2010 Equine Open House Equine Liability and Legal Issues Hosted by Wayne SWCD, Kelly Riley

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1 2010 Equine Open House Equine Liability and Legal Issues Hosted by Wayne SWCD, Kelly Riley Special Guest Speakers: Mr. Larry Habrun and Mr. Sam Steimel

2 About Wayne SWCD The Wayne County Soil & Water Conservation District is a political subdivision of the State of Ohio, Department of Natural Resources, Division of Soil and Water. Each one of Ohio s s 88 counties has a local district office. The Wayne SWCD was established by local election of the populace in Wayne county leads the state in the # of all cattle, # of milk cows, milk sold, # of farms and in the production of hay. Equine is the fastest growing segment of Ohio s s livestock sector Most equine operations have small, intensively used acreage Most equine operations have a high potential for runoff Complaints regarding pollution (waste) from livestock farms is the 3 rd most popular complaint filed with local Soil & Water Conservation District offices.

3 Horse Owners are important to protecting water quality Horse farm activities may contribute pollutants to rivers and streams. Proper management techniques ensure your farm is friendly to: Your horses, streams & rivers, your pocketbook and your neighbors. Primary nutrients associated with manure: Nitrogen Phosphorous Potassium

4 Nuisance? Nuisance Lawsuits can attack horse facilities for circumstances ranging from offensive odors and intolerable noises to unsightliness or filth. Manure and Odors can cause a problem when nearby neighbors aren t Horse -Friendly Ohio has a right to farm act, the Ohio Agricultural Protection Act but they do not provide protection for ag activities that cause water pollution.

5 What can you do? Be a horse-friendly neighbor! Do NOT put your manure pile on property line. Be mindful of which way odors & dust blow. Use fly sprays, baits & traps to control insects. Know the fence line laws. Keep a protective grass buffer around manure or compost piles, and manage run-off. Consider a fence/barrier around your pile for visibility. Don t t allow mud & manure to run to streams or ditches. Keep your place looking good! Keep the dust to a minimum. Be considerate.

6 The Equine Activity Law Movement Equine industry problems Litigation against equine activity providers in 1980s led to high insurance premiums Legislative response 46 states passed liability immunity laws to protect the equine industry and encourage equine activities Due to equine s s economic importance As of 2010, only 4 states are without such a law California, Maryland, Nevada & New York.

Ohio s s Equine Activity Act: Intent An act to enact provisions relative to qualified immunities from civil liability for equine activity sponsors,

7 Ohio s s Equine Activity Act: Intent An act to enact provisions relative to qualified immunities from civil liability for equine activity sponsors, participants, professionals, and other persons in connection with harm sustained by equine activity participants from inherent risks of an equine activity. H.B

8 Ohio s s Equine Activity Act Passed November 13, 1996 and effective since March 3, 1997 Ohio Revised Code New section of law in the chapter of the Ohio Revised Code governing courts and civil procedure

9 What ORC Says Know the definitions & what they cover! Equine means: A horse, pony, mule, donkey, hinny, zebra, zebra hybrid or alpaca

10 What the Act Says In relation to equine 1) Immunity from damages for protected parties 2) Limitation of actions by harmed party 3) For equine activity participant s s harm resulting from an inherent risk 4) But with exceptions 5) Written waivers can be enforceable

11 What the Act Says: 1) Immunity from Damages The protected parties: Equine activity sponsor Equine activity participant Equine professional Veterinarian Farrier Or other person A protected party is not liable in damages in a tort or other civil action for harm that an : Equine activity participant allegedly sustains during an Equine activity And that results from an Inherent risk of an equine activity

12 What the Act Says: 2) Limitation of Actions An equine activity participant does not have a claim or cause of action and may not recover damages in a tort or other civil action against a protected party for harm that the equine activity participant allegedly sustained during an equine activity and that resulted from an inherent risk of an equine activity.

