Category: Articles

Kids are great. Except when they’re not. Often we find that parents use the stable as their de facto baby sitter. What are your risk exposures and how do you professionally handle them without offending parental clients?

1. Know and Meet Applicable Standards of Care

Client’s children are defined by law as “invitees”; i.e. present on your property, at your invitation, for a business reason. Thus they are legally entitled to the highest duty of care to protect them. This is defined as your duty to identify and anticipate, warn, and protect guests from those exposures. 

In most instances, regular premise inspections will identify risk areas to children. This may include stabling arrangements. For instance, if a particular horse is known to be a biter or kicker, stable that horse in a restricted area and place warning signs on its stall. Put stallions in back pastures inaccessible to the public. Mark and block out, repair and eliminate problems such as well covers, hornets nests, erosion areas, or pond access. And always keep your eyes open regarding daily activities of your clients and their children on the property.

2. Understand and Eliminate “Attractive Nuisance”

“Attractive Nuisance” is a unique doctrine specifically applicable to children. Defined as a condition known to attract children, that poses dangers the child may not recognize, the “attractive nuisance” situations typically include hay barns, shaving piles, construction dirt piles or heavy equipment. Irresistible to children, they pose an extremely high risk of injury or death. 

The owner bears a significant duty to prevent a child’s access to these sites. An owner will not be liable for injury or death if: 

• The child was old enough to recognize the hazard, 
• The owner took “reasonable steps” to restrict access to protect the child, and
• The steps taken were reasonable from an exposure “cost/benefit” perspective

Regardless, take extra precautions in these areas. Be sure access is restricted by locks, gates and warning ribbon. Put up warning signs with written and pictorial warnings. If you see children playing in a restricted area, pull them out immediately and explain the danger to them. Follow up with a written warning to the parents of the conduct, remind parents that children must be supervised at all times on the property; and that their failure to do so could result not only in termination of the boarding agreement, but in severe injury or death to the child. 

3. Communicate Rules Clearly

Let your clients know from the start that you are NOT a babysitting facility. Explain in your contracts that equine facilities pose unique risks that require children up to age 15 to be adult-supervised at all times, for their own safety. If approached by a disgruntled parent, you can reasonably explain the rules are there to protect the child and prevent injury or death arising from unsupervised activities on the property. 

© Denise E. Farris. (July, 2019). This article may not be reprinted or reproduced in any manner without the consent of the author. This article is not intended to be the provision of legal advice. For fact-specific questions, refer to an attorney licensed in your state. Contact: Denise Farris, Farris Legal Services, LLC. [email protected].

In July 2018, a single horse infected with EIA entered the state of Colorado without providing a negative EIA or coggins test.  Shortly thereafter, the horse was diagnosed with EIA. In the short time frame between entry and diagnosis, over 240 other animals were exposed to the infected animal, with approximately 100 of those horses transported to 20 other states across the country.  While the original infected horse was euthanized, the extent of the exposure is seen by virtue of the following:

1. The original (index) premises remains under a quarantine order
2. Two additional associated premises remain under hold orders
3. Fifteen additional premises are under hold orders in nine Colorado counties;
4. The Center for Disease (CDA) reports that ongoing efforts are being made to locate and retest all 240 horses exposed to the disease, with second and third tier exposures identified and traced at the same time.

This recent example illustrates the key importance of understanding the stable owner and veteriinarians’ role in controlling the spread of infectious diseases, and the devastating impact caused by even one failure to follow the established protocols (i.e., presentation of a current Coggins).

Yet compliance can be problematic in the fast moving world of horses.  Event managers are receiving, registering multiple horses in a short time frame.  Owners often complain that they possess a current Coggins but “forgot” to bring a copy, arguing it would be unfair to bar them from the competition after they’ve travelled so far.  Sponsors are sometimes tempted to bend the rules and allow horses to participate without the requisite paperwork. But is this (a) legal, (b) defendable, and (c) insurable?

© Denise E. Farris. (October, 2018). This article may not be reprinted or reproduced in any manner without the consent of the author. This article is not intended to be the provision of legal advice. For fact-specific questions, refer to an attorney licensed in your state. Contact: Denise Farris, Farris Legal Services, LLC. [email protected].

