S#%t Happens

The law and how to protect yourself from getting burned when riding accidents and other mishaps occur.

A boat doesn’t have a bad day. A motorcycle won’t throw you off if it gets stung by a wasp. The horse is an animal with its own habits, disposition, and some would say, opinions. If a rider falls off a horse, there can be a lot of guesswork as to who, if anyone, is to blame.

Unfortunately, the trial judge rarely has knowledge of horses and their habits. Given that a plaintiff has the burden of proof, it can be a steep slope to climb.

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Broken Promises

Canadian cases for damages arising from horseback riding injuries predominantly focus on breach of contract and negligence. For breach of contract, the cases focus on what was promised versus what was actually delivered. If a stable operator has promised something, has not followed through with that promise, and damages result either to the horse, rider, other persons, or property, the stable operator would be liable for breach of contract.

As an example, a stable operator providing horses for riding lessons assures customers that its horses are well-trained and suitable for the skill levels of the riders. If the horses were in fact poorly trained or ill-suited to the riders and a rider fell off and was injured, the stable operator would be liable.

Reasonable Care

Negligence is the failure to take proper care. The stable operator is not a guarantor or an insurer of health or safety. In the case of a mishap causing injury or death, the operator will be held responsible if the mishap was caused by a failure on his or her part, or on the part of his or her staff, to take reasonable or proper care. What constitutes reasonable care will depend on the particular facts of the situation.

In instances where the accident was caused by the rider’s horse or the intervention of another horse, dog, or other domesticated animal, then the doctrine of scienter may apply. The law of scienter states that where a person owns or has control of a domestic animal (horse, dog, cat, etc.) and has knowledge of a dangerous or problematic trait, characteristic, or habit possessed by that animal, that person will be held liable for any injury caused by the animal as a result of the dangerous or problematic trait, characteristic, or habit.

In such cases, it must be established that a) the animal concerned has a nasty streak; and b) that the animal’s owner was aware of this. For example, if a dog owner knew his dog would aggressively chase horses and subsequently let his dog roam free on a trail frequented by horse enthusiasts, this could give rise to liability, under the scienter doctrine, for damages that may result. (It is important to note that scienter is not equally applicable in every province in Canada.)

There are provincial statutes relevant to these accidents. The Occupiers’ Liability Act in Ontario imposes a duty on the occupier/owner of a premises to take such care, as in all the circumstances of the case is reasonable, to see that persons entering on the premises are reasonably safe. This applies whether the danger is caused by the condition of the premises or by an activity carried on at the premises. Other provinces have similar legislation.

Get Off My Land

We recommend that owners of horse stables perform an annual or semi-annual review of their properties to check for hazards and then make repairs where necessary and possible. If a rider is injured because of a dead tree falling on a marked trail, this could impose liability on the owner of the property – even where the property owner did not give specific permission for that rider to use the trail, but understood that the trail was frequented by riders.

The Occupiers’ Liability Act also states that in certain circumstances, trespassers are deemed to have willingly assumed all risks. In these situations, the duty of care of the occupier is relaxed, and the occupier’s only obligation is to not intentionally create danger.

Waivers

Unique to Ontario is the Horse Riding Safety Act, 2001 which prohibits horse riding businesses from permitting riders under the age of 18 years to ride horses without safety-approved helmets, proper footwear, and tack (saddle and bridle) properly fitted on the horse.

Also relevant in this area of the law is the use of written waivers and risk release forms. A written waiver form is an attempt by a riding establishment to limit its liability for accidents and injuries caused to its patrons. Waivers must specifically contract out of negligence if the horse operation wants this protection. Waivers signed by minors are not binding.

Waivers do three things: alert the person signing the form to the dangers inherent in participating in horse related activities, discourage injured participants from starting a lawsuit, and, if valid, provide a complete defence to liability for the injury or death of a participant.

Insurance

You must have insurance. Review your insurance needs with your broker. Doing so can provide you with a safety net in the event of an accident. Without insurance, payment of a claim by a person injured by your horse, or for property damage caused by the horse, will come out of your pocket. Injury claims can reach well into the millions of dollars.

Canadian Court Cases

A case often cited in Canada is Saari v. Sunshine Riding Academy Ltd. Susan Saari, 17, died after being stepped on by a horse when on a trail ride at the Sunshine Riding Academy. She fell off her horse at a gallop and was struck by a horse following behind her. The ride consisted of a large group of inexperienced teenaged riders led by three trail guides.

The Court made the following comments that are often repeated in later cases:

“Defendant owed Susan Saari a duty of care, a duty to take reasonable precautions to prevent injury to Susan. The operator of a riding academy is not an insurer of the safety of his customers. There is a certain element of risk in horseback riding, however careful the operator may be and a certain element of risk must be accepted by any rider who hires a horse from a riding academy and goes on a trail ride … Did the defendant provide a proper horse, proper equipment, a proper place to ride and trained and competent guides?”

The Court went on to provide certain guidelines for trail riding:

1. trail guides must keep horses from bunching;

2. trail guides must be available to assist when an emergency arises;

3. trail guides must supervise stragglers; and

4. inexperienced riders should be given proper instruction on how to sit correctly on a horse, how to stop the horse, and how to turn the horse.

These guidelines are true today. They are not exhaustive and have been made more onerous. In Western Canada, the tradition of western riding suggests cowboy hats rather than safety helmets; this, too, is being challenged today given the use of helmets in sports such as skiing and bicycling.

In Van Hooydonk v. Jonker, the plaintiff went on a two-hour trail ride as an add-on to a women’s retreat at a bed-and-breakfast. The horse made a quick, unexpected move to one side, causing the plaintiff to fall off into a ditch where she was injured. The action was dismissed. The Court held that the defendant, as owner of a trail riding establishment, owed a duty to instruct a rider on how to direct the horse to avoid injury, but the duty did not extend any further than that and did not include the provision of thorough riding instructions. Here, the defendant had provided a proper horse, proper equipment, a proper place to ride, and a competent guide.

Causation can often be a stumbling block for plaintiffs in these cases. The Supreme Court of Canada in Hanke v. Resurfice Corp. affirmed that the test for causation is generally the ‘but for’ test. That is, the plaintiff must show that ‘but for’ the negligence of the defendants, the injury would not have occurred. In Van Hooydonk, the plaintiff was unable to prove that if she were given a different horse, it would not have sidestepped on the road that day. The fall was the unforeseeable consequences of the horse sidestepping, for whatever reason, whether it be the plaintiff being turned and the horse being off balance, or any other reason that could cause a horse to sidestep at any time.

Also in this case, a written waiver signed by the plaintiff releasing the defendants from their own negligence was upheld by the Court.

If a rider was given a horse that was known to have dangerous or problematic traits (bucking, rearing, biting, refusing) and was subsequently injured, the horse owner or stable operator could be held liable for any damages.

We recommend that owners of horse stables perform an annual or semi-annual review of their properties to check for hazards and then make repairs where necessary and possible.

Conclusion

Horse riding is an inherently risky sport. A rider is deemed to accept a certain amount of risk just by getting in the saddle. What needs to be determined is what risks a plaintiff has agreed to accept, and if injured, were the risks that caused their injuries willingly assumed.

Catherine E. Willson is counsel at Goldman Sloan Nash & Haber LLP in Toronto (www.gsnh.com), a full service law firm in Toronto, ON. This information deals with complex matters and may not apply to particular facts and circumstances. The information reflects laws and practices that are subject to change. For these reasons, this information should not be relied on as a substitute for specialized professional advice in connection with any particular matter.