Montana: A Lawyer's Challenge

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

Ridecampers:

As I left this morning, I paused to read Ridecamp and saw Jim's sister's
message on his condition.  I'm sure it has haunted all of us today. 
After reading Jean's post, I thought I should backoff this thread but
after seeing the fears of the Ride Managers, I think it is even more
important to continue.  

The whole purpose of this mental exercise is to help determine how to
avoid injury and to understand the risks we are assuming if we choose to
participate in this sport.

It had been my plan to address the position of the rider/participants
tonight, but I think I'll shift gears and talk about the position of the
Ride Managers and other "Equine Activity Sponsors".

It is my opinion that the average equine liability statute was most
intended to protect the nonprofessional sponsors of equine events. 
Since that group is essential to the operation of most amateur sports,
and since that group had often risked their own assets to offer
activites for the good of the general public, many states began creating
statutes to protect such sponsors in many different types of sporting
events--particularly dangerous ones. This same type of statute was also
created to protect the good samaritan who acted to help injured people.
From what I have found so far, 43 states have now pasted Equine
Liability Statutes in one form or another.  You should all know your own
and its separate requirements.

The Montana Statute provides:

> 4) "Equine activity sponsor" means an individual, group, club, partnership, corporation, or other entity, whether operating for
profit or nonprofit, that sponsors, organizes, or provides the
facilities for an equine activity. The phrase includes but is not
limited to pony clubs; 4-H clubs; huntclubs; riding clubs; riding
classes and programs; therapeuticriding programs; operators,
instructors, and promoters of equine facilities; stables; clubhouses;
pony ride strings; farms; ranches; and arenas. <


While some of our Ride Managers might also be Equine Professionals
within the meaning of the statute, most of the RM's are just sponsors
and are given the maximum protection.

That protection says that a person may not sue the RM for injuries that
are an inherent part of our sport or that should be obvious, expected or
necessary to participation in the sport. There is an exception but we
will discuss that in a few moments.

So, what risks are inherent in our sport?  Just about everything!  As my
nonhorsey hubby points out, "those horses will bite you, kick you, buck
you off, step on you, and even kill you!" What other risks are obvious?
How about getting lost, dying of dehydration, falling off of cliffs,
rolling down mountains, getting buried in spring snowfalls in Nevada and
dying of hypothermia!  Just look back at your own ride stories.  Is
there anything that couldn't happen on one of these rides?

The statute goes even further than my imagination to protect the RM.  It
adds some very specific risks that are assumed by those invloved in the
event:

> 7) "Risks inherent in equine activities" means dangers or conditions that are an integral part of equine activities, including but not
limited to: 
 
  (a) the propensity of an equine to behave in ways that may result in
injury or harm to or the death of persons on or around the
equine; 
 
 (b) the unpredictability of an equine's reaction to such things as
medication; sounds; sudden movement; and unfamiliar objects, persons, 
or other animals; 

 (c) hazards, such as surface and subsurface ground conditions; 
 
 (d) collisions with other equines or objects; or 
 
 (e) the potential of another participant to not maintain control over
the equine or to not act within the person's ability. 
 
 Mont. Code Anno., s 27-1-726 (1993) <


Please take a very close look at subsections b, d, and e.  It is my
opinion that a truck coming out of nowhere directly onto the ride course
and the effect of that object on racing horses and riders is just the
type of inherent risk the statute is addressing. 

What does that mean?  That NO person (within the scope of the statute)
who sustains an injury from such a risk can hold the RM responsible. 
Such a suit would be barred.

I told you there is an exception to this protection.  This exception
exists in many different types of statutes.  It is intended as good
public policy--Do not let Liability Limiting Statutes become a license
to be negligent.  

Does this mean that a RM who puts the finish line to close to a road is
liable? No!  In fact, although the Statement of Purpose in this statute
is fairly broad, the actual statutory language (the real law) limits the
RM to only very specific acts of liablity:

The protection would be waived:

> (a) if the equine activity sponsor or the equine professional: 
    
     (i) provided the equipment or tack and the equipment or tack caused
the injury because the equine activity sponsor or equine professional
failed to reasonably and prudently inspect or maintain the equipment; 
 
     (ii) provided the equine and failed to make reasonable and prudent
efforts to determine the ability of the participant to safely engage in
the equine activity and the participant's ability to safely manage the
particular equine based on the participant's representations as to the
participant's ability; 
 
     (iii) owned, leased, rented, or otherwise was in lawful possession
and control of the land or facilities upon which the participant
sustained injuries caused by a dangerous latent condition that was known
or should have been known to the equine activity sponsor or the equine
professional; 
 
     (iv) committed an act or omission that constituted willful or
wanton disregard for the safety of the participant and the act or
omission caused the injury; or 
 
     (v) intentionally injured the participant; or 
 
(b) in a products liability action. <

In short, in Montana, RM's are not liable for anything that they cannot
directly control.  In other states, the more general negligence standard
is used but even then the actions of the RM are judged against the
actions of other "reasonable ride managers".  

Who determines what is reasonable in our sport?  WE DO!  What would it
take to prove neglience against a RM in a courtroom? Other good Ride
Managers describing what their standard of care is and how a negligent
RM's actions were substandard and fell below that standard. Showing
clear and dangerous violations of AERC safety rules might do it. What
are the chances of that happening?  Unless the conduct fell so low that
all of you could reach a general consensus, then I think there would be
no chance in a courtroom even if the facts were undisputed.  Now add
highly disputed facts and you can imagine how difficult such a burden of
proof would be.

So now that the Ride Managers can catch their collective breathes and go
back to planning their rides, we will address the riders' position under
the statute next time.

Joane White
Attorney at Law
Price, Utah


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