Montana: A Lawyer's Challenge

[Joane Pappas White <Lyoness@Castlenet.com>]

Ridecampers,

Sorry it has taken me a while to get back to you--I have a trial
tomorrow and thought I should finish trial prep before I got back into
this discussion.


For those of you who have now read the Montana Equine Liability Statute,
I think you can see that there are a number of issues that have to be
addressed to determine if anyone has sustained damage that can be
remedied or if each of the groups involved have assumed the risk for
their involvement in this sport and thereby waived damage claims.

The purpose of the statute is basically stated as follows: 

> It is the policy of the state of Montana that a person is not liable for damages sustained by another solely as a result of risks inherent in equine activities if those risks are or should be reasonably obvious, expected, or necessary to persons engaged inequine activities.< 


The First question may seem obvious but I'm sure the lawyer Ridecampers
will tell you that it is arguable:  Does this statute even apply to our
sport?  

As Bob Morris has pointed out, the statute lists a number of equine
events which are supposed to be protected. We are closest to "endurance
trail riding".  Hidden at the end of the statute is an exception for
horseracing and mule racing.  When horses are "racing to a finish" have
we exceeded the protection of the statute?  Have we gone beyond trail
riding and become horseracers?  I have not reviewed the statutes which
control horseracing in Montana but racing is excluded for a reason. 
That reason could become very important.  Horseracing has been big
business and we usually hold big business to a higher standard of care
to people they invite to their business.  If the riders had been racing
to the finish to win money, or if big sponsors were present for their
advertising gain, could it change the protection of the statute?  

I suspect that there is caselaw to suggest good arguments for both sides
of this issue.  Please realize that if I can make a valid argument that
the horseracing exception should apply, the protection of the statute
disappears and everyone involved could be looking at their share of
responsibility in the actions that led to this incident. Does that cause
you to pause for thought?  IT SHOULD!

Rhonda pointed out that insurance, or at least the ability to collect
damages, is a major factor in evaluating a suit.  As trial counsel, if I
can knock out the protection of the statute for participants,
professionals and even bystanders and spectators, I have vastly
increased the likelihood of recovery from multiple persons who
contributed to the facts that caused the incident.

Notice I use the word incident, not accident.  Think in terms of
contributing factors or comparable degrees of responsibility.   

It was interesting to me that all of you seem to have excused the driver
of a truck for pulling onto the ride course--particularly the finish
line area.  We were told that the driver was "just a visitor".  You have
reviewed the responsibilities of the riders, and in fact been very hard
on them (and it appears from their voluntary actions that they have also
been very hard on themselves which is common for caring people who find
themselves in incidents where injuries have occurred) and yet none of
you have questioned how the visitor driver, in what is likely to be a
fully INSURED motor vehicle, ended up blocking the path to the finish
line.

We don't have the facts and I really don't think we need the exact ones
for our purposes.  Imagine the difference in your assignment of
responsibility if you are told:

1.  The visitor driver was drunk and lost and just pulled onto the
course.

2.  The driver was a teenager who had been sent with supplies for the
vets and was trying to deliver them.

3.  A very experienced endurance rider had just given the "newbie
driver" directions to drive to the finish line and watch the winners
come in.

4.  The visitor driver is a photographer for the local newspaper and he
is rushing to the finish line to take a picture of the winner coming in.

Once we determine if the statute applies to our sport and to this race
to the finish, then we must decide who is protected from suit by the
statute?  

Bob Morris has done a good job of applying the statute, but Bob--read
the statute again--what facts do we have to believe that either the
driver or the injured party should be exempt from the waiver of
liability even if they were not actually riding?  If they were assisting
a participant then they are "involved in an equine activity".  

The statute says:    

 "Engage in an equine activity" means to ride, train, drive, or be a
passenger upon an equine, whether mounted or unmounted, or to assist a
participant, equine activity sponsor, or equine professional. The phrase
does not mean activity by a spectator at an equine activity, unless the
spectator is improperly in an unauthorized area in immediate proximity
to an equine activity.  

In short, not only do we as riders assume inherent risks, but our crews
probably do too. If the injured party had even been assisting by hosting
the event or doing anything else, he is "assisting a participant".  And
a driver, even if only a real spectator, loses protection if they are
"improperly in an unauthorized area in immediate proximity to an equine
activity".  

What about the little children who carry the carrots to the horses?
Don't laugh, I'm serious!  If the injured party had been a child??? 

Think about that one tonight and I'll check back tomorrow after trial.

Joane White
Attorney at Law
Price, Utah


=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Ridecamp is a service of Endurance Net, http://www.endurance.net.    
Information, Policy, Disclaimer: http://www.endurance.net/RideCamp   
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=