AERC convention Friday March 8 John Parke on Liability Issues

Disclaimer that goes for ALL my blogs, but especially when I am reporting on what others said: I can be wrong, I welcome corrections and comments, I will remove any spam, flame, or non productive comments. Let’s stay CIVIL and show respect; 3 R’s: respect the post, respect each other, and respect this place. Thank you.

Friday March 8,

Hot Topic, Liability Issues on Endurance rides. Holy crap, Ride Managers ROCK…… read on…. You will emerge possibly with an even more enhanced appreciation for our RM’s and what they take on on our behalves!

John Parke, Regional Director, AERC southwest region and legal counsel to AERC. John Parke Solvang, CA, office: 805-963-8611; office fax: 805-962-1940 E-mail: jparke@aklaw.net

Fun, Funny, he rides, has managed rides, and is smart!

First session on Friday brought on all kinds of learning—boy of this convention holds to that standard? Gonna be great! I walked out of this first session with my head buzzing. John Parke is funny and a fun moderator with lots of stories to support what he is saying.

This session, he really had an agenda; he wanted to hear from Ride Managers about the pressing issue of big claims against AERC due to injuries at Endurance rides. He started with the basic process and structure of an injury claim so we would all start the session with the basic understanding of *how these things work*. Then the session topics were 1) prevention of injuries on rides, 2) good Samaritan laws, 3) liability releases we sign at rides and do/ how do they work and …. Well there may be another topic but I did not write it down, oh yeah 4) some suggestions about how to make yourself less liable as an RM.

Why is this important? If there are major crises/injuries on rides neither Ride Mangers nor landowners will want to put on or host rides. There goeth our sport, eh?  In addition is the decision of AERC to be the *primary insured* on the Equisure policy; RM’s are not the primary insured; AERC provides RM’s the insurance coverage  to protect RM’s as club members and allow  them to put on rides by assuming the risk.

I also learned, I think I have this right, that AERC offers a *personal excess* insurance when you renew your membership; Dianna Chapek told me…. I think that was her. And that insurance, when purchased will supercede your personal homeowners insurance, at equine events. WOW! Nice, that?  All insurance questions should be directed to Dianna, she is extremely knowledgeable about this stuff.

The basic process of an injury claim, according, to John goes a bit like this: an injury happens at a ride, the person or persons wait a bit to see what develops taking into consideration the statute of limitations, current and future medical costs, whether or not the injury was really connected to the ride, current and future pain and suffering and loss, and how much $$$ they might get in a settlement from AERC. Taking all that into consideration, a claimant may decide to get an attorney and make a claim, which then goes to whoever is named in the claim: Ride Manager, then AERC since AERC insure RM’s via Equisure provided by Lloyds of London.  90-95% of claims are settled via negotiations between attorney and insurance (as I understand it Equisure *defends* Ride Managers with the attorney of the claimant) which is why RM’s get insurance for rides to be able to put on rides, for us!

The other concept John paid out really clearly for us was the *conversation nee argument* about legal definitions and distinctions between the different levels of negligence. Believe me people, I was listening with both ears and my whole brain….. Apparently there is *ordinary negligence* and *gross or reckless negligence*. And, that this decision can ONLY be decided by a Jury… that spells *trial in court* to me. This came up because of a case John shared with us about RM wanting to provide a first aid kit to drag riders at a ride presumably so they would have some tools to deal with situations they might find on the trail. The decision was made to NOT give the drag riders first aid kits because then if the drag riders did something wrong—not being trained medical personnel– resulting in/more injury then RM would be liable for decisions made by drag riders. Which then brought the idea, from the audience, about Good Samaritan rules/laws.  So, what I understood John to say was that typically Good Sam laws provide you with immunity if you enacted ordinary negligence, but NOT if you enacted gross/reckless negligence, which, repeat after me * can ONLY be decided by a Jury*.  Everyone, run out and find and read your state’s Good Sam laws…. But then John said that in his opinion it is better for a Ride Manager to decide * how they want to be perceived*– a) as someone who acknowledges that *things* happen on a trail/at horse events, or b) not. It is RM’s decision.  Ok, I am REALLY listening now… REALLY learning and REALLY thinking about *tuff* here, the audience was totally engaged.

