Riding High Again?

Thanks to the Illinois Equine Activity Liability Act
An Act intended to limit the civil liability of persons participating in equine activities in Illinois. Although the Act appears to offer relief from liability, it does contain exceptions which limit the statutory immunity. This article reviews the Act, its exceptions and case law. Some risk management techniques are also proposed.

by Teresa Vamos, Attorney at Law
According to a report on horse industry statistics prepared on behalf of the Horsemen's Council of Illinois, Illinois is a state that has more horses than Kentucky. There are 219,000 horses in Illinois and 150,000 horses in Kentucky. There are 213,000 Illinoisans involved in the industry as horse owners, service providers, employees and volunteers. Even more participate as spectators. It is believed that as many as 350,000 people in Illinois ride horses on a regular basis.1 Accordingly, the horse industry has a significant impact on our economy here in Illinois.

I. Introduction
The Illinois Equine Activity Liability Act (745 ILCS 47/1 et seq.) [hereinafter the "Act"] became effective on July 7, 1995. The Historical and Statutory Notes to the Act state that it is "an Act to limit the civil liability of persons participating in equine activities..."2 The state of Washington was the first state to enact Equine Activity legislation in 1989.3 Currently, 44 states in the United States have some form of equine activity legislation.4 One commentator, Krystyna M. Carmel, Esq. has suggested "Equine Activity Liability Act" ("EALA") is a title commonly given to the type of statute which seeks to protect equine professionals from liability by eliminating the risk of lawsuits for injuries arising out of the inherent dangers associated with activities involving horses. Provisions in these statutes are intended to benefit the horse industry by making it more profitable and insurable through limited liability. EALA's have arisen in the wake of state legislatures' recognition of the inherent risks associated with equine activities, as well as the economic and personal benefits which the state and its citizens derive from such activities. Therefore, the purpose underlying EALA's is to encourage equine activities by limiting the civil liability of those involved in such activities, in light of the reality that rising insurance costs and increased litigation would put many equine professionals and equine facilities out of business."5 Equine Activity Liability Acts appear to offer sanctuary from liability. However, the statutes also contain exceptions which limit the statutory immunity.

II. Legislative History
As reflected in its legislative history, the Act was enacted to encourage equine-related activities by limiting the civil liability for injuries resulting from risks associated with those activities. The State of Illinois, 89th General Assembly, House of Representatives Transcription Debate adds clarity as to the legislative intent of the Act:

Black: "...Senate Bill 240 creates the Equine Activity Liability Act. It requires that a participant...who engages in an equine activity to expressly assume the risk of and legal responsibility for any injury loss or damage to persons or property...It requires that all equine professionals post and maintain signs at equine activities that contain a warning as specified in the Act..."6
* * * *
Woolard: "Further...let's go back to the legislative intent as far as you're concerned. You're not trying to provide an opportunity for anyone to fail to be responsible in their nature. You're not trying to create a situation that will be harmful to children. What you are trying to do is to accomplish an expansion or continuance of available arenas and opportunities for children and adults to participate where they don't have the ability to own their own facility, their own horse and they still will have access to equine opportunities. Is that right?"

Speaker Johnson, Tim: "Representative Black."
Black: "Yes, Representative, that is absolutely the intent of this legislation." 7
* * * *
Woolard: "I stand in total support. I think that it is something that is necessary. I think we're seeing these type of facilities lost across this state. I would encourage each and everyone to support this because I believe that it will continue...or allow many children across the state access to horses which is very important. I think that there has been proof by many groups across [sic] that maybe there are a lot of our children who are in some kind of physical disability or mental incapacity that have had experiences with these types of animals that have brought them out of whatever their illness might be and have brought them to the front and have made productive citizens out of them. I think that working with horses, riding horses, the opportunities to participate in this kind of activity, is one of the greatest experiences that especially young folks and many older folks have to endure. I stand in total support of the Gentleman's Bill."8

III. The Equine Activity Liability Act
A. The Purposes
Section 5 of the Act declares the purposes of the Act as follows: "The General Assembly recognizes that persons who participate in equine activities may incur injuries as a result of the risks involved in those activities. The General Assembly also finds that the State and its citizens derive numerous economic and personal benefits from equine activities. Therefore, it is the intent of the General Assembly to encourage equine activities by delineating the responsibilities of those involved in equine activities." 9

