In the horse industry, misunderstandings and myths abound regarding important legal topics. This three-part series of articles explores some common myths in the horse industry. Part one discussed the equine liability acts, part two discussed insurance, part three, the conclusion of the series, will discuss releases of liability.

What are Some of the Myths Regarding Releases of Liability?
Over the years, releases have been the target of numerous misunderstandings. The following are the most common. Over the years, releases have been the target of numerous misunderstandings. The following are the most common.

“Releases are Not Worth the Paper on Which They’re Printed”
Contrary to rumor, most states will enforce written releases (also called “waivers”) of liability used in connection with equine-related activities. The release is someone’s agreement to sign away (or “waive”) what would otherwise be a legal right to sue another for potentially millions of dollars. When a lawsuit is brought involving a release, the courts typically subject the release to very intense scrutiny. Contrary to rumor, most states will enforce written releases (also called “waivers”) of liability used in connection with equine-related activities. The release is someone’s agreement to sign away (or “waive”) what would otherwise be a legal right to sue another for potentially millions of dollars. When a lawsuit is brought involving a release, the courts typically subject the release to very intense scrutiny.

Over the years, many people who use releases have failed to treat them as the very serious documents they are. When this happens, the release can become worthless if a legal challenge arises. Here are a few of the settings in which releases have failed across the country:

The release was poorly drafted and failed to comply with legal requirements of the appropriate state.

The release was signed only by a child under the legal age.

Someone who was not a parent or legally-appointed guardian attempted to sign the release on the child’s behalf.

The release inadequately described risks involved in equine activities.

The stable lost the release and had no record that the injured party ever signed it.

“A Good Release Can Eliminate All Types of Liability”
Even where releases are enforceable, they cannot eliminate liability for everything. Most states, for example, make is unlawful for someone to release another from liability for “gross negligence” or “willful and wanton misconduct.” These legal theories involve serious wrongdoing. Even where releases are enforceable, they cannot eliminate liability for everything. Most states, for example, make is unlawful for someone to release another from liability for “gross negligence” or “willful and wanton misconduct.” These legal theories involve serious wrongdoing.

“A Form Release is Just as Enforceable as One Drafted by a Knowledgeable Attorney”
Some states have unique requirements for language that must be included in releases of liability; the standard, “one size fits all” release forms run a serious risk of missing this language. In California, for example, courts have indicated that releases should state, among other things, that the signer is releasing the other parties from the consequences of their ordinary negligence. Also, most of the 38 equine liability acts across the country require that a specially-worded warning notice be included in contracts and releases. Some states have unique requirements for language that must be included in releases of liability; the standard, “one size fits all” release forms run a serious risk of missing this language. In California, for example, courts have indicated that releases should state, among other things, that the signer is releasing the other parties from the consequences of their ordinary negligence. Also, most of the 38 equine liability acts across the country require that a specially-worded warning notice be included in contracts and releases.

“If I Use a Release I can Cancel My Insurance”
Having a release does not eliminate the need for proper insurance. Insurance is designed to pay for your legal defense and (up to policy limits) settle a claim or pay any damages that you may be legally ordered to pay if you are sued by someone who has signed your release. Unfortunately, even if your state has enforced releases in the past, there is never an absolute guarantee that all courts will accept and enforce your release. Having a release does not eliminate the need for proper insurance. Insurance is designed to pay for your legal defense and (up to policy limits) settle a claim or pay any damages that you may be legally ordered to pay if you are sued by someone who has signed your release. Unfortunately, even if your state has enforced releases in the past, there is never an absolute guarantee that all courts will accept and enforce your release.

“Posting A Sign is the Same as Using a Release of Liability”
Some people believe that releases are unnecessary if they post signs that state: “Ride At Your Own Risk” or a warning sign required under an equine activity liability law. However, as this author mentioned in part one of this series, there are important differences between a sign and a well-written release of liability. While a sign may plainly reveal policy of a person or facility of limiting liability, the injured person often denies having seen or read it. Unlike a sign, a release of liability is an affirmation in writing that a guest or visitor has read, understood, and agreed to release and hold the other harmless from the consequences of negligence or other asserted wrongdoing. Some people believe that releases are unnecessary if they post signs that state: “Ride At Your Own Risk” or a warning sign required under an equine activity liability law. However, as this author mentioned in part one of this series, there are important differences between a sign and a well-written release of liability. While a sign may plainly reveal policy of a person or facility of limiting liability, the injured person often denies having seen or read it. Unlike a sign, a release of liability is an affirmation in writing that a guest or visitor has read, understood, and agreed to release and hold the other harmless from the consequences of negligence or other asserted wrongdoing.

“Children Can Sign Releases”
Children not of legal age (typically, under the age of 18) certainly can sign releases but, to be legally valid in most states, the child’s parent or legally-appointed guardian must also sign on his or her behalf. Children not of legal age (typically, under the age of 18) certainly can sign releases but, to be legally valid in most states, the child’s parent or legally-appointed guardian must also sign on his or her behalf.

“Anyone Can Sign a Release on Behalf of a Child”
The signature of a trainer, uncle, or family friend will not suffice, unless they are a parent or legal guardian who is expressly signing on behalf of a child. As applied to children, the law of releases becomes especially complex. Under the law in many states, even if a child’s parent or legal guardian has signed the release on the child’s behalf, the release might only prevent the parent or guardian from bringing suit on the child’s behalf. years later, typically once the child reaches legal age, he might still be permitted to pursue a lawsuit on his own. States may vary on how old the child must be for this to occur. The signature of a trainer, uncle, or family friend will not suffice, unless they are a parent or legal guardian who is expressly signing on behalf of a child. As applied to children, the law of releases becomes especially complex. Under the law in many states, even if a child’s parent or legal guardian has signed the release on the child’s behalf, the release might only prevent the parent or guardian from bringing suit on the child’s behalf. years later, typically once the child reaches legal age, he might still be permitted to pursue a lawsuit on his own. States may vary on how old the child must be for this to occur.

Conclusion
In conclusion, please keep the following ideas in mind: In conclusion, please keep the following ideas in mind:

  • Our litigious society makes it more important than ever to consider using liability releases, where allowed by law.
  • States have different requirements regarding the enforceability of liability releases and what language they can or cannot include. a small number of states will not enforce releases where recreational activities are involved.
  • Form releases run a serious risk of being unenforceable. Because a release is a very important legal document, it is important to consult with a knowledgeable attorney to draft, review, or update your release.

This article is not intended to constitute legal advice. When matters arise based on specific situations, direct your questions to a knowledgeable attorney.

Julie I. Fershtman, Esq.
About the Author

Foster Swift Collins & Smith PC
One Northwestern Plaza
28411 Northwestern Hwy., Ste. 500
Southfield, Michigan  48034

jfershtman@fosterswift.com 

www.equinelawblog.com | www.equinelaw.net

Myths About Releases or Waivers

Leave a Reply

Your email address will not be published. Required fields are marked *

%d bloggers like this: