By Julie I. Fershtman, Attorney at Law
Planning ahead for a successful 2018? You might define “success” as great progress in your showing, breeding, training, racing, and riding. The fact is, however, that people in the horse industry still rely on handshake deals and incomplete contracts when they buy, sell, lease, board, train, haul, breed, and give instruction to others.
With the new year, resolve to protect yourself. Here are a few suggestions.
Be Cautious About Using Standardized Contracts
Standardized, “one-size-fits-all” form contracts are quick and inexpensive. People often share them online. However, they run a serious risk of including illegal or unenforceable provisions or failing to comply with unique provisions that the applicable state’s law requires. For example, many of the 48 state equine activity liability acts (as of December 2017) require equine professionals, equine activity sponsors, and possibly others to include special “warning” or other language in certain contracts. These requirements differ from state to state. In a few states, the laws specify that those who fail to comply with these requirements can lose any liability limitation benefits from the law.
Also, states differ as to what language can make a liability waiver/release enforceable. (A small number of states will not enforce them.) The same contract language that one state may enforce could fail in another state. Evaluating these state-by-state differences usually requires a review of ever-changing court rulings. For the best protection, retain knowledgeable counsel to help you comply with applicable requirements.
Read and Comply With Applicable Equine Activity Liability Acts
Now is the time to review the equine activity liability laws in effect where you reside or do business. Of the 48 states with some form of an equine activity liability act (as of December 2017, all states except California and Maryland have one) pay special attention to these:
Many of these laws have contract language and sign posting requirements, usually directed at equine professionals and equine activity sponsors. They all differ.
Most of these laws list exceptions to the immunities, and these exceptions could provide grounds for a lawsuit. If you allow others to ride or handle your horses or if you allow people to bring horses onto your property, take a look at the “providing an equine horse and failing to make reasonable and prudent efforts” exception, the “faulty tack or equipment” exception, and the “dangerous latent condition of the land” exception, all of which are found in several equine activity liability laws.
Use Written Contracts
Some state laws may actually require contracts in certain equine-related transactions. Equine activity liability acts in Arizona and Virginia, for example, have language requiring written contracts and releases, even offering some language, to benefit from immunities. Equine sales statutes in California, Florida, and Kentucky require contracts that include certain language.
Carefully-written contracts can help avoid disputes and save money. In leases, for example, questions sometimes involve: Was the arrangement a sale, a lease? Were promises made regarding the horse’s disposition or training? Who pays the vet bills if the leased horse develops a serious condition during the lease that the lessee did not cause? Does the lessee have recourse against the lessor if the horse injures him or her during the lease? These issues could lead to costly, burdensome, and inconvenient legal disputes. A carefully-worded agreement can help avoid them.
Remember that Laws Change
Laws affecting you may have changed without your knowledge. More recently, equine activity liability laws have been amended in Iowa and Texas (in 2011), Michigan (in 2015), North Carolina (in 2013), and Virginia (in 2008). A useful website that offers links to equine and animal-related laws, and updates them regularly, is www.animallaw.info.
Make 2018 a year of attention to legal matters. Stay safe and protect yourself.
This article does not constitute legal advice. When questions arise based on specific situations, direct them to a knowledgeable attorney.
About the Author
Julie Fershtman, a lawyer for nearly 32 years, is one of the nation’s most experienced Equine Law practitioners. A Shareholder with Foster Swift Collins & Smith, PC, based in Michigan, she has successfully handled equine cases in 17 jurisdictions nationwide and tried equine cases in 4 states. She has drafted thousands of equine industry contracts and is a Fellow of the American College of Equine Attorneys. Her speaking engagements span 29 states. For more information, visit www.equinelaw.net and www.equinelawblog.com