Waivers in Horse and Equine Cases
Maybe Not Such an Airtight Defense?
Our firm regularly gets called in to help handle horse and equine cases. Our founding partner, Collen Clark, is an experienced rider and horse wrangler. Not only did he compete on the bull-riding circuit, but he maintains his horse-riding skills playing polo with a stable of horses. The reason this matter is that when a person gets injured falling off a horse due to the negligence and lack of oversight at a ranch, we are regularly called in due to our extensive work in horse and equine cases, along with our intimate knowledge of the fundamentals of horses and proper riding techniques.
In these cases, we regularly have an unaware person sign a waiver before mounting a horse, not knowing the full ramifications of that act. Then, after they get injured due to some negligence on the horse or property owner, the waiver is then thrown back in their face. Time and time again, we get cases where other lawyers have turned down the case due to the waiver. However, due to the unique structure of the Equine Statute, waivers cannot and should not be applied in horse/equine cases.
Defendants usually have a release and waiver titled “liability release and assumption of risk agreement”, which usually states that the defendants will never be liable for any actions including their own negligence or even gross negligence. Typically, it is undisputed that the Plaintiff signed the waiver. Defendants typically think this is the hammer they will use to get the case dismissed.
However, there is a silver lining. Under Texas law, waivers in horse cases violate Chapter 87 of the Texas Civil Practice and Remedies Code, i.e., the Texas Farm Animal Liability Act and public policy. As such, because of the provisions found within the Equine Statute, a waiver/release in this case is inapplicable.
The Equine Statute Provides its own Limitation of Liability and Exceptions to These Limitations
The Equine Statute was a product of a national movement spurred by the horse industry to protect itself from liability for injuries due to the inherent risks of being around the animals that reasonable people should expect. See Krystyna M. Carmel, The Equine Activity Liability Acts: A Discussion of Those in Existence and Suggestions for a Model Act, 83 KY. L.J. 157, 157 (1995).
The updated version of the Equine Statue, now titled the Farm Animal Act, precludes liability against “any person, including a farm animal activity sponsor, farm animal professional, livestock producer, livestock show participant, or livestock show sponsor,” for “property damage or damages arising from the personal injury or death of a participant in a farm animal activity or livestock show if the property damage, injury, or death results from the dangers or conditions that are an inherent risk of a farm animal activity or the showing of an animal on a competitive basis in a livestock show.” TEX. CIV. PRAC. & REM. CODE § 87.003. Section 87.003 explicitly identifies five qualifying “dangers or conditions that are an inherent risk of a farm animal activity.” Id. § 87.003(1)-(5).
Except as provided by Section 87.004, any person, including a farm animal activity sponsor, farm animal professional, livestock producer, livestock show participant, or livestock show sponsor, is not liable for property damage or damages arising from the personal injury or death of a participant in a farm animal activity or livestock show if the property damage, injury, or death results from the dangers or conditions that are an inherent risk of a farm animal activity or the showing of an animal on a competitive basis in a livestock show, including:
(1) the propensity of a farm animal or livestock animal to behave in ways that may result in personal injury or death to a person on or around it;
(2) the unpredictability of a farm animal or livestock animal’s reaction to sound, a sudden movement, or an unfamiliar object, person, or other animal;
(3) with respect to farm animal activities involving equine animals, certain land conditions and hazards, including surface and subsurface conditions;
(4) a collision with another animal or an object; or
(5) the potential of a participant to act in a negligent manner that may contribute to injury to the participant or another, including failing to maintain control over a farm animal or livestock animal or not acting within the participant’s ability.
TEX. CIV. PRAC. & REM. CODE § 87.004 sets out exceptions to the limitations of liability for equine activities.
A person, including a farm animal activity sponsor, farm animal professional, livestock show participant, or livestock show sponsor, is liable for property damage or damages arising from the personal injury or death caused by a participant in a farm animal activity or livestock show if:
(1) the injury or death was caused by faulty equipment or tack used in the farm animal activity or livestock show, the person provided the equipment or tack, and the person knew or should have known that the equipment or tack was faulty;
(2) the person provided the farm animal or livestock animal and the person did not make a reasonable and prudent effort to determine the ability of the participant to engage safely in the farm animal activity or livestock show and determine the ability of the participant to safely manage the farm animal or livestock animal, taking into account the participant’s representations of ability;
(3) the injury or death was caused by a dangerous latent condition of land for which warning signs, written notices, or verbal warnings were not conspicuously posted or provided to the participant, and the land was owned, leased, or otherwise under the control of the person at the time of the injury or death and the person knew of the dangerous latent condition;
(4) the person committed an act or omission with willful or wanton disregard for the safety of the participant and that act or omission caused the injury;
(5) the person intentionally caused the property damage, injury, or death; or
(6) with respect to a livestock show, the injury or death occurred as a result of an activity connected with the livestock show and the person invited or otherwise allowed the injured or deceased person to participate in the activity and the injured or deceased person was not a participant as defined by Section 87.001(9)(B).
TEX. CIV. PRAC. & REM. CODE § 87.004.
