Being with a large law firm, one
of the questions we get asked a lot is “What is equine law? What is it that you
are doing other than spending your winters in Florida?” The best
way to explain it is that equine law is every area of law that we are all
familiar with, it just involves horses. So we’re all
familiar with contract laws, whether that’s contract drafting or contract dispute
resolution, it involves a horse or an equine activity. You’re talking about
personal injury. Obviously we know that gravity is everywhere, and personal
injury is an inherent risk of engaging in equine activities, so lawsuits are
going to assume involving personal injury. Property damage is a very popular topic
in our equine law practices because horses are considered property under the
law. So any time a horse is injured and there’s a claim or a lawsuit arising out
of the injury to a horse or other property damage, it becomes an equine
liability or an equine act or an equine industry legal issue. Insurance
coverage. Just like was mentioned a few seconds ago, Suzanne’s practice does have
an emphasis on insurance coverage whether that’s disputes or just interpreting
insurance policy. And again that can involve horses it can be a liability
policy or an equine major medical or mortality policy that’s at issue.
Intellectual property. Everybody’s familiar with the the Churchill Downs
twin spires. Just like the Nike swoosh, you have intellectual property issues
with regard to equine industry matters and lien enforcement really touches and
concerns on any time a service is provided in the equine industry and those services
are not paid for these becomes whether or not a particular state has a lien on
that horse or allows for lien on that horse for the services provided.
Agricultural liens, such as horse liens for breeding, so a breeder can
have a lien on a horse. An adjuster who is the boarding and caring for facility and
can have a lien on the horse for unpaid boarding and training fees. Veterinarians
can have leads on horses. So, again, it’s just all those areas of law we just have
horses that are the subject matter. In the area of equine law one of the areas
that Suzanne and I want to focus on for purposes of this presentation is the
equine activity liability statute. In Minnesota they refer to it as the
livestock activity liability act, but for purposes of today’s presentation we’ll
frequently refer to it as the Equine Act. Right now 47 states have an equine
activity liability act on the books, and those states that do not include
California Maryland and New York. They still follow a primary assumption of the
risk standard, and we could talk about what that involves, but generally
speaking the the analysis is very similar to that which we’re going to
identify in today’s presentation. So I don’t want anyone to be discouraged that
might be either in those states or engaging in equine activities in those
states because what we have to what we have to advise you on today would still
apply in those states to some regard. In those 47 states the
legislature generally recognized that there is a financial benefit to equine
activities, and if Abby just pointed out in a hundred and twenty-two billion dollar
economic impact area that the states want to encourage equine activities in that state.
They want to bring that revenue into their state. There’s also as we all know
emotional and physical benefits but the states primarily want to encourage the
financial rewards that reap from equine activities. So how do they balance
encouraging equine activities that are inherently dangerous? How do we
encourage equine activity providers, sponsors, organizers, facilities to
continue to make equine activities available when it’s inherently dangerous activity
that can give rise to liability exposure? So what the states have done is
they said well we’re going to delineate the responsibility of the equine
activity from the provider onto the participant. Everyone out there
should be saying “okay well if it’s an assumption of risk statute then why do
Yvonne and Suzanne have jobs in the equine industry”? Why do we end up
litigating or negotiating and resolving equine disputes in personal injury cases
if it’s assumption of risk. And that’s what our material today is going to
introduce is yes we have the statute, what does is the statute say? But where are our
liability exposures and what can we do to better protect ourselves so we can
continue to encourage equine activities in our respective states? I failed to
mentioned at the commencement of this presentation that like Suzanne being an
avid polo player, I’m a three-day event rider. So we are both engaged in
inherently dangerous sports, and we want to continue to see our sports being
provided and supported by sponsors and insurance in the youth coming through
the range of sporting activities. So we want to not only as lawyers protect our
industry but as participants ourselves we get what you’re doing with horses. We want you to continue to engage in the equine activities and make
the equine activities available. Now after today’s presentation you may want
to take up golf but we’re hopeful that our resource is available to providing
liability protection we’ll keep you in the sport. What is so important is
making sure that you understand the state law that applies to either the
equine activity that you are hosting or sponsoring or possibly even engaging in,
so that you understand how the law touches and concerns what you’re doing with
horses. Each state where these 47 statutes are applied include definitions.
And why do you care about the definitions? Because the definitions will
tell you when you have a participant engaged in an equine activity and
whether or not they were injured as a result of the inherent risk
that activity. Again you might be saying “well that’s great why do I care”? Because
under the statute, if the person that was injured was not a participant, you have
no liability protection. If the activity that they were engaged in that resulted
in their injury was not an equine activity as defined by the statute
you have no liability protection. If they were not considered to have been injured
as a result of the inherent risks of engaging in an equine activity you have
no liability protection. So how do you know if you have a participant engaged
in an equine activity and they were injured as a result of an inherent risk
of that activity? The statute, the applicable state statute, will tell us
who is a participant, what are the inherent risks, and was this an equine
activity. Now I can tell you everyone who’s watching this live and everyone is
going to watch it later, we can come up with examples of what is an equine
activity that’s not in the statute. We can come up with an example of what is
an inherent risk of an equine activity that’s not in the statute. Suzanne’s
going to provide you with some very telling differences between, just as an
example, Minnesota and Wisconsin to show that one instance in Minnesota may not
provide liability protection, but that same exact fact scenario in the state of
Wisconsin or the state of Illinois would have liability protection. I’m just going
to give you one quick example. If you think that leading a horse into a horse
trailer is an equine activity. Right? You’re handling a horse. You’re leading
the horse into the horse trailer. That would be an equine activity. Under
Minnesota statute, loading, unloading, or transporting livestock is an equine
activity. But I can tell you in Illinois you won’t find that definition. You’ll
find boarding equines. You won’t find loading or unloading or transporting
livestock. So how do I best represent my client who found herself defending a
case where a handler was leading a mirror into the trailer, and when the
foal decided to leave the mare got very upset, she started thrashing about, she kicked the handler in the head, and he actually died from his
injuries. The lawsuit was filed against my client in Illinois where the
liability statute does not provide that loading and unloading equines is an
equine activity. So you would say “well they had no liability protection”. However
I will tell you that the boarding contract, that I drafted for them many
years prior, did include as a boarding activity, assisting in the loading and
unloading and transporting equines. So we were able to convince the court that
what this handler was doing was actually a boarding equine service not just the
loading or unloading of an equine for transportation. The court found that
because it was defined as a boarding activity and boarding equines under
the Illinois Equine Liability Act is an equine activity, my client had
liability protection. So how the statute defines the activity makes the
difference between whether or not you have liability protections or not, and
that one example also showed you how a contract actually created liability
protection where there otherwise would not have been any. The other thing the
statute provides for us are what are those exceptions to liability protection.
