Legal Considerations of Having Children and Dogs at the Barn
Some stables have a “no dog” rule, but it’s difficult to have a “no children” rule. Learn how to protect yourself and your guests, with sensible barn rules.
By: Catherine E. Willson |
Horseback riding is an inherently risky activity. Even with well-trained and attentive stable operators and staff, a certain amount of risk must be accepted by any rider. Horse participants often come with family members, including children and dogs. Some stables have a “no dog” rule, however it is very difficult to have a “no children” rule and keep your customers happy. In addition, many stables hold summer camps to help pay the bills and what we affectionately used to call “barn rats” will descend on a stable for a period of weeks through the summer to fall in love with horses, cats, dusty arenas, sunny fields and generally, learn about responsibility while having fun.
In my time, precautions were few other than common sense. We jumped bareback onto horses in fields, played with horses in their stalls, ran with horses in the arenas, and got up to all sorts of mischief that did not, fortunately, get us killed. Today, things are different. Stables have to be far more careful and ensure that children are properly supervised and educated so that avoidable accidents do not occur.
Stable Owners’ Duty of Care
In the case of a mishap causing injury or death, a stable owner or operator cannot be held responsible for the damages suffered by the injured party unless the injured party can prove that:
a) the circumstances of the mishap were addressed directly in the contract between the stable owner/operator and the injured party; or
b) the mishap was caused in whole or in part by a failure on the part of the stable owner/operator (or his staff) to take reasonable and proper care of the guests and horses.
The first point, liability established by contract, means that there is a contract, written or oral, between the stable operator and customer in which the stable operator promised something that proved untrue, resulting in the damages incurred by the customer. As an example, a stable operator may use a boarding agreement. The boarding agreement, a contract between each boarder and the stable operator, states that there are certain rules for riding in the arena that must be obeyed by all riders. If the stable operator then does not enforce those rules and a rider is hurt as a result, the stable operator could be liable for his damages based on a breach of contract.
The second point relates to ‘negligence’ (failure to take proper care), or the failure of stable owner to take reasonable care to prevent injury or damage to his or her customers or the customers’ horses and property in the stable’s care. A stable owner is not a guarantor or an insurer of health or safety and will only be held liable for a mishap if it was caused by a failure on the part of the stable, or their staff, to take reasonable and proper care. If the stable owner or their staff is negligent, the stable will be responsible for the damages. What constitutes a reasonable standard of care will depend on the particular facts of the situation.
When it comes to kids, this society and its courts, are very protective. In Ontario, we have the Horse Riding Safety Act, 2001, S.O. 2001, c.4, which requires commercial stable operators to ensure that all children wear protective helmets, hard-soled footwear with a heel of no less than 1.5 cm, and use appropriately-fitted tack on the horses. Although Ontario is the only province with legislation, consider this standard effective throughout Canada as a current industry norm.
In this world, we wear helmets to ski, bike, white water raft, rock climb, and a hundred other activities. The Court will not accept a child rider without an appropriately-fitted and sanctioned helmet. I would take that one step further and argue that helmets should be worn by children under a certain age when in the barn at all times. The danger is no less real when the child enters a stall with a horse, grooms a horse, takes a horse out to a paddock, or plays with the horses in a paddock. These are all foreseeable situations in which a helmet could prevent a grave injury to a child.
The stable owner owes a duty of care to the people entering their property. In Ontario, for example, this duty is legislated by the Occupiers’ Liability Act. In this case, the standard of care required is enough to ensure that persons entering on the premises, and the property brought onto the premises by those persons, are reasonably safe while on the premises. This duty of care applies whether the danger is caused by the condition of the premises or by an activity carried on at the premises. It does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case, the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his property and to not act in reckless disregard of the presence of the person or his property.
Stable owners/operators are free to restrict, modify, or exclude this duty of care through the use of a written waiver. Waivers can limit your liability even in situations of negligence. Again, written waivers are becoming the norm in our industry and any waiver you use should be reviewed by a lawyer to ensure that it is sufficiently comprehensive and will survive the scrutiny of the Court.
