Clackamas County 4- H Oregon City, Oregon. Oregon s Equine Inherent Risk Law: An Overview. February 12, 2014

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1 An Overview Clackamas County 4-H Meeting Canby, Oregon February 12, 2014 ORS Only applies to certain injuries/harm Only protects certain people/entities Each state s equine inherent risk law if it has one - is somewhat different 2 Shows, fairs, competitions, performances or parades involving any or all breeds and any discipline Training, grooming, breeding and teaching activities Boarding Riding, inspecting or evaluating an equine belonging to another Rides, trips, hunts or other activities of any type sponsored by an equine activity sponsor 3 1

2 Individual, group or club, partnership or corporation Whether for profit or non-profit Sponsors, organizes or provides facilities for an equine activity 4 Pony clubs 4-H clubs Hunt clubs Riding clubs School & college sponsored classes & programs Therapeutic riding programs Operators, instructors, and promoters of equine facilities Stables, clubhouses, pony ride strings, fairs & arenas 5 Person paid for: Instructing a participant Renting an equine for purpose of training, driving, grooming or being a passenger upon an equine Renting equipment or tack to a participant 6 2

3 Any person amateur or professional who directly engages in an equine activity Does not matter if pay to participate Does not include: Spectators Someone who participates in the equine activity but doesn t ride, train, drive, groom, or ride as a passenger 7 Help Courts Determine Liability: Define circumstances under which people responsible for equines may or may not be liable for harm 8 Limiting Liability for Equine Inherent Risks: Not liable for harm sustained solely as a result of risks inherent in the equine activity, insofar as those risks are, or should be Reasonably obvious Expected Necessary 9 3

4 Persons who are negligent and cause foreseeable injury to a person engaged in those activities, bear responsibility for that injury in accordance with other applicable law 10 Equine activity sponsors or equine professionals are not liable for a participant s injury or death arising out of riding, training, grooming, or riding as a passenger upon an equine 11 Participants or their representatives may not sue or recover money from an equine activity sponsor or an equine professional for participant s injury or death arising out of riding, training, driving, grooming or riding as a passenger upon an equine 12 4

5 Nothing limits the liability of an equine activity sponsor or an equine professional if the sponsor or professional: 1. Commits an act or omission that constitutes willful or wanton disregard for the safety of the participant and that act or omission caused the injury 2. Intentionally injures the participant 3. Provided the equipment or tack and failed to make reasonable and prudent inspection of the equipment or tack, and that failure was a cause of the participant s injury Provided the equine and failed to: a. Make reasonable & prudent efforts to determine the participant s ability to safely ride, train, drive, groom, or ride as a passenger upon an equine or b. Determine the equine s ability to behave safely with the participant & determine the participant s ability to safely manage the particular equine 14 Equine activity sponsor or equine professional owns, leases, rents or in possession of the land or facilities 1. Where the participant was injured 2. Injury was because of a dangerous hidden condition known to, or should have been known to, the equine activity sponsor or equine professional 3. There were no signs conspicuously posted warning of the dangerous condition 15 5

6 Liability limitations apply to adults when: 1. The sponsor/professional provided the equine & failed to determine participant s ability, equine s ability to behave safely and the participant s ability to safely manage that equine IF Before riding, training, driving, grooming, or riding as a passenger upon an equine 3. Signs a release saying that as a condition of participation, the participant waives the right to sue the professional or sponsor for any injury or death arising out of riding, training, driving, grooming or riding as a passenger upon an equine 17 Are you providing equines for participants to ride? Who s horse is it? Who is making the decision whether the participant will ride any particular horse? Are you involved in that process? Are you making suggestions? If so, you have a duty to the participant to reasonably determine: Rider s ability to ride safely ride Equine s ability to behave safely with the rider Rider s ability to safely manage that particular equine 18 6

7 Are you providing equipment or tack? Who s equipment or tack is it? Who is making the decision whether the participant use that particular equipment or tack? Are you involved in that process? Are you making suggestions? If you re not, should you be? Are you allowing someone to use inappropriate equipment or tack? If so, you have a duty to the participant to reasonably inspect the equipment or tack What condition is it in? Is it appropriate for the particular use or situation needed? Too much bit or too little? Does it fit? Is it applied or adjusted correctly? 19 Do you own, lease, rent, or otherwise possess the land or facilities where participants are engaging in equine activities? If so, you have a duty to inspect the premises & warn of any dangerous, hidden conditions Have you reasonably inspected the premises? Are there any dangers you know of? Are there any dangers you should know of? Do you have a sign posted warning of any hidden danger(s)? 20 Only protects certain people from liability Only protects equine professionals & equine sponsors from liability Doesn t help the average horse owner avoid liability Only applies to certain classes of people in certain situations Only applies to participants, not spectators Does not provide a legal defense to all claims Negligence Does not provide for payment of attorney fees in defense of a claim Unless insured or there s an indemnity clause in your contract, you ll have to pay for your own legal defense Unless there s a prevailing party clause in your contract or certain statutes apply, you re unlikely to recover your attorney s fees from the loser if you win Does not pay for a judgment if one is entered against you 21 7