So I just told you if you have a participant engaged in an equine activity
that’s injured as a result of the inherent risk of equine activity, you
have liability protections. But what the state gives, the state can take away. There are exceptions under the statute that say if the person was injured as a result of
any of these exceptions, then the liability protection you once had is now
taken away. And again Suzanne and I are going to give you some resources
available to how do we cover those areas where either the statute definitions has
not provided us with the liability protections we want or the exceptions
have taken it away. What can we do to increase our liability protection? Then the last thing provided by the statute that’s important for you to have
a takeaway from for today is the statutes require warning sign postings,
and Suzanne’s actually going to get into what the warning sign
posting is in Minnesota, which might be slightly different than Wisconsin or
Illinois. So it’s important to know in your particular state, wherever you are
engaging or providing equine activities, that you comply with the state statute.
Minnesota has gone so far as to require the posting, and if you don’t post
properly, you will lose your liability protections that you already would have
had. So if anybody asks, “do I need to post a sign”? The answer is yes. Suzanne’s going to provide you with information that you need to know where
you’re supposed to put these signs, sort of wallpapering your indoor and outdoor
arenas. So with that I am going to pass it on to Suzanne to actually give you
much more detailed education on how these patches differ and further
emphasize why it’s important to know which state law applies to your equine
activity. Thanks Yvonne. Like Yvonne said, there are some really stark
contrasts between Minnesota and Wisconsin law with respect to the liability act
definition. So it’s really important to take note of those differences, and we’ll
talk about them right now. With respect to the definition of equine activity,
what is it? In Minnesota the statute defines it as an activity that involves
the maintenance or use of horses provided the activity is not performed
for profit. So that is a big limitation in the Minnesota Equine Liability Act.
Wisconsin it’s much broader it’s not related in any way to whether or not
you’re generating profit, but both states include examples which are what we
traditionally think of horses, horse shows, fairs, competitions, performances,
parades, training, teaching, boarding, chewing, of course riding horses, and
expecting horses. Minnesota expressly includes a couple of other things such
as grooming, like Yvonne says, loading and unloading horses, which is really important, livestock production, which is basically the raising of livestock for food, and
inspecting horse equipment or livestock equipment. Wisconsin on the other hand
includes driving or riding in a vehicle that’s being pulled by a horse, and
that’s not included in the Minnesota statute. Wisconsin also includes
assisting in the medical treatment of a horse as an equine activity. Then
Wisconsin has a sort of catch-all provision that includes as an equine
activity assisting a person participating in an equine activity.
So say you’ve got a mom who brings her daughter to a jumping lessen and because
she’s there she has to stay for the child less, and she sort of acts as the
trainer’s jump crew assistant. She’s in the arena helping put up jumps and change
jumps, and you know this particular jump has hedges and flower boxes. You know, things that a horse sees in its ordinary life. But suddenly throw a pole over it, and
it’s the most terrifying thing ever to the horse. The horse sees the flower boxes, refuses to jump, bolts left, slams in to the mom who’s acting as sort of a jump crew
assistant. What happens if you’re sued for the moms injuries? Well in Wisconsin
you have a good argument that this was an equine activity that the mom was
engaged in because she was assisting in the jump lesson. You don’t have that same
argument in Minnesota at all, so it’s a big contrast there. Another good example
is if you are giving horse-drawn carriage rides in downtown Minneapolis
which happens in the wintertime here. You have a passenger who is about to fall
out of the carriage, and you see this happening, what do you do? Well our advice would be gallop as fast of you can the forty miles to the Wisconsin border. Get
across the border before that passenger falls off because in Wisconsin, not only
is riding in a horse-drawn carriage engaging in an equine activity, but guess
what? You can also charge for your service and still fall within the act
because of course in Minnesota an equine activity is something that is not for
profit. So big big differences and again to be protected from liability for
the death or injury of a participant in an equine activity, the death or injury
needs to result from an inherent risk of that activity. So what are the inherent
risks of that activity? Both states define it fairly similarly as the danger
condition that is an integral part of equine activities. The examples that
are set forth in the statutes include the propensity of a horse to behave in a
way that might result in injury or death to the person riding it or person around
it, and we know that as kicking, biting, bucking, charging. Another example is the
unpredictability of a horse’s reaction to sound, sudden movement, or unfamiliar
objects, persons, or animals. I think we all have an experience with a horse who,
you know, is suddenly afraid of butterflies. I have a horse, actually in my experience
it’s always been the gray horses, who love to spook at, you know, gentle spring breezes.