It is not just the horses that stable operators should be concerned about regarding kids. What does your property look like? Do you have ponds or pools within walking distance of the stables? If you permit the children of boarders onto your property, little children can wander away and find that pool or pond. It only takes a minute for a child to drown. Accordingly, and this is legislated in many municipalities, if children are permitted onto your riding establishment, you must protect them from water hazards. Pools should be fenced with gates that are locked. Ponds should be fenced, or at the very least, some forethought must be applied to ensure that a small child cannot wander into or near it when the parent is distracted with their horse. Also consider ravines, dangerous equipment such as manure spreaders, tractors, etc. If you were a young child and your mother was distracted with her horse, what trouble could you get into at your farm? Plan accordingly and prevent accidents.
Canine Concerns at the Barn
Although we love them both, horses and dogs do not always get along. A dog shown a horse for the first time will often bark and may even attack the horse. If a horse is being ridden on a road when startled by the approach or attack of a dog, the results can be tragic. It is important for both horse and dog enthusiasts to understand how Courts apportion liability in situations where dogs and horses interact negatively.
In Canada, the law of dogs and horses relies mostly on the common law, which is the law developed by the Courts. Two legal doctrines apply for the most part: negligence, which we discussed earlier; and scienter.
The doctrine of scienter states that where a person is in control of a domestic animal and has knowledge of a dangerous trait possessed by that animal, that person will be held strictly liable for any injury caused by the animal as a result of that trait. This doctrine can be used by a victim of an attack against the animal owner where the attacking animal is previously known to be vicious. It can also be used as a defence by the animal owner if the attacking animal had no history of violence.
The doctrine of scienter was used in the Saskatchewan decision of Ross v. Vidnes (2012) S.J. No. 496. The defendant had a large St. Bernard that was known to be difficult to control and had been subject to several complaints of it running at large in the past. The plaintiff, a seven-year-old boy, was also known to have provoked the dog on at least one occasion in the past by hitting it with a metal rod. One day the boy, who had been playing at the defendant’s house, came back to retrieve his skateboard. A window was missing near the screen door and the dog lunged through and bit the boy in the face. The defendant was held liable in scienter due to the defendant’s knowledge of the dog’s aggressive tendencies and the plaintiff’s prior provocation.
Most Canadian provinces have introduced legislation that takes away the doctrine of scienter as a defence to a dog attack. Provinces and territories have introduced statutes that do away with the requirement of knowledge of viciousness for liability; much of this legislation is specific to dogs.
In Ontario, for instance, the relevant statute is the Dog Owners’ Liability Act, R.S.O.1990,c. D.16 (the “Act”). The Act goes well beyond the doctrine of scienter in that every dog no longer gets one bite and propensity to attack is no longer relevant to liability. So long as there is an attack, the owner is assumed to be liable for any resulting injuries. “Owner” includes a person possessing or harbouring the dog. This could lead to some interesting findings of ownership. As owners are jointly and severally liable for damages, an injured party who fails to collect from one owner may collect the entire amount from any co-owners, including, for instance, a dog walker, if the Court considers him or her to be caught within the definition of “owner”.
In summary, there are problems that can occur when guests bring their kids and their dogs to your farm. I cannot provide you with solutions; the best advice that I can give you is to sit down with a cup of coffee and think about it. Are your horses properly confined? Are your barns in good condition? Are riding areas safe and separate from areas frequented by spectators? Are obvious hazards made off-limits to children? Some risks are inherently assumed when one enters a stable. Each case will be judged on its own facts.
Carry comprehensive insurance at monetary levels suitable to your business. No matter how careful your operation, mishaps can occur. Without a good insurance policy, you risk all of your savings and future opportunity.
Do an annual or semi-annual inspection of the stable property. Role-play when you do the inspection. Look at the barn as a child would see it, as a guest without any horse experience, as a lawyer, as a dog, etc. Where are the trouble areas? Look at loose hardware, traffic areas, feed rooms, storage of poisons, fire safety, barn rules, arena rules, etc. In short, troubleshoot and fix all problems that you can find. Try to make your farm as safe as you can. Write down your inspection date, what you did, your findings and your fixes and file this document. If you do get sued, a Court will be impressed by the care and attention you do give to your operation and will consider it in your favour.
Make barn rules and enforce them. Don’t let people get sloppy. The rules are there for good reasons.
Consider written waiver agreements for boarders, students, and guests. Waivers can limit your liability. Get legal advice and consult your insurance broker.
We are not trying to take the fun out of riding; we are simply putting the safety into it. In a world where people are increasingly losing touch with their rural roots, it is our job to educate and keep them safe so that they can enjoy and fall in love with our sport and lifestyle.