At Equine Legal Solutions, we receive a lot of calls about injuries to horses and people. The callers usually want to know whether they have any liability in connection with the injury. Sometimes (but not often enough!), the caller has a liability release.

As part of the initial consultation, we review the liability release to see whether it might offer any protection to the concerned caller.

In this article, we describe what we look for when we review a liability release after an injury occurs. Because injuries are unfortunately rather common at boarding barns, we’ll discuss key liability release considerations in that context. However, these considerations apply to all liability releases in the equine context.

Do You Have a Signed Copy of the Release?

Frequently, boarding stables send us a copy of their liability release form that isn’t signed. Our first question is, “Do you have a copy of the form that was signed?” If the answer is “No” or “We used to have one, but it was lost/stolen,” the liability release won’t be enforceable unless the stable can find a signed copy. Even if the injured party received a copy at the time of signing, it’s pretty much a sure bet that they threw it away or lost it (or will claim they did). Even if the barn’s standard practice is to have every boarder sign a release and/or the barn posts copies of its forms at the barn and on its website, without a copy of the actual signed release, the stable won’t be able to rely on the release.

Who Signed the Release?

A liability release doesn’t do any good unless the right person signs it. In the context of a boarding barn accident, the “right person” is the person who was injured or the person who owns the horse that was injured. A liability release signed by the injured person’s spouse or family member won’t offer any protection against claims brought by the injured person. Similarly, a liability release signed by a horse’s lessee won’t offer any protection against claims brought by the horse’s owner.

Was the Injured Party a Minor?

If the person injured person is a minor (under age 18), the liability release probably won’t be helpful. With some narrow exceptions that generally don’t apply in the boarding barn context, contracts signed by minors are unenforceable against the minor. A parent signing a liability release can only sign away the parent’s right to sue, not the minor’s. Minors can’t waive their legal rights. Period.

On top of that, if a minor is injured, the statute of limitations does not begin to run until the minor turns 18. So, if a three-year-old is bitten by a horse, the three-year-old could sue the stable 15 years later (and more, depending on what the statute of limitations is).

But wait a minute – how can boarding stables afford to have kids on the property under these circumstances? In a word: Insurance. The stable can also have the parent sign a release that includes an indemnification clause. It won’t prevent the minor from bringing a claim against the stable, but if the indemnification clause is properly worded, the stable can require the parent to pay for its legal defense and any judgment. Of course, an indemnification clause is only useful if the person who signs it has enough money to pay.

What Caused the Injury?

A well-written liability release can protect boarding barns against claims based on ordinary negligence. However, no liability release can successfully disclaim gross negligence and willful misconduct.

Generally speaking, willful misconduct is causing injury on purpose. For example, if a stable manager “disciplines” a boarder’s horse and injures it, a court will probably find that to be willful misconduct. If the stable manager was on the job at the time, the barn will most likely be liable for the manager’s conduct. Gross negligence is more difficult to define, and many lawyers have made their fortunes arguing about whether something is gross negligence or ordinary negligence.

But simply put, gross negligence is doing something really stupid vs. doing something pretty stupid. For example, a boarding barn has probably committed ordinary negligence if a horse injures itself on a nail protruding from a stall wall. But if the barn staff feeds hay that is visibly moldy, and horses colic as a result, that probably rises to the level of gross negligence.

The principle behind a liability release is “assumption of the risk,” so a liability release is more likely to be enforced if the situation that caused the injury is specifically mentioned in the liability release.

Therefore, we review the release to see if it specifically mentions the situation that caused the injury. For example, let’s say that during turnout, one horse injures another horse. Does the liability release specifically mention the risks associated with turning out horses together? If so, that would be very helpful for the stable’s defense.

What about Equine Activity Statutes?

If the boarding stable is in a state that has an equine activity statute, we review the statute to see if it requires certain language to be included in liability releases. If so, we review the release to see if it complies with the statutory requirements. If it does, the equine activity statute may offer some protection, depending upon the specific statute and the specific situation. If not, it doesn’t mean the liability release won’t be enforceable, but the stable may not be able to avail itself of any defenses provided by the equine activity statute.

