"Get it In Writing."
In the horse industry, these truly are words to live by. People
who encountered serious problems with verbal contracts. For
example, a disgruntled horse buyer wants to sue because a horse allegedly
fails to live up to the seller's verbal promises about the horse's
condition or qualities; a horse seller in a verbal installment sale
arrangement wants to collect several months of missed payments or
re-possess a horse; or, a virtual "custody battle" brews
when the one keeping a horse claims that it was a gift and refuses
to return it, but someone else demands the horse's return, claiming
the horse was merely leased or loaned to the other.
With verbal contract disputes, one guarantee
is certain: they are rarely resolved quickly, easily, or cheaply.
When they are the focus of a lawsuit, they create a shouting match
because the two parties to the transaction never agree on the contract's
terms, or even whether a contract existed! Written contracts,
by comparison, can prevent disputes altogether or can help narrow
the grounds of a dispute, if one should arise. The investment
in a good written contract, especially when drafted by an experience
lawyer, can be well worth it.
Try to Develop and Keep Paperwork
& Reports. A large part of the horse industry
suffers from lawsuits brought by people who have been injured while
riding, handling, or near horses. During a lesson one day at
a riding academy, a child lost her balance, fell off of a horse, and
broke her arm. The stable arranged to give the child proper
medical attention at a nearby hospital, returned to business, and
the matter was soon forgotten. Three years later, however, the
child sued the stable. By that time, the stable had no recollection
of the incident. There were no known witnesses and no incident
reports. This lack of paperwork placed the stable at a distinct
disadvantage. If the academy had, at a minimum, taken
down the name, address, and phone number of the injured child and
of each witness, this problem would have been prevented. A description
of the incident, made close in time to when it happened, could have
helped, as well. Stables can develop procedures and forms for
this.
Liability Releases.
Releases of liability (also called "waivers") are probably
the most misunderstood documents in the horse industry. In
the many states that enforce liability releases, the courts demand
that the releases be properly worded and signed. Here are a
few noteworthy problems with releases and lessons to be learned from
them.
- Accept No Excuses.
The best release form is worthless if it is unsigned. A few
years back, a lawsuit involved a plaintiff (the one suing) who happened
to be a lawyer. Over her many weeks of lessons from an equine
professional, the lawyer made several excuses for not signing the
liability release. "I left my copy at home today,"
she would say. "I'll bring it to my next lesson."
Over time, the busy equine professional forgot all about the lawyer's
promises -- until the day when a horse bit the lawyer, seriously
injuring her. Only after the lawyer sued did the professional
realize that no signed release existed. Although the professional
had many valid defenses to the case, a signed release would have
been among the most powerful ones.
- Remember Who Can Sign Them.
In a personal injury case, a 16-year-old was rendered a quadriplegic
after falling from a horse in a freak accident. The stable
assumed that victory was assured because the minor had signed its
release of liability. A painful lesson the stable learned,
however, was that minors might be old enough to drive a car but,
in the eyes of the law, a minor's signature on the liability release
is usually not legally binding.
- Guard Important Contracts Under
Lock and Key, If Necessary. Stables in three different
areas of the country had one thing in common: each stable was certain
that the plaintiff had signed a release of liability before they
were sued; yet, the releases were nowhere to be found. The
stables' unconfirmed suspicions in each case were that the plaintiffs
had access to the stables' filing cabinets and snuck out the signed
releases just before filing suit.
- Fill In The Blanks.
Form releases found in books and sold in stores are, at best, a
starting point. Why? In one case, a stable merely photocopied
and used a one-size-fits-all equine release from a form book.
The form stated, in part: "In exchange for the privilege of
riding horses at XYZ Farm, I agree to release and hold harmless
____________." Unfortunately, nobody bothered to fill
in the second blank, leaving the release empty as to whom was released
from liability!
Sympathy Within Reason. A case in which
an equestrian was seriously injured from a fall during a lesson and
later sued the stable. The horse at issue was known to be "bomb-proof."
A day or two after the incident, a stable worker -- apparently acting
out of a desire to console -- allegedly told the plaintiff's relatives
that the plaintiff "never should have been paired with that horse."
The plaintiff's lawyers, seizing upon this statement and arguably
twisting it beyond its intended meaning, tried to use it to build
a case against the stable that the horse was unsuitable. Certainly,
sympathy and kindness are desirable human traits. For businesses,
the key is to advise workers that "so sorry" and a sincere
hug might do just fine to break an awkward silence.
Partnerships Are Businesses
Too. An alarming number of cases arrive from equine
business partners who assert that their fellow partners engaged in
unauthorized or fraudulent activities. In one dispute, for example,
a partner was accused of selling off horses that supposedly belonged
to the partnership, without the other partner's approval. In
many of the cases, the problems are worsened by the total lack of
a written partnership contract and the partnerships' horses were only
registered under one partner's name. This scenario creates costly
legal battles. Carefully drafted contracts can make all the
difference; the cost to develop one could save far more money in legal
expenses.
