Is The Shortest Liability Release The Most Effective?

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252 – May, 2016

BY JULIE I. FERSHTMAN, ATTORNEY AT LAW

In a 1960 Tennessee case, the plaintiff (the one who filed a lawsuit) rented a horse from a horse rental stable. While riding the horse, a stirrup broke. He fell and was injured. He sued. Before the ride, however, he signed the stable’s liability release. The Tennessee Supreme Court ruled that his lawsuit was properly dismissed based on the release. Interestingly, the stable’s release in that case was only 16 words long. It stated:

“I am hiring your horse to ride today and all future rides at my own risk.”

What can the equine industry learn from this case? Absolutely nothing.

The law regarding releases of liability (also known as “waivers”) has become tremendously complex. Gone are the days when a 16- word document can dismiss a personal injury lawsuit, thanks to numerous state statutes and court cases. Consequently, equine business operators and others who believe “shorter is better” with liability releases could be doing themselves a serious disservice.

DETAILS MATTER

Releases of liability are important documents in the risk management efforts of stables, horse owners, associations, operators, businesses, and equine industry professionals. When an injured person challenges these documents, issues often center on one or more of the following:

• State law or recognized public policy. A small number of states have cases setting forth a recognized public policy that renders releases, regardless of how well they are worded, unenforceable. Virginia is one of those states; years ago, a Virginia Supreme Court case held that waivers/releases cannot bar claims of negligence. As another example, Louisiana has a statute, La. Civ. Code Ann. art. 2004, states: “Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.”

• Faulty wording. Although courts in most states have shown a willingness to enforce waivers/releases, courts will not enforce documents that they believe were improperly drafted. Unfortunately, courts, even within the same state, can disagree on what qualifies as proper drafting. Some sporting and recreational industry business owners have their release documents regularly drafted or reviewed by lawyers. In the equine industry, by comparison, many people use documents that might not account for their unique state requirements or individual needs.

• Presentation and signing issues. Courts sometimes refuse to enforce a release if they are convinced that a problem or defect existed in the manner in which the document was presented. A signer, for example, might claim that he or she was defrauded into signing the release. This can occur with facilities that claim to have “sign-up sheets” but the release language at the top is hidden from view.

• On the other hand, courts have recognized that, as a general matter, when someone chooses not to read a release before signing it, this will not, on its own, render the document unenforceable.

• Signing issues. An improperly signed release will not be enforced. For example, contracts signed only by minors are voidable, with very few exceptions. An equine activity liability release signed by a minor is no different.

• Serious wrongdoing. Most states will not allow releases to prevent legitimate claims of serious wrongdoing, such as claims for gross negligence, intentional misconduct, willful misconduct, and/or wanton misconduct. Still, an injured party who raises any of these claims in an effort to avoid a release must be able to prove them; otherwise, his lawsuit still risks dismissal.

CONCLUSION

Courts give releases of liability intense scrutiny, but cases exist in almost every state where they have been enforced and lawsuits have been dismissed on the strength of these documents. Those who use releases of liability should make sure that their documents comply with applicable state laws and are properly presented. Also, remember that people who sign releases can, and sometimes do, file lawsuits. Sometimes their lawsuits succeed, and sometimes they do not. Because of this, proper liability insurance is always very important.

This article does not constitute legal advice. When questions arise based on specific situations, direct them to a knowledgeable attorney.

ABOUT THE AUTHOR

Julie Fershtman is one of the nation’s most experienced Equine Law practitioners. A Shareholder with the law firm Foster Swift Collins & Smith, PC, based in Michigan, she has successfully handled equine cases in 17 jurisdictions nationwide and tried equine cases in 4 states. She has drafted thousands of equine industry contracts and is a Fellow of the American College of Equine Attorneys. Her speaking engagements span 29 states. For more information, visit www.equinelaw.net and www.equinelawblog.com.

Click here to read the complete article
252 – May, 2016