points out the possible ways in which a person might contribute to their own injuries. I’d play that up. I’d add more. That’s you key to winning a VA suit—strict contributory negligence so harsh that watching re-runs of Black Beauty might cross that line.
Please be aware that plain English is not a bad thing. After each clause, which you should understand if you are going to risk your future on a contract, its Ok to just say “Hey, I love my horses and I want you to love them too, but if you ride here you have to promise not to sue me. If you don’t want to do that then I am sorry, you are not welcome here.
In this world were anything over 200 words is considered boring you have to make sure eyes have not blurred and brains have not shut down after the second paragraph. I push past that with every post. I would do much better to post fewer words and more pictures, but this is a legal blog and if you cant handle words I cant help you. But when I draft a waiver or a contract I think about what a jury will be willing to read and how they will respond. Waivers have to be long, but they must be clear and understandable. The least clear and understandable thing on earth is a statue. Lawyers can argue for years about the damn things because its almost impossible to know what they say or mean. 10 judges will read the same statute and get to differing results. Adding the statutory language is always a good thing, but relying on it alone is legal suicide. It actually takes a Supreme Court to figure out what a statute means. Its my job to make it even more murky in court so my side wins.
Be VERY clear that the waiver must be “knowingly” signed. If they can’t understand it without a week to dissect it and seek independent legal counsel to sign it then you need some good old fashioned plain English. It may make the waiver longer, but it also helps the reader get to the end without losing interest.
A waiver with so many words (which again, I do not think is a bad thing) cannot be signed in a few minutes while getting ready to ride. It might be best to post your waivers on your website so people can read them and think about them for awhile before they show up at your farm saddle over arm and ready to ride.
This is a good waiver, but the font has to be corrected and it might be a good thing to test drive it out an a non horsey friend and ask then what it said and meant. Lawyers, judges and a JURY have to all agree it was clear and unambiguous and understandable.
Lastly, since VA does not recognize waiving negligence I might play up the assumption of the risk areas and rely less on the statue for protections. Once again, the statutes do nothing to prevent lawsuits for negligence so in reality they do nothing more then the common law has done for years but get your case kicked sooner if you were not negligent.
RELEASE, WAIVER & INDEMNITY AGREEMENT
The undersigned (hereinafter referred to as “Participant”), being of legal age or signing in conjunction with a parent or legal guardian if not of legal age, desires to board, handle and ride their horse(s) at Y Farm, Inc. Participant, being fully aware of the risk of injury and hazards inherent in the riding and handling of horses, hereby elects voluntarily to participate in said activities, and does hereby willingly enter into the Release, Waiver & Indemnity Agreement.
THEREFORE, IN CONSIDERATION OF BEING PERMITTED TO RIDE AND/OR HANDLE HORSES, OR PARTICIPATE AS A SPECTATOR OF HORSES AT Y FARM, INC., PARTICIPANT KNOWINGLY AND EXPRESSLY WAIVES PARTICIPANT'S RIGHTS TO SUE Y FARM INC, Y person, OWNERS & OFFICERS OF Y FARM, INC., THEIR EMPLOYEES, AGENTS, SUCCESSORS, HEIRS AND ASSIGNS, FOR ANY INJURY, DEATH, LOSS, OR DAMAGE CAUSED TO PARTICIPANT OR TO PARTCIPANT'S PROPERTY, AND PARTICIPANT AGREES TO ASSUME ALL RISKS INHERENT IN RIDING OR OTHERWISE COMING IN CONTACT WITH HORSES, INCLUDING, WITHOUT LIMITATION, THE RISKS OF INJURY, DEATH, LOSS, OR DAMAGE TO RIDER OR TO RIDER'S PROPERTY. THE VIRGINIA EQUINE LIABILITY LAW, VA CODE AN § 3.1-796.132A STATES THAT 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 PARTIPANT 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. 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 AND THE WAIVER SHALL REMAIN VALID UNLESS EXPRESSLY REVOKED IN WRITING BY THE PARTICIPANT OR PARENT OR GUARDIAN OF A MINOR. PARTICIPANT ACKNOWLEDGES THAT PARTICIPANT HAS BEEN GIVEN NOTICE OF THE INTRINSIC DANGERS OF EQUINE ACTIVITIES, INCLUDING (i) THE PROPENSITY OF AN EQUINE TO BEHAVE IN WAYS WHICH MAY RESULT IN INJURY, HARM, OR DEATH TO PEOPLE 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; AND (iii) CERTAIN HAZARDS OF 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, PARTICIPANT'S PARENT, GUARDIAN, AND/OR REPRESENTATIVE EXPRESSLY AGREES TO ASSUME ALL SUCH RISKS AND WAIVES ALL RIGHTS TO SUE FOR INJURIES CAUSED BY SUCH RISKS. THIS WAIVER AND EXPRESS ASSUMPTION OF RISKS SHALL SPECIFICALLY APPLY TO PARTICIPANT AND TO ANY AND ALL MINOR CHILDREN AND/OR WARDS OF PARTICIPANT, AND SHALL BE CONSTRUED TO COMPLY WITH ALL EXCULPATORY TERMS OF THE VIRGINIA EQUINE ACTIVITY LIABILITY LAW, VA. CODE ANN. §§ 3.1-796.130 et seq. PARTICIPANT, PARTICIPANT'S PARENT, GUARDIAN, AND/OR REPRESENTATIVE FURTHER INDEMNIFY RIDGE FARM, INC., ITS OWNERS AND OFFICERS, THEIR EMPLOYEES, AGENTS, SUCCESSORS, HEIRS, AND ASSIGNS FROM ANY AND ALL COSTS OF DEFENDING SUCH CLAIMS, INCLUDING ATTORNEY'S FEES.