Def: “Glamping”: Going camping, but with glamour. A combination of the two words, it’s like regular camping, but with nicer things than usual, like being warmer, and more comfortable. Glamping isn’t done by usual outdoor types who climb mountains.” Urban Dictionary. 

So you’re bored with your typical equestrian entertainments and looking for something new. How about trying “Equestrian Glamping?”

Equestrian glamping is camping with your horses – but in STYLE! We women innately understand glamour – how do you think tail glitter and neon hoof polish were invented? Glamping just transfers those concepts to your equine camping experience. 

You may at first think “trail riding”, “horse camping”, and “glamour” are oxymorons — the terms can’t possibly be mixed. But they can! Our glamping group contains a disproportionately large number of competitive trail and endurance riders. As such, we routinely travel long distances with our horses to engage in competitions over rough and primitive terrain with distances ranging from 25 to 100 miles. (Note: This is NOT glamping. But it gives us the confidence to take on longer and more challenging travel demands to get to desired glamping destinations.)

Given our travel distance and time requirements, most of us own comfortable living quarters trailers, known affectionately as LQs. We also own trucks to pull those trailers – even we Divas enjoy the ego boost of sitting high behind the wheel of a chugging Dually diesel, looking down (kindly) on the neighboring Prius and saying: “Whas’ Sup?”. Thus with our truck and nice LQ trailer, we already own two essential tools to make glamping possible.

Do you need an LQ trailer to glamp? Not really. “Glamping” is more a state of mind, a type of “art”. Like our sequined western show jackets, glamping is created from great design, planning, execution and practice, all done with great skill and enthusiasm by our group of hard core horse addicted femme fatales affectionately named the Divas. We have, through diligent practice over many years, perfected the art of glamping. We’re happy to share our hints.

1. Form Your Group Carefully

When forming your glamping group, look for the following characteristics: 

1. Comparable riding skill and speed – its problematic when one person wants to walk while the rest wish to consistently move out
2. Compatible personalities – be sure you enjoy one another’s company, support one another, and have the ability to laugh at improbable situations 
3. Comparable entertainment styles – you don’t want to combine a group of late night wino karaoke enthusiasts with quiet early to bed riders. Both groups are great, but may not mix in one glamping experience.
4. Compatible horses – you want horses that like each other; don’t waste valuable glamping time breaking up equine fist (hoof)-fights

Once your basic group is formed, test it out. Do some challenging and long one day rides together to evaluate the chemistry. Add an overnight campout close by. You don’t want your glamping trip to be the first discovery that one of the above factors is missing. If a rider or horse don’t mix well, find a tactful way to suggest this upcoming experience might not be enjoyable for them individually and find a time to plan another experience more suited to their needs. You CAN have more than one glamping group. 

2. Secure your LQ Trailer or Alternatively Seek Locations with Nice Cabins

There are several ways to secure an LQ trailer – you can buy, borrow, rent, or mooch a bunk berth with a friend. The LQ should preferably be equipped with hot running water, a king size bed, a pull out couch or extra bed for guests, air conditioning, refrigerator, cook stove and – if possible – slide outs for that valuable extra room for indoor glamping card or board games when it rains. Or snows. Or is too hot to ride.

If you don’t’ have an LQ trailer, pick a location which offers both campsites and nice cabins. Check these out on Trip Advisor or other third party referral sources – a glamping experience can be destroyed by accommodations which turn out to be mold infested dumps. This situation definitely kills the glamping ambience. 

3. Find an Amenable Location 

This rule can be challenging. We all understand the concept of great location. However, each Diva’s ideal location can vary dramatically at any given moment. Getting Type A women to agree to a commonly accepted destination and time is an exercise in planning, scheduling, and diplomacy . Do we do Bryce Canyon, the Biltmore Estates, or find a scenic local campground? When? For how long? Who’s available? Who’s not? How physically demanding is the ride? How physically challenged do the riders want to be? Reaching consensus requires a strategic approach.

Typically hard core glamping trips require at least one planning meeting. When presenting your destination proposals, come armed with:

1. Power point slides of the destination’s selling points; pictures say a thousand words; 
2. Map quest handouts showing route, total miles, estimated driving time, and tourist attractions (i.e. either outlet malls or well-known equine tack, trail and apparel shops with BLING – and ample parking for your horse trailer); 
3. A list of suggested stop-over points with information about overnight horse accommodations and whether the stop-over will be “in transit” or can itself offer some glamping opportunities (for long hauls only); and 
4. Copious amounts of adult beverages – they assist in persuasion and consensus building. Alternatively, for your group’s drinkers and non-drinkers alike, bring chocolate.

If you’re feeling particularly organized, address both your winter and summer glamping destinations based on (1) weather you wish to escape, and (2) weather you wish to escape to.

4. Ensure Appropriate Campsite Amenities 

Be sure your destination campground has the proper amenities. This includes: (1) sufficient campsites and cabins if needed; (2) electric and water hookups or – alternatively your own generator and water holding tank in your LQ trailer (both essential for hair dryers and other beauty accessories needed to maintain the Glamping Appearance); and (3) safe and comfortable stalls or corrals for the horses. Check the web site and call your campground host. Are your campsites near the horse corrals? Is the water hose / shavings shed close to both corral and your trailer? For the ultimate glamper, will the campground personnel water and clean stalls for an extra fee? Your failure to properly investigate these factors can sadly convert your “glamping” experience into a “camping” experience.

5. Pay Special Attention to Food, Adult Beverages and Entertainment 

Now we get to the fun part. No glamping trip is complete without full attention to food and beverages. And I mean – FULL ATTENTION. In Glamping, food and beverages are a BIG DEAL. To maximize the experience, we suggest assigning one meal of each day to a particular person. This encourages the friendly competitive spirit amongst the group and ensures that EACH MEAL – be it Breakfast, Trail Snacks, Lunch, Afternoon Snacks, Dinner and Before Bed Snacks – is drop dead awesome. The friendly but competitive atmosphere guarantees the food is aesthetically pleasing, of gourmet quality taste, and worthy of your time in eating it. Remember, a rider burns approximately 200 calories an hour at a walk. Sustenance is of the essence. 

To enhance the experience, you can assign themes to each day. Perhaps Day 1 is Adventurous Campfire Recipes; Day 2 is “Scintillating Smorgasbord”, and Day 3 is “Wine, Cheese and Chocolate”.You get the drift. If this aspect appears intimidating, or you’re concerned your meal doesn’t meet the standards, just complement it with those adult beverages. Don’t like adult beverages? No problem – bring creative juice or beach umbrella drinks without the alcohol. Lacking creativity, just remember to Bring More Chocolate. (Hint – Chocolate is a Universal Glamping Basic).

6. Properly Accessorize. 

The BEST thing about glamping is that it’s never ending. You are either Doing It – meaning you’re experiencing the pleasure of getting to, and enjoying the experience, or you’re Planning It, meaning you are pouring over travel catalogs, on-line destination sites, truck/trailer/trail/camping equipment, and best of all – glamping accessory catalogs. 

Creative lighting is a glamping essential. Several online sources provide ground lights, awning lights, trailer door lights, gnome lights, hot chili pepper lights, dancing hula girl lights, wine bottle lights – well, you get my drift. Creative lighting can also include twinkle lights in colored mason jars, LED lighted wine glasses featuring stems in changing colors, and Himalayan horse head salt block lamps for setting the mood indoors. Lighting is essential – particularly in light of the adult beverages, and navigating campgrounds in the dark.

Other accessories might include speaker systems for your outdoor music; oscillating fans and cold water spritzer fans in case of humidity, horseshoe wine bottle holders, creative bug spray dispensers, and campfire cookware (See Rule 5 Theme Meals above). Essential accessories also include mandatory fire tongs for mandatory S’mores. (See Rule 5 – Chocolate).

7. Provide Entertainment

Horseback riding in beautiful regions is entertaining. But you can do that camping. The Glamper requires something more. Perhaps you can glom onto another event already scheduled, perhaps the campground’s Mule Jumping Competition and Trail Wagon Cookout? Or maybe add a Karaoke Night to the tail end of your day long ride. Alternatively, you can just wing it and watch your Glamping Partners attempt to light an outdoor bar-b-que grill in 50 mph wind because darn it, grilled steaks were on the menu for tonight and its gonna happen. Regardless. With the right group, the entertainment factor is easily met and one of the experience’s highlights.

