On March 25, 2020, Governor Stitt amended the Fourth Amended Executive Order 2020-07 (EO 2020-07) via a memorandum designating horse management facilities as critical infrastructure businesses. With the critical infrastructure designation, it is imperative that horse management facilities now work to mitigate risks associated with operating during the COVID-19 pandemic. Facilities must balance public health order compliance, horse owner expectations with safety while taking care of the horses stabled on their property. The following outlines several proactive steps horse management facilities can take to manage risk while operating during the COVID-19 pandemic.
First, implement best practice strategies designed to assist horse management facilities to continue to care and keep horses during a public health emergency and at the same time, protect the health of horse owners and barn workers. Horse facilities are accustomed to biosecurity measures implemented to prevent the spread of contagious diseases among the horses on their property, but the COVID-19 outbreak presents unique challenges. Biosecurity strategies designed to protect horses may not be enough to protect the humans who come onto the property. To provide much needed direction to address this gap, on March 24, 2020, the Kentucky Department of Agriculture published guidelines for “Farm, Veterinary and Other Equine Activities.”
These guidelines incorporate the White House “Coronavirus Guidelines for America” and urge that the CDC website be monitored frequently for updates on best practices in mitigating the spread of the coronavirus among humans. In addition, the guidance includes best practice strategies for managing the daily care and keep of horses, cleaning equipment and surfaces, as well as managing communication, employees and medical procedures. Lastly, horse facilities should implement a schedule for horse owners to visit the facility with the aim of decreasing the number of people on the property so that proper social distancing can be accomplished.
Second, incorporate best practices for COVID-19 mitigation into barn rules and disseminate them to your clients, vendors and employees. Utilizing email, social media and other forms of electronic communication will support social distancing efforts and model best practice. Posting barn rules in prominent locations throughout the facility will also serve to disseminate important health and safety rules.
Next, review and revise your stable liability waiver to include illnesses contracted from communicable disease. To begin, if you are an equine professional or own an equine facility, it is important to understand that “Oklahoma Livestock Activities Liability Limitation Act” (the Act) does not provide unlimited protection from liability. The Act can be broken down into three parts. First, the Act provides liability protection from “injuries” resulting from the “inherent risks of livestock activities.” Second, the Act provides protection when the equine professional is acting in good faith, and third, the Act provides protection when the equine professional acts consistent with recognized industry standards. You should understand the Act provides liability protection from “injuries” but does not reference “illness.” Moreover, the Act specifically does not limit liability from death resulting from the “inherent risks of livestock activities.”
Additionally, reliance on liability insurance policies is a risky approach. Most homeowner policies will not cover equine related operations absent a care, custody and control rider (CCC rider). Unfortunately, even a with a CCC rider, or even a separate commercial general liability policy, may be of no use during pandemics. In fact, such insurance policies generally exclude illnesses contracted from communicable disease. To determine if your liability insurance policy covers illness contracted from communicable disease, contact your insurance agent.
Since we have established the Act does not provide unlimited liability protection and most liability insurance policies exclude illness contracted from communicable disease, do you need a written liability release? Simply put, yes. As mentioned above, liability protection is limited, and the Act specifically carves out certain events that would not be protected by the statute. According to Oklahoma law, parties can agree, in writing, to extend the limitation of liability.
Most equine facilities utilize written liability releases, but will these releases achieve complete protection particularly in the context of a communicable disease such as COVID-19? Well, it depends. In a 2012 Oklahoma case, Brown v. Beets, a trial court dismissed a personal injury negligence claim related to an injury from a horse kick because the riding participant had signed a liability release. However, on appeal, Oklahoma Court of Civil Appeals reversed the trial court decision. The appeals court found a dispute as to whether or not the trail ride leader had used reasonable effort to determine the ability of the riders and whether or not the trail ride leader had followed industry standards. This case would seem to imply that if an equine professional fails to determine the ability of the potential rider/participant, fails to match to the right horse based on the rider/participant’s ability, and fails to adhere to industry standards, a liability release may not be effective in limiting liability. In light of this Court decision and with regard to operating during the COVID-19 outbreak, it is critical that horse management facilities implement and adhere to best practices (such as the COVID-19 guidelines referenced above) to ensure that properly drafted stable liability waivers will give maximum liability protection.
Also, because a liability release or waiver is a contract, principles of contract law apply. Liability releases should be clear and definite. We also know that Oklahoma law requires the liability release to be in writing, and of course, a minor cannot sign a liability release form. A parent, ideally both parents, or guardian(s) must sign a liability release when a minor engages in an equine activity. The question of whether the release should include a helmet requirement is a topic for another article.
The take-a-way here is a stable liability release or waiver is necessary to fill in gaps related to the Act but may not completely release you from liability if you are otherwise negligent or fail to follow industry standards to include the standards related to combating COVID-19. Liability releases could also prove to be ineffective for other reasons for example lack of specificity or clarity.
In conclusion, as of March 25, 2020, Oklahoma designated horse management facilities as critical infrastructure businesses. With this designation comes the responsibility to continue to care and keep horses during a public health emergency and at the same time, protect the health of horse owners and barn workers. Horse management facilities can proactively take steps to manage risk while operating during the COVID-19 pandemic such as implementing best practice guidelines for preventing the spread of COVID-19; communicating barn rules; and implementing stable liability waivers that include a waiver of liability for illnesses contracted from communicable diseases. We will get through this current crisis, but we must learn, adapt and implement best practices for future situations.
For more information on this alert and its impact on your business, please call 405.237.8737 or email me.
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