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Sunday, July 05, 2009

And Frank Easterbrook Thought the "Law of the Horse" Wasn't Fascinating?

Okay, campers.  Somebody please explain this one to me.

I decided I wanted to take at least one horseback riding lesson, because, well, I just want to.  We'll see where it goes from there.  I went up to the Bay Harbor Equestrian Club, where horses seem to live in nicer condos than most people, and I'm due to mount up this Thursday on "Nick," who is supposedly gentle on aging, "City Slicker" wannabe, never-been-on-a-horse-except-the-merry-go-round, where's the kickstand and the ignition key, what was that bubbeh said about Cossacks, rookie.

There is a big sign mounted just before you enter the riding ring (and it appears on the contract as well) that says:  Under the Michigan equine activity liability act, an equine professional is not liable for an injury to or the death of a participant in an equine activity resulting from an inherent risk of the equine activity.  Well, that's not off-putting to me, because I'm tough (I taught an upper level bar course - business associations - as a visiting prof in the fall of 2006 to returning 2Ls at Tulane who had just undergone the post-Katrina 1L year in which they stuffed an entire year into the spring and summer terms, and I lived to tell about it).  But as a sometime participant in the dialogue about corporate governance, I kind of wondered why riding instructors got a free pass when there's so much debate about the business judgment rule and good faith and all that stuff as it applies to directors (who also supposedly get a free pass).  So I looked up the statute.

The statute expressly provides that the sign and contract must contain exactly that warning.  MCLA §691.1666(3).  And, I suppose it's literally true.  But this looks like an instance in which the exception subsumes the rule.  Yup, Section 3 says "Except as otherwise provided in section 5, an equine activity sponsor, an equine professional, or another person is not liable for an injury to or the death of a participant or property damage resulting from an inherent risk of an equine activity."  MCLA §691.1663.  But when we get to §5, we see (in relevant part) that the equine professional is nevertheless liable for (a) providing faulty equipment or tack if it is the proximate cause of the injury, (b) providing a horse and failing to make sure that the participant's ability fits that particular horse, and (c), the biggest catch-all, "commit[ting] a negligent act or omission that constitutes a proximate cause of the injury, death, or damage." 

So as I read this, there's a safe harbor against liability for anything arising out of the inherent risk of the activity, which, by the definition, includes about what you would expect:  ornery animals, animals that run into each other, and how animals react when they hear loud noises.  Nevertheless, that doesn't cover all the duties of reasonable care that you'd expect the professional to have even if there were no law at all.  What else is there?  Equine law experts, what gives?  Is this somehow merely burden shifting?  What am I missing?

Posted by Jeff Lipshaw on July 5, 2009 at 09:13 PM in Torts | Permalink


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Miriam: That was a funny bit. You deserve fifteen hands. When somebody like you keeps making bad puns (when it reins, it pours), somebody will say "halt 'er." And you should deservedly bridle at the remark.

Posted by: Jeff Lipshaw | Jul 13, 2009 6:42:11 AM

Nice post, Jeff!

Posted by: Miriam Cherry | Jul 12, 2009 6:47:18 PM

I am an attorney with a side gig as a horseback riding instructor on Saturday mornings at a barn in Maryland. Maryland does not have a similar law, but I used to live and ride in Pennsylvania, which did. I'm not sure that law makes much difference. Most barns have riders sign a hold harmless waiver, including the one where I work, whether or not the state has the kind of law you describe. It is my understanding that regardless of any waiver or inherent risk law, plaintiffs are still often able to win lawsuits against barns. As a result, a lot of barns carry liability insurance. But, I've heard the insurance options available are not great because it is such a risky business. The word in the horse community is that one big lawsuit will put a barn permanently out of business. Typically, these aren't deep pocket businesses, but small family businesses that are lucky to break even in any given year. As an instructor, I am acutely aware of the risk I run by teaching, but my passion for riding and teaching riding overcomes the wary lawyer in me. Good luck with the riding lessons, Jeff!

Posted by: Sarah | Jul 7, 2009 8:33:47 AM


Posted by: Miriam Cherry | Jul 6, 2009 12:40:56 PM

I'm thinking that there might be lots of loopholes there as well...say you are in an indoor arena, and there's a rake or something buried beneath the sawdust that the horse trips on. Or someone saddles the animal negligently for you (if it's a really posh stable) and that causes problems. Or negligently maintained harness in general. Maybe it might protect mostly against common-sense injuries.

I used to ride and jump extensively (and plan on getting back into it soon) and I do inow that in some states these statutes are more powerful than others. The rationale I believe is that one lawsuit could put a stable out of business. I'd also imagine that there has to be some insurance that the owner has to carry. But I've seen the same signs in barns all over the place. So clearly stable owners should be well informed about how extensively those statutes protect them.

Posted by: Jody | Jul 6, 2009 12:52:24 AM

Having litigated a case (for the plaintiff) under such a statute, I agree that it is essentially meaningless, except I suppose to the extent that it rules out strict liability based on an "inherently dangerous activity" theory. However, it did give the defense lawyer an explicit platform for talking about inherent risks, which I think was probably helpful. And I'm sure it makes the stable owners feel better.

Posted by: Jennifer Hendricks | Jul 6, 2009 12:03:30 AM

My wife rides horses a lot. (I ride the occasionally because, while I like it, she likes it a lot more and we can't afford for both of us to ride regularly. It's really expensive.) There are very similar signs up in bars in New York and Pennsylvania. But at one stable we considered in New York, they also make you sign a waiver that says that you hold them harmless even if they are negligent and that you are subject to a penalty if you try to sue them for any reason. I was fairly skeptical that the waiver would stand up in court, but thankfully it was, despite being a very expensive and fairly famous stable, also fairly bad as far as the lessons went so my wife sent somewhere else. This doesn't answer your question, I know, but this sort of thing is very common. I suspect that the horse people don't know that they are as open as they are and expect that the law gives them more cover than it really does.

Posted by: Matt | Jul 5, 2009 10:35:28 PM

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