All but four states in the country have what is called an "equine activity liability" statute that limits lawsuits against stables for cases related to the inherent risk of riding horses. These statutes were passed because, without them, it was feared stables could not operate given the high risks of injury involved. However, because these statutes do exist, stables in these states sometimes grow careless regarding their policies and procedures, particularly around the issue of requiring riders to sign liability release waivers. Carelessness is not rewarded in the law. A recent Massachusetts appellate court case, Pinto v. Revere Saugus Riding Academy, highlights this risk, which is inherent for stables operating a lesson program. This case, decided in the summer of 2009, involved a stable that had relied on the protections of the Massachusetts Equine Activity Liability Statute, M.G.L. c. 128, Section 2D, Subsection A.

The statute states in pertinent part that,

"Except as provided in subsection (c ), an equine activity sponsor, an equine professional, or any other person, which shall include a corporation or partnership, shall not be liable for an injury to or the death of a participant resulting from the inherent risks of equine activities and, except as provided in said subsection (c ), no participant nor participant's representative shall make any claim against, maintain an action against, or recover from an equine activity sponsor, an equine professional, or any other person for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities."

G.L. c. 128, § 2D, inserted by St.1992, c. 212.

This statute is similar to the statute of many states that seek to limit liability from injuries to horseback riders. In this particular case, a Superior Court judge had thrown the case out on a motion for summary judgment filed by the stable in a decision that relied on the statute's limitation of liability indicated above. However, the Massachusetts Appeals Court reviewed this action and instead found that the case should go back on the trial docket in Superior Court. This was based on the theory that the facts showed enough grounds to believe the stable had "provided the equine and failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, and determine the ability of the participant to safely manage [the horse], and as a result, the plaintiff was injured."

The rider in this case, did indicate to the stable that she was a beginner. The evidence that the court relied on to reverse the trial court's judgment was that a farrier apparently had a difficult time riding the horse before the plaintiff's ride, and when the horse was brought to the Plaintiff, the stable manager asked the Plaintiff if she wanted to mount the horse. According to the plaintiff, the horse was prancing and tossing his head and showing too much "energy".

In sending the case back to the trial court, the court stated that "the 'skittish' conduct of the horse was enough for the equine professional to be 'put on notice' that the stable manager, or a reasonable professional in her place, that at that time, the plaintiff, a beginner, did not have sufficient ability to ride the horse."

The appeals court was unclear in its decision as to the source of the evidence recounted above, other than mentioning evidence contained in the plaintiff's deposition. The potential for self-serving statements by plaintiffs seems not to have been addressed in the decision. The court did note that this horse had never had any problems in the past, but found that this lack of previous complaint was trumped by the Plaintiff's evidence.

Because of the court's omission, an astute reader is left with two questions: (1) was there evidence from another source that the court saw fit to omit mentioning in its decision, (one hopes, a neutral source), and (2) why did the stable not have a waiver stipulating that participants assume the risk related to the sport of horseback riding as a condition of renting horses at that stable? The message from this decision is clear: stables cannot rely on the statute alone to protect their business, and therefore, need to take precautions to protect their businesses via contract. This is because a plaintiff may interpret events broadly so as to help their own position, and therefore, the mere fact that a horse is breathing, moving, and capable of progressing forward may suffice to provide evidence from which a court could find a beginner unable to safely manage the control of said horse, under the statute's wording of the issue. This seems inequitable, and does not comport, in my opinion, with the underlying reason for the statute.

Beginners, by definition, cannot manage horses — they know they cannot manage horses. Therefore, to place all of the risk associated with riding upon the stable in such circumstances does seem to be unfair given that riders choose, under many circumstances, to engage in knowingly risky behavior — this seems to be such a case. If the plaintiff testified to the horse having too much energy and appearing skittish, and to being asked whether or not she wanted to mount, the rider herself can be found to have the same knowledge to that attributed to the stable manager, and to have pressed forward despite her knowledge of these risks.

Because the statute's protections has an exception requiring stables to match horses with riders and to make a continuing judgment as to the rider's ability to control the horse, it seems to me that this exception is one that, if not managed contractually by the stable, has the potential of erasing the entire point of the statute. The duty to continually monitor the situation places the burden of the rider's own risk-taking behavior upon the stable. It also places responsibility for the inherent risk of horseback riding upon the stable. And as most events bear out, at the point in time at which the professional becomes aware that there is a problem, it is usually at a point in time too late to do anything about the situation. Once the horse has started his actions, there is no way for a stable to intervene in most cases. The Saugus incident may not be that case. There may indeed have been independent evidence that the court used to find that the stable manager WAS put on notice about the horse being skittish and likely to be uncontrollable by a beginning rider on that day, and the stable manager did nothing to prevent the situation.

However, what is clear from this case is that stables need more protection than the typical state statute allows. That protection can only be found by rigorous contracts signed by all riders and guests on the premises. It must also make all who enter aware that the inherent risk of horseback riding is bodily injury caused by the horse, and that a condition of entering the premises is the assumption of that risk.

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.