13 An EQUINE ACTIVITY is: (2)(a) An equine show, fair, competition, performance or parade, that involves an equine and an equine discipline including dressage, hunter/jumping, combined training, rodeo, driving, pulling, cutting, reining, team penning, barrel racing, polo, steeple chasing, performance riding, trail riding, western games, hunting, packing, recreational riding. IT ALSO STATES: An equine or rider training, teaching, instructing, etc. Boarding of an equine Trailering and transporting an equine Riding, inspecting, evaluating another s s equine A ride, trip, hunt, cattle drive, etc. Placing or replacing horse shoes, etc. Provision of veterinary treatment Breeding by artificial insemination or otherwise But does not include horse or mule racing

An EQUINE ACTIVITY PARTICIPANT is: A person who engages in any of the following activities, regardless of whether the person is an amateur or professional or whether a fee is paid to participate in

14 An EQUINE ACTIVITY PARTICIPANT is: A person who engages in any of the following activities, regardless of whether the person is an amateur or professional or whether a fee is paid to participate in the particular activity: Riding, training, driving or controlling an equine whether the equine is mounted or unmounted Being a passenger upon an equine Providing medical treatment to the equine Conducting or assisting in procedures for A.I. Assisting a person doing any of the above activities Sponsoring an equine activity Being a spectator at an equine activity

An INHERENT RISK of an Equine Activity is: (7) A danger or condition that is an integral part of an equine activity, including but not limited to: A) Dangerous propensity of an equine B)

15 An INHERENT RISK of an Equine Activity is: (7) A danger or condition that is an integral part of an equine activity, including but not limited to: A) Dangerous propensity of an equine B) Unpredictability of an equine s s reaction to sounds, sudden movements, unfamiliar objects, persons or other animals. C) Hazards such as surface or surface conditions D) Collisions with another equine, animal, person or an object E) The potential for a participant to act in a negligent manner that may contribute to injury, death, or loss to the person of the participant or to other persons, including but not limited to failing to maintain control over an equine or failing to act within the ability of the participant.

16 There are Exceptions! Protected party forfeits immunity for: A) Faulty equipment or tack B) Mismatched equine and participant C) Dangerous latent conditions D) Willful, wanton or intentional acts or omissions E) Intentionally causes harm

17 What the Act Says: Faulty Equipment or Tack Exception No immunity where protected party: Provides faulty or defective equipment or tack or knows or should know that the equipment or tack is faulty or defective and the faulty equipment or tack proximately causes the harm involved.

s ability to safely engage in the activity or safely manage the equine based upon the participant s

18 What the Act Says: Mismatched Equine and Participant Exception No immunity if protected party: Provides an equine to a participant and fails to make reasonable and prudent effort to determine the participant s s ability to safely engage in the activity or safely manage the equine based upon the participant s representation and the participant fails to safely engage or manage the equine, which causes the participant harm.

19 What the Act Says: Dangerous Latent Conditions Exception No immunity for protected party if: Knows or should know of a dangerous latent condition of the land on which OR the premises at which the harm occurs, but does NOT post conspicuously prior to the time of harm involved one or more signs that warn of the dangerous latent condition.

20 What the Act Says: Willful or Intentional Acts Exception No immunity for protected party if: An act or omission of a protected party constitutes willful or wanton disregard for the safety of a participant and causes the harm involved Or a protected party (equine activity sponsor, participant, professional, veterinarian, farrier, or other) intentionally causes the harm involved

21 What the Act Says: Waivers are Enforceable A protected party is not liable for harm and the participant does not have a claim if the participant voluntarily executes, prior to the harm, a written waiver that conforms to the law. A waiver that conforms with the law: Must specify at least each inherent risk listed in the Act that will be a subject of the waiver. (Dangerous( propensity of an equine, Unpredictability of an equine, Hazards such as surface conditions, Collisions, Participant s s failure to control or act in way that contributes to harm, see list A-E A E )

22 Ensuring Liability Protection Under the Equine Activity Act Understand what the Act does and does not address Close reading of definitions is important Post warning signs of dangers Even if dangers are obvious Use written waiver that lists all applicable inherent risks Voluntarily signed before activity Parent or guardian must sign for minor Obtain adequate insurance coverage Don t t assume insurance is not needed because of the Act

23 Questions? The best defense is a good offense! Know the law! Ignorance is Bliss, but Knowledge is Power!

24 Ohio Horseman s s Council Mike Gerard Bob Picklesimer Membership had it s s privileges! Mike will give us a brief explanation of OHC membership policy coverage.

