Below is an article co-authored by GSNH’s Catherine Willson which appeared in Winter 2013 edition of WHOA!
Accidents can happen anywhere and equine facilities are no exception. Know the law and be prepared.
Canadian court cases involving horseback riding and other accidents related to the business tend to focus on breach of contract and negligence. For breach of contract, the cases focus on what was promised versus what was actually delivered. For negligence, the cases focus on whether some entity, be it a person or a riding establishment, owes a “duty of care” and whether that duty of care was breached. A far less common legal doctrine that may also give rise to liability in horse riding accidents is that of scienter.
Liability established by contract means that there is a contract, written or oral, between the rider and the barn or stable operator. The stable operator has promised something, has not followed through with that promise and damages have resulted either to the horse, rider, other persons, or property. As an example, a stable operator may provide horses for trail rides. The stable operator assures his or her customers that the horses are well-trained and suitable for the skills of the riders. If the horses were in fact poorly trained or ill-suited to the riders, the stable operator would be liable based on a breach of contract if a rider fell off and was hurt.
Negligence is the failure to take proper care. If the stable owner/operator or their staff is negligent, the stable will be responsible for the damages. What constitutes a reasonable standard of care will depend on the particular facts of the situation. 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 not be held responsible if the mishap was not caused by a failure on his or her part, or on the part of his or her staff, to take reasonable or proper care.
As an example, a boarder of the stable is inside the stable and slips on some ice that has formed on the floor of the stable. She breaks her leg. If this was a random occurrence based on an unforeseen event (e.g. a bucket kicked over by a horse) this would not be the fault of the stable operator. Where, however, the stable operator had knowledge of a leak in the roof and ice gathering on that spot for some time, and took no steps to remove this danger, it could be argued that the stable operator did not take reasonable care to ensure that the stable was safe for boarders. In this situation, the stable operator could be liable for all or part of the boarder’s damages including medical bills, lost salary, etc.
The Courts use an objective standard when determining what constitutes a “reasonable standard of care” in a particular case. The case will therefore not turn on the defendant’s own assessment of what he or she was doing (a subjective standard), but rather, what the Court thinks the defendant ought to have done. The Court will look to indicators of what constitutes reasonable behaviour such as applicable laws (like the Ontario Horse Riding Safety Act S.O. 2001, c.4), as well as industry guidelines and industry practices.
In Ontario, the Occupiers’ Liability Act states that the occupier of the premises owes a duty to take all such reasonable care as is necessary in the circumstances to ensure that persons coming onto the premises will be kept reasonably safe. This duty, of course, does not apply to risks that are willingly assumed by the person entering the premises. A horse rider taking a fall on a trail will probably fall within this category of perceived risk willingly assumed. That is unless the tumble was caused because of some danger that the stable owner knew or should have known about and did not take reasonable steps to rectify; consider dead tree limbs over well-used trails, gopher holes, barbwire, etc. Other jurisdictions have similar legislation.
In instances where the accident was caused because of 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 is in 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, firstly, the animal concerned has a nasty streak and, secondly, 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. Always consult a lawyer before taking any legal steps or relying on any of these tips.
Waivers and Releases
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 (or the horses of its patrons, in the case of a stable). By signing a waiver or release form, a person voluntarily gives up his right to recover against the riding establishment for an injury even where the accident or injury was caused by the careless conduct of the stable owner or operator. So before you sign anything, read it; if you aren’t comfortable with what you are being asked to sign, don’t sign it. On the other hand, if you are the proprietor of a horse riding establishment, a waiver signed by the prospective guest should be an essential condition for the use of your horses or boarding facility.
Insurance
If you are the owner of a horse, or a facility dedicated to horses, you should at a minimum review your insurance needs with your broker. You need to have insurance. 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.
Horse owners can purchase liability insurance, mortality insurance, veterinary insurance, and a host of other tailor made policies for the horse industry. The most important type of insurance coverage to obtain is a general liability policy that will protect you from claims resulting from injury or damage to people or property caused by your horse. The usual level of coverage provided is one million dollars but you can ask for more.
Taking Precautions
Do an annual or semi-annual inspection of the stable property; perhaps once in the summer and once in the winter. Role play when you do the inspection. Look at the barn as a child would see it, as a guest without any horse experience, as a lawyer, as a dog, etc. Where are the trouble areas? Look at loose hardware, traffic areas, feed rooms, storage, fire safety, barn rules…. in short, troubleshoot and fix all problems that you can find. Try to make the barn, the arena, the paddocks, and the grounds as safe as you can. Write down your inspection date, what you did, your findings and your fixes, and file this document. If you do get sued, a Court will be impressed by the care and attention you do take to your operation and will consider it in your favour.
Conclusion
Accidents happen in the horse world. Understanding the sources of liability, as explored above, should help you to prevent accidents. When they do occur, proper insurance and a good waiver can help you to avoid catastrophic claims.
The legal information provided in this article is based on the laws of Ontario. If you find yourself in a situation to which this article may apply, please consult a lawyer before acting or relying on any of the statements made herein.