8. Be Flexible 

Even with Diva standards, things can change in an instant. Destinations can be flooded or closed due to forest fires. A trailer can break down at the last minute, or a horse go lame. A carefully planned campfire meal can – well – burn. So the last rules of Glamping are perhaps the most important – Be Flexible. Have fun. Always maintain a good sense of humor – even the disasters make for great war stories later. Be aware that next time, it could be YOUR meal that burns. So no complaining. Period.

Hopefully this primer enables you to consider and undertake your first Glamping experience with your horse. Be adventurous. Be creative. Give Glamping a try. Who knows? You might just LOVE it.

Like a Diva. 

© Denise E. Farris. (August, 2018). This article may not be reprinted or reproduced in any manner without the consent of the author. This article is not intended to be the provision of legal advice. For fact-specific questions, refer to an attorney licensed in your state. Contact: Denise Farris, Farris Legal Services, LLC. [email protected].

Horse people are known storytellers. The more a story is told, the more “truth” it gathers in the telling. Myths are great fun around the campfire, but can lead to gross misunderstandings when applied to the real world. Let’s examine ten of the better known “myths” and subject them to the True/False test before they bite you in your log-sitting nether regions.

1. You can buy a horse on a handshake

ANSWER: It depends. 

The determinative factor is the value of the horse or when the contract will be fully performed. All 50 states have adopted some form of the Uniform Commercial Code, which states that any contract for the sale of goods or services exceeding $500 in value, or which cannot be performed within in year, must be in writing to be enforceable. If a horse is sole for $500 or less, a handshake will do. If its value is $501 or higher, or if you’re selling on terms which extend final payment beyond one year, you’d better have a detailed contract which identifies the date, parties, horse sold with specificity, value, and any other details requiring contractual enforcement rights. Lacking same, either party may “rescind” the contract; i.e. negate it and return all parties to the position they occupied before the sale was made.

2. A trainer has authority to speak for the owner.

ANSWER: It depends. 

This answer deals with the law of “agency”, with the trainer serving as the owner’s agent with powers specifically granted or limited by the owner. The extent of the trainer’s authority is typically set by contract; thus what does the boarding and training agreement say, or not say? There are many reported cases addressing parties’ misunderstanding as to where this authority begins and ends. The wise horse owner and trainer will discuss these parameters with all involved parties, including owner, trainer, veterinarian, farrier, and any other related parties, addressing worst case scenarios and confirming in writing the lines of authority granted from the owner to each of these agents. This document should then be reviewed and updated on an annual basis. If there are multiple owners, then one issue to be addressed up front is WHICH owner has the legal authority to direct action related to the horse, and grants of authority to third parties. Well defined lines of authority are essential elements to all boarding, training and medical treatment forms. Be sure to give this issue the attention it deserves, at a time when a crisis isn’t looming over your head.

3. You don’t need liability insurance with states having Equine Liability Act statutes

ANSWER: False.

To date, all states except California, New York and Maryland have some form of Equine Activity Liability Act statute allegedly protecting equine owners and professionals from frivolous lawsuits. While the statutes do have a positive impact, they do NOT prevent someone from suing you and thus do not negate the need to carry good liability insurance. Instead, the statutes serve as a statutory defense which can be argued – by lawyers to a court – to have a lawsuit dismissed on grounds of the statutory defense. This “argument” costs you money unless it’s covered by your insurance. Thus insurance plays an important role in allowing the insurance company to appoint an equine-experienced law firm to defend the insured, research the facts against the statutory defense, and if applicable, file an early motion to have the court dismiss the case on the basis of the EALA statutory defense and assumption of risk grounds incorporated in the statute.

Also, be aware that the EALA statutes vary widely state to state. Some states have very broad statutes which grant a high degree of legal protection, while other statutes’ contain various exceptions which often minimize the practical effect of the intended legal protections. Use of the statute, along with well drafted liability waivers and good liability insurance protection, will keep you sleeping well at night.

