Legal – Limiting Liability
When a trainer takes on the responsibility of training a rider and taking care of a horse, it comes with a duty to use reasonable care.
By: Robin Trupp |
When a trainer takes on the responsibility of training a rider and taking care of a horse, it comes with a duty to use ‘reasonable care,’ defined as the care that a reasonably careful person would use under similar circumstances.
For trainers, ‘reasonable care’ includes such things as providing equipment that’s not defective, providing proper supervision of horses, customers and guests at a facility, and matching a rider and horse that have the same level of ability.
But even if such ‘reasonable care’ is taken, there’s always the possibility of an accident or situation that could lead to a lawsuit. And if the property owner is not the trainer, the property owner and trainer will have similar concerns in limiting liability.
With that in mind, depending on the state where a property is located, the owner of the property and the trainer have a number of ways they can take reasonable care and limit their liabilities:
– Place signs where they can easily be seen.
– Language can be included in contracts with customers that would limit the property owner’s and trainer’s liability.
– In some states, a non-minor customer can be asked to sign a release and indemnity agreement, which would typically be enforceable in the event of an accident.
– In a few states, the natural parents of a minor can be asked to sign a similar release and indemnity on behalf of the minor, which would be enforceable if the minor is injured.
The property owner and trainer should also consider a commercial equine liability insurance policy, with the property owner, trainer and staff named as the insured. Make sure you have adequate limits of coverage.
Too often, a property owner and trainer believe that their homeowners or farm policy insurance can be expected to cover any accidents but those policies usually exclude coverage of an operating business, in this case, a commercial equine business. Consequently, if there’s an accident, the insurance company can refuse to cover the claim.
Property owners who intend to allow a trainer to operate a commercial equine business on their property should consider the following issues:
Does the property’s zoning permit the operation of a commercial equine business?
How will the trainer’s business affect the owner’s personal use of their property?
What type of insurance and what amount of coverage will be required to protect the owner from claims that might be made from the operation of an equine business, including claims by the trainer, staff, customers and invitees?
What other forms of signage or contractual releases might be required to limit the owner’s liability?
Also, it’s very important that the arrangement between a property owner and trainer always be covered in a written agreement. Some of the terms to consider in such an agreement should include (but aren’t limited to): the permitted use of the property by the trainer’s operation; the length of the arrangement, payment terms, amount of payments and the amount of a security deposit; the party responsible for the maintenance and upkeep of the property; a disposal plan for bedding and waste from the horses; the types and amounts of insurance which the trainer is required to have, naming the owner as an additional insured; a requirement that the trainer have workers’ compensation insurance and an additional umbrella policy; an agreement by the trainer that indemnifies and holds harmless the owner in any litigation relating to the trainer’s business; the owner’s ability to assign its interest in the agreement in the event of a transfer of ownership of the property and a probation from the trainer’s ability to assign its interest; the requirement that the trainer secure written agreement and releases from customers in a form and content acceptable to the owner; and a default provision to define breaches of the agreement and owner’s remedies, including the entitlement to attorney’s fees and costs in the event of a default.
At the same time, make sure these releases and indemnifications are in compliance with your state’s Equine Activity Liability Laws. The laws may also have a bearing on posting of signage, and may require certain language in contracts with customers.
Finally, have an expert review your insurance policies, to make sure they adequately cover a commercial equine business.
Of course, this all gets a bit more complicated if your business is done in more than one state. If a trainer takes customers to other states, as an example, the trainer should be sure to be in compliance with the laws of any state being visited regarding the limiting of liability.
Attorney Robin Trupp is a partner in the Tampa and West Palm Beach offices of Arnstein & Lehr. A lifelong horseman, he has competed in the American Gold Cup and the American Invitational and was a candidate for the Pan American Games before pursuing a career in law. He has over 30 years of experience representing veterinarians, horse show managers, buyers, sellers, and riders. Email: RSTrupp@arnstein.com