The next issue to come up, bolstered by a story shared by John, wherein he was in a cast, chatting with a non rider, with a 3 year old child, somewhat near the finish line of an Endurance ride….. when a rider who had been racing in came off a horse and the horse, hell bent for leather is now charging, riderless, directly towards John, chat partner, and child. EEEEEEEEGADS! Thus, John, even while acknowledging that finish lines in camp allow us all to watch and help, went ahead and made a very strong recommendation that RM’s put the finish line away from camp and away from car and horse highways. Seems that finish lines in camp are accidents and liability issues for RM’s waiting to happen and quite easily fixed, perhaps.

The next issue was that because endurance is a business for some (breeding, training, riding, campaigning, selling horses) that at some rides in some areas businesses and people who have businesses lease their horses to people who don’t know endurance, don’t know the horse, and may or may not have the maturity to pick it all up in 50 seconds on the trail or at Ride meeting. John shared a case where such a novice on a leased horse crashed into a mt biker resulting in injury.  Yes, there is an assumption of risk when participating  in horse events, however, according to John,  while most equine liability laws do require a higher standard of proof in injury cases but the equine liability laws do not make these cases * go away*.

In a related issue, John brought up the issue of *protecting the integrity of the trail* which, as I understand it is keeping others not in the race off the trail during the race, unsafe trails, weather issues, and inadequate containment of animals not in the race.  All are serious issues and need to be considered in a serious fashion because the RM is squarely in the sights and the question of * who did something wrong and could it lead to litigation?*  One decision RM’s have to make is whether to let riders ride on unsafe trails when the trails become unsafe at the last minute due to weather, or……. Here is a great story:  One RM shared a REALLY creative way of cancelling a ride due to weather issues; apparently the trails the ride was to be held on became really unsafe due to rain all night ( yeah we have that too, don’t we here in the PNW). So, RM cancelled the ride before 6am and then offered riders to have a refund, or participate in a Fantasy ride where in the riders donated the ride fee to the organization, sat in the hot tubs, I think she said they voted on BC and other awards, she reported that most people stayed and said it was the *best ride ever*; well yeah!  It would be wouldn’t it?  Love that solution.

Ride Managers ROCK!

So, what about those liability releases we sign at rides?  Do they work? John said * they are useful* depending on some elements. (I think endurance ride law classes should be mandatory, now, @ ride meetings; a reminder would be nice as well as some words about Good Sam laws to be included on ride fliers, thoughts about that?).  One element is type type of the activity; the more recreational and less of a necessity the activity it is, the more likely the release will be likely to work.   Another element that is crucial is plain language so that the regular person can understand what they are signing.  And, again, here is the ordinary vs reckless negligence language important.  The more *ordinary* the negligence the more likely the release will work….. Liability releases are NOT a panacea, but they help.

Yes, AERC has a *claims history, we ( AERC) have had 12 claims since 2005, no we cannot all know what those actual claims are due to confidentiality agreements entered into when the settlement happens as well a conversation about whether we should know, or even RM’s should know. The worry is that once the claims are known, they can be used as copycat claims, a *how to* manual if you will about how to get $$$ from AERC. That would help no one. Yes, the BoD is discussing it.  This was not said, directly but…..  I am inferring that the strong recommendations made in this session can be read as *lessons learned* from these claims, yes, I can be wrong.

 

<‘\__~

…(\…)\..A lovely horse is always an experience…it is an emotional experience of the kind that is spoiled by words. -Beryl Markham

 

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3 responses to “AERC convention Friday March 8 John Parke on Liability Issues”

  1. Peter says :

    Test 2 awesome blog

  2. Judit Dabis says :

    Eileen, I really enjoy your blog, and want to add a little explanation on negligence. Ordinary negligence is unintentional, it simply happens by oversight, or carelessness. A good example of ordinary negligence is when you have a soup cooking on the stove and then leave the house, to find the kitchen in flames when you return. There was obviously no bad intentions, you simply forgot to switch off the gas on your stove. If as a result, someone else suffers damages your punishment will be based on the fact that you made a careless mistake.
    Gross negligence on the other hand is characterized by the utmost disregard for the consequences of one’s actions. When you are committing an act, you are fully aware of its potential negative consequences but you do it anyway. Example: throwing away a cigarette butt in the forest during a draught. You know it may cause fire, but you don’t care. This is obviously a totally different category from ordinary negligence, because it is intentional and preventable. Consequently, acts of gross negligence are much more punishable.
    When a jury decides whether an act was committed in negligence or in gross negligence, they set the tone for the court to name the punishment.

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