During the initial  consultation, we review the liability release to see whether it might offer any protection to the concerned caller.

In this article, we describe what we look for when we review a liability release after an injury occurs. Because injuries are unfortunately rather common at boarding barns, we’ll discuss key liability release considerations in that context. However, these considerations apply to all liability releases in the equine context.

Do You Have a Signed Copy of the Release?

Frequently, boarding stables send us a copy of their liability release form that isn’t signed. Our first question is, “Do you have a copy of the form that was signed?” If the answer is “No” or “We used to have one, but it was lost/stolen,” the liability release won’t be enforceable unless the stable can find a signed copy. Even if the injured party received a copy at the time of signing, it’s pretty much a sure bet that they threw it away or lost it (or will claim they did). Even if the barn’s standard practice is to have every boarder sign a release and/or the barn posts copies of its forms at the barn and on its website, without a copy of the actual signed release, the stable won’t be able to rely on the release.

Who Signed the Release?

A liability release doesn’t do any good unless the right person signs it. In the context of a boarding barn accident, the “right person” is the person who was injured or the person who owns the horse that was injured. A liability release signed by the injured person’s spouse or family member won’t offer any protection against claims brought by the injured person. Similarly, a liability release signed by a horse’s lessee won’t offer any protection against claims brought by the horse’s owner.

Was the Injured Party a Minor?

If the person injured person is a minor (under age 18), the liability release probably won’t be helpful. With some narrow exceptions that generally don’t apply in the boarding barn context, contracts signed by minors are unenforceable against the minor. A parent signing a liability release can only sign away the parent’s right to sue, not the minor’s. Minors can’t waive their legal rights. Period.

On top of that, if a minor is injured, the statute of limitations does not begin to run until the minor turns 18. So, if a three-year-old is bitten by a horse, the three-year-old could sue the stable 15 years later (and more, depending on what the statute of limitations is).

But wait a minute – how can boarding stables afford to have kids on the property under these circumstances? In a word: Insurance. The stable can also have the parent sign a release that includes an indemnification clause. It won’t prevent the minor from bringing a claim against the stable, but if the indemnification clause is properly worded, the stable can require the parent to pay for its legal defense and any judgment. Of course, an indemnification clause is only useful if the person who signs it has enough money to pay.

What Caused the Injury?

A well-written liability release can protect boarding barns against claims based on ordinary negligence. However, no liability release can successfully disclaim gross negligence and willful misconduct.

Generally speaking, willful misconduct is causing injury on purpose. For example, if a stable manager “disciplines” a boarder’s horse and injures it, a court will probably find that to be willful misconduct. If the stable manager was on the job at the time, the barn will most likely be liable for the manager’s conduct. Gross negligence is more difficult to define, and many lawyers have made their fortunes arguing about whether something is gross negligence or ordinary negligence.

But simply put, gross negligence is doing something really stupid vs. doing something pretty stupid. For example, a boarding barn has probably committed ordinary negligence if a horse injures itself on a nail protruding from a stall wall. But if the barn staff feeds hay that is visibly moldy, and horses colic as a result, that probably rises to the level of gross negligence.

The principle behind a liability release is “assumption of the risk,” so a liability release is more likely to be enforced if the situation that caused the injury is specifically mentioned in the liability release.

Therefore, we review the release to see if it specifically mentions the situation that caused the injury. For example, let’s say that during turnout, one horse injures another horse. Does the liability release specifically mention the risks associated with turning out horses together? If so, that would be very helpful for the stable’s defense.

 What about Equine Activity Statutes?

If the boarding stable is in a state that has an equine activity statute, we review the statute to see if it requires certain language to be included in liability releases. If so, we review the release to see if it complies with the statutory requirements. If it does, the equine activity statute may offer some protection, depending upon the specific statute and the specific situation. If not, it doesn’t mean the liability release won’t be enforceable, but the stable may not be able to avail itself of any defenses provided by the equine activity statute.