4. Your liability waiver isn’t worth the paper it’s written on

ANSWER: It depends.

Liability waivers are typically upheld by courts so long as the waivers are carefully drafted in line with applicable state law. To be enforceable, the waiver must: (i) correctly name all parties to be released, (ii) be signed by all persons granting that liability release, (iii) in clear and specific language specifically warn of the dangers and risks covered by the release, and (iv) use clear and unambiguous language indicating the releasing parties know they were waiving their right to sue for damages related to those identified risks. A well drafted liability release is typically the most important legal document available to a stable owner or trainer but should always be drafted by an equine lawyer in a format specific to your particular equine business risks and activities. Canned forms typically will not meet the Four Factor test outlined above, and will thus be legally invalid. 

5. A dual agent in a horse sale does not have to disclose information to both parties

ANSWER: It depends.

This is a state specific inquiry. If an agent is handling the sale of a horse either destined to go into, or be sold out of, Florida, California or Kentucky, then a dual agent is subject to specific statutory disclosure and written contracts requirements that include:

1. Disclosure of the dual agency
2. The sales price of the horse
3. The date of the sale
4. Identity of all parties
5. Relevant states of sale and interim or final destination
6. The amount of commission being paid to the dual agent by each party, and
7. Other specific statutory language which is state specific

Compliance failure may expose the dual agent to statutory fraud charges and punitive damages, so it’s important to research the required steps and ensure compliance on all sales.

For states other than Florida, Kentucky and California, no statutes require express disclosure but it remains a good business practice to avoid either party claiming self-dealing or less than full disclosure by the agent. Remember, any time a single individual is representing parties with different interests, it creates the appearance of conflict of interest which can compromise the apparent integrity of the party involved. Thus even for those states outside Florida, California and Kentucky, full disclosure is the recommended way to go for ALL dual agents, and is legally mandated when involving these three states.

6. Your homeowners insurance covers horse related injuries

ANSWER: It depends.

The relevant factors here are whether the claim arose out of a personal exposure (typically covered), or a business exposure (typically not covered). Thus a homeowner who keeps a horse on her property may have homeowner’s coverage for injury of a friend who was accidentally kicked by the horse while on the property. But let’s change the facts up a bit. What if that friend was bartering horse care and stall cleaning services for you while you’re out of town, in return for being given permission to ride your horse? You’ve now entered into a barter arrangement which has reciprocal benefits and a potential “employment” character to the transaction. This in turn may create an apparent business relationship which is expressly excluded under a homeowner’s policy and thus would be a non-covered event. 

The more clear cut the business aspect of the deal, the less likely coverage applies. Don’t guess on these issues. Give your agent a call and specifically discuss your coverages in light of expected activities on your property. Insurance is always money well spent. You’ll be particularly grateful if you’re ever sued!

7. Your automobile insurance covers trailer-related damages

ANSWER: It depends.

Again, this is a highly complicated issue and very fact specific as to the details of your auto policy, as well as how and why you’re pulling a trailer, what’s in the trailer, who or what is damaged, and was there additional insurance coverage on: (a) the horse trailer; (b) its contents, including horse, tack and other belongings, and (c) whether the transport was for business or pleasure. This is another situation where you don’t want to guess. Pick up the phone and talk to your agent. Discuss all the hauling situations you anticipate and whether your current coverages will apply to: (a) vehicular damage; (b) personal injury to all parties involved; (c) property damage including the horse(s) hauled and personal property in either the trailer or the vehicle towing the trailer. This is also a situation where a liability waiver can prove invaluable in defining the parties’ expectations and limiting your liability exposure.

8. If you’re towing a horse trailer weighing over 10,000 pounds, you must have a Commercial Driver’s License.

ANSWER: True.

This may be the most discussed topic in 2018. The regulations aren’t new; they’ve been around under Department of Transportation Rules Part 390 for years. We horse people have just gotten away with ignoring them for the most part. The enforcement attention is what’s new – as it’s now being applied to commercial and non-commercial horse transportation and all of those many situations in-between.

