by Jane Seigler, MHC Government Relations Committee Co-Chair (first published in the July 2024 Equiery)

Reminder: Helmets for Minors law takes effect October 1
Starting October 1, an adult who is present and directly supervising a minor may not allow the minor to ride a horse unless the minor is wearing a properly secured helmet that meets or exceeds ASTM standards for helmets for equestrian use. The law applies to riding on public roads or trails, plus private facilities whose primary purpose is equestrian activities, and that offers to the public recreational, educational, therapeutic or competitive equestrian activities. There are exemptions for minors who are crossing a public road that separates land not covered by the law, who are engaged in an agricultural practice, who are Amish or Mennonite, or who are receiving therapy services under certain circumstances. The full text of the new law is here: https://mgaleg.maryland.gov/2024RS/chapters_noln/Ch_467_hb0113T.pdf

Highlights from the Maryland Horse Council Industry Professionals’ Webinar on Liability Waivers, Negligence, Limited Liability, Insurance & The New Law
Also on October 1, a new law that makes clauses in liability waivers that waive or limit liability for negligence will become unenforceable. On May 21, MHC offered a webinar that explained what the new law does and doesn’t do, and provided a platform for discussion about what equine businesses that use waivers should do now.

Interest in MHC’s IP members-only webinar was incredibly strong, drawing over 90 registrants including a number of new IP members. Over 80 logged-on for at least a portion of the webinar. In order to foster a free exchange of dialogue and opinions, the webinar was not recorded.

The first part of the webinar focused on basic education needed as the background to a productive conversation.

Maryland’s Legal Landscape
Past MHC President & current Government Relations Committee co-Chair Jane Seigler provided education on tort & contract law basics. Jane is an active dressage instructor and is retired from a federal regulatory law practice.

Jane explained the definitions of “tort” and “negligence.” She set forth the state of current Maryland law on liability waivers (which will remain in effect until the new law becomes effective on October 1. 2024). She also explained the doctrine of Assumption of the Risk, which can protect equine business owners, and which is unaffected by the new law. Finally, Jane explained the doctrine of Contributory Negligence, which affects how damage awards are calculated when negligence is determined in court, and how the doctrine of Contributory Negligence, as a practical matter, has tended to act as a deterrent to negligence lawsuits in Maryland. Maryland is one of only five jurisdictions that apply the Contributory Negligence standard.

Jane also discussed why Maryland has not pursued the enactment of “equine limited liability laws,” which are in effect in many states, and the possible negative “unintended consequences” of pursuing such laws in Maryland.

For more background on contributory vs comparative negligence and equine limited liability laws, please see this MHC resource: MHC ISSUE ANALYSIS: Insurance, Litigation, Liability Reform and the Effect on the Maryland Horse Industry https://equiery.com/maryland-horse-councils-position-on-equine-liability-la…

The Story of SB 452/HB 162
MHC President Kim Egan provided the background for how the Maryland Horse Council organized a grassroots awareness campaign about the bill as it moved through the legislature, and why the legislators were unpersuaded by the over 100 witnesses who testified against the bill. Kim is an active attorney with a concentration in life science industries regulated by either the FDA or the USDA, co-chair of the MHC Government Relations Committee, and a horse owner and rider.

Providing background on the origin of the bill was Frank Boston, lobbyist for the Maryland Association for Justice, the organization that pushed for passage of the bill. Frank is the founding partner of Boston Plaut law firm, a horse owner, a client of a large lesson and training facility, and the Maryland Horse Council’s former lobbyist for matters related to the shared use of public resources on Sundays (aka “the Sunday deer hunting issue”). He explained that many recreational facilities, such as trampoline parks, climbing gyms, etc. require participants (or their parents/legal guardians in the case of, e.g., birthday parties held at these types of facilities) were required to sign a legal document that waived their right to sue in the event that participants were injured by the negligent actions of the facility and/or its employees, e.g., failing to maintain equipment.

SB 452 passed and will become law, on October 1, having been signed by the Governor on May 16th. To read the new “ACT concerning Courts – Prohibited Liability Agreements – Recreational Facilities,” please click here: https://mgaleg.maryland.gov/2024RS/Chapters_noln/CH_941_sb0452t.pdf

Legislative Summary: For the purpose of establishing that a provision in a contract or agreement relating to the use of a recreational facility that purports to limit the recreational facility’s liability, or release the recreational facility from or indemnify or hold harmless the recreational facility against liability, for injury caused by negligence or other wrongful acts is void and unenforceable under certain circumstances; and generally relating to liability agreements and recreational facilities.

The Conversation
Armed with this background information, attendees engaged in Part 2 of the webinar, a “Town Hall” style discussion. Three attorneys and two insurance brokers served as the official panel, fielding questions and engaging in dialogue with the members in attendance, which included quite a few attorneys also involved in the horse industry. The discussion was lively and thought provoking. Many participants asked questions about if/how the new law will affect their specific activities and operations.

Topics discussed included:
Can I still use a liability waiver, and if so, what should it say? Can I use a waiver form I found on the internet? How does this new law affect my insurance coverage and rates? What other things can I do to limit my liability? Who can/should sign my waivers? Am I protected if my insurance company “accepted” my waiver?

It was also suggested that stables that solicit the general public, and have one or more horses, and either give lessons, board horses, or have a rental service, or are a rescue or sanctuary stable, should be sure to comply with Maryland state law and obtain a Stable License. Holding a license illustrates that the stable meets the minimum standards of care (for facility, for tack, etc.) required by the State of Maryland, which could be useful if the stable is wrongly sued for negligence.

None of the panelists expected the new law to have an impact on the “Recreational Use Statute.” MD Natural Resources Article, Section 5-1104, (https://mgaleg.maryland.gov/mgawebsite/Laws/StatuteText?article=gnr&sec…).

Under Maryland’s recreational use statute, landowners who allow the public to use their land for recreational purposes generally cannot be held liable by those who are injured on their property as long as the landowner does not charge a fee for the use of their land.

Final Thoughts From Panelists
Rebekah Lusk (Lusk Law, LLC); “I would recommend that everyone speak with their own legal advisor to make sure they have a release that is crafted for their specific business and not look for a standard template, as it may not comply with Maryland law or be appropriate for their business. In addition, to make sure they have the appropriate insurance for their business.”
William McDaniel, Jr. (Ballard Spahr): “As this new law takes effect, it is a good time to review our waiver forms to ensure they provide a strong basis for asserting the defenses of assumption of the risk and contributory negligence. That is the best protection against any ill effects this new legislation might cause.”

Genevieve Macfarlane (Steven Palmer, LLC): “We do not know how the courts are going to handle the new law. The best thing you can do is make sure you have a up-to-date waiver and take steps as advised by an equine law attorney to limit your liability as much as Maryland law allows.”

Frank Boston (Boston Plaut): “Use this new law as an opportunity to revisit your pre-existing waivers to make sure the language is updated and succinctly protects you for ‘assumption of risk’ and ‘contributory negligence’ affirmative defenses.”

C.R. Hogendorp (Hogendorp Insurance Advisors): “Do not assume you have coverage. Talk with your agent to ensure your policy is tailored to your specific operation.”

Burley Cocks (Burley Insurance & Financial Services): “When using or looking for a lawyer OR insurance agent for your equine operation make sure that individual is well versed on the subject and nature of your equine business.”

This IP members-only webinar was provided as a member benefit to MHC Industry Professional members to ensure that these vital members of Maryland’s burgeoning horse industry receive support to ensure that their businesses thrive.