So, what happens if someone’s riding my grey horse, and he spooks because the
wind suddenly changes, and the rider gets dumped, and I get sued? Well you know I’d
have to argue to the court that he was just reacting to the sound of the wind
or the sudden movement of the change in the breeze. Another inherent risk of an
equine activity is natural hazards in the surface or subsurface conditions. So
you think of fields that we love to go galloping in, but they’re filled with
gopher holes. If a horse steps in it and throws the rider a court is going to
likely find that that’s an inherent risk of an equine activity. Another one
is collisions with other animals and other objects. So, you
know, for example if a horse is on a cross-country run and misses a jump or
runs into it, tosses the rider, rider gets hurt. Another difference now
though is in Wisconsin, again has much broader language with respect to the
inherent risk, and it includes the potential in Wisconsin for the person
participating in the equine activity, for example, the rider to act negligently, for
the rider or participant to fail to control the horse, or not act within his
or her ability. That’s really big in the Wisconsin statute. If you have a
rider who has only ever prodded polls and then suddenly decides to jump a four foot jump, falls off and breaks its back. That is going to be an inherent risk within the definition of the Wisconsin statute. So who is a
participant as that terms defined in the statute? The Minnesota Act defines it as
someone who directly and intentionally engages in an equine activity. Wisconsin
again is broader and it simply said the person participating in an equine
activity. That is, you know, someone who could include someone who’s
assisting a participant in an equine activity, because we just talked about
how Wisconsin recognizes that someone assisting a participant is engaged in an
equine activity. So who’s not a participant? Spectators. Who’s
a spectator? A spectator is someone is not a participant, who’s in an
authorized area for a spectator. If you regularly hold events on a field
at your property but the barn isn’t an authorized area for spectators, put up
a sign that says “no spectators beyond this point”. You’ll see on the slide there’s a section in that that says “This not a spectator
area. All persons in this area will be regarded as participants and limited by
the law”. That is one way to protect yourself if you are in Minnesota.
Wisconsin simply says if you’re not a participant, you’re a spectator. If you’re a person who attends or watches a show but you don’t actually
participate in it, you’re going to be deemed a spectator.
Now who is protected from liability? Who has the immunity under the statute? This
is really important when you compare Minnesota with Wisconsin. In Wisconsin it’s very very broad. The liability protection is afforded to equine
activity sponsors and equine professionals. Equine activities
sponsors are people you know who work for profit or not-for-profit, who
organize or provide facilities for equine activities. That’s barn
owners, club operators, stable therapeutic riding programs. It’s very broad. An
equine professional is someone who’s engaged for compensation and the rental
of horses or the rental of tack or someone who is a trainer or an
instructor. Okay so very broad in Wisconsin. But then you get to Minnesota,
and the people protected in Minnesota are not for profits. In addition to
simply not for profits, it’s people or companies who donate services, horses,
facilities, or equipment for the use of a not for profits. It’s very limited. It’s
limited to not for profit. I think it’s really important to know that the
Minnesota statute does not say that people who donate services or facilities
for the benefit of a non-profit. It says for the use of a non-profit, so a lot of
times can polo we have benefits for nonprofits where we
donate the use of the facility to the nonprofit but the nonprofit’s not
actually using it, right? It’s just the polo club is using it to have a game
or have a match to raise funds for the nonprofit. I think that is not
technically going to fall within the protection of the Equine Liability Act
because the nonprofits not actually using the facility it’s just being used
for the benefit of the nonprofit. So what you do if you’re a for-profit you know
company or individual in Minnesota? You should use a release, and Yvonne will
talk later about how to go about that in the best way possible. Properly
drafted and executed releases can build in the same protections
provided to nonprofits under the Minnesota Liability Act to your
for profit operation. Again it’s really important to make sure you have
the proper written documentation to protect yourself. Now we’re going to
talk about exception to the protections afforded under the liability act.
These are situations that are actually written into the statute where
the liability immunity does not apply. The first one is Faulty Tack. That’s in
both Minnesota and Wisconsin. If you provide faulty tack or broken tack that
caused the injury or death to a participant in an equine activity, and
you knew or should have known that it was faulty, you’re not going to be
protected under the Act. Classic example girth breaks or stirrup leather
breaks and it causes the rider falling and getting injured. One
of the ways to preempt that exception applying would be to do a quick check of
your tack every time you tack up. If you are a trainer and you have student
packing up their own horses, but it’s your tack, make sure you
you check that tack before the rider gets on. Another good tip would be if you,
for example, have a regular lesson program. Institute a regular tack
cleaning party on a weekly basis. Then while you’re cleaning, do your inspection
then because then you can go to the core if you’re sued for bulky tech, and you
can say “well judge, we clean our track every Sunday, and we regularly inspect it,
and we never saw anything bulky with attack”. But at least you have that argument if you have those types of procedures in place. It gets a little trickier when
it’s the alleged “faulty tack” is really misadjustment. For example, if strips are too long on a ridder and the ridder loses its stirrup
over a jump and falls off. Or this happens all the time with one of my horses name
Tango – the horse blows out when you put on the girth, and so they know
what’s coming. They blow out. They don’t want a tight girth, so you have to tighten it
before getting on. You forget, and saddle slips when you’re riding, and you get
dumped. So you have to convince the judge at that point that it wasn’t the tack
that was actually faulty and/or that the tack wasn’t the cause of the injury.