In summary, the regulations provide a CDL (commercial driver’s license) IS required for any combination of vehicles with a gross combined weight rating (GCWR) of 26,001 or more pounds, providing that gross vehicle weight rating (GVWR) of the vehicle being towed is more than 10,000 pounds. But the definitions of “commercial”, “pleasure”, “GCWR”, and GWVR can be confusing. For instance, GCWR is defined as the value specified by the commercial motor vehicle manufacturer, and NOT the loaded weights from the bill of lading or the scaled weight of the vehicle. In addition, if the vehicle towing the trailer is used for “commercial” purposes; i.e. for activities that generate a tax reportable profit, then you additionally may need to secure a DOT identification number for the truck, AND comply with new ELD (electronic logging device) regulations concerning reporting of mileage and mandatory rest breaks at regular intervals.

Understand this issue remains in flux, with the American Horse Council working with Department of Transportation officials to clarify ambiguities before harsh enforcement actions are implemented. Thus the majority of states, EXCEPT FOR IOWA, are being somewhat lenient in enforcement until these clarifications are handed down from Washington DC. Take some time to review the American Horse Council site addressing new developments in this area, as well as an Agricultural Exemption Waiver which applies through June 2018, and may be extended further should the clarifications be ongoing. See: http://www.horsecouncil.org/eld-mandate-cdl-requirements/

9. Your farm doesn’t need to carry workers compensation insurance

ANSWER: It depends. 

Many stable owners mistakenly believe they do NOT need workers compensation insurance under their state’s agricultural exemption. However, this is no longer the case. In the majority of states, courts have recognized distinctions between “service” establishments; i.e. horse boarding and training/lesson barns, and “agricultural” establishments, which focus on livestock breeding or crop raising activities. The latter receives the agricultural exemption; the former does not. To further complicate matters, many horse stables are hybrids, where they are breeding and raising foal and grain/hay crops, in conjunction with training and lesson programs. So how do they analyze their status?

Again, the court decisions indicate the “status” will depend upon the nature of the work performed at the time of the accident. Thus if a worker was engaged in a breeding or crop raising activity, the exemption applies. Conversely, if the same worker was injured cleaning stalls for boarded horses or tacking a horse up for a lesson, the exemption would NOT apply. Finally, all businesses are excused from workers compensation requirements so long as the combined payroll of the business for ALL of its workers, including barter, is less than $20,000 per year.

Not sure how this impacts your business? Contact a workers compensation specialist or the state Workers Compensation Bureau if you’re uncertain. 

10. Your workers are “independent contractors” if you call them that

ANSWER: False 

The majority of equine establishments utilize “independent contractors” for barn labor, trainers, instructors and the like. The purpose for using “independent contractor” status is the avoidance of extra expenses associated with payroll recordkeeping, overtime, benefits, and workers compensation coverage. The stable owner mistakenly believes by labelling an “employee” an “independent contractor”, they can contractually agree to that legal status to avoid the extra expenses. WRONG!

The independent contractor status is subject to judicial review upon claim by any party. If a worker is controlled by the owner as to hours, means and methods of the skill set or services he or she provides, that individual is deemed an “employee” subject to all of the Fair Labor Standards and minimum wage / overtime wage hour requirements. Thus if one of your workers asserts a Department of Labor complaint against you for regular and overtime hours, you can’t defend on the basis he or she was an “independent contractor” if you essentially controlled the aspects of the services provided. Disproving employee status can be difficult where many barn owners did not keep detailed records working either for or against their interests. Guess wrong, and the stable owner can find themselves facing a stiff penalty from Department of Labor including regular and overtime unpaid hours plus regular and penalty interest on the unpaid sums. 

Thus if you’re currently utilizing “independent contractor” arguments to avoid wage and benefit payments, be sure to seek the advice of a professional to ensure you’re not unintentionally creating greater exposures for your business down the road.

Summary:

In summary, while we all enjoy a good yarn or two, don’t let these equine myths lull you into a false sense of complacency. If you recognize some or all of these exposures as being present in your business, take a minute to visit with a local equine attorney, insurance specialist, or governmental representative. Remember – while myths may be entertaining, they’re not always true. Research the applicable treatments in your state, and remember that being forewarned is forearmed.