B. Equine Activities Sought to Be Encouraged
"Equine activities" which the Illinois legislature intended to "encourage" are equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to dressage, hunter and jumper horse shows, grand prix jumping, 3 day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, english and western performance riding, endurance trail riding and western games, and hunting; equine training activities, teaching activities, or both; boarding equines; riding, inspecting, or evaluating an equine belonging to another, whether or not the owners has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine; rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor; and placing or replacing horseshoes on an equine.10

C. Assumption of the Risk Defense
The Act encourages these "equine activities" by providing an assumption of risk defense to a defendant sued by a plaintiff who becomes injured while engaging in one of the encouraged equine activities. Section 15 of the Act sets forth this defense: "Each participant who engages in an equine activity expressly assumes the risk of and legal responsibility for injury, loss, or damage to the participant or the participant's property that results from participating in an equine activity, except in specific situations as set forth in Section 20, when the equine activity sponsor or equine professional may be held responsible."11

D. Exceptions to Statutory Immunity
The Act limits the statutory immunity through 5 main exceptions.12 Qualifying defendants are immune from liability unless a plaintiff can establish qualification under one or more of the exceptions. Section 20 of the Act contains exceptions in which the liability of an equine activity sponsor, equine professional or any other person will not be limited.13

(1) "The Faulty Equipment or Tack Exception"
This exception has been one of the most litigated exceptions in states with Equine Acts. "Faulty equipment or tack" is not defined in the Act. Therefore, one commentator has suggested that "products liability law or commercial law provisions may be employed to determine the denotation of faulty equipment".14 There have been no reported decisions to date in Illinois interpreting this exception. Thus, a review of cases from other jurisdictions is instructive.

First, in Day vs. Snowmass Stables, Inc.15, plaintiff, a passenger in the first of two horse draw wagons, was thrown from the wagon and injured when the neck yoke ring on the rear wagon broke causing it to collide with the wagon she was riding in. Plaintiff filed suit against Snowmass as well as the supplier and the manufacturer of the neck yoke ring.16 Plaintiff alleged Snowmass was negligent due to its use of a faulty neck yoke ring and faulty wagons without sides or rails to secure passengers.17 Snowmass' motion for summary judgment was denied based on a release signed by the plaintiff as well as the faulty equipment and tack exception contained in the Colorado Equine Activity Liability Act.18

In Young v. Brandt19, a rider sustained significant skeletal damage when she was kicked in the face after being thrown from a stallion she was riding. Plaintiff sued the farm where she was riding and her trainer. The farm and trainer each owned a one-half interest in the horse. Plaintiff alleged defendants were negligent for using the wrong tack on the horse, not using a lunge line and placing her in a position of unknown danger.20 Although the Georgia Appellate Court found the defendants had waived review of any defense under their Equine Act, it reversed the trial court's judgment in favor of plaintiff. In dicta, the court noted that passage of their Equine Act had changed the law regarding assumption of risk of injuries from engaging in equine activities. The court opined, "...when injuries have arisen from risks in OCGA S4-12-2-(7)...in most cases the plaintiff should be found to have assumed the risk, as a matter of law, even when defendants are not asserting the immunity granted under the Equine Act."21 The court found the plaintiff to be an experienced horsewoman aware of all dangers associated with riding a stallion and chose to ride him anyway. This constituted assumption of risk as a matter of law. Further, the court noted that the plaintiff had assisted in putting the tack on the horse.22

In Patrick v. Sferra23, plaintiff was given an ex-race horse for free24. Plaintiff was in a coma for eight days due to brain damage she sustained while on a trail ride when the horse she was riding jumped an embankment and fell. She brought claims of negligence against the stable where the horse was boarded and the man who gave her the horse.25 She sued under the faulty equipment and tack exception, but the court found no causal connection between the tack and the injuries she sustained.26

(2) "The Suitability of the Equine Exception"
This exception, sometimes referred to as the "mismatched horse and rider exception", imposes 3 separate requirements on providers of equines in order to qualify for statutory immunity; specifically (1) the provider must make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity (2) must determine the ability of the participant to engage safely in the equine activity and (3) determine the ability of the participant to manage safely the participant's equine based on the participant's representation of ability.27 The plaintiff's representations may frustrate qualification under this exception. This exception is also the subject of frequent litigation. However, in Illinois, there have been no reported cases under this exception. Therefore, we can look again to other states for their interpretations of the exception.