Inherent Risks and Assumption of Risk: The undersigned acknowledges there are inherent risks associated with equine activities such as described below, and hereby expressly assumes all risks associated with participating in such activities. The inherent risks include, but are not limited to the propensity of equines to behave in ways such as, running, bucking, biting, kicking, shying, stumbling, rearing, falling or stepping on, that may result in an injury, harm or death to persons on or around them; the unpredictability of equine's reaction to such things as sounds, sudden movement and unfamiliar objects, persons or other animals; certain hazards such as surface and subsurface conditions; collisions with other animals; the limited availability of emergency medical care; and the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within such participant's ability. Undersigned acknowledges that horses, by their very nature are unpredictable and subject to animal whim, which may include behavior including but not limited to their propensity to kick, bite, shy, buck, stumble, bolt, rear or general unpredictability. Undersigned assumes all risks in connection therewith, and expressly waives any claims for any injury or loss arising there from. Undersigned agrees to abide by and follow Farm's rules and regulations, which shall be posted. Undersigned assumes all risks therefore.
It is expressly agreed by Riders, horse owners and their guests and any parent or guardian whose signature appears on this document that this Release, Waiver and Indemnity Agreement shall be governed and construed as being sufficient to satisfy the assumption of risk and waiver requirements necessary to relieve equine activity sponsors and equine Professionals from liability under the Virginia Equine Activity Liability Act, and that Y Farm, Inc. and its officers and owners are covered by the provisions of that Act. This Release, Waiver and Indemnity Agreement shall be governed and construed by the laws of the Commonwealth of Virginia, regardless of where any injury or loss shall occur. In the event that any portion of this Release, Waiver and Indemnity Agreement shall be declared unenforceable, such declaration shall not affect the remaining terms of this document, which shall survive intact.
CAUTION: READ BEFORE SIGNING
Signature ____________________________________________ Date:_____________
signature* ___________________________________________ Date:_____________
(Rider's Parent or Guardian*)
Printed name: __________________________________
Printed name*:______________________________
*Parent or guardian must sign in addition to rider under eighteen years of age
Ok, my comments. As a legal professional I can see the usefulness of this waiver, but who will be reading it and signing it? Who will be deciding if its clear and informative? I got bored after the first paragraph. I know that’s sad, but is a jury going to think the plaintiff read or understood any of this? This is written by a lawyer for a lawyer, but who has to understand it in the middle? The person waiving their rights! They wont understand this and it’s a risk that a jury wont believe they did either.
Next the font is not great. The parts that should be bold and large are small and the parts that should be small are all so large that they become a blur of unintelligible words. This waiver was well thought out and carefully executed, but some of the basic rules are backwards. I actually cannot tell if the waiver releases Farm from all suits by plaintiff’s entourage of hears, assigns ect because I simply cannot force myself to wade through the all cap font.
Now, I like that the VA statute, knowing its in VA, points out the possible ways in which a person might contribute to their own injuries. I’d play that up. I’d add more. That’s you key to winning a VA suit—strict contributory negligence so harsh that watching re-runs of Black Beauty might cross that line.
Please be aware that plain English is not a bad thing. After each clause, which you should understand if you are going to risk your future on a contract, its Ok to just say “Hey, I love my horses and I want you to love them too, but if you ride here you have to promise not to sue me. If you don’t want to do that then I am sorry, you are not welcome here.
In this world were anything over 200 words is considered boring you have to make sure eyes have not blurred and brains have not shut down after the second paragraph. I push past that with every post. I would do much better to post fewer words and more pictures, but this is a legal blog and if you cant handle words I cant help you. But when I draft a waiver or a contract I think about what a jury will be willing to read and how they will respond. Waivers have to be long, but they must be clear and understandable. The least clear and understandable thing on earth is a statue. Lawyers can argue for years about the damn things because its almost impossible to know what they say or mean. 10 judges will read the same statute and get to differing results. Adding the statutory language is always a good thing, but relying on it alone is legal suicide. It actually takes a Supreme Court to figure out what a statute means. Its my job to make it even more murky in court so my side wins.
Be VERY clear that the waiver must be “knowingly” signed. If they can’t understand it without a week to dissect it and seek independent legal counsel to sign it then you need some good old fashioned plain English. It may make the waiver longer, but it also helps the reader get to the end without losing interest.
A waiver with so many words (which again, I do not think is a bad thing) cannot be signed in a few minutes while getting ready to ride. It might be best to post your waivers on your website so people can read them and think about them for awhile before they show up at your farm saddle over arm and ready to ride.
This is a good waiver, but the font has to be corrected and it might be a good thing to test drive it out an a non horsey friend and ask then what it said and meant. Lawyers, judges and a JURY have to all agree it was clear and unambiguous and understandable.
Lastly, since VA does not recognize waiving negligence I might play up the assumption of the risk areas and rely less on the statue for protections. Once again, the statutes do nothing to prevent lawsuits for negligence so in reality they do nothing more then the common law has done for years but get your case kicked sooner if you were not negligent.
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