Within the Law
WHEN IS A RELEASE NOT A RELEASE
This article discusses the common practice in the horse industry to use the misnomer “release” in connection with a document signed by an equestrian participant.
How many times have you been asked to sign a release before entering a farm or riding someone else’s horse? The document you sign may not be considered a release at all by the legal system.
Technically, a release or “general release” under many state laws is something to be signed after a liability causing event occurs. For example, you fall off a horse and you sign a release from liability for falling off the horse. A release generally states that the signer waives all rights to claims for events which happened prior to its execution. An attempt to release liability from activity which has yet to occur is always subject to attack since a participant can easily argue that they did not know they were signing a release for an unknown future event.
The document you sign when entering a farm or prior to riding a horse is more akin to a “disclosure of dangerous activity” since it is signed prior to a liability causing event and is warning the participant of inherent risks of the activity. A “disclosure of dangerous activity” is aimed at supporting a defense of “assumption of the risk.” Courts have found that the “assumption of the risk” defense applies where injured participants appreciate the danger or should appreciate the danger of an activity, but still choose to engage in the activity. In such situations, courts have found that an individual is prohibited from obtaining damages because of their own decision to engage in the dangerous behavior.
The distinction between the concepts of a “release” and “assumption of the risk” is important when considering the practical effect of each defense in the legal process. When a lawsuit is filed, the defendant (the person accused of wrongdoing) must assert defenses such as “release” and “assumption of the risk”. However, the scopes of these defenses are different. Due to the high cost of lawsuits, equestrian facilities should understand the documents they are asking participants to sign, and take steps to protect themselves in every way possible.
THE TRUE RELEASE
The defense of “release” may be offered to the court early in a legal action by presenting a legal document which conforms to requirements of a release as set forth in state law. A court determines whether a defendant is entitled to have the suit dismissed by examining the language in the release document. If a properly executed release is clear through the language that it covers the injury which took place, a court may decide in the Defendant’s favor.
For this reason, a well drafted “release” document executed after the event occurs is essential to limit liability. A good “release” is specific and spells out and identifies injuries which have occurred. For example, a release may include language such as, “Signer releases Farm Owner from the fall incurred while climbing on a fence at BlackAcre Farm on April 1, 2006.” If a release is specific the court is more likely to find that the injury complained of is barred by the release and consequently dismiss the action. This could potentially save thousands of dollars in court costs, expenses, and legal fees.
A facility would be wise to be educated in the law of contracts and releases including their form and execution in accordance with state law. For example, in many states, a release is required to be signed, witnessed and acknowledged. In addition, an equine facility must be aware of issues including: capacity; the age of majority (the minimum age a person can be legally bound by a legal document); and the period in which to retain the release for at least the statute of limitations for any potential action. An attorney can draft a release specific to the event and can supervise its execution and provide guidance on these legal matters.
ASSUMPTION OF THE RISK
The defense of assumption of the risk in equestrian activities, however, does not usually require a written document. The assumption of risk doctrine is sometimes codified by statute. For example, § 52-577p of the Connecticut General Statutes provides:
Assumption of risk by person engaged in recreational equestrian activities, when
Each person engaged in recreational equestrian activities shall assume the risk and legal responsibility for any injury to his person or property arising out of the hazards inherent in equestrian sports, unless the injury was proximately caused by the negligence of the person providing the horse or horses to the individual engaged in recreational equestrian activities or the failure to guard or warn against a dangerous condition, use, structure or activity by the person providing the horse or horses or his agents or employees.
The statute recognizes that there are inherent risks in equestrian activity, and that the participant who chooses to do so should not be permitted to blame someone else for injuries resulting from their decision. However, the second part of the equine liability statute expressly excepts negligence from its protection. Negligence is a broad concept which refers to the failure to adhere to a reasonable standard of care, which causes damages to person or property. Equestrian facilities should be aware of court cases in which courts have defined this standard of care and its breaches as applied to equine activity.
Although the statute suggests that the defense of “assumption of the risk” is not available where negligence is found, there is, however, another benefit to having an individual sign a “disclosure of dangerous activity” document. In a negligence action, an equestrian facility could argue that since the individual knowingly engaged in the warned against activity and signed a document to that effect, that the injured party at least contributed to injury. To get the full benefit of a contributory negligence defense, a well drafted disclosure should identify as many potential pitfalls as possible including premises liability and specific issues pertaining to horses. For example, “Owner hereby discloses that fences may fall if climbed on” or “Owner discloses that Joe the horse has previously kicked a person”.
A horse by any other name is still a horse. Even though the horse industry calls a document a release, there is a fundamental difference between the legal definition of “release” and its common use in the industry. A release may be able to bar a negligence action whereas a disclosure or document signed prior to a negligent act may not, but the disclosure may help in limiting damages. Wherever possible, an equestrian facility should obtain both a disclosure and a release. The disclosure and release language should be included in all forms of agreement including board agreements, leases, and lesson enrollment forms. The equine facility should continue to review its disclosures and releases to make sure they are specific to its current operation.