For some it may be advisable to form a limited liability entity, such as a corporation or limited liability company (LLC), under which to conduct equine operations. Generally, a limited liability entity’s creditors, including a successful plaintiff, may only recover damages from the entity itself, which can provide significant protection for an equine enthusiast’s personal assets. Whether a limited liability entity is right for a particular situation is something to discuss with an attorney, who can help you with these decisions and complete the proper documentation. It’s also extremely important to follow the required legal formalities throughout the entity’s existence, otherwise its separate legal identity may be ignored, and the owner’s personal assets may be exposed to additional risk.
Insurance for equine professionals, horse enthusiasts and property owners is available from a number of companies. Policies are generally based on the scope of a particular individual or business’s activities and operations. There are policies designed for backyard horse owners, as well as for large commercial breeding and training programs. It’s best to contact one of these companies to discuss the coverage best suited for your situation.
Finally, a good release is critical. It should clearly spell out the inherent risks assumed by the participant or spectator, and in general will expressly release the facility, the owner, the employees and any independent contractors from liability for ordinary negligence. However, every state treats release forms differently, and it is, therefore, important to have an attorney draft yours and to review it regularly to insure its compliance with all applicable laws. It is very dangerous to “borrow” your release form from the Internet or other common source, as they are often intended for use in a different state or in a different context.
In addition, the execution of the release form is critical. You must make sure that the person signing the release has the authority to do so and actually reads the form. An employee of the facility should be present while the participant reads and signs the form.
A difficult problem arises for people who work with minors. Generally, a release signed by a minor is not enforceable, and an injured minor may have until well after their 18th birthday to file a lawsuit. Additionally, depending on the state, a parent or guardian may or may not be able to sign away the rights of a minor. However, parents generally have their own rights with regard to injuries to minors, as they are the ones who would pay the medical bills for an injury. Therefore, it is generally advisable to have the minor and both parents sign the release. This makes it clear that each parent is expressly releasing you from liability, and in states where it applies, effectively releases you from liability to the minor. It may also be helpful to show that an older minor understood the risks involved and still chose to participate.
In summary, if your state has an EAS, that’s great, but don’t assume it offers blanket immunity, because it does not. It is important for you to become familiar with the EAS in any state in which you participate in equine activities. If there is no EAS, it’s not as bad as it seems, and the assumption of risk doctrine can be a strong defense to liability. Regardless of the state, or whether an EAS applies, taking additional steps to protect yourself is a wise idea. First, develop, follow and update safety policies and procedures. Second, consider a limited liability entity. Third, get appropriate insurance coverage for your activities. Fourth, have and use a well-drafted release form with every client, student, competitor, participant and visitor you deal with. Doing so will help assure that you have the best possible defense against liability claims.