© Denise E. Farris. (June, 2018). This article may not be reprinted or reproduced in any manner without the consent of the author. This article is not intended to be the provision of legal advice. For fact-specific questions, refer to an attorney licensed in your state. Contact: Denise Farris, Farris Legal Services, LLC. [email protected].

DISCLAIMER
This article provides general coverage of its subject area. It is provided free, with the understanding that the author, publisher and/or publication does not intend this article to be viewed as rendering legal advice or service. If legal advice is sought or required, the services of a competent professional in your state should be sought. The publisher and editor shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.

You’ve heard “A man’s home is his castle”. That same concept should apply to control of your commercial stable property. It might – but only to an extent. This article addresses persons on your property, their respective legal status, and what an owner can, cannot, should, and MUST do to control liability exposure. 

Status

The law defines various status categories to persons on your property. These include:

1. Trespasser – a person(s) who enters upon your land without permission
2. Known Trespasser: a person(s) who with your knowledge enters upon your land without permission
3. Licensee: A social guest on your property with your permission, but not for business purposes
4. Invitee: A person on your property for actual and potential business purposes, and
5. Minors: Children under the age of 18 

Tresspasser:

The trespasser, who is on your land without permission, is due the lowest level of care for his/her safety. “Trespassers” can include not only neighbors using your property to dog walk, hike or hunt. They can also include persons who mistakenly exercise access your property unaware they are trespassing (no defense, it’s still a trespass!); ex-husbands or wives, or other parties attempting to self-repossess horses with disputed ownership. Trespassers may also include a person who had the legal right to enter your property but commits a wrongful act after entry (i.e. someone with an alleged ownership interest in a horse boarded at your stable who refuses to leave after being asked to leave, or a guest who is intoxicated). How do you handle these occurrences?

Most people think a landowner owes no duty to a trespasser where they are, after all, trespassing. Wrong. An owner owes a minimal duty to avoid harming the trespasser. For instance, owners with farm acreage know its possible people will knowingly or unknowingly enter the property to hike, birdwatch or hunt. While a trespasser assumes the risk of being injured by conditions on the property, the owner still must “refrain” from “intentionally” harming a trespasser. Thus a trespasser who is injured by a falling tree, wildlife attack, or fall from an eroded creek path has no right to sue. Conversely, a trespasser who was blocked by an unflagged barb wire string put across a previously open road to the property may have a cause of action against the owner who strung barb wire with an intent to block people accessing the road, with foreseeable harm.

Known Trespasser

A known trespasser is one who, while unidentified specifically, has made his or her presence known.

An owner’s duty of care towards a known trespasser rises slightly above that due to an unknown trespasser, and is again predicated upon actions which do not intentionally harm the known trespasser.

1. Identified Known Trespassers

If the trespasser can be identified, the owner has a legal obligation to “warn” that individual they are trespassing and must stop. This might include neighbors who frequently access your property with their dogs, or neighbor children who come over to “pet the horses” without your permission. Identify those parties and send a written letter, with delivery receipt requested, informing them they are trespassing, they are placing themselves in potential danger for which you are not responsible, they are breaking the law and must stop. If children trespassers are involved, inform the parents of the potential harm or injury to the child that might result if they do not stop the trespass.

2. Known but Unidentified Trespassers

A duty can be owed even to trespassers who you know are trespassing (i.e. evidence of truck tracks on a dirt road and discarded beer bottles), but cannot be identified. Your duty is to post some type of notice where it can be seen, and IF you block access, you do so in a manner that will not injure the trespassers. An example is hunters who regularly trespass on land through a road entering property. In one reported case, the deservedly irritated landowner inserted cut-off poles across the drive. The poles – visible in daylight – could not be seen at night. The trespassers attempted to enter the road at night at a moderate speed, but unaware that new poles blocked the road. The landowner was held liable to the trespassers for knowingly creating a situation causing them injury. Had they placed reflectors on the poles, the outcome may have been different.