Another exception is what we call the Mismatch Exception. That’s mix
matching at the rider to the horse which is kind of what the sign images on that
slide. If you provide a horse to someone but you don’t make any
reasonable effort to determine the person’s ability to ride the horse or
manage that horse, the liability protections aren’t going to apply to you.
So, you know, don’t give a stallion to a ten year old girl who weighs 70 pounds
dripping wet for a trail ride. On the Dangerous Latent Condition Exception,
that is if you have a dangerous hidden condition on your property. So say, for
example, if you’re putting in a new fence, you dig all the holes for the
fence, but then you go up north for the weekend to go fishing.
The posts don’t get put in; someone comes up rides on your property. There aren’t
cones or anything to alert someone that the holes are there. That is going to be
a Dangerous Latent Condition. In Wisconsin, the exception is if you
fail to conspicuously post a warning sign up at dangerous condition
that’s hidden, and you know the condition. That applies to either man-made or
natural dangerous hidden conditions under the Wisconsin statute. Minnesota is
slightly different. It accepts immunity if it is a man-made dangerous hidden condition, and you fail to use reasonable
care to protect the participants. The Failed Notice Exception – under
Minnesota law or under the statute, if you’re a sponsor, which means you sponsor or provide facilities for an equine activity that’s open to the general
public and you fail to comply with the notice requirement of the visible
warning sign that Yvonne has talked about, you’re not going to be afforded
the protections under the liability act. This is one of the easiest
things that we can all do to protect ourselves, so do not let this sign be the
reason why you aren’t afforded the liability protection under the Act.
Then both Minnesota and Wisconsin have a sort of catch all exception. Of
course, again. because it’s Minnesota Wisconsin, there’s a significant
difference in this catch all. In Wisconsin you’re not going to be protected if you
intentionally caused the death or injury to someone, or if you are deliberate and
disregarding their safety. So, if you are trying to get someone hurt on a horse,
you’re not going to be protected. I think common sense.
The same thing is in Minnesota, but what Minnesota does is they accept if you are
willful or negligent. So the negligence exception is very odd and might be
unique to Minnesota, but it seemed to basically completely swallow the entire
purpose of the Act. But that’s exactly how it’s written into the statute. We
would argue to the court that the legislature could not have intended to
include ordinary negligence in the exception to the liability act because
there would be no purpose to the protections afforded by the act if it
did. What do you do with the sort of weird negligence exception or any of
these exceptions really to the protections afforded under the Act?
You get yourself a written executed release, and again Yvonne will talk
about how we can cover all of these exceptions in a written release. The
Warning Sign Posting – In Minnesota the requirement is that an activity sponsor,
again someone who sponsors or organizes or provides facilities to an activity
that’s open to the general public, must post plainly visible signs at one or
more prominent locations on the premises where the activity takes place. The
sign has to include a warning of the inherent risks of the livestock activity
and the limitation of the liability under the statute. I’m sure we’ve all
seen these signs at some point our lives. They’re really important to put up
Wisconsin is much more specific as to what it requires, but it’s also similar.
So again a sign has to be posted in a clearly visible location on or near
your stable or arena. It has to be white with black lettering,
and each of the letters under Wisconsin law has to be a minimum of one inch in
height. There’s very specific wording in the statute that must be included in
a Wisconsin warning sign. Basically when it comes to warning signs, don’t get cute
with the language. Don’t get cute with signage. Don’t use, you know, you’re pretty
barn colors. Restate exactly what is required by the statute, and restate how it
is required to appear. Whether that’s black and white, the 1-inch requirement,
it’s going to vary by state. But make sure you are following a statutory
requirement to achieve. A couple of notes on what it means to be in a
prominent location: You can’t hide these signs behind the
bushes or behind a tree and hope that people see them somehow. What we would
recommend is you identify the common location that everyone has to pass
through to get to the area where the activity is happening. For us on the
polo fields, it’s going to be the driveway or the entrance to the field. If
you’re hosting an event it could be the check in table or the arena door, but make
sure it is a place where everyone has to go through to get to where the
event is actually happening. That way you know you’re covered on that it’s a
prominent location. If you have people coming from different direction, coming
onto your property from different locations, from the back of your property
from the front side of your property, put up the sign at both places. It’s easy and
it costs very little just make sure you do it.
Wisconsin also has a requirement on the warning that if you’re using a written
contract to rent horses or tack or for riding instruction, the contract needs to
contain the notice provision that’s in the statute. It needs to be clearly
a bold print that’s the same type size as the rest of the contract. Now Yvonne
is going to talk about how we can cover all of our bases where the Liability Act
doesn’t apply or accepts protection. Great thanks Suzanne. So as you know from both of our presentation pieces there are liability protections afforded by the
statute ,and there are exceptions to those liability protections. One
of our strongest takeaways, if you haven’t picked up on it by now, is our
preaching of using what I’m going to call enforceable and effective
liability releases. That doesn’t just mean getting a liability release out of
a form book. That doesn’t mean using the one that your neighbor is using. This
means using one that we draft for you that’s specific for your equine activities
where you are doing it so we can comply with the applicable state statute.
