Liability waivers are a common tool used in the equine industry to protect against lawsuits arising from horse-related injuries or accidents. These waivers typically require a participant to sign a document acknowledging the risks inherent in horse-related activities and agreeing to hold the horse owner or operator harmless in the event of an injury or accident. While liability waivers can be an effective means to protect against lawsuits, they are not foolproof and may not always be enforceable in court. It is important to have your liability waiver reviewed by a competent equine attorney for enforceability. A bad liability waiver is no protection at all.
Liability waivers in the equine context are allowed under MCL 691.1664(2), the Michigan Equine Activity Liability Act (MEALA). MCL 691.1664(2) provides that "two persons may agree in writing to a waiver of liability beyond the provisions of this act and such waiver shall be valid and binding by its terms." Although equine activity sponsors are protected by the MEALA, sponsors can further protect themselves by asking participants to waive certain rights and claims. In some cases, it can be beneficial to specify that your liability waiver releases claims beyond the protections of the MEALA. Terrill v. Stacy, 2006 Mich. App. LEXIS 522. It is not advisable for any equine professional to rely solely on the protections of the MEALA.
Pre-injury liability waivers ask their signatories to acknowledge the inherent risks of equine activities. In Michigan, an inherent risk of an equine activity is a danger or condition that is an integral part of an equine activity. MCL 691.1662(f). Examples include (1) an equine's propensity to behave in ways that may result in injury, harm, or death to a person on or around it, (2) the unpredictability of an equine's reaction to things such as sounds, sudden movements, and people, other animals or unfamiliar objects, (3) a hazard such as a surface or subsurface condition, and (4) colliding with another equine or equine object. A comprehensive list of the risks inherent to participating in equine activities cannot be compiled, but your liability waiver should at least list the four risks above.
In order for your liability waiver to be enforceable in Michigan, it must meet certain requirements. The requirements differ from state to state, so it is imperative that any drafter review their state's requirements before drafting a liability waiver. First, the waiver must be clear, unambiguous, and specific in its language. Terrill v. Stacy, 2006 Mich. App. LEXIS 522. It must also be prominently displayed and not buried in a lengthy contract or agreement. Additionally, the participant must have had a reasonable opportunity to read and understand the waiver before signing it. Further, only participants over the age of 18 can sign liability waivers. Minors cannot bind themselves by contracts, and liability waivers are considered contracts in Michigan. While it is tempting to allow students/minors to sign their own waivers, any waiver signed solely by a minor, and not their legal guardian, is voidable.
Courts have held that certain types of claims may not be released through a liability waiver. For example, a waiver may not be enforceable if it attempts to waive liability for intentional or grossly negligent conduct. Equine professionals cannot rely on the MEALA to protect them from claims of gross negligence. In addition, waivers may not be effective if the waiver violates public policy. In Michigan, it is unsettled whether a parent or guardian can sign a pre-injury liability waiver on behalf of a minor. Woodman v. Kera, 486 Mich. 228; 785 NW2d 1 (2010). In Woodman, the Court was asked to determine whether a pre-injury liability waiver signed by a parent on behalf of his child was enforceable. Woodman is a Michigan Supreme Court case where a father signed a liability waiver on behalf of his child, releasing the defendant Bounce Party from any liability from personal injury caused by participation at the bounce house. This child jumped from a slide and broke his leg. The mother sued on behalf of the child. The company defended, arguing that the child's father had signed a contractually binding liability waiver releasing the company from any liability caused by participation in the activity. The Court, in a split decision, held that a parental pre-injury liability waiver is unenforceable in Michigan. The Court reasoned that, in contract law, a minor lacks the capacity to contract, and a parent has no authority to bind their child by contract. In other words, a parent cannot waive the rights of a child to sue. Woodman, 486 Mich at 240.
In 2011, just after Woodman, the Michigan legislature promulgated a new law, adding MCL 700.5109 to the Estates and Protected Individuals Code. MCL 700.5109 states:
(1) Before a minor participates in recreational activity, a parent or guardian of the minor may release a person from liability for economic or noneconomic damages for personal injury sustained by the minor during the specific recreational activity for which the release is provided.
(2) This section only applies to a recreational activity sponsored or organized by a nongovernmental, nonprofit organization.
At first glance, it appears that by adding MCL 700.5109, the legislature codified the enforceability of pre-injury liability waivers signed on behalf of a minor. Unfortunately, section (2) of 5109 states that this law applies only to nongovernmental, nonprofit organizations. Recreational activities sponsored by for-profit organizations are not protected by this act.
For nongovernmental, nonprofit organizations like the Boy Scouts, a pre-injury liability waiver signed by a parent/guardian on behalf of a minor is enforceable. For lesson barns and other for-profit organizations, the law is less clear. Under Woodman, unless the legislature promulgates a new law, pre-injury liability waivers signed on behalf of minors are unenforceable when the recreational activity is sponsored by a for-profit organization. Since Woodman and the addition of MCL 700.5109, there have not been any recent cases discussing the enforceability of parental pre0injury liability waivers, leaving the law unsettled. Despite these limitations, liability waivers remain an important tool for horse owners and operators to protect themselves against lawsuits. They can help ensure that participants are aware of the risks involved in horse-related activities and are willing to assume those risks in exchange for the opportunity to participate in the activity.
It is important to note that liability waivers are not a substitute for proper safety measures and adequate insurance coverage. Horse owners and operators should take all necessary precautions to minimize the risk of injury or accidents, including providing appropriate safety equipment and training, maintaining safe facilities and equipment, and carrying adequate insurance coverage. A barn operator renting/providing horses or tack should be particularly careful with their equipment. Many equine activity liability acts, including Michigan's, have exceptions in protections for providing faulty tack, making regular tack inspections a necessity.
In conclusion, liability waivers are a common and important tool in equine law for protecting against lawsuits arising from horse-related injuries or accidents. However, they must be carefully drafted an implemented in order to be enforceable in court. Horse owners and operators should also take additional steps to minimize the risk of injury or accidents and ensure that they have adequate insurance coverage in place.
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