You think you are doing everything right in your equine business. You have the statutorily mandated warning signs posted so you can get immunity under your State’s Equine Limited Liability Act. You make every participant in every activity at your barn sign liability waivers. You have boarding contracts drawn up with liability releases. You think you have covered your bases and you are immune from liability. And maybe you were last year, but this year might be a whole new ballgame.
Most stables and boarding facilities require participants to sign liability waivers prior to participating in any riding activities, or boarding their horse at the facility. Many use a waiver they have found online, or gotten from a friend, or even from an attorney for some non-horse related activity. Without a review from an equine attorney licensed in the state in which you are doing business, however, many of those forms can be worthless.
- Liability Waivers are Strictly Construed Against the Drafter
Liability waivers and releases are generally disfavored by the courts. Simply stated, a liability waiver is a way to move responsibility for negligent conduct away from the person actually responsible for the negligence and onto another person. Some states refuse to enforce liability waivers at all, finding them contrary to public policy (Connecticut, Louisiana and Montana). Virginia refuses to enforce a liability waiver, except for those signed at auto races. The states that allow liability waivers will as a general rule interpret them strictly against the person seeking to enforce the waiver, and will invalidate the waiver if it is unclear or ambiguous, or if it does not strictly comply with the law.
- What Strict Constructions Means
Strictly interpreting the waiver means that the courts will examine the release closely with several things in mind:
- First, is the waiver of liability clear, unambiguous and not hidden in the fine print?
- Second, does the waiver contain explicit language waiving a person or entity’s liability?
- Some states (including Kansas and Missouri) have statutes that set out the specific language necessary for a waiver. If your waiver language does not meet the statutory standards, it is unenforceable. As discussed below, a recent change to Missouri’s law requires updating your waiver!
- Third, is the intent to waive “negligence” clearly and expressly set out in the agreement?
- Many states require specific language that the participant is waiving any claims that arise from the “negligence” or “fault” of the equine professional or stable.
- Last, was there a “knowing” waiver of the risks and liabilities?
- In other words, was the person signing the release sufficiently informed as to the potential risks of the activity and the liabilities that might arise?
- If there is a problem in any of these areas, the courts will generally refuse to enforce the liability waiver.
- Annual Review of Your Forms is Always a Good Idea!
Even if you have previously had your contracts and waivers reviewed by an attorney, it is a good idea to have those reviewed by a competent attorney on a yearly basis. For instance recent amendments to Missouri’s Equine Activity Liability Act have changed the required wording in your liability release and contracts. Older versions are incorrect where they do not include language that includes “a livestock activity sponsor, a livestock owner, a livestock facility, a livestock auction market, or any employee thereof”. If you have the correct wording, this sounds like a great thing, and even broader immunity, right? You can just sit back and relax, right? Wrong.
- Ask Whether Additional Steps are Required Under Your State Law
Both Missouri and Kansas animal activity act statutes require that every equine or livestock professional post signs with specific and current statutory language. Thus, after the amendment to the Missouri statute, YOUR OLD WARNING SIGNS ARE NOT VALID! Further, that sign must be displayed conspicuously and in black letters on a white background, and each letter has to be an inch high at least. Every written contract entered into by an equine or livestock professional must also have the specific statutory language and be in clearly readable print.
If you are still displaying a sign with the waiver of liability language from the previous version of the statute, and/or your contracts have liability waivers with language from the previous version of the statute, you are no longer in compliance with Missouri State law, and your waivers are legally invalid! It is time to get them reviewed!
A liability waiver can be an essential element of doing business as an equine professional, and extremely helpful in obtaining insurance for your business venture. You should utilize waivers and releases to the full extent allowed by law. However, be sure to consult with a licensed attorney to ensure that you are getting all of the protection possible from it. Do not assume that because you found your release on the internet, and the internet says it is good in all states, that it is valid and enforceable in your state. Most states have very specific language that is required before a waiver will be enforced, and that language can change as statutes are revised. You don’t want your release to be thrown out because you missed a portion of the warning that needed to be given, or because your release was drafted too broadly and runs afoul of other state laws that might apply.
© Rhonda K. Levinson, Esq. (November 15, 2017). All rights reserved. This article may not be reprinted or reproduced in any manner without prior written permission by the author. Contact: Rhonda Levinson, Perry & Trent LLC, 13100 Kansas Ave., Suite C, Bonner Springs, Kansas 66012; 913-441-3411, ext. 305.
DISCLAIMER: This article provides general coverage of its subject area. It’s provided free, with the understanding that the author, publisher and/or publication do not intend this article to be viewed as rendering legal advice or service. If legal advice is sought or required, the services of a competent professional should be sought. The author and publisher shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.
Rhonda K. Levinson practices equine and veterinary law, and civil and appellate litigation in the Kansas City area. She has argued numerous cases in front of the Kansas Court of Appeals and the Kansas Supreme Court. She is a member of the North American Trail Ride Conference, American Endurance Ride Conference, and the Middle of the Trail Distance Riders Association, among other organizations.