This means that having additional liability protections in place that a
non equine attorney or a form book would miss. Let me spend the next
few minutes talking about what is included in an enforceable and effective
liability release. As we just discussed a few minutes ago, the statute will define
who’s a participant. Well guess what you can do? Your liability release can define
who’s a participant. So where you have vulnerability to volunteers, to
spectators, to sponsors, they are technically not engaged in an equine
activity. That doesn’t mean that your liability release can’t define them as
a participant. Your first line of your liability release is going to say “the
undersigned as a participant and in parentheses volunteer, client, Spectator,
sponsor, clinician, auditor”. We can define who they are, and they are all
participants under you liability release. Suzanne identified a
number of activities that are defined as livestock or equine activities under the
statute. What if what you’re doing with horses is not included? Will it increase
the definition of what is an equine activity in your liability release? She
defined what are the inherent risks of equine activities. I guarantee you we
could all come up with examples of inherent risk that are not provided by
the statute. But let’s put them in your liability release. The assumption of risk
is a common phrase in the law. But let’s put it right in your liability release
that the person finding below expressly assumes the inherent risks of engaging in
an equine activity. Well when Suzanne and I have to defend
your case in front of the judge, the judge is not going to know what are the
inherent risks of equine activities. Suzanne was kind enough to point out
that the Minnesota statute actually gives examples of some of those inherent
risk which includes kicking, biting, bucking, or charging. Illinois, Wisconsin, and most of the other state statutes do not give examples. So your liability release
is going to tell the court you know that the plaintiff is arguing that the horse
rearing up, and falling on the plaintiff was not an inherent risk of equine activity.
Well guess what. Your liability release specifically includes rearing as an
inherent risk of the equine activity. You’ve now taken away that argument from the
plaintiff’s attorney to say “my client didn’t know that a horse
rearing wasn’t an inherent risk of the equine activity”. The judge can look right
at your release and say “it actually is right here as an example of an inherent
risk that your client signed”. The liability release will also identify who
is a released party. Now this is most important for those of you in Minnesota
as Suzanne just explained that the equine liability statute in Minnesota
does not apply to a for-profit entities. That only applies to not-for-profit
entities. So what can your liability release do to protect you as an
individual or as a for-profit entity? You will be listed as a released party under the liability release that your participant
is signing. So the release parties will include you by name, your facility by
name, and by category your heirs, your beneficiaries, your spouse, your employees,
your volunteers, your clinician, your spectators, sorry your sponsors, anyone that you want to include as a release party, whether or not it’s provided by the
statute can be in your release and broaden the scope of the liability protection under your liability release. Now Suzanne had
made reference to being able to deal with the exceptions in a liability
release. I will tell you that I do include the inherent risks of injury as a
result of faulty equipment as a result of the, we can use different
language, but essentially the mismatch of the horse and rider. As a result of a
dangerous latent condition of the property.
Those can be inherent risks of engaging in equine activities under your
liability release. I would caution you not to include waivers of willful and
wanton disregard or intentional wrongdoing. Not because it has anything
to do with the statute but because contract law under each state may very
well prohibit a liability release from waiving away intentional where wrong doing or willful and wanton. Again it’s important to consult with a lawyer who’s
familiar with the laws in your state because, for an example, in Illinois you
can waive away gross negligence. But that’s not common in most other states.
As much as the liabilities can broaden your liability protection, if you
don’t comply with the applicable applicable state contract laws, the court
can strike your liability release and say “you know what this is too broad, I’m not
going to enforce it at all”. In just a few minutes we have left, the liability
release will specifically have Release, Hold Harmless, Defend and Indemnification language in it. It will define what is the waived losses, such as financial or
other types of losses. The other thing your contracting can do is it
it can change the time period within which somebody has to sue if their claim
survives then the waivers and the releases in your liability release. So if
the statute of limitations, for example in Florida, is four years for personal
injury. Who wants to wait four years before they know if someone injured on
their property or by their horse is going to sue? I don’t think you want to
wait four minutes, but the reality of it is your liability release can reduce
that four years to one year. The court will enforce that. The liability limits
for property damage can be reduced. I’ve had cases where somebody will claim that
they had a $5,000 saddle that was stolen or lost from the facility, and the
boarding contract that they signed limited property damage or loss claims
to $500. Well what you have just done is minimize what could have been a $5,000
case to a $500 case, and they’re not going to find a lawyer to represent them on
that one. Your liability release very importantly will select the
applicable law and the jurisdiction and venue where any claim that survives can
be filed. As Suzanne just articulated, there are such differences between
Minnesota and Wisconsin, you may want your release to apply Wisconsin law if
you cross borders. You can do that. So if somebody comes in to ride with you from
New York, and they get hurt at your farm in Wisconsin, then they go home, if
they’re going to file suit it has to be in Wisconsin. Which means they have to
find a lawyer in Wisconsin, they have to come to Wisconsin, and they’re going to
have to apply Wisconsin law, regardless of where they are or where you are.
The important point here is when we draft a liability release for you that
chooses the law jurisdiction and venue, you can use it anywhere. You are engaging
in equine activities or providing those equine activities. The last point on
this is – I know we’re running short on time with you – is the liability releases
in Minnesota very explicitly can be signed by a parent on behalf of a minor.
Minors can not sue contract.s I don’t care what state you’re in to be enforceable.
