Question: When is an equestrian trail not really a trail?

Answer: When access for horses and riders is prohibited or restricted.

A viable network of equestrian trails requires on-going access to public land and the cooperation of private landowners willing to allow horseback riding on their property. Although the evidence is sketchy and largely anecdotal, equestrian access to both public and private land appears to be vanishing.

In 2009, the American Horse Council initiated a survey of equestrian access to federal lands. Admittedly non-scientific, the AHC survey relied on self-reporting from riders affected by trail issues. There was a built-in bias because riders without access problems presumably would not participate in the survey since they would have nothing to report. The survey suggested that access to trails used for riding in the past is being lost, with riders from 26 states reporting maintenance problems, unexplained closings, and at least one "user conflict."

The problem is somewhat different at the state level, where private landowners face the possibility of a costly personal injury lawsuit if a rider is hurt. A reluctance to allow horses and riders onto private property with that threat hanging over a land owner’s head is both understandable and probably sensible. Liability waivers requiring someone to flag down every recreational rider crossing a property line are impractical.  Trail riders have gotten some help from state legislatures, but more could be done.

Forty-six states currently have some sort of equine liability law that protects the sponsors of horse activities and every state has a statute that limits the liability of private landowners for injuries suffered while taking part in recreational activities on their property. (Trail riding may or may not be specifically included in the definition of recreational activity and a close reading of your state’s laws is necessary. Even better is consultation with an attorney familiar with your state’s laws.)

Recreational liability laws typically relieve a landowner from a legal duty to make his or her property safe for the recreational activity or to warn recreational users about dangerous conditions. (Equine liability laws, on the other hand, usually require a warning about the inherent dangers of equine activities.) Willful or malicious behavior on the part of the land owner usually is not covered, and the protection of the statute may be lost if a fee is charged for access to the land.

The problem is the "American rule," which provides that each party to a lawsuit usually pays his or her attorney fees, no matter who wins. The exception is statutory authority to award attorney fees to the prevailing party, which is not provided in the recreation liability laws in a majority of states. The effect of the American rule is that a land owner who successfully relies on a state recreational liability law as a defense can win the lawsuit but still be required to pay the attorney. And lawyers are expensive!

Insurance may shift the land owner’s risk to the insurance company and anyone who allows equestrian access to their land should have adequate coverage. Not everyone has insurance, however, and the limits of policies vary.

Maine has tackled the problem of frivolous personal injury lawsuits by adding a provision to its recreational liability law allowing a court to require a plaintiff to foot the legal bills of a prevailing defendant. The law raises the financial stakes, making it less likely that a plaintiff will gamble on a frivolous lawsuit. It’s a good idea, one that all states should adopt.

Thanks to Ginny Grulke, executive Director of the Kentucky Horse Council, for adding this issue to my radar.