Photo courtesy of Deanne E. Cellarosi
With spring upon us and everyone getting back out to ride, preparing to show and event, it is the scene that every barn owner dreads, a rider-less horse galloping by with stirrups flapping in the wind. Picture a barn owner who runs a successful and lucrative boarding, breeding, and training operation. One day a boarder, while out riding a young and spirited horse, is thrown and seriously injured. When accidents happen because it is nearly impossible to have an injury-free property, allegations of negligence can often be made. The question can then become was it just “horses being horses”, or was an incident due to some fault of the barn owner and/or rider? After making sure that emergency medical assistance is provided to anyone who is injured, including the horse, and any necessary emergency action is taken to prevent further injury to rider and horse, as well as property damage, there are some steps that a barn owner should consider taking with respect to such an incident.
- Investigate what happened.
The barn owner should investigate what happened. In legal terms, this would be akin to collecting documentary evidence. Investigations can take several shapes but may often include interviewing witnesses to the incident (e.g. other boarders, barn employees, friends/family that were with the person at the time of the incident) to determine, if possible, the circumstances surrounding the incident, what happened, as well as any individuals who may have relevant information. While subject to the particular facts of each incident and as appropriate, some questions to ask during the course of an investigation may include, but are not limited to:
- Where did the incident occur? (cross-country, indoor arena, outdoor arena, trails, stable, etc.)
- When did the accident occur?
- What happened?
- What, if anything, happened before the incident?
- Was he/she riding during barn hours?
- Riding conditions (e.g. riding in a sufficiently illuminated area? Footing?)
- Did the horse or rider have any known ailments?
- Did something occur to spook/upset the horse?
- What were the ground conditions? (deep, slippery, hard, good)
- Was the rider riding alone or with other people?
- Was the rider wearing protective/safety equipment, including an ASTM/SEI approved helmet?
- What were horse/rider doing at the time of the incident? (jumping, trail-riding/hacking, lesson)
- Were there any unsafe acts that could have led to the incident? Any otherwise unusual or extenuating circumstances?
- Was medical assistance offered and obtained? If yes, what type?
- What occurred post-incident?
- Did anyone provide any eyewitness reports?
- What caused the incident? (if known)
Such interviews may be particularly helpful if the injured rider is incapacitated and/or seeking medical treatment and therefore, there is no option to speak to the injured party to determine the circumstances surrounding the incident. Interviews the day of the incident also document recollections while they are still fresh and can often be beneficial in the event of after-the-fact conflicting accounts.
Barn owner may also want to take photographs, as needed, to document where the incident occurred, physical surroundings of the incident, and otherwise conditions. Finally, to the extent possible, the barn owner should attempt to determine the cause(s) of the incident. With respect to causes, do not speculate. Be mindful that assessing the cause of the incident can likely be subject to an individual’s opinion (including one who may have not have personal and/or independent knowledge incident). Seek to gather information that can shed light on why an incident occurred and the rider and/or barn owner’s respective roles, if any, in contributing to an incident. Of course, keep in mind that an incident with a horse may not necessarily happen when a person is riding. Consider a horse that panics during a clipping session and shoots through a stall door, bolts in the field and tramples someone, bites/kicks, etc. The same information gathering principles apply.
- Prepare a report.
In the course of the farm’s business operations, prepare a report that documents your investigation of the facts, persons spoken with (if any), statements provided (if any), and potential causes of the incident (if known). The report should include the information obtained from the investigation as noted above. The report should be fact based and not speculative. Resist the urge to include personal opinions and/or self-serving statements (e.g. the “farm was not at fault” versus “the farm was not on notice of any problem or condition with X”). After you have prepared a report, ensure that it is stored in safe place for x amount of time. Be aware that there are state specific statutes of limitations for filing lawsuits and do not throw away or destroy reports according to your personal record-keeping protocol. Also, consider having a barn form in place for consistency purposes and that details the information that barn owner/supervisor/employee needs when confronted with an emergency situation. The barn owner may not always be the person on hand to complete the form and should make it easy for a barn employee to otherwise gather the needed information.
- File appropriate reports.
Timely file worker’s compensation report and contact your insurance, as appropriate. Review your insurance contract to determine what constitutes “timely” reporting periods. Even if a claim does not occur in the future, it is wise to report for tracking, business, and legal purposes. Insurance companies understand that injured persons may bring claims and want to be aware of any incident that may generate a claim in the future and may also want to conduct their own investigation of the incident.
- Damage control
In today’s environment of social media, an incident can quickly go beyond just the individual involved. Information, pictures, and videos can easily and quickly be posted on Facebook, Twitter, Instagram and other social media sites. How should a barn respond (if at all) to such dissemination of information? The answer: it depends. Of course, social media can be powerful tool to increase awareness and update others with needed information. A response, if one is provided, will likely be subject to the specific facts of the situation. Nonetheless, every barn should have a plan in place for addressing incidents that are reported on social media. For example, in the case of a public venue where an incident occurs, responding in a clear and concise manner and providing an explanation to a social media posting may quell differing, incorrect, and/or speculative accounts of what occurred with horse and rider. It may also quash future discussions because an answer has been provided from a credible and knowledgeable source. In contrast, with respect to a more private situation, no explanation may be appropriate, warranted, or beneficial, especially from a legal standpoint if a claim is pursued in the future. If conduct is serious (e.g. libel and/or slander) and can potentially damage business reputation and profits, consider consulting an attorney to address the conduct. Always keep in mind that if and when a lawsuit is filed, it will be more likely than not that the parties will seek to obtain information relative to the incident posted on social media sites, if any. As such, be thoughtful about social media postings.
- Doing the right thing or admission of guilt?
The question is often posed, if a barn pays for some or all of a person’s medical expenses or veterinary expenses for an injured horse as a “good will gesture” , will this later be viewed as an admission of guilt? What happens if a portion of bills are paid by the barn owner and then due to complications, there are additional bills which the barn owner does not wish to pay—will barn owner be responsible for the second set of bills because the first were paid? Barn owners may be torn between what they feel is “doing the right thing” and what could ostensibly constitute an admission of liability. Most boarding operations likely have insurance policies in place which generally provide coverage for a certain amount of medical bills regardless of fault. Generally, when this coverage is utilized, payment of bills for this limited amount, does not in itself constitute liability for the incident. Further, pursuant to public policy doctrines and rules of evidence, generally evidence of offers to pay medical expenses cannot be later used in court as an admission of liability. However, statements made in connection with offers to pay medical expenses (e.g. “. . . it was completely barn X’s fault. . .” may later be admissible in a court proceeding. Because this is a fact specific inquiry and subject to state specific laws, as well as complexities of a legal nature, consult a knowledgeable attorney and your insurance carrier, as appropriate.
- Post-incident action/“take-aways.”
When an incident occurs, it may be helpful to evaluate farm practices, if any, that caused or contributed to the incident (e.g. was there a hole on the property, a fence down, broken jumps, issues with the footing, or otherwise problems/conditions with the riding facility, etc.) Performing a post-incident evaluation may also include developing or amending checklists for safe riding practices, as appropriate. Such lists may include riding during farm hours, riding in illuminated areas, wearing safety-approved riding helmets and other protective equipment, and the rider’s responsibility to ensure safe and properly fitting tack and equipment.
While these recommendations are not all-inclusive, they are some points to keep in mind when an incident occurs. Depending on the facts and circumstances of an incident, consult a knowledgeable attorney as appropriate.
*This article was previously published on Rate My Horse PRO on March 26, 2015.