Re: Heat, Humidity and Cooling (and other things)

[Ramey Peticolas-Stroud <ramey@wvi.com>]

Thomas, Barb wrote:
 
> Question for Ramey and other "lawyer-types" out there.  On our first
> competition, my mare thought kicking anything that was within distance
> was fair game.  Quite a surprise to me, since she'd never done it in
> training.  We've corrected the problem but I always tie a red ribbon in
> her tail, just to be safe.  It also is pretty effective in keeping
> people off your butt!  (Hang a light stick from the red ribbon for the
> pre-dawn starts.) Am I leaving myself open for a negligence suit if she
> kicks a horse or person, since I'm announcing that I have a potential
> kicker?

Your question is a great follow-up to the issue that Bob Morris
presented: "Who is responsibile for avoiding a kick, the rider of the
kicking horse or the intended target?"  

The answer is that it's a shared responsibility, both parties have a
duty toward each other.  I'll try to keep this short but it's a tough
subject... Also I need to drop a standard disclaimer: contact your
personal attorney if you want specific legal advice, the discussion
which follows is from my view as a fellow endurance rider.

There is a concept in the law called comparitive negligence.  The acts
of both the tort feasor (rider of the kicking horse) and the injured
party are evaluated by the court or a jury.  Then the percentage of
tort-feasor responsibility is multiplied by the amount of the damages to
determine the award.

However, many states have adopted a "modified 51% bar against negligence
claims."  Under this system if the tort feasor is not responsible for
51% or more of the cause of the injury, then no cause of action is
deemed to exist.  Stated differently, the defendant must be more
responsible for the act(s) giving rise to the damages than the claimant.

Now the pop-quiz:  Can you think of any endurance-related situations
where the 51% rule might apply?

So back to your specific question...  there are three additional topics
related to your concern about libility worth mentioning:

First, have you given fair warning?  A red flag you mention is a
practice widely accepted in our sport and usually gives fair warning
assuming one can see it.  The down side to the red flag is that it also
indicates that you know she has a propensity to kick.  Thus a red flag
also means that you have a higher level of duty towards other riders
than one riding a horse that has never kicked at a ride.  You must ride
in a manner which minimizes the risk to others (not a bad idea for all
of us).

Second, have you and/or your fellow riders assumed the risk of being
kicked?  Signing a liability release does not normally change the duty
relationship between competitiors.  This is because such releases often
do not mention competitior-to- competitor liability.  Also, when one
signs a release there are certain unstated assumptions called "industry
practices"  Namely, that all competitiors will act reasonably in the
context of competition (i.e. not trying to shove you over as they pass
on a narrow trail.)  An grossly unreasonable act may give rise to
liability eventhough a release has been signed.

Third, does your state have an equine liability limiting law?  As Bob
mentioned in a prior post, many states have adopted statutes limiting
the types of suits that may be brought as a result of an equine-related
injury.  BUT, and this is important, most of these laws allow claims for
injuries caused by intentional acts.  In this context, an intentional
act can also be a "purposeful failure to act."  This is called an
"omission" and means failing to act when there was a duty to do so.  So
if one says, "if they try to pass, whatever happens is not my fault" and
then makes no attempt to prevent the injury, a suit for resulting
damages may be allowed.

In summary, every dangerous horse incident is "fact-specific."  It's
almost impossible to generalize whether one would be liable if "X"
occurs.
The key to avoiding problems is to ride defensively and try to avoid
incidents which may lead to problems.  

Again, I'm sorry for the length of the response...

Ramey