Enjoy this post from a very bright student with whom I enjoy exchanging ideas…
Hey all! Sounds like Jenn is having an absolute blast at Buck Brannaman’s clinic this weekend (very much look forward to her posts!), so this Colorado cowgirl is lucky enough (woohoo!!!) to get to write a guest post for her. So, enough with the exclamations points, let’s get serious here.
Jenn’s done a great job with her series on “State of the Horse Industry” and since I’m a graduating senior in Colorado State University’s Equine Science program, we both thought it’d be fitting to write up on a recent lecture I got in my Equine Production & Industry course on the Equine Liability Act.
We were fortunate to have Mr. George Johnson, Jr, who is an avid horseman and attorney in equine law, speak to us about the Equine Liability Act this week. Some interesting facts he brought to our attention:
-There is no “equine” law per say. It simply is taking the rules of law and applying them to the animal and industry we love so dearly. However, it complicates the interpretation of law because the horse and its industry are particularly unique.
-The horse industry is far more emotional than most areas covered by law, which (again) creates challenges in its interpretation and application.
-Liability is a very broad term in the language of law. This is especially true in the context of equine law because “inherent liability” is defined differently by every individual. [Here he pointed out, even by the yuppies who know nothing about horses.]
Now, when you think of liability in the horse sense, does a certain black and white (slightly obnoxious) sign come to mind? I’ll be frank, I’ve read them a thousand times and never really thought a thing of them (other than maybe concluding they must be trendy or something). Alas, that question was answered by Mr. George Johnson… Who just so happened to be the driving force behind those signs!
The first Equine Liability Act was passed in the state of Washington, but unfortunately, held very little ground. Colorado was next in line and passed their act in the early 1990s during a state-wide tort reform. Mr. Johnson said it was difficult convincing the need of the act. The argument that made the instrumental change for the horse industry? That those in the horse industry were unable to secure affordable insurance due to the “high risk” nature of the animals they worked with daily. Politics aside, it would be interesting to see if such an act would pass given the environment surrounding health care now.
CRS 13-21-119 exempts activity sponsors, professionals, or other person/corporations from liability to or death to a participant related to the inherent risks of equine activities. [Oh, and llamas too. Which Mr. Johnson grumbled about.] Six exemptions for coverage exist [paraphrasing legal jargon]: (1) horse racing, (2) knowingly provide faulty equipment or tack that results in injury or death, (3) equine provider fails to make reasonable and prudent efforts of participant’s ability in activity… (essentially individual responsibility, one of the most common areas of litigation and success of litigation), (4) dangerous conditions on equine provider’s property for which warning signs were not posted (ex: electrocution, low hanging wire, prairie dog holes), (5) …disregard for participant’s safety, and (6) intentionally harmful to participant. To be covered as an equine provider, you must have signs (1) posted visibly in areas the equine activity in being conducted, (2) white with 2″ black lettering [you can get those about anywhere, but check your horse council because often those funds go back to the industry directly], and (3) use the same legal wording on all contracts. The Equine Liability Act basically makes it possible for us to safely (in the context of law) own, ride, and be equine professionals. Nearly every state now has some version of an Equine Liability Act (most [proudly!!] modeled after Colorado).
Here’s a quick funny. When Wyoming was adopting their act, the court wasn’t sure if “bucking” was an inherent risk. Mr. Johnson’s reply was, “Look at your license plate lately?” [Steamboat, the famous bucking horse, in case you’re curious.]
This is where it gets interesting (and applicable to “Current State of the Horse Industry”). Once an act is passed, it will be tried. Precedence occurs which basically sets the stage as to whether (1) it was a good piece of legislation and (2) if it will have any teeth in its future. Here are a few cases Mr. Johnson shared with us [please excuse the grammar errors, I did my best to phonetically spell out these bad boys]:
Clyncke v. Waneka (2007)
This occurred in Weld County, Colorado [represent!!!… where I’m from, P.S.] during a round-up when Waneka fell off a horse supplied by the Clynckes. She argued the Clynckes were responsible for her injuries because they let her ride in an activity unsuited to her level and provided her with an unmanageable horse. The Colorado Supreme Court ruled the Clynckes were covered by CRS 13-21-119. Waneka appealed and was (again) turned down because no exceptions applied.
B&B Livery vs. Rail
This was an interesting piece of litigation because historically the Colorado Supreme Court hasn’t been much of a fan of releases (because of the ambiguity of them). However, in this case they ruled that because a warning was put into the agreement (CRS 13-21-119) and that there was a clause covering non-inherent risks, the release was not ambiguous and could be upheld. Essentially, this confirmed the validity of equine releases.
Culver vs. Samuels
In this case, the prosecutor was assured that the horse he was given was gentle, but was subsequently bucked off. This all occurred at a calf roping event where no Equine Liability Act signs were visible. They tried to prosecute under the notion that the defendant wasn’t “any other person” [read the act to understand this, but basically it’s a clause that covers any horse person]. However, the court decided that the phrase “any other person” makes the act cover, well, “any other person.” Basically, this case made it concrete that individual (not professional) horse owners were covered under the act.
Up until this point, the act really had some teeth! The next case points to a different side of the story…
During a Harmony Horsemanship clinic in Casper, Wyoming, Ms. Kristina Barkhurst (age 21) died. Her parents won $1.2M.
Ms. Barkhurst’s horse apparently had a history of bolting. Ms. Skinner (clinician) had assured her that her natural horsemanship techniques would work and subsequently, the accident happened. The court found Ms. Skinner had failed to provide equipment necessary to control the horse. Interesting because, this “necessary control” equipment could not be defined in court. It may yet be appealed, but this is an example of litigation where the exceptions to the act did in fact apply and so, the equine provider was not covered. It also raises a few interesting questions:
-The growth and abundance of clinicians inherently creates a distribution of legitimate and illegitimate horse professionals. Will this “snake oil” concept (as Mr. Johnson calls it) continue to test (and possibly strain) the validity of the liability acts?
-If you host a clinic with a professional, are you creating unnecessary liability for yourself?
-Is a case like this generating regulation in an otherwise unregulated sector of the equine industry?
It’s important to note here that Mr. Johnson is still very thrilled by how much the act has held up (and will continue to!).
Even though Equine Liability Acts across the nation are making a substantial difference in the lives of horse people, Mr. Johnson still avidly argues that you need to get insurance. Just because this act appears to cover you, if you were brought to court (justly or unjustly), you would still need to secure an attorney. Rates are between $200-400/hour and equine litigation is often long and drawn-out. Most insurance will cover attorney fees. He also advocates you pursue preventative measures, particularly by making sure you thoroughly understand equine law. If you’d like, check out his guide to equine law (book).
Phew!!! Feel like you were sitting in on the 3 hour lecture? Rest assured, every time I see one of those black and white signs, I won’t be taking it for granted any longer. I feel especially grateful to be able to be involved in an industry that so passionately believes in its critters & people and makes it possible for us to make a living from (and enjoy the heck out of!) horses.
Thanks again, Jenn, for letting me share my nerdy school-girl, horse-lovin, bloggin’ side. And, thanks all you horse enthusiasts for reading!