25 Equine Liability ~ Larry Habrun Liability = Responsibility for accident that was our fault! TYPES OF INSURANCE POLICIES: AUTO HOME FARM

26 EQUINE INSURANCE MUCH MORE COMPLICATED WHICH COVERAGE PROTECTS Horse Farms vary from

27 One or Two horses (or mules) in the Backyard of a Home to.

28 Family that has several horses and shows or travels extensively to to

29 Breeding Operations with Stallion exposure and mares in & out to to.

30 Commercial Operations with boarding, training and lessons.

31 Problems are: 1. John Q. Public Horse is Fluffy pet 2. Many people are looking for an easy way to collect $$ (for credit card debt, past due mortgages, etc.)

32 Purpose of Insurance To Transfer RISK to Protect ASSETS The more ASSETS you need to protect, the Higher level of insurance Coverage you need! ALL DEPENDS ON YOUR SITUATION

33 Levels of Coverage Available: $100,000 $300,000 $500,000 $1,000,000 Umbrellas ~ $1,000,000 - $5,000,000

34 Insurance is NOT a substitute for 1. Good Fences Management:

35 Insurance is NOT a substitute for Management: 2. Safe Equipment

36 Insurance is NOT a substitute for Management: 3. Clean, Secure Barns

37 Questions? Thanks to Larry Habrun! Habrun s Insurance Service P.O. Box 347 Millersburg, Ohio /

38 Equine Legal Issues ~ Sam Steimel ORC Remember You are NOT protected if: 1. Provide Faulty Tack Defective Equipment 2. Provide a mis-matched matched Equine to participant 3. Fail to warn about dangerous latent condition of the land 4. By an Act or Omission AND cause willful or wanton disregard for safety 5. Intentionally cause harm

39 What is Negligence? The failure to use reasonable care. The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances. A departure from what an ordinary reasonable member of the community would do in the same community. Negligence is a 'legal cause' of damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such damage, so it can reasonably be said that if not for the negligence, the loss, injury or damage would not have occurred.

40 Negligence Who is at fault? Depends on circumstances! Every situation is unique!

41 Loose Horse on Road Negligence Liability Blame? Poor Fencing Tree /Storm Damage Rider got dumped Horse got out of stall Someone forgot to shut gate/door Freak Accident Something spooked horse

42 State Law Basically, there are 2 sources of LAW: 1. The State Code 2. The case law that interprets what the state code means. Answers vary on interpretation and individual situations!

Examples: Allison v Johnson Ohio Court of Appeals, 2001 WL 589384 A lady guest (Allison) at a stable watched as a horse was being returned to it s s stall by it s s owner

43 Examples: Allison v Johnson Ohio Court of Appeals, 2001 WL A lady guest (Allison) at a stable watched as a horse was being returned to it s s stall by it s s owner (Johnson). The horse acted up, hit a gate & caused a board to pop out. The board struck the woman in the face & she suffered serious facial injuries. And guess what? She sued her friend!

44 Outcome: It was decided that Johnson was immune from liability under the Ohio Equine Activity Statute. Allison appealed, but the Decision was affirmed. Allison tried to say she was a by-stander, but the law covers her as a spectator.. Also she claims Johnson forfeited immunity because he knew or should have known the gate was a dangerous condition. Johnson stated that was the first time that had happened.

Markowitz v. Bainbridge Equestrian Center, Inc. Ohio Court of Appeals, 2007 WL 959906 Gavin Markowitz (boy, age 7) was at summer camp for a week.

45 Markowitz v. Bainbridge Equestrian Center, Inc. Ohio Court of Appeals, 2007 WL Gavin Markowitz (boy, age 7) was at summer camp for a week. First 2 days, the children were taught control, dismount, & posting. Later on a trail ride (where he was led on a pony acquired the previous day), a clap of thunder scared the pony, seriously injuring Gavin.

46 Outcome: It was decided that Bainbridge Equestrian Center was protected under Ohio s s Equine Activity Statute. Markowitz appealed, - decision was affirmed. The Markowitz s s had signed a valid liability release form. It was also decided the pony spooking at thunder was part of the unpredictability of an equine s s reaction to sounds, sudden movements Also they tried to state that the Center failed to determine Gavin s s ability & mismatched him with the pony, citing negligence. They argued the release wasn t t binding.

Ross v. Schwegel Ohio Court of Appeals, 2002 WL 1728595 Plaintiff Ross was a stable hand who was bitten on the chin by Schwegel s horse while the horse s s stall was being mucked.

