Legal Evaluation--Rider

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

Hi Ridecampers,

When I started this evaluation, I had made a cursory review of Montana's
statute and was familiar with several others which seemed similar at
first blush.  It was not until I started this portion on the Position of
the Rider under Equine Liability Statutes that I realized that the
Montana statute really didn't grant any protection from suit to the
rider! In fact a special clause on the duty of the participant to act
reasonably and keep the horse under control was something I had not seen
in any of the other statutes I had read.

The general purpose of most Equine Liability Statutes (ELS) is to waive
liability for all equine related injuries for all people who are
involved in equine activities. That waiver makes everyone feel safer
about being involved in such activities because it limits their personal
risk for injuries to others.

When I realized that the Montana statute did not expressly waive
liability for riders, it caused me to decide to review a number of
statutes from other states.  After doing that, I have concluded that
most state statutes protect the rider from suit just as they do the
equine sponsor and the equine professional.  The following is an example
of the more common version of the statute (Florida--for Truman):

"an equine activity sponsor, an equine professional, or any other
person, which shall include a corporation or partnership, shall not be
liable for an injury to or the death of a participant resulting from the
inherent risks of equine activities and, except as provided in s.
773.03, no participant nor any participant's representative shall have
any claim against or recover from any equine activity sponsor, equine
professional, or any other person for injury, loss, damage, or death
of the participant resulting from any of the inherent risks of equine
activities."



The above is the more typical language and such language makes it clear
that neither the rider or participant, or their representatives can sue
anyone for injuries that are inherent in the sport.  NOW LOOK AT
MONTANA'S STATUTE!


"an equine activity sponsor or an equine professional is not liable for
an injury to or the death of a participant engaged in an equine activity
resulting from risks inherent in equine activities." 

PLEASE NOTE THAT THE LANGUAGE "OR ANY OTHER PERSON, CORPORATION OR
PARTNERSHIP"  IS MISSING FROM THE MONTANA STATUTE. The confusing element
comes from the fact that the purpose stated in the Montana statute uses
the word "person" but when you get to the actual section that limits
liability, it only limits it for the equine sponsor and equine
professional.

One additional paragraph is also added to Montana's statute and I can
only find a few others that have something like this paragraph at all.
The other statutes that do use this phrase have it in an assumption of
the risk provision and not as a duty statement for the participant.  In
my opinion, the Montana statute creates an express duty on the rider:

"An equine participant shall act in a safe and responsible manner at all
times to avoid injury to the participant and others and to be aware of
risks inherent in equine activities."


In short, participants (which does appear to mean riders in Montana)
assume the risks inherent to the sport for their own injuries but do not
have the protection from liability like sponsors and professionals. The
duty created by the statute also implies that suit against participants
for their negligent conduct will be allowed under Montana law. The
statute really is a bit schizophrenic to say the least.  This is the
kind of thing that happens when a form statute is sent to a legislature
and then someone starts amending it without really thinking the changes
through carefully. It is possible that the Montana courts will interpret
the statute in a way that may remove the conflict between the purpose
and the enacting clause, but don't hold your breath that such will
happen quickly.

It is not my intent to evaluate specific rider/participant actions. 
Negligence is a jury question.  You are not a jury!  You have neither
the benefit of trained legal representatives to present both sides of
the case to you nor do you have the advantage of being able to view
witness and determine the bias and credibility of same. Leave judgment
to those who are in a position to evaluate all the relevant facts from
firsthand sources.  Instead consider what the language in the Montana
statute means to you as a rider:

1.  You assume the risk for your own injuries and that of your horse. 
Are you prepared to do that?  Have you even considered what that might
involve?

2.  In at least some venues where you ride, you may also be subject to
suit for your negligent acts and omissions by at least nonparticipants
and maybe even some fellow riders. Are you prepared to handle that
situation if it occurs.


Let us turn first to your "Assumption of the Risk".  Even in states that
have not adopted specific equine liability statutes, most common law
doctrines treat equine related injuries as something the rider assumed
could happen when he got on a horse.  In states with ELS, injury to the
rider is generally covered specifically (Illinois ELS): 

"Each participant who engages in an equine activity expressly assumes
the risk of and legal responsibility for injury, loss, or
damage to the participant or the participant's property that results
from participating in an equine activity"

Additionally, the waivers we sign are generally binding in most states
for injuries that are equine related, even those involving children. 
Some states have express statutes making equine waivers binding even
when other types of waivers may not be:

"Each participant, or parent or guardian of a minor participant, may
execute a release assuming responsibility for the risks of
engaging in equine activities...A release shall remain valid until
expressly revoked by the participant or, if a minor, the parent or
guardian." 

Are you really ready to "assume of the risk" for yourself or your child?
This does not mean that you present a stiff up lip if you get kicked or
bucked off.  This means that you are assuming all responsibility for
your own medical expenses, lost work, economic impact on your family
and/or business, and the possibility of permanent debilitating injury. 
In my opinion, no one should be in this sport unless they have at least
major medical insurance coverage. You can pay the medical bills for a
broken leg yourself but you cannot be self-insured for medical bills
involving serious catastrophic injury.  