In Muller v. English28, plaintiff, an experienced rider was riding her own horse in a foxhunt led by Muller, when she was kicked in the leg by Muller's horse. She sued Muller and the hunt sponsor. The court found this exception not applicable because plaintiff was riding her own horse.29

In Patrick v. Sferra30, plaintiff also sued under this exception asserting the stable owner and the former owner of the horse were equine activity sponsors and that they provided the horse to her "without having made reasonable efforts [to] determine that Duke was suitable for her use."31 The court found this exception did not apply because plaintiff was riding her own horse at the time of the injury. Moreover, the court found that defendants were not "sponsors" under the Act.32


(3) "Dangerous Latent Condition Exception" 
 This exception imposes a duty on equine activity sponsors, equine professionals or other persons to post signs regarding dangerous latent conditions. Thus, an injured plaintiff may allege a breach of duty under this exception whenever a sign, which should have been posted, is missing. One of the inherent risks of engaging in equine activities is "certain hazards such as surface and subsurface conditions".33 This may include conditions such as an abandoned well, an open trench, soft or hard ground, an icy, snowy or wet surface, etc. from which an equine may lose its footing, slip and fall. In reported decisions to date throughout the country, this exception has rarely been invoked by plaintiffs. Nevertheless, this exception appears to have potential to be litigated in the future.

In Muller v. English34, plaintiff also sued under this exception claiming Muller's horse was a "dangerous latent condition" on Muller's land where the incident took place relying on a case where a vicious bull running at large was considered a dangerous condition on the property of an owner or occupier of land. The court flatly rejected this argument and found Muller's horse was not at "liberty" at the time of the incident, but rather was under Muller's direct control.35 (4) "Willful and Wanton Conduct Exception" and the (5) "Intentionally Injures the Participant Exception"

The Tort Immunity Act defines "willful and wanton conduct" as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property."36 Illinois Pattern Jury Instructions, Civil defines "willful and wanton conduct" as behavior "which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others." 37 This exception has been the subject of a fair amount of litigation, including one case in Illinois, Lessman v. Rhodes38, which will be discussed later in this article.

In Gautreau v. Washington39, plaintiff was riding her horse near a crowded entrance at a horse show, when another horse show participant's horse reared and kicked, injuring the plaintiff's hip. Plaintiff and her husband filed suit against Washington, the horse owner, and his insurer, State Farm, for negligence and strict liability for her injuries. Defendants filed an answer and motion for summary judgment based on the Louisiana Equine Activity Liability Act and the trial court granted the motion for summary judgment in favor of defendants.40 The Appellate Court reviewed the deposition testimony of Mr. Washington and found that he had not intentionally committed an act that could be considered willful and wanton but rather the actions surrounding the incident were inherent risks associated with equine activities.41

In Muller v. English42, plaintiff also sued under this exception alleging Muller's conduct in riding a "vicious horse with a known propensity to kick in a foxhunt" constituted willful and wanton conduct. However, the court found that the plaintiff had presented no evidence that Muller's horse's conduct was extraordinary.43

E. Notice and Signage Requirements for Equine Professionals
Section 25 of the Act sets forth the notice and signage requirements for equine professionals.44 The Act contains two notice commands. First, the Act requires posting of a sign containing the statutorily mandated warning notice, and second, the warning notice shall be included in "every written contract entered into by an equine professional". The notice is the same for signs and contracts and reads as follows: "WARNING: Under the Equine Activity Liability Act, each participant who engages in an equine activity expressly assumes the risks of engaging in and legal responsibility for injury, loss, or damage to person or property resulting from the risk of equine activities." The purpose is to put a participant on notice of their assumption of the risk of equine activities. Moreover, notice requirements may also increase safety awareness and knowledge of the inherent risks of equine activities by equine activity sponsors, equine professionals and others in addition to participants. Thus, individuals may be more likely to take notice of potential dangers and take actions to avoid or minimize situations which could result in an accident. Some statutes expressly require strict compliance with the statutory notice provisions and failure to comply disqualifies the professional or sponsor from invoking the immunity provisions of the statute. Our Act uses the word "shall" in connection with the statutorily mandated notices, but does not specify the consequences of not meeting the mandatory requirement. One commentator has suggested that failure to comply with the notice requirements may disqualify an equine professional from immunity under the Act.45

