For a quarter-century the University of Kentucky College of Law and the Office of Continuing Legal Education have brought together experts in equine law for a conference in the heart of horse country. While the timing of the conference is undeniably attractive, sandwiched between the Rolex Kentucky Three-Day Event and the Kentucky Derby-Oaks weekends, the real draw is the expertise of the presenters. Most are attorneys; all are among the best in their areas of expertise.
Doyice and Mary Cotton do not have law degrees, but they do have a wealth of knowledge about liability waivers. Doyice is Professor Emeritus at Georgia Southern University, where he taught courses in sports law and risk management, and he is a past president of the Sport and Recreation Law Association. Doyice and Mary, who also taught at Georgia Southern, operate Sport Risk Consulting in Statesboro, Georgia, where they consult on risk management issues.
In its simplest form, a waiver is a contract between the sponsor of an activity such as a trail ride or a horse show and a participant in which the participant assumes the risks associated with the activity. In non-legalese, a waiver simply means that someone taking part in a horse activity says: "I know this is dangerous, I’m doing it anyway, and if I get hurt it’s my problem not yours."
The value of such a document should be obvious to anyone who puts on an equine event. It can work like a vaccine against personal injury lawsuits. If you already use waivers in your horse business, that’s great. If you do not, now is a good time to start. A waiver of liability is not an absolute get-out-of-jail-free card if someone gets hurt, but it can come close.
Doyice and Mary have studied waivers for years. They can tell you that courts in most states probably will enforce a well-drafted waiver (for ordinary negligence, at least), that courts in Louisiana, Montana, and Virginia probably will not, and that the jury still is out, literally, in Arizona, Connecticut, Hawaii, and Wisconsin.
The key words are "should" and "well-drafted." There always is a public policy concern about insulating an event sponsor against negligence. If a waiver can shield an event sponsor from liability for the sponsor’s mistakes, there may be little incentive for an event sponsor to be careful. Some courts are reluctant to enforce a waiver for that reason. The value of a well-drafted waiver should go without saying, and an attorney familiar with your state’s laws is the best source for advice.
With that caveat, Doyice and Mary suggest the following:
- A waiver should be straightforward, with ordinary negligence mentioned specifically.
- In a separate section, a waiver should address the inherent risks of the activity.
- A waiver should be a stand-alone document, rather than a less-obvious part of another document.
- A waiver should have an informative title rather than a deceptive one.
- Event sponsors should give participants enough time to read the waiver before signing, and provide adequate lighting and a reader if necessary.
Finally, even in states where waivers are not enforced, their use is highly recommended. A signed waiver can be introduced in court as evidence that an injured participant assumed the risks inherent in the activity. A second potential advantage, which the Cottons did not specifically address, is psychological. If an injured person thinks the right to sue has been signed away, that person is often less likely to file a lawsuit.
The Cottons are the authors of Waivers & Releases of Liability, which is available on their website, http://www.sportwaiver.com/. Although not intended as a substitute for legal advice, and not recommended here as such, the book is a storehouse of information about waivers, why they succeed and fail, good and bad language, and state laws. (In the spirit of full disclosure, there was no quid pro quo for this endorsement. I paid for my copy of the Cottons’ book, and it was worth the price.)