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Although
it is absolutely essential to have an attorney in the state where the release
will be used review the release, that will not always solve all of the problems
that can arise related to that document.
An
attorney should review the release because many states have statutory language
that is required to be in any release or waiver of liability for it to be valid.
This is not simply language that may be required by some of the 44 equine
activity statutes but language that will apply to any release from a particular
state. Such language is not unusual
and it can differ widely from state to state.
An
attorney who may be extremely capable of evaluating a release in general
practice may have no idea of the existence of the equine activity statutes so it
may be necessary to call them to the attorney’s attention.
Many
attorneys are accustomed to dealing with negligence suits that deal with planes,
train, and automobiles. We know
what the risks are there. However,
due to the changes in our society we can no longer assume that horsemanship
forms a part of the collective consciousness.
Many people wanting services of equine professionals do not have any
knowledge of horsemanship and even less of the risks.
They have watched movies and television shows in which horses have fallen
with people, on people, have dragged people, and kicked people, yet the people
all get up and walk away unless they are suffering from lead poisoning caused by
a bullet. A release may fulfill all
of the general statutory language of some states, assuming no equine statute
requirements, and never even mention horses more than in the title of the
activity, “a trail ride.” This
type of release could be the test case for the issue of how much one needs to
say about the risks. It is not good
to be the test case if it is your release.
A
release is nothing more than a type of contract in which one party (the
customer) agrees to assume the risk of liability normally born by the other (the
professional). Many courts will not
allow a professional to shift the risk to the customer unless the customer
understands the risk he or she is assuming.
In 1950 one could assume that the dangers of horse-related activities
were known to everyone. Now many
people view horses as if they were all My Friend Flicka. Many people believe that a well-trained horse will not buck,
bite, kick, or run off. Today’s
recreational customers often do not understand the risk.
A
release can also function as notice to the one who signs it. This allows the professional to inform the customer of the
risks he or she is about to undertake. This
notice is important because no one can consent to assume a risk that is not
understood. This is “informed
consent” and it is necessary that the release fulfill this task also.
In
order to get the appropriate information into the release it may be necessary to
tell the attorney that this release must inform the customer of the risks of the
particular horse activity. Some may
be required in the activity statute of the particular state.
Additional risks may need to be added for special activities such as
trail riding, jumping, roping with its special risks, or anything with cattle.
After the accident when one says, “I never thought of that,” it may be too late. Many of the equine activity statutes refer to the inherent risks as being related to the reactions of the horse to different stimuli. They do not say inherent risks of roping, jumping, or back-country trail riding so it seems that risks posed by those activities themselves and others like them would require a warning to the customer. Maybe not, but if one guesses wrong, one is left with a worthless release.
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