But explicitly in Minnesota parents can sign for a minor, and in most stage
arguably they can as well. The most important point here though is that when
we draft liability releases for you, the signature line is going to have the
parent signing on their own behalf as well as on behalf of their minor
participant. Because like Suzanne said if mama is the one standing at the gate and
she gets run over, and the liability release she’s signed was just for her
child, she has not signed a liability release. You have no waiver from mom. So
get one release that’s signed by the parent on their own behalf and on behalf
of their minor child. These are one-page document so nobody
claims they didn’t see the backside or there’s an have a page two, and as
Suzanne just articulated, the warning language that is required by many states,
but not all. But if it’s required we’ll go right above that signature line. So that waiver notice, that warning notice, can not be said to be absent or wasn’t seen in the contract. It’s right
above the signature line. In the interest of time I’m going to go ahead and pass
this to Suzanne to just touch on using insurance as one additional level of
liability protection, and I’m going to skip ahead. We have another slide on creating LLC’s to provide additional liability protection, but in
the interest of time if anybody have any questions about setting up an LLC or
creative corporation to provide another level of protection. we’ll talk about
that offline. Go ahead Suzanne, I’m going to pass it
over to you now. Thank you, Yvonne. You know we’ve talked about a number of
ways you can limit your liability through contracts and under the Act, but
you know the problem is you can actually stop someone from filing a lawsuit
against you. You can have a lot of defenses based on the Act, a lot of
defenses based on the written release, but you can actually prevent someone from
filing a lawsuit against you. So you need insurance, and there’s a whole bunch of
insurance out there for the equine world that is really really helpful in
protecting you and your business. They have boarding insurance. They have
insurance for breeding. They have liability insurance for lesson programs, liability insurance for trainers. You can buy event insurance
if you host an event, and you can buy liability insurance even as a personal
horse owner which I would recommend doing. The right liability insurance
will provide you with defense and indemnity coverage in the event you are
sued. So what does that mean? Defense coverage means that the insurance
company is actually going to pay for you to have a lawyer. They’re going to be the
lawyer for you to defend you against that lawsuit for a covered claim. That is so
important because you do not want to be paying legal fees out of your own pocket
when you know that insurance exists. Indemnity coverages is if you are in fact
found liable or there’s a settlement and damages need to be paid. The insurance
company, if it’s covered, would provide that payment for you, so you don’t have
to go you know selling off assets to pay a judgment or settlement. You need to, of
course, make sure you have adequate coverage limit. If you’re a four
install operation, and it’s just in the backyard of your house, and you don’t
have any you know third parties coming onto your property to board horses, you
probably don’t need a million dollars in coverage. On the other hand, if your a
thirty stall barn then you run a training facility, a boarding facility,
three hundred thousand dollars that’s probably okay for that small barn is not
going to cut it for your huge operation. So it really depends on the sides of your
operation. It depends on what you do, and you should really consult with an
insurance professional who is familiar with placing equine risk insurance. You
also need to understand your coverage and exclusions. I think a lot of times people
assume that a homeowner’s policy will provide the
liability coverage you need for horses. Well home owner’s policies
might provide liability coverage for domestic pets, they don’t mean horses.
They mean that you live inside your house. Your dogs, cat, fishes,
birds, whatever, but it’s not horses. If you have horses at your house you
need to tell your homeowner’s insurer. You need to tell your agent and tell them how many horses you have. If you tell them about one horse, but you
actually have two horses, and one of the horses gets loose and injure someone,
guess which horse the insurance company is going to say is the injured horse. The
horses stayed on property and not the horses you got loose. Homeowner’s policies also typically exclude fitness pursuits or injury caused or arising out of a
business pursuit which means something has more profit. So say you have a barn
at your house, and your friend begged you to let your horse pay there, and she’ll
pay you 200 bucks a month for it. You say “okay”. Well your homeowners policy
isn’t going to provide coverage for an injury that arises out of that business
pursuit. If that horse gets loose and hurts someone, it’s not going to be
covered, even if it’s not your regular job or your part-time job, and it’s just
a one-off. The insurance company is going to exclude coverage or are going to deny
coverage to you. You have to really understand the coverage that’s being
provided, what exclusions there are, and how to
build a gap. Of course if your operations change, you know, using the example
you let your friend keeper horse at your farm, you need to tell your insurance
company when that happens. Of course, too, if you create a company, make sure both
you and your company are listed as insured on your own policy. If you
work with others in the equine industry, for example, if you own a barn but you
have a trainer come on to the facility to give lessons to people, you should make
sure that trainer (A) has their own insurance and (2) you should request that
you get added at the barn owner as an additional insured under their policy.
The trainer should be asking to be added as an additional insured on
the owners policy as well. But that said, never rely on someone else to have insurance or have adequate insurance. So make sure you always have your own because you
don’t know if the other person hasn’t paid a premium. You don’t know if their
limits are going to be enough to cover a claim even. So make sure you are
adequately insured yourself. All right, Yvonne. Thanks again. So I just want to
wrap this up because I know we’re actually past our time at this point.
I apologize. We’re not going to talk about
the limited liability companies, but again we’ll welcome questions offline. We
wanted to thank you so much for your attendance today. Suzanne and I
greatly appreciate the opportunity to add value to our industry services by
providing these presentations. But one additional value adding component is
going to be our availability to you for free initial consultations. Give us a
call, send us an email. the best way we can be of assistance is if you email us
your liability release, and you say “I attended your webinar, can you take a
look at my liability release and let me know if I have all those things that
Yvonne just spewed out at us”. You know, make sure that I have the
opportunity to tell you what’s missing and what can be done better .Then as
an additional bonus we want to offer you a one-time flat fee to revise, or more
likely redraft, your liability release for you at a one-time flat fee of $250. As
well as if any few future services are needed, we will continue that reduce
hourly rate of $250 from our normal $350 an hour rate just as an added thank you
for attending this University of Minnesota webinar. We thank the
University for making this available, and with that being said, Suzanne and I
will as I said make ourselves available to you for any follow-up questions even
past this webinar. Thank you so much for your attendance in your time. Thank you so much Yvonne and Suzanne. We are approaching the one o’clock hour, so for those of you who do need to move on
to the rest of your day, thank you for joining us. For those of you who can
stay on we still have the chat box open and will stay on for a few more minutes.