IV. The Two Reported Decisions in Illinois
To date, there have been only two reported decisions in Illinois interpreting the Act. The most recent case in Illinois interpreting our Act is Lessman v.Rhodes46. In Lessman, the plaintiff (Lessman) had participated in a horse show which was sponsored by Trail Riders Association, Inc. ("Trail Riders") in Moweaqua, Illinois. While plaintiff was warming up his mare in the arena, another show participant was riding a virile young stallion which kicked plaintiff above his left ankle and injured him.47 Plaintiff sued Trail Riders alleging negligent and willful and wanton conduct and also sued the rider of the stallion, Dave Parks, and the owner of the stallion, James Rhodes. The Defendants filed motions to dismiss relying on the Illinois Equine Activity Liability Act, which they argued only allowed recovery for willful and wanton acts. The trial court agreed with the defendants' argument and dismissed all counts, except the willful and wanton action against Trail Riders. The trial court subsequently granted Trail Rider's motion for summary judgment because it found that plaintiff had failed to prove intentional and reckless conduct by Trail Riders.48 Plaintiff appealed. In affirming the trial court's judgment in favor of Trail Riders, the Appellate Court reviewed the purpose of the Act which is to "'encourage equine activities by delineating the responsibilities of those involved in equine activities' and to recognize that 'persons who participate in equine activities may incur injuries as a result of the risks involved in those activities.'" The Court quoted Section 15 of the Act stating:

"It is recognized that equine activities are hazardous to participants, regardless of all feasible safety measures that can be taken. Each participant who engages in an equine activity expressly assumes the risk of and legal responsibility for injury, loss, or damage to the participant or the participant's property that results from participating in an equine activity..."49

The Appellate Court noted that Section 20 of the Act provides an exception to the general rule of immunity and permits liability for an equine activity sponsor that commits an "act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury." The Appellate Court concluded that the trial court had properly awarded summary judgment in favor of Trail Riders because plaintiff was unable to prove that Trail Riders' conduct had risen to the level of willful and wanton conduct. The Court found that Trail Riders had not done anything differently than any other horse show sponsor would have done.50 The Appellate Court reasoned that their "holding is consistent with the intent of the Act. The very purpose of the Act is to encourage equine activities by protecting equine activity sponsors from excess liability due to horse-related injuries. The legislature recognized the hazardous and unpredictable nature of riding and showing horses and sought to shift the risk from sponsors to participants except for intentional or reckless behavior. We find Trail Riders did not act recklessly and Lessman's injury was the type of injury that the legislature contemplated when it placed the assumption of the risk upon participants."51


The first case in Illinois interpreting our Equine Activity Liability Act was Carl v. Resnick52. In Carl, Plaintiff (Carl) was riding her horse on a trail in the Cook County Forest Preserve. In the opposite direction, defendant, Shelly Resnick and her friend, Kathy Paddock, were riding horses owned by Ms. Resnick. The three riders met on the trail and stopped to talk. During that encounter, the horse Ms. Paddock was riding kicked at plaintiff and her horse. The horse's hoof struck plaintiff's leg and injured her.53 The plaintiff brought suit against defendant, Shelly Resnick, for negligence and a violation of the Animal Control Act. Both parties filed motions for summary judgment. The trial court judge ruled in favor of the defendant on both counts based on the Illinois Equine Activity Liability Act. Plaintiff appealed the trial court's decision, and the Appellate Court reversed the case and remanded the case back to the trial court. The Appellate Court reviewed the purposes set forth in Section 5 of the Act as well as the "equine activities" sought to be "encouraged" in Section 10(c) of the Act. The Court found that the Act encourages these "equine activities" by providing an assumption of the risk defense in Section 15 of the Act to defendants involved in "equine activities" sued by persons injured while engaging in one of the equine activities listed in the Act. The Appellate Court commented that the Illinois Equine Activity Liability Act resembles Equine Activity Liability Acts passed in other states and that most of those Equine Activity Liability Acts would not apply to the recreational riding at issue in the Carl case.54 The Court found that the plaintiff's complaint against defendant was not precluded by the Act because plaintiff's recreational riding of her own horse in the forest preserve at the time of her injury was not one of the "equine activities" defined in our Equine Act.55

V. Suggested Risk Management Strategies
A. Regular Inspection of Equipment and Tack All equipment and tack should be routinely cleaned, inspected and repaired (i.e. on a monthly or quarterly basis). Buckles, girths, girth straps, cinches, stirrups, stirrup leathers, saddles, bridles, reins, Chicago screws, helmets, etc. should be examined and replaced if necessary.