8 May provide an affirmative defense to the injured person s claim(s) Very fact specific inquiry May discourage someone from suing you 22 Liability is not automatic! If there is no legal duty to look out for someone else, then there is no liability If you have a legal duty to look out for someone else but you did not breach that duty, then there is no liability Remember - accidents happen! 23 Exercise sound judgment: Pairing horse/rider together Schooling horse/rider for any particular event What is your background in that discipline/event? Do you have the qualification and skill to teach it appropriately? Pairing horse/equipment & tack together What is your background in using that equipment & tack? Do you have the qualification and skill to appropriately select, apply, use, or show the participant how to use it? 24 8

9 Obtain adequate insurance coverage Consider liability waiver/release 25 Premises Liability Home, farm, ranch, or agricultural property owners Commercial Liability Trainers, boarding facilities, & other businesses & groups Professional Liability Trainers, sales agents, & brokers Equine Liability Horse owners & lessees 26 Insurer pays for your legal defense Note: Are your costs of defense included within your policy s coverage limits? Insurer pays settlement proceeds (if any) Insurer pays a judgment entered against you (if any) up to policy limit 27 9

10 You don t need liability insurance if you have a liability release You don t need liability insurance because your state has equine inherent risk laws Your organization or group doesn t need a commercial liability policy because it is a non-profit or volunteer-based You don t need an equine liability policy because your homeowner s policy will cover you if your horses cause harm 28 Factors to Consider: Type of Activity How high is the risk of harm? Level of Activity Is it continuous or occasional? What is the volume of activity? Your Net Worth How much do you stand to lose? Your Own Aversion to Risk How willing are you to take the chance? Cost of Insurance Premium(s) How much are you willing to pay to obtain appropriate insurance coverage? 29 Create affirmative defense(s) to liability Defendant affirms or accepts that harm occurred, but has evidence barring or preventing plaintiff s claim Prevalent in equine industry: Assumption of Risk Plaintiff knowingly enters into dangerous situation Oregon requires express assumption of risk Waiver Plaintiff voluntarily relinquished a known right (i.e., right to sue) Provide winner in litigation with right to recover attorney fees & costs from loser 30 10

11 Public policy imposes limits on scope & enforcement of liability releases Can t disclaim liability for Gross negligence Reckless disregard for others Willful or intentional misconduct Knowing or intentional harm to others Criminal activity 31 Risks causing harm were specified and included in the release Generic, horses are dangerous, isn t very helpful Specific, horses may buck, rear, bolt,. is better Signed by the correct person(s) Does the person have the legal right or authority to sign on behalf of someone else? Signed by the correct person in the correct capacity Is someone signing on his own behalf, or on behalf of a separate entity? Releases the correct people or entities Landowner(s)? Business, Trust, Individuals, etc. Business and its owner(s)? Boarding Facility, Trainer, etc. Horse owner(s)? Lease, school horse, rental horse (trail rides, horse camping, etc.) 32 Children under 18 are too young to enter into an enforceable contract Contract is voidable by the child Child can chose to get out of the contract Exception = child is emancipated or married No parent can sign away a child s rights A parent can only sign away his/her own rights, not child s or other parent s Both parents should sign liability release for a child Exception = single parent where other parent has given up custody of or parental rights to child 33 11

12 $PVME ZPV CFO GSPN UIF TFSWJDFT P Clackamas County 4- H Oregon City, Oregon FRVJOF MBX BUUPS Oregon s Equine Inherent Risk Law: An Overview 7*4*5 64 0/-*/& 1/8&26*/&-"8 $0.,)"--!1/8&26*/&-"8 $0. "11&"-4 ¼ #0"3%*/( ¼ #3& Vague or ambiguous #64*/&44 "%7*4*/( Open to multiple interpretations 1 0 #09 Warning! Courts interpret vague or ambiguous language against whoever wrote the contract, so be careful! ¼ $0-- No warning of type of harm that occurred )034& */+63*&4 ¼ -&"4&4 ¼ -*5*( No signature(s) 08/&34)*1 3&(*453"5*0/ Wrong signature(s) Injury occurs before the release is signed "44&44.&/5."/"(&.&/5 Hard to understand legalese Inconspicuous, fine print ) * # &(0/ Be thorough, specific 53"*/*/( ¼ 7&5&3*/"3:." Copyright Kathryn A. Hall PC. All Rights Reserved 35 Copyright Kathryn A. Hall PC. All Rights Reserved. February 12,