Licensee

A licensee is a person to whom permission is granted to be upon the property, for reasons other than commercial gain. The “licensee” is typically referred to as a “social guest”. Thus if you have a boarder with family members or friends present, those individuals are “licensees”. Licensees also include persons attending social events on your property, or guests of your clients who are using the premises for a non-business related event. A stable owner bears only a moderate duty of care to “licensees”, which is defined only as a duty to warn of any dangerous conditions known to the owner, but unknown to the licensee.

At a stable, the Equine Activity Liability Act warning sign covers this warning in most respects. States possessing such statutes require posting of the signs at all areas where access to horses occur. The signs warn that horses or livestock can be “inherently dangerous” due to their natural behaviors, and state that parties “participating” in equine or livestock activities assume the risk of injury or death related to those activities. Stable owners should post the relevant warning signs not only at the main entrance to the arena or stall areas, but also at any access points to the equine or livestock areas. Thus if a barn has three doors into the stall and arena areas, three warning signs should be posted. The stable owner should additionally take photographs of the signs which reflect the date and location of the photo, with the photo containing sufficient “perspective” to identify the location where the sign is posted. Lacking this “perspective”, the photo bears little legal relevance as an exhibit in a later legal proceeding.

Warning signs should also be posted at (1) stable aisles, with instructions not to pet horses and to exercise caution while walking under cross ties; (2) paths between stalls and arenas; (3) arena access areas, and (4) trailer loading locations.

Farm properties have other potentially hazardous areas. Shaving and hay storage barns should have warning signs posted that they are “potentially dangerous and off limits to unauthorized personnel”. Similar postings should be placed by ponds, trails with dangerous erosion exposures, rotted well coverings, or grown-over barbed wire. If an area presents a substantial risk of injury, that area should: (1) be identified with some form of warning sign or yellow caution ribbon; (2) be blocked off entirely, and/or (3) rebuilt or repaired.

Invitee

An “invitee” is on your property because they were “invited” for a commercial purpose. This might include buy/sale of horses, lessons, purchase of property, clinic attendance, boarding or considering boarding horses. As the “invitee” is there specifically at your invitation to benefit you commercially, the “invitee” deserves and commands the highest degree of care towards their safety while on your property. Legal protections for the invitee mimic those for licensees, but require even more attention to detail. For instance, if you’re having an event following a snow storm, you must take reasonable steps to have snow and ice removal in ingress and egress areas. Slip and fall exposures must be attended to. Any area or condition that poses a “foreseeable” harm or injury exposure must be corrected before the event. Understand that “foreseeability” is defined as whether the ordinary person in the stable owner’s position, knowing what he/she knew or should have known, could anticipate that harm of the general nature suffered was likely to result.

For this reason, stable owners bear the highest duty to regularly conduct and record premise liability inspections. These should include, at a minimum, review of the parking lots, arenas, fencing, stalls, and aisles. Any issue – however small – that could result in a foreseeable injury to invitees should be corrected with some warning sign posted until that correction occurs. 

Minors

Minors are children under 18 years old. A property owner again owes an extremely high duty to care for minors. The law of “attractive nuisance” recognizes that children are attracted to, and like to play, in potentially dangerous areas. The owner must take steps to keep children away from these areas (i.e. construction equipment, dirt piles, and hay or shavings barn). Owners must also warn parents against these conditions and require parents to assume supervision of their children at all times. CHILDREN UNDER 15 SHOULD NOT BE DROPPED OFF AND LEFT UNATTENDED AT THE STABLE!

Conclusion

Compliance with these steps can be irritating to a landowner. Yet no one wants an injury occurring on their property. Recognizing the legal status of persons on your property, while adopting these risk control measures, will provide you peace of mind as to your liability exposure. 

© Denise E. Farris. (February, 2018). This article may not be reprinted or reproduced in any manner without the consent of the author. This article is not intended to be the provision of legal advice. For fact-specific questions, refer to an attorney licensed in your state. Contact: Denise Farris, Farris Legal Services, LLC. [email protected].

Disclaimer
This article provides general coverage of its subject area. It is provided free, with the understanding that the author, publisher and/or publication does not intend this article to be viewed as rendering legal advice or service. If legal advice is sought or required, the services of a competent professional in your state should be sought. The publisher and editor shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.