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Rachel Kosmal McCart is a lifelong horsewoman and the founder of Equine Legal Solutions, PC, an equine law firm based in the Portland, Oregon area. Rachel is a member of the New York, California, Oregon and Washington State bars and is admitted to practice before the U.S. District Court for the District of Oregon and the U.S. District Court for the Central District of California. Rachel currently competes in three-day eventing.

Tuesday, March 17, 2009

When Accidents Happen: How to Minimize Horse Event Liability

This interview with a distraught mother whose child was kicked by a horse at the Nebraska Horse Expo illustrates several important points.

Prior Planning Prevents Poor Performance

As the interview indicates, part of what made the victim's mother so upset is that it didn't seem like the event host had a plan for emergencies. Horse event management should have a written procedure to follow if a horse or person is injured during the event. Every member of the show staff, no matter what their position or responsibility, should receive a copy of the procedure prior to the start of the show. At a minimum, here's what such a procedure should include:
(1) A team of show management personnel who will be first responders in the event of an emergency during the event. The list should include contact information and indicate which persons have medical or first aid training. Each member of the show staff should be instructed to call the first responders in the event of an emergency.
(2) Emergency contact numbers for local veterinarians and farriers. Show management should confirm in advance of the show that these veterinarians and farriers will be available throughout the event to handle emergencies.
(3) A reminder to call 911 and order an ambulance if any person is injured during the event, even if they "seem okay" following the incident. (In the heat of the moment, otherwise sensible people can forget this simple step.)
(4) The location of first aid kits and other emergency supplies on the grounds, as well as how to access such supplies (i.e., who has the keys).
(5) A simple form for the show management emergency team to fill out following the incident. The form should state: (a) the time and date of the incident, (b) a description of what happened, (c) the persons and horses involved in the incident, (d) whether any persons or horses were injured, and if so, how they were treated and by whom, (e) the name and contact information for each witness, (f) who from the show management emergency team responded, and what they did, and (g) any other information that the emergency team feels is important.

Let Accident Victims Know You Care

When an accident happens, there's a tendency to avoid the victim for fear of saying or doing something that could result in a lawsuit. But ironically, as seen in the reaction of the Nebraska mother, that avoidance has exactly the opposite result. When an accident happens, part of the emergency response team's responsibility is to keep the victim and their loved ones informed. Make sure they know the team is following an emergency procedure and that help is on the way. Stay with them until help arrives. Provide what comfort you can.

After the accident, follow up to find out how the victim is doing. If the victim can't return to the event, see whether there is anything that can be done to help out, such as making arrangements for horses still on the event grounds. Consider sending a get-well card and flowers or balloons. Human kindness is not legally actionable.

The only thing that should be avoided is making statements that take responsiblity for the accident, such as "It was all our fault." Also avoid making statements about how show management could have prevented the accident. But, if remedial measures need to be taken to make sure no one else is hurt, by all means take them - those measures are not admissible evidence of liability.

Don't Depend on a State Equine Activity Statute

While the Nebraska accident victim's mother says that "they were told that there's a state law absolving owners or organizers from liability at horse shows," the Nebraska Equine Activity Statute may not protect the Nebraska Horse Expo from a lawsuit. State equine activity statutes are limited in the protection they provide, and most have big gaps. For example, as the interview notes, spectators at equine events are specifically excluded by the Nebraska statute unless they have placed themselves in an unauthorized area. And, by merely petting a horse, it's not at all clear that the young accident victim was "engaging in an equine activity," which is defined as "riding, training, assisting in medical treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, or being a passenger upon an equine-drawn vehicle, or...assisting a participant or assisting show management."

Instead of relying on an equine activity statute to protect the event from liability, show management should insist that each attendee (whether spectator or participant) sign a liability release prepared by an equine attorney. Contrary to popular opinion, well-drafted liability releases are legally enforceable and will be upheld in court.

Liability releases are also no substitute for insurance - events need both. While a liability release may discourage potential plaintiffs from suing in the first place, and keep them from winning if they do, insurance serves a different role. If a lawsuit is filed, the event's insurers will appoint defense counsel and foot the defense bill. If a settlement is reached, or a judgment entered against the event, the insurance company will pay the tab. So, the event host should ensure that full liability coverage is in place for the event, and that all responsible parties are named insureds on the policy.

1 comment:

2horseygirls said...

My heart goes out to this family, at the same that my mind is thinking about the upcoming Midwest Horse Fair in Madison, as well as fun shows coming up at the rescue I work with, and the barn I ride at.

Thank you for this timely update - I will forward your post to both and see what we can do to protect ourselves and our visitors during these events.