47 Ross v. Schwegel Ohio Court of Appeals, 2002 WL Plaintiff Ross was a stable hand who was bitten on the chin by Schwegel s horse while the horse s s stall was being mucked. The horse had a history of biting & the issue was whether Schwegel had discharged their duty to the stables to notify them of the horse s s propensity to bite. The owner of the stables knew of this tendency since he sold the horse to the Schwegel s.. The stable had a rule that the horse was to be muzzled when handled, and Ross knew of this rule. Ross was bit while another stable hand was cleaning his stall & the door was left open. She (Ross) filed for an appeal after the trail court granted summary judment in favor of Schwegel.

48 Outcome: In order to defeat a motion for summary judgment brought in a negligence action, a plantiff (Ross) must identify a duty owed to them by the defendant (Schwegel). Ross s s appeal failed. WHY? The duty owed WAS Fulfilled. The manager at the stable was the prior owner of the horse,& was bit himself. The stable & the Schwebel s knew about the biting habit, and Ross herself knew about this before being bitten. The rule was to muzzle the horse when working around him. Ross tried to say she didn t t have any idea of why the horse was to be muzzled! But she admits she was made aware of the rule when she was hired.

Contracts, Waivers & Forms 6 ways people create contract disputes 1. Doing business on a handshake, with nothing in writing. 2. Losing the contract. 3.

49 Contracts, Waivers & Forms 6 ways people create contract disputes 1. Doing business on a handshake, with nothing in writing. 2. Losing the contract. 3. Failing to have the contract properly signed where minors are involved. 4. Assuming the contracts, such as releases or waivers of liability, are not worth the paper on which they are printed. 5. Using form contracts without checking to see that they are legal or they serve your needs. 6. Failing to pay attention to important details

50 Contracts, Waivers, & Forms Solutions: Use a well written contract! File the contract in a safe place! Get the right adult involved in the contract! Learn the Facts Ohio does require language specified in the release. Use forms as a starting point. Learn the details that make a difference in horse-related related contracts.

51 Ohio s s Equine Liability Waiver In OHIO, the release of liability form must list: ( section A7 a-e) a The Inherent risk of an equine activity means: A danger or condition that is an integral part of an equine activity, including but not limited to: A) Dangerous propensity of an equine B) Unpredictability of an equine s s reaction to sounds, sudden movements, unfamiliar objects, persons or other animals. C) Hazards such as surface or surface conditions D) Collisions with another equine, animal, person or an object E) The potential for a participant to act in a negligent manner that may contribute to injury, death, or loss to the person of the participant or to other persons, including but not limited to failing to maintain control over an equine or failing to act within the ability of the participant.

52 10 helpful tips for Equine Contracts 1. Name the right parties 2. Name or describe the horse involved 3. Include Equine Activity Liability Act language 4. Pay attention to certain non-equine laws 5. Specify how the contract can be changed in the future

53 10 helpful tips for Equine Contracts (continued) 6. Specify how the contract can be changed in the future 7. Confirm that the other party has authority to sign the contract 8. Consider indemnification language 9. Consider who will pay attorney fees, if a dispute arises 10. Make insurance part of the contract

54 Questions? Thanks to Sam Steimel! Steimel Law Office 111 South Clay St. Millersburg, Oh (330)

55 More Resources Court case information gathered from various websites, Mainly: The University of Vermont Equine Law and Horsemanship Safety Contract & Waiver information from the book, More Equine Law and Horse Sense The Ultimate Legal Guide for Horse Owners and Business by Julie I. Fershtman

56 Kelly Thanks WAYNE SWCD for allowing me to do this! My Mom (the pie lady) & my friends helping! Joe Coalter voice of Equine Radio & Rodeo announcer Ohio Horseman s s Council info & signs Of course, our wonderful speakers that gave up their time tonight Larry and Sam! Everyone for attending! Happy Trails to You!

Ohio Equine Activity Statute

Ohio Equine Activity Statute OHIO 1996 SESSION LAW SERVICE 121st GENERAL ASSEMBLY H.B. No. 564 CIVIL PROCEDURE IMMUNITY EQUINE ACTIVITIES AN ACT To enact section 2305.321 of the Revised Code relative to