So hopefully answer some of those questions. I’ve not seen any questions
come through, but I do have some questions that I would like to throw out
to Yvonne and Suzanne. First of all, where’s the best place to likely
purchase one of the liability signs? They could go to Google or are there places
that are better than others that you know the wording is correct and the science requirements are correct? My advice, and Suzanne certainly can add
on to this, is I would start with your local horse council. I know the Illinois
horse council, you could buy them up right online. I think they’re 25
bucks. You can also go to your local tack shops. I’ve seen them in the tack shops as
well. If you’re concerned about the compliance with the statute, I believe
many of the signs at the bottom right or left hand corner will actually cite the
statute. So you can check to see if the statute is cited. You can feel very
confident that it complies, but certainly if you buy it from any other any other
venue that doesn’t have the statute posted, compare the language and make
sure that it complies with the statute. But I would definitely rely on the ones
provided by your local horse council as being in compliance with their local
state statutes. ~ oh I don’t know if I can hear you right
now ~ Oh okay, thank you.
Next I have a question regarding the failure of Packer equipment. If
you state, and if you are in a lawsuit, and you say “well we do weekly inspections”, if
there’s something you could do that would provide proof of that or would
they just take your word for it? You want to ad dress this one Susannah? Oh yes, sure. Well if you have a written policy that, of course, is more helpful. But if
you have that procedure in place, and you have you know are you 20 of your borders
there at the same time, I think that a court would accept that as an
established practice at your barn. If everyone’s saying yep that’s what we do
every Sunday. We all get together, and we all clean our tack. So then building off
of that, is it a good practice in your equine business to have a set of
procedures that would likely help your case in something like that down the
road? Yeah absolutely, I mean Yvonne jump into if you want, but anytime you
can prepare upfront and put into practice certain procedures that will
help cover your you-know-what in the event of a lawsuit, we always recommend
doing it. From our position, the best line of defense is
being prepared before anything happens. Having a formal procedure outline or whatever and something that’s actually implemented, is
most definitely helpful if you’re ever in the position where you need to defend
yourself. So then if you do have one of the books of procedures in place, say you
you’re on operated boarding facility, do your boarders need to show proof that
they have reviewed that? Or would that be that they could request access for it and it would be included on their release that they would sign initially? We would recommend
definitely providing a copy of the procedures or operating procedures of
the barn to every boarder and having them sign off on it and keeping a copy of
that signed document in your file. For those of you still online, if you
have any questions feel free to put them into the chat box. I do have one more
question, I have lots of notes, but I have one more question that I did jot
down. Actually it is for you to suzanne. You were talking about those who are
treating or doing any medical care to any animal, and you insinuated there’s
differences between Minnesota and Wisconsin, so can you elaborate on that and maybe clarify does that mean our veterinarian? If they are hurt by our
horse while treating it, are we liable for that? Or can you just elaborate on that a
little bit more? Sure. So in Wisconsin, an equine activity is actually expressly
defined to include assisting in the medical treatment of an equine. That is found
nowhere in the definition of equine activity in Minnesota. How I interpret
that is say, for example, you’ve got a barn manager who administers butte to border
forces when they request it, that farm managers assisting in the medical
treatment of an equine, even though they’re not you know getting on the
horse or riding the horse or training the horse or whatever, that activity
would fall within the purview of the Wisconsin statute but not necessarily
the Minnesota statute. So yeah it’s an exposure under Minnesota law which you
can deal with of course in a written release. I think you’re still on mute. So
should we have our veterinarians signing a release and any of their
technicians who might come on site? Yvonne, what do you think? I get asked
that actually both ways. I get asked by veterinarians if they should have
liability releases signed by their clients who are insisting on holding the
horse or being in the vicinity. The reality of it is is anybody who comes
onto your property should be signing your liability release. If they’re coming
on in any capacity because anyone can get hurt on your property. The caveat to
that, well two caveats, one is Suzanne and I are horse people, too. We get it. You can
only police it so much. You can only be there so much. But at the end of the day,
the professionals are going to be held to a higher standard of assumption of
risk than just your certainly more than a spectator or an auditor or even a
client who’s assisting with the treatment of their horse. But if somebodies
just a bystander, the courts not going to hold them to a higher standard of the
assumption of risk. So what I always say about the professionals, is yeah, if you feel
comfortable having them sign a release and blame it on your lawyer, blame it
on your insurance company, and say “you know, anyone who comes with my property
has to sign” but feel somewhat confident the courts going to say to the veterinarian,
you are in the business of putting yourself underneath a horse or giving a
horse a shock. Which we can only assume they’re not going to like. Or sticking
your arm in their mouth to to float their teeth, that you that you assume
that higher degree of risk. The caveat to that is, I did have a case where a
farrier was working on a horse out in the field where the client had put the
horse, basically tied it to a fence to have the farrier work on it. The horse
reared up kicked out at the farrier and the farrier fell back and banged his
head on the stone and died. The court was questioning whether or not that was
an assumption of the risk of the farrier. One of the decisions of the
court was that, yes he assumes the risk of being under a horse, but the problem
is that the client put the horse in an area where they should have observed the
surrounding and seen that there were these big
boulders in the area and not put the horse in that location. So
it’s not a catch-all that says well the the professionals assume all this risk,
so I don’t have to take any care, but I think you could take some comfort in
knowing that if the horses is in cross ties where the veterinarian wanted him, that that
