Editor’s note: This month we are running a series that could help you review your liability exposure on your horse farm or stable. In other words, what things could get you sued and what can you do about those issues. These articles should not be construed as legal advice; you should talk to your attorney about liability exposure in your equine business.
Liability waivers should play an important role in your controlled risk management. Let’s face it: Land + Farm Equipment + Outbuildings + Livestock = Extensive Liability Exposure! You’ve worked too hard to acquire property only to lose it in a lawsuit.
1. What is a liability waiver?
A liability waiver is a legal document where a person participating in an activity signs to acknowledge the risks involved in that activity. The landowner or service provider uses he waiver to limit legal liability should damage or injury result.
2. How does it work?
The waiver demonstrates the signing party is “aware of, and has assumed”, the risks present in that activity. Waivers will be legally enforced SO LONG AS THEY:
a. Are “clear and unambiguous” as to the parties, activity, risks involved, and the signer’s knowing assumption of those risks;
b. Contain clear, explicit language waiving liability;
c. Cite the “waiver language” in a sufficiently large, observable and conspicuous manner;
d. Clearly and expressly waive negligence claims against the party responsible for the property or activity; and
e. Identifies the assumed risks with sufficient information to permit a “knowing” waiver of those risks.
The form must also be signed by “ all parties to be bound”, thereby requiring signatures of BOTH parents if it extends to a minor.
3. Do I need a waiver is I’m not operating as a business?
Yes. You can be personally liable whether you’re an individual or a business. In many instances, individuals or family-owned properties carry more risk exposures because the private owners do not view their land for liability exposures, and thus don’t employ the heightened risk management evaluations that a business performs. A well-drafted waiver can effectively warn your guests that a farm property carries unique risks requiring the guests’ heightened attention and self-responsibility.
4. Do I need a waiver if my State has an Equine Activity Liability Act (EALA) statute?
Yes. The statutes create legal defenses but do not prevent a lawsuit from being filed. With a well drafted liability waiver, your attorney can quickly use the waiver AND the statute to dismiss the lawsuit based upon Plaintiff’s “prior and knowing written assumption of risk.” Using the statute without the waiver is a bit like using a slingshot without its pebble.
5. Won’t my friends or family be offended if I ask them to sign a waiver?
Perhaps, but you can easily address this by explaining a farm property or business carries exposures greater than other facilities. All persons on the property are exposed to higher risk of injury. The waiver puts your guests or clients on notice of the risk and their responsibility to pay attention to their own safety. If you approach it in a matter of fact manner, most persons usually appreciate your concern for their safety. For those who don’t, well, you can have a brief but nice visit in the living room, but that’s unfortunately all of the property they get to use or see.
6. “How much do they cost and can I use one off the internet?”
A custom drafted waiver, compliant with your state law, typically runs between $250 to $500 to draft. Canned forms typically don’t work where they: (a) Don’t reflect unique state by state legal or statutory requirements, and (b) do not contain the specific requirements we addressed in section 2 above.
So use the waiver! Always and for everyone! If anyone complains, blame your attorney and your insurance agent. You’ll be glad you have the waiver if and when you see a lawsuit delivered to your front door.
For more information contact Denise Farris, Perry& Trent, LLC. 13100 Kansas Avenue, Suite C, Bonner Springs, KS. Ph: 913-441-3411; [email protected].
This article provides general coverage of its subject area. It is provided free, with the understanding that the author, publisher and/or publication does not intend this article to be viewed as rendering legal advice or service. If legal advice is sought or required, the services of a competent professional in your state should be sought. The publisher and editor shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.