Horse riding is an inherently risky sport. Horses are unpredictable animals. Riding areas, especially outside, cannot be strictly controlled. It is inevitable that accidents will happen: riders will fall off and people will be bumped, bitten, or kicked at even the most safety-conscious of stables.
Just because a rider is injured at your stable does not make you responsible for his damages. Most often, the consequences of an accident fall upon the person injured. Where the accident is nobody’s fault or is the fault of the person injured, the stable operator/owner will not be liable for the injury. The stable owner will only be made responsible for the damages of the injured person if the injury was wholly or partly her fault.
A written waiver form, also called a release, is an attempt by a riding establishment to limit its liability for accidents and injuries caused to its patrons. Waiver and release forms do three things:
1. Alert the person signing the form to the dangers inherent in participating in horse-related activities;
2. Discourage injured participants from starting a lawsuit; and
3. If valid, provide a complete defence to liability for the injury or death of a participant.
By signing a waiver or release form, a person voluntarily gives up his right to recover against the riding establishment for an injury and in some cases, even where the accident or injury was caused by the careless conduct of the stable owner or operator. If the participant is later injured, the riding establishment can hold up this release to prove that the participant knew the risks involved in the sport and assumed them willingly and therefore should not receive damages from the riding establishment for his or her injuries.
Form of the Release
A release form should specifically set out the risks that the participant is assuming and these risks must be brought to the attention of the participant prior to signing the form. Injuries or damages resulting from the negligence of the stable owner or operator should be specifically identified as a risk that the participant is assuming.
Below are some guidelines for drafting and using release or waiver forms:
1. Title the document appropriately. Titles such as “Waiver of Right to Sue” or “Release of Risk” are far clearer than “Entry Form” or “Sign-up Sheet”.
2. Use simple language and avoid small print. Legal jargon should be kept to a minimum. You want people to understand what they are signing.
3. Consider carefully the parties to be included in the waiver. Is the stable incorporated? What about staff, volunteers, heirs, successors, assigns, etc.?
4. Describe the activity to be entered into in the document. Include details such as the level of fitness required to participate, riding experience if necessary, and other related activities in which the participant will be involved such as tacking up the horse.
5. Clearly warn of the risks involved with the activity. List some of the more serious consequences that may occur such as bodily injury or death and use language such as “including, but not limited to,….”
6. Consider whether you want the stable to be free from liability for the negligence of its staff and if so, specifically include in the release a statement releasing the stable and its staff from liability for its own negligent acts or omissions.
7. Specify the duration of the release – “I forever release” or “for all claims now or in the future”.
8. Include a statement indicating that the participant has read and understood the release and is signing it voluntarily. A declaration that the participant is over 18 years of age is also useful. Though not practical, a statement in the release suggesting that the participant review it with a lawyer prior to signing it is also helpful.
9. If there are written safety rules for the stable or ride – always a good idea – include a copy of these rules as a schedule and put a statement in the release that the participant agrees to obey the safety rules.
10. Give the participant time to read and understand the release before signing. Ensure that the important parts are explained to the participant by stable staff and that any questions from the participant are answered correctly by stable staff or are directed to someone with appropriate knowledge.
11. Use a separate document for each participant. Keep the release on file for a period of time suggested by your lawyer or insurance company.
12. Ask a lawyer to review and comment on the release prior to its use for your business.
Properly worded and executed waivers are enforced by our Courts. Insurance brokers are more often insisting that an insured stable use a waiver document for its boarders and riders.
Courts recognize that certain sports and other activities are high risk and the Courts do not wish to discourage safe participation in these activities by putting unfair burdens of liability on the operators of these activities. At the same time, the Courts are reluctant to deny an injured participant the right to recover against a negligent sport facility. It is better to obtain an executed waiver or release form from a participant than to go without.
These forms clearly warn participants about the risks inherent in the activity and allow them to make an informed choice about participation. If valid, the release will act as a complete defence to liability. If not valid, the release will discourage injured participants from filing a lawsuit to challenge it.
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.
Catherine E. Willson is counsel in the law firm Goldman Sloan Nash & Haber LLP in Toronto, Ontario (www.gsnh.com / [email protected] / 416-597-6488)