Stable owners, instructors, and riders take heed: the protection offered by your states equine activity liability statute is likely not complete. Knowing what this legal landscape is in your state can be very helpful when planning what do to in the almost certain event of a fall from a horse.

Most states have passed so-called "equine activity liability" statutes, which try to protect equine professionals from liability when participants in equine activities get injured. In Massachusetts, for example, this statute found at General Laws Chapter 128 Section 2D, talks about the 'inherent risks of equine activities,' and describes these risks as including, but not limited to, the "propensity" of equines to behave in ways that may result in injury, from the unpredictability of a horse's reaction to sounds or movements, to hazards from surface or subsurface conditions, collisions with other equines or objects, and the potential for another participant to behave in a negligent manner.

The Massachusetts statute seeks to protect equine professionals from liability associated with all such described risks. If the stable and the instructors are properly licensed, and IF the statute is posted prominently about the stable as required by law, and IF the professional's contracts also contain a copy of the statute's wording, then the Massachusetts courts have followed through on this promise by, in most cases, ruling for the stable or the equine professional involved for all situations involving ordinary negligence. Massachusetts does not follow all states on this issue; for example, Connecticut does allow recovery against stables for the ordinary negligence of the professionals involved. In Massachusetts, though, the alleged negligent act must rise to the level of "willful and wanton" (a heightened standard of negligence).

The blanket of protection is not complete for all situations, however. The statute itself recognizes several exceptions, and case law has refined these exceptions further.

First, the equine professional, if they have provided the tack of the horse, and knew or should have known that the tack was faulty, can be held to be liable for damages resulting from injuries that occur if the tack fails. Further, the equine professional has to make "reasonable and prudent efforts" to determine the participant's ability to safely manage the particular equine based on the participant's representation of his ability.

This duty, to determine the relative skill level as matching the particular equine, has been held to be a "continuing duty." That is, if the lesson starts off splendidly, but as it goes on, the instructor starts to see that the horse is too much for the rider, then the instructor conceivably can be held to be liable for failing to take prudent measures. The case involved talked about how "horses, like humans, can have bad days." The judge involved split a pretty fine [horse] hair when he noted that the issue is not whether the professional gave bad directives, or failed to anticipate a particular horse's reaction to a particular stimulus, or even whether the rider displayed periods of inattentiveness during the lesson. Rather, the question was whether the horse's behavior was bad enough to put the equine professional on notice that on that day and at that time, the rider did not have sufficient ability to engage safely in the particular equine activity involved.

Another frequent ground for litigation involves the "vicious" animal argument. That is, horses will bite and kick, and if sufficiently aggressive, owners and stable owners could conceivably be liable if they fail to protect persons on the premises from attack. In that case, the statute still operates to protect the stable owner from any conduct short of "willful and wanton" negligence. At least one case has held that where a horse has only kicked once before, that that was insufficient evidence of viciousness or aggressiveness to constitute an exception to the statute. Another case held, where an aggressive horse took advantage of a gate in disrepair to attack a rider, that that on its face did not contain enough evidence of "willful and wanton" negligence to warrant liability under the statute. These cases do lead to the possibility that if the horse involved had a track record of kicking or biting on more than one occasion, that the owner or stable owner could be held liable for injuries resulting from any attack. Such incidents should trigger a review, therefore, of whether such animals should be boarded or kept on the property.

Clearly, therefore, though the statute's protections are broad, they are not quite the complete coverage that many stable owners or instructors have in mind. In the event of a problem, a contract where the participant affirmatively assumes the risk of any danger may be protection where the statute fails. At least one court in West Virginia has held that the assumption of risk waiver held to protect the stable, where the statute itself would not have.

Falls can be bad business for all involved. In the event of a fall or injury, do seek legal advice, and contact your insurance company immediately. This is good advice whether you are the injured party or the equine professional.

Kathleen A. Reagan, Esq. is an equine attorney practicing in Braintree, MA, available at www.kathleenreaganlaw.com, has developed a course in equine law at www.concordlawschool.com, and is co-founder and Vice President of QueryHorse, the largest horse information resource on the Internet.