In a horse case, a Plaintiff bases their claims, in part, on the exceptions laid out above. See Section I Supra. As with most cases with the release, Defendants try to essentially make themselves immune from any and all lawsuits, despite the legislature explicitly enacting permissible causes of actions. The Equine statute itself governs the permissible and impermissible causes of action that a participant in these activities may bring. With the waiver on top of it, Defendants are attempting to override the exceptions as laid in the statute and provided to the Plaintiff. This waiver is an attempt to further limit the liability of Defendants by disallowing any causes of actions for the very acts that Texas Legislature has explicitly allowed the public to bring when engaging in equine activities. Because the waiver attempts to contractually limit the statutory provisions as provided by the Texas Legislature, it is improper.
Contracts Cannot Limit or Control Statutes
It is deeply rooted in Texas law that parties to a contract may not limit the provisions of a statute by agreement or control. Yamaha Motor, 860 S.W.2d 223, 226. The laws existing at the time a contract is made become a part of the contract and governs the transaction. Wessely Energy Corp. v. Jennings, 736 S.W.2d 624, 626 (Tex.1987). Further, parties to a contract may not by agreement control or limit the provisions of a statute. See Laredo Merchants Ass’n v. City of Laredo, 04-15-00610-CV, 2016 WL 4376627, at *7 (Tex. App.—San Antonio Aug. 17, 2016), aff’d, 550 S.W.3d 586 (Tex. 2018); Centex Corp. v. Dalton, 840 S.W.2d 952, 955 (Tex.1992); Williams v. Williams, 569 S.W.2d 867, 870 (Tex.1978); Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146, 148-49 (1947); Merry Homes, Inc. v. Chi Hung Luu, 312 S.W.3d 938, 949–50 (Tex. App.—Houston [1st Dist.] 2010, no pet.); In re Kasschau, 11 S.W.3d 305, 312 (Tex.App.-Houston [14th Dist.] 1999, orig. proceeding); First Tex. Sav. Ass’n of Dallas v. Dicker Ctr., Inc., 631 S.W.2d 179, 186 (Tex. App.—Tyler 1982, no writ); Peniche v. Aeromexico, 580 S.W.2d 152, 155–56 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ); Housing Authority of El Paso v. Lira, 282 S.W.2d 746 (Tex. Civ. App.—El Paso 1955, writ ref’d n.r.e.); Minardus v. Zapp, 112 S.W.2d 496, 498 (Tex. Civ. App.– Austin 1938, no writ); Texas Employers’ Insurance Association v. Tabor, 283 S.W. 779, 780 (Tex. Comm’n App.1926, judgmt adopted); Atwood Oceanics Inc. v. Zust Bachmeier of Switzerland Inc., 248 Fed. Appx. 562 (5th Cir. 2007); Panasonic Co., Div. of Matsushita Elec. Corp. of America v. Zinn, 903 F.2d 1039 (5th Cir. 1990) (noting impossibility of waiving homestead exemption under Texas law).
In Yamaha, a manufacturer and an authorized distributor entered into a distribution contract. The contract covered the manufacturer’s obligation to buy back inventory from the distributor. See Yamaha Motor Corp, 860 S.W.2d 223, at 226-227. This contract, however, was inconsistent with a statute relating to the manufacturer’s obligation to buy back inventory from distributors. Id.
In sum, the contract gave Yamaha the option, but not the obligation, to repurchase “all new, unused and undamaged resalable parts, purchased from Yamaha” on termination of the franchise. However, the law at the time the contract was signed required a manufacturer, distributor, or representative (e.g., Yamaha) to repurchase such inventory. Id. The court noted that statutory provisions applicable to such distribution contracts automatically became part of that contract under Texas law. Id. The court further noted that even had the parties desired to contract around the statutory buy-back provision, they would not have been permitted to do so. Id.
The Yamaha Case is similar to the facts at hand. In these types of cases, it is common that Defendants will attempt to use these waivers in an attempt to contract outside of the statutory liability exceptions in the Texas Equine Statute like the Yamaha Defendants attempting to contract outside of the manufacturing statute. Pursuant to the holding in Yamaha, the waivers in horse cases are inconsistent with Texas Equine Statute, and should be deemed void as a matter of law.
Another contract that attempted to “impair the validity of a law” is present in McFarland v. Haby. There the contract in question was an agreement not to make a will but at the same time to not abide by the laws of intestacy. McFarland v. Haby, 589 S.W.2d 521, 524 (Tex. Civ. App.—Austin 1979, writ ref’d n.r.e.). The Court held “Mrs. Haby agreed to do something that cannot be done: to die without making a will and at the same time direct that her estate pass to her children in a specified manner inconsistent with the laws of intestacy.” Id. The Court additionally noted that, parties, by contract, cannot impair the validity of a law, nor control or limit the provisions of a statute. Williams v. Williams, 569 S.W.2d 867 (Tex.1978); Gorman v. Gause, 56 S.W.2d 855 (Tex. Comm’n App.1933, jdgmt. adopted). Id.
Waivers in horses’ cases cannot lawfully apply, as they are used by Defendants to control or limit the provisions of the Equine statute which is improper. Case law states that waivers can’t apply in horse cases due to the intervention of the legislature.
We have worked hard on fighting the application of these waivers in horse cases, where Defendants have protections already written into the statute. We have taken these objections to Court and won before, at the State Court level. The more opportunities we are given to address these concerns, the better law our firm can create for the Texas public.
If you have any horse or equine cases, or you were injured in a horse accident, please contact us for a free consultation.