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Equine Law “Believe it or Not” Surprises
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In the nearly 30 years that this lawyer has authored Equine Law articles in addition to her 4 books, not to mention a busy law practice, inquiries and legal matters have arisen from horse businesses and owners who have found themselves in legal hot water. This article shares some “believe it or not” principles of the law that may surprise you. By having a general understanding of the law and by planning ahead, you can help avoid legal disputes.
Liability
Equine activity liability acts, though powerful in many states, are not “zero li-
ability laws.” While most of the equine activity liability laws, now found in 48 states, typically provide that a “participant” who was injured while “engaging in an equine activity” cannot bring a claim or suit against an “equine activity professional, equine activity sponsor” and sometimes “another person” if the “participant” was injured as a result of an “inherent risk of equine activity,” these laws do not end all liability in the horse industry. They typically have a list of exceptions. All of these laws differ. Read the laws where you live and do business.
A child who sustains an injury may still be permitted to file a lawsuit years later, after reaching the age of majority. It is a widely accepted legal principle that the typical statute of limitations (the time to file a
lawsuit) for the claims of an injured minor begins to run out when the minor reaches the age of majority (typically, age 18). Although the time may have run out for an adult to file a personal injury lawsuit, the time limit for a child’s lawsuit may be years away. This makes record-keeping and record retention for several years especially important.
Stable Liability Insurance
Stable liability insurance policies typically exclude coverage for claims involving injury to or death of horses in the stable’s “care custody or control.”
Boarding and training stables are sometimes surprised to learn that their commercial liability insurance policies exclude coverage for claims involving damage to or loss of personal property in their “care custody or control.” Horses are personal property. This means that the stable may have no insurance coverage against claims involving injured horses. However, insurance companies typically offer an optional endorsement known as “care custody or control insurance” to provide this coverage.
Waivers
Under the laws of many states, liability waivers/releases may not prevent claims and lawsuits involving injured
minor children. This is a hotly disputed legal issue facing the courts now, and some have ruled that parents cannot legally release the claims of their minor children. Consequently, depending on state law, a waiver/release might dismiss claims of parents but not those of their minor children. To learn how this could impact you, and how you can protect yourself, discuss your situation with a knowledgeable attorney, and discuss your insurance coverage with your insurance agent.
In states that allow parents to waive claims of their minor children, only a parent or legal guardian can sign waiv-
ers/releases. Family friends, babysitters, or other relatives cannot bind minor children to waiver/release documents. Only a parent or legally appointed guardian (appointed by a court of law) can do this.
Although most states nationwide have enforced liability waiver/releases, states
vary in preferred language. Waiver/release forms found online are, at best, a good starting point. They run the risk of failing to include language that courts in a particular state look for in these documents. Take caution before relying on someone else’s form to draft your own.
Debt Collection
Boarding stables could be legally justified in keeping a horse until they are
paid in full. Some stablemen’s lien laws around the country give stables the right to hold a horse in their possession, and prevent the owner from removing the horse, until the stable has been paid in full. Make sure to review the applicable law and follow the law carefully.
Only under limited circumstances can stables sell off a boarded horse when the
owner has past due board. Some boarding stables assume that they can simply recover past due board by selling off a boarded horse as they deem appropriate. The problem is, the sale might be illegal. An illegal horse sale could potentially expose a stable to criminal liability for theft or conversion. Most states around the country have stablemen’s lien laws that explain what stables must do before selling off a boarded horse to satisfy a debt. Please keep in mind that these laws all differ.
Conclusion
This article provided a few examples of legal principles that often surprise people in the horse industry. Please remember that laws differ around the country so this article may not reflect the law in your jurisdiction. Plan ahead to, as much as possible, avoid liability and legal disputes. Make no assumptions about the law, and seek knowledgeable legal assistance where appropriate.
This article does not constitute legal advice. When questions arise based on specific situations, direct them to a knowledgeable attorney.
Julie I. Fershtman, Attorney at Law
About the Author
One of the nation’s best-known Equine Law practitioners, Julie Fershtman is a Shareholder with the law firm Foster Swift Collins & Smith, PC, in Michigan. A lawyer with nearly 36 years of experience, she has handled cases in 20 jurisdictions nationwide and has tried equine cases before juries in 4 states. She is listed in The Best Lawyers in America and Super Lawyers. Her speaking engagements span 29 states. Her newest, 372-page book is called “Equine Law & Horse Sense,” published by the ABA. This book, written for non-lawyers and lawyers, has won 4 national book awards. Find it on Amazon, and look for the horse on the cover. For more information, please visit www.equinelaw.net