veterinarian in to assume the risks inherent in providing his veterinary
services. All right, very good. Are there any other question from any of
the viewers. Go ahead and type them into the chat box. We’ll give you a few
seconds here. Maybe half a minute. I’ve included the web address in the chat box
where you will be able to read view on this webinar and share it with those
that haven’t been able to join us today. I also want to include that Yvonne
and Suzanne have actually contributed to our newsletter for the last three months, touching on a lot of these same concepts. I’ve included a link to our
archives newsletters as well. Please go back and read those. If you do not
receive the monthly newsletter, there is a place on the horse Extension website
to actually sign up for those. We’re going to do last call for any questions
in the chat box. So, Deb is one of our, Deb Treadwell, is one
of our insurance agents in Minnesota that many people use and are familiar
with. She said she would like to see future discussion on the need for work comp on
horse farm. So, Deb would that be for employees, I assume then? Deb we can
actually develop that. We can develop that and even direct that to Yvonne and
Suzanne directly. I can just add in here real quick that workers comp is a very
hotly contested issue in my practice. I’m sure Suzanne has seen it too
where clients will ask us “well I have grooms or cell cleaners that come and
work at my farm, but they’re not my employees. What if they get hurt
or what if I have working students they’re not getting paid but they’re
working at my farm?” Actually Suzanne is much more well-versed in insurance
coverage matters than I am, but I can say that there is no clear answer except to
say that as an employment lawyer, I can tell you that the definition of employee
is going to be me in the equine industry because these people are
providing an integral service for the type of equine activity that you’re
providing. So if you’re a boarding operation, cleaning stalls would have to
be done by an employee if it was not done by this person you’re calling an
independent contractor. Or this person that you’re having to have as a working
student in exchange for riding lessons. If they weren’t doing it, you’d have to hire an
employee. Not to mention the state wants their payroll taxes, right? They want
their their FUTA and FICA and all their other deductions. If they’re treated as
independent contractors and paid a 1099 or which Suzanne and I will say never
happens, being paid cash and not being accounted for at all, the law is
going to say “no we’re not getting our fair share. These are your employees
under the fourteen point test, and if your state requires workers comp, then
you could get nailed, if you will, for not having the required workers compensation
insurance that’s required by your state if you have employees”.
Florida is one of those states where you have agricultural exemptions.
If you fall under the required criteria, you can be exempt from workers
comp. The problem is, workers comp provides exclusive remedies. So if somebody’s
injured they can only bring a worker’s comp claim. Well if you’ve been exempted
from workers comp, now they can file a claim of tort
against you. Which means they can get emotional distress and pain and
suffering and all these damages that wouldn’t otherwise be recoverable if it
was a worker’s comp made claim. Does hat make sense? That was enlightening for me. I wasn’t
sure about that, but Deb’s comment was that too many farms attempt to call
their employees independent. So then I’m assuming that’s their way of not
getting or not securing workers comp. Yeah, workers comp, I’ve been told by
a lot of my horse breeding operations, is the most costly expense that they have
at their facility. I had the same reaction you kind of just did Abby, and
say well wait a minute. Feeding horses and training horses and painting your
fences and your landscaping, those are expenses, and yet you’re telling me that
your workers comp insurance is your greatest expense? They will say
undeniably yes. That’s what discourages a lot of our farms from 1.
categorizing them as w-2 employee but also 2. carrying workers comp because it’s cost prohibitive. That’s all great until you have an injury and you have a
lawsuit for workers comp. So it’s like speeding. You know, it’s not against the
law unless you get caught, and it’s not a problem unless you get an accident. So if
you don’t carry workers top, and you categories everyone as 1099
employees, that’s great. That works until it doesn’t. Suzanne and I cannot tell
you you’re right or wrong because the fourteen point test has to be analyzed
if they’re an employee or an independent contractor. But the problem is is the law
is what governs when the judge decides whether or not they were an employee or
not, and if you did not have the required workers comp insurance, that’s where you
can have that personal liability and potentially even lose your farm, because
you did not have, as Suzanne identified, the the proper and the proper amount of
insurance for this type of a claim. So it’s essentially that it’s a risk that they
have to gamble on. Okay. Yeah that’s right. Deb comments “it’s very frustrating with
the situation in Minnesota”. I appreciate her comment and that is a
topic that Suzanne and I could address in a whole other presentation, and I
would welcome that opportunity because it’s it’s a great epic to discuss. It’s
one of the things that nobody wants to talk about because
they just want to keep doing it the way they’re doing it. They don’t want to
be told otherwise. But when they come to us with a claim ,and we said you have
workers comp insurance, and they say no I don’t because he’s the only worker I
have, and I don’t want to do payroll and W2, and he didn’t want to pay taxes, maybe
he’s not legal. Whatever it doesn’t even matter. But they don’t have
insurance, well now that claim that’s brought in
tort for negligence can include pain and suffering and all these other
recoverable damages that they would not have exposure to. We end up usually
settling them. One because the plants attorny realizes there’s no insurance, so they’re
not going to have a big big win. But if your client is a big productive facility,
they could be looking at a pretty big either settlement number or a judgment,
that they’re going to have to find a way to pay. Wow, well I think you could
probably carry on this conversation with Deb for another half-hour or hour, but I
don’t see any other further conversation coming from the other attendees. Again
I’d like to thank Suzanne and Yvonne for your time today and certainly ahead to
the webinar library online. You can review this entire webinar, share it
amongst your friends or business partners or those who own your boarding stable that you board it. Join us again on May 30th for our second quarter
webinar on fly protection. So thanks for joining us. Have a good spring
everyone. Thanks, Abby. Thanks, Suzanne. Thank you.