B. Evaluation of a Participant's Riding Ability/Representation from Participant of Riding Ability and Experience Prior to instructing a participant or providing an equine for the first time, a written representation should be obtained from the participant of his/her riding ability and experience with horses which elicits as much information from the participant as possible such as the number of times the participant has ridden a horse; the number of lessons taken in the participant's lifetime; the number of horse shows they have competed in, what classes and at what level; and riding clinics attended. Further, the participant should rate their level of riding ability as a novice, beginner, intermediate, experienced or very experienced. An instructor, trainer or equine provider may wish to consider conducting a "rider evaluation session" at the initial riding contact with a participant and take copious notes of the participant's riding abilities.

C. Regular Inspection of Property Conditions and Post Signs Regarding Dangerous Latent Conditions

Property should be inspected periodically for hazardous surface and subsurface conditions and dangerous latent conditions such as holes, abandoned wells, trenches, slick surfaces, icy, wet or snowy patches where a horse may slip and lose its footing, as well as looking for exposed nails, loose boards and the like. Appropriate warning signs should be posted regarding all dangerous latent conditions.

D. Promote Horsemanship Safety Awareness

Instructors, trainers, stable owners, equine professionals, equine activity sponsors, equine providers, farm help etc. should be trained in safety awareness. These individuals should consider seminars on horsemanship and horse safety and should be encouraged to join an organization such as the American Association for Horsemanship Safety, a not for profit corporation dedicated to promoting horsemanship safety by educating the public in horsemanship safety and training riding instructors in safe practices. (See http://www.law.utexas.edu/dawson or write to AAHS, P.O. Box 39, Fentress, TX 78622 or phone AAHS at (512) 488-2220.)

E. Post Operational Rules Operational rules should be posted in a visible location to each participant that include at a minimum the inherent risks of equine activities contained in the Act, the Participant's Responsibility contained in the Act, a warning to each participant to wear protective headgear which meets or exceeds ASTM/SEI standards as well as hard sole heeled footwear at all times while participating in an equine activity and which also includes the statutorily mandated warning notice.

F. Obtain and Post Equine Activity Liability Warning Signs Equine professionals should obtain and post required signs. Equine Activity Liability Warning signs can be obtained from the Horsemen's Council of Illinois, P.O. Box 1605, Springfield, Illinois 62705 (217) 832-8419.

G. Equine Professionals Shall Include the Statutorily Mandated Warning Notice in all Written Contracts Every equine professional should include the mandatory warning notices in all written contracts such as liability releases/waivers, boarding contracts, etc.

H. Review Insurance Coverage(s) Equine professionals, equine activity sponsors, instructors, trainers, etc. should review and obtain appropriate insurance coverage with the assistance of an equine insurance professional who is familiar with equine-related risks and the needs of equine clients.

VI. Conclusion
In conclusion, our Equine Activity Liability Act is certainly a step in the right direction for the horse industry in Illinois. However, the Act will not prevent lawsuits from being filed by plaintiffs with horse-related injuries. Plaintiffs will likely aim their allegations to fit in within the exceptions to the Act to avoid the statutory immunity of the defendant(s). Therefore, a risk management strategy must be put in place by all equine professionals, equine activity sponsors and any other person involved with equine activities in order to prevent or minimize liability for an equine mishap. Although some risk management techniques have been proposed in this article, the list is not all inclusive and should be considered as a foundation for implementation of a comprehensive risk management strategy. As the case law develops, there will be an opportunity to see how these cases hash out and more risk management techniques will crystallize.

In the meantime, chin up, shoulders back, look forward and keep on riding high in Illinois.

Teresa Vamos is an attorney in private practice in Chicago, Illinois. She has been a horse enthusiast and owner for many years. The focus of her Equine Law practice is to provide comprehensive and affordable legal services to horse owners and equine related organizations.

Teresa Vamos, Attorney at Law, 1608 N. Milwaukee Avenue, Suite 301, Chicago, Illinois 60647 Phone (773) 384-2082; Email TMV1023@aol.com; Web site: internetpros.com/equinelaw


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