Imagine being lifeflighted out of the desert on a ride--average bill:
$6000 and up.  Emergency surgery and hospital stay for internal
injuries: $50,000 and up.  Treatment for spinal injury and/or traumatic
brain injury $250,000 and up. If you don't have adequate medical
coverage, you are not "self-insured" you become society-insured. Those
are also the situations where lawsuits and third party responsibility
become very important.  It often comes down to who becomes responsible
to pick up the risk when you didn't.

If you do have good medical insurance, have you thought about the fact
that you are away from your normal contract/preferred providers at most
rides and you will have a higher share of the expense than if you were
in your own area?  If you are part of a managed care system in
California, do you know where you can get treatment if you are injured
in the middle of Utah doing the Outlaw Trail? How much more will it cost
you out of your own pocket? These are basic questions you need to ask
your medical carrier.  

Are you also prepared to assume the risk for treatment for your horse. 
Do you have adequate means to get your horse the care she may require?
The ride vet is not at the ride to provide free treatment for your
horse. 

These items are ultimately your responsibility!  Don't expect anyone
else to assume that responsibility for you.  Some rides in some states
may have some coverage for rider injuries but as you can see from the
recent posts, most ride policies are based solely on issues of
negligence-related liability and will not give you any relief from
medical providers who expect payment for their services now.

Many people have at least basic medical insurance and perhaps a little
life insurance if they die while participating in this sport.  Social
Security would help raise our minor children at least.  BUT, if you are
seriously injured and survive--how many of you are prepared for that
possiblity?

What happens when you get out of the hospital?  Did your business
survive?  Did your employer give up waiting for you and replace you with
someone who doesn't ride a horse?  Is your home mortgage past due or in
foreclosure?

What happens if you cannot return to your former employment at all? How
will you retrain yourself and find a job?  Disability is a real risk in
this sport and most people are not prepared for it.  Those that do have
disability policies find they often don't cover the first month or two
of an injury.  Be prepared or be very sorry.

When you agree to assume the risk make damn sure you mean it because
under the law of most states, you don't get a chance to change your
mind.


Our second area of rider concern is the very real threat that in some
venues, we may be held liable for our actions or those of our horses. 
Although the Montana statute appears to be more of an exception than a
rule, many of the states only protect riders from suits by other riders
or participants in the equine activities.  It does not protect the rider
from injury to spectators, other trail users, motorists etc.  If my
horse spooks onto a road and into a car, it is very likely I'm going to
be held liable (or at least my estate will).  How does your horse react
to mountain bikes, ATV's and hikers?  They are not in "equine related
activities" and they are not spectators in the wrong place.  In my
opinion, suits by those groups of people are very real threats and many
of them don't like us to start with.  Are you prepared to self-insure
and self-defend?  

One Ridecamper wrote to me about a suit by a neighbor.  Although the
equestrian prevailed and her insurance company defended her, the entire
process was very traumatic.  Imagine how much more traumatic if she had
been paying those defense bills out of pocket.  She went through a full
jury trial--in Utah plan to spend $7500-12,000.  In California that
figure could be 3 or 4 times higher.  Most homeowner's policies can be
expanded to give you liability protection for your equestrian activites.
Some have a Hobby Farm rider. My separate farm/ranch liability policy
was only $180 for the year which was a lot cheaper than insuring my
cars.  

Many companies offer umbrella liability policies that protect you beyond
your other basic policies and provide an additional tier of coverage
over all of your activities i.e. driving, recreational vehicles, horses.

Do I like insurance companies--about as much as most people like
lawyers!  Do I think they are all the same--absolutely not.  Do I think
they are necessary--very much so.  First deal only with a solid company
and that does not mean the ones whose name you recognize from TV. 
Actually, they are often the worst.  I mean the ones that have a good
reputation for handling equine related issues.  Second ask tons of
questions.  If your agent cannot answer them, find one who can and
will--in writing. Read you policies when they arrive and make sure they
are as promised.  Know exactly what to do if something happens at a
ride.  

As we have seen in the Ridecamp posts, some states have strange
exclusions for equine activities.  If there is a demand, there will be a
supply--find the insurance carrier who will insure for the exclusion. 
It is often available if you just ask.

How much liability insurance do you need?  Enough to cover any damage
you do.  If you are inadequately insured then your own assets are at
risk. You should seriously consider discussing your needs with your own
attorney who is licensed for your state.  

This evaluation was not intended to spook you; it was intended to make
you think.  We are much to casual about the inherent dangers in our
sport.  We address the dangers of riding in cars, flying in planes and
other such hazardous activites by preparing ourselves but statistics
suggest that horse related activities are really more dangerous in
comparison.  We are often glib and even ostrich-like when it comes to
preparing for the risks which we so blindly and so irrevocably assume.

My research has yielded some interesting new statutes that are clearer
and more equine user friendly.  In the last installment, I'll share some
of the better statutes so that you can become more involved in helping
pass legislation that makes common sense for our sport.

Joane White
Attorney at Law
Price, Utah
Lyoness@Castlenet.com


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