OklahomaHorses Magazine May 2022

May/June 2022 • OklahomaHorses 19 The laws in Oklahoma (Okl. St. Ann. §§ 50.3 and 50.4.) do not require a horse owner or a landowner to secure a written waiver to offer liability protection for either, if their behavior does not otherwise expose them. However, the law does state that two or more persons can agree in writing to extend the waiver of liability pursuant to the liability limit provisions found in the law. Furthermore, the Okla- homa statute specifically does not apply to persons covered by worker compensation laws. Kentucky’s equine activity statute (KRS § 247.402) does not require a waiver either, nor does it specifically state that one may be entered into by the parties. However, there is no prohibition against it. Moreover, Kentucky’s law does not provide an exemption for persons engaged in horse-racing activities. What happens if injury occurs If an equine activity participant is injured, the potentially liable party will likely have to defend against associated claims for damages. Accordingly, the potentially liable party will be held to a negligence standard. That is specifically referenced in the Kentucky statute, which says that adherence by the activity sponsor to the standards of care within the profession creates a rebuttable presumption that the conduct was not negligent. Oklahoma does not specifically address negligence. By contrast, Arizona’s law will protect the horse owner from simple negligence if a waiver is executed, but the party might still be liable for gross negligence. Gross negligence is more than simple careless- ness or failure to act but rather is willful behavior done with extreme disregard for the welfare of others. Regardless of what state you are in, if you are in the horse business or are a horse hobbyist and other people might come into contact with your horses or your property where horses are kept, requiring the execu- tion of a properly drafted liability waiver is generally a good idea. A comprehensive waiver will explicitly detail all known or potential hazards. That creates proof of said disclosure, taking care of a common requirement in many jurisdictions for stat- utory protection to apply. Effective waivers should also clearly detail the participants’ acceptance of the risk and should include indemnity provisions in case participation results in harm to a third party. Liability insurance is a good idea Appropriate liability insurance is also a great idea to mitigate against defense costs no matter where you operate. After all, even if you dutifully comply with the requirements necessary to be insulated from liability, there is nothing to prevent the lawsuit, only a judgment from being entered against you. A good defense is costly. General liability coverage is often sufficient for hobbyists; however, a farm policy or supplemental poli- cy rider might be necessary for the equine professional. Regardless, most policies require a waiver to be in place or you could be denied coverage. Even when the waiver is not required by the law or by your insurance carrier, a waiver should ensure coverage under the law and your policy and bolster your defenses if you are sued. Furthermore, a waiver provides the opportunity to extend the protections under the law to the maximum extent permissible. A qualified attorney with equine experience licensed to practice in your jurisdiction can help you assemble a state-specific waiver document. Adam M. Trenk, Esq. (Oklahoma, Ari- zona, and Kentucky), is a partner at Rose Law Group pc ( www.RoseLawGroup.com) , which is headquartered in Scottsdale, Arizo- na, and has an office in Sulphur, Oklahoma. He is the chair of the equine, cannabis, and hemp law departments. He advises clients on strategic development, contracts, real estate and land-use matters, conflict resolution, and government relations. He is an avid horseman and is active in the equine community. Adam Trenk can be contacted by e-mail at ATrenk@ RoseLawGroup.com or by telephone at (602) 402-3335.