Child Riders and the Liability Release
This article was originally written for publication in the Aiken Horse Magazine.
It’s crisp Saturday morning and you are standing in front of your training barn looking out over the pastures, arenas and horses. You have built a nice business through determination and a lot of hard work. It feels good.
A nice-looking SUV is heading up the drive, your new student is arriving for her first lesson. When it rolls to a stop, a bright-eyed child jumps out – new boots and helmet already on. Her mom, also new to riding, follows her toward the barn and all of you go into the office. You explain the sign-up process and present the mother with your standard waiver to sign for her daughter’s participation. She reads it and asks “Does this mean that if my daughter gets hurt, you’re not responsible? Is that the law?” You say to yourself “I certainly hope so,” but your heart sinks a little. As you have not really studied the waiver, and since it’s more than a few years old, you are not totally confident it is enforceable. In that moment, you think “What if it is not enforceable? Is my business and everything I own now at risk?”
Pre-injury waivers for minors are a big issue in the equestrian world. Unfortunately, there is no standard language that is universally enforced by the courts. In some states, such waivers are not enforceable at all. The major reasons for the inconsistency are the competing public policy interests involved in resolving these matters. These issues include assuring access to affordable recreational and sports opportunities for children; respecting the rights of parents to make decisions on behalf of their child; holding businesses accountable for the safety for their customers; and, protecting a minor’s legal rights when they are injured. Reconciling these issues is difficult for courts and legislatures. The emerging trend nationally is to support waivers for minors when used by non-profit organizations, volunteers and schools, but avoid enforcement when they are used by businesses.
These new court decisions and state laws highlight the challenges facing equine businesses and professionals, non-profits and the parents of young riders. As a result, it is important than ever to understand your state’s position on waivers for minors and then make sure your waiver meets the requirements as best you can. It is best to have an experienced equine attorney review and draft your waivers to make sure they meet your needs and are up to date.
In South Carolina, there is little guidance from the courts on these issues. As a general matter, South Carolina respects the rights of parents to make legal decisions for their children, including signing contracts on their behalf. The South Carolina General Assembly has not directly addressed the validity of recreational activity waivers for minors, but it has certainly shown strong support for school athletics and a wide variety of youth recreational opportunities many of which routinely require parent or legal guardian to sign a waiver for their child’s participation.
The most explicit legislation on this subject is the South Carolina Equine Liability Act (the “EALA”). The EALA provides broad liability protection for certain equestrian activities and persons and but also establishes several exceptions to that protection to hold bad actors accountable. There are a few key points directly involving minors in the EALA. First, the definition of “Participant” includes all equine activity participants regardless of age. That means the liability protection applies to claims by minors and adults. Second, the legislature explicitly signaled its expectation that minors are covered because the EALA lists examples of activities that children participate in including lessons, shows, pony club, 4-H club, hunt club, riding club, school and college-sponsored classes, programs and activities, and therapeutic riding programs.
However, as the EALA is does not provide universal immunity, it is not a substitute for preparing and using effective waivers and other liability contracts, especially when dealing with children. Whether you are a lesson barn, trainer, non-profit association, competition host or school, if you are working with minors, requiring a written waiver agreement is vital.
To be effective, a waiver for minors requires that specific terms be included, but even then, enforceability can vary. Here are some critical terms to address in your waiver:
Allow only the parent or legal guardian of the child to sign the waiver
The waiver should state that the parent/guardian is signing for herself and on behalf of the minor child
Include indemnification language in the event an injured child or his parent asserts a claim in spite of having signed the waiver
Address negligence and assumption of risk. Do not try to excuse gross negligence or recklessness
Put in a “savings clause” in case there are changes in law after the agreement is signed which may render some of its terms unenforceable. A savings clause will preserve the remaining valid language and avoid a court’s automatic rejection of the entire agreement.
Incorporate the EALA required language conspicuously in the agreement to secure its protection
Once you have a proper waiver agreement in place there are important record keeping and risk management practices you should follow. Keep the signed waiver on file (electronically and in hard copy) for at least 15 years. This may sound excessive, but remember, children can wait until they are 18 years old to assert a claim for injuries that occurred when they were young. The law calls this “tolling” and it protects a child’s right to file a lawsuit until they are an adult. Having the signed waiver available should you need to defend a claim many years after the injury occurred is invaluable. If there is an accident involving a minor, you should create an incident report that describes the event, the date, time and place it occurred, identifies any witnesses present (including their contact information), includes helpful photos or a diagram, recites the medical assistance rendered (or declined), and notes what the injured person could have done to avoid the incident. Keep the report with the waiver for that child.
In all equine liability matters, it is important to remember to layer your asset protection safeguards. Complying with the EALA and using well-written waivers are great tools, but having the right insurance and holding your property and business in a limited liability company or corporation are even more essential for asset protection and good business.
This fall take time to update your waivers and liability agreements to make sure they are up-to-date legally and meet your business needs. At the same time establish good risk management practices with incident reports and long-term record keeping. You will be glad you did.