I recently analyzed the issue of premises liability for clients who occasionally allow friends to come ride horses on their property. Here are a few of the highlights . . . .
Under common law, you could be liable to a guest you invite to the property for either dangerous “conditions” or “activities” on the property. As to “activities,” if the guest enters or remains on the property with your express or implied permission, and you knew or should have known that the guest would not realize the danger involved in a certain activity, and the guest did not know or have reason to know of the danger of that activity, there could be liability if the guest is injured by the activity. As to “conditions,” if the guest comes onto your property with your express or implied permission, and you know of a dangerous condition on the property and that it presents an unreasonable risk of harm, and you know or have reason to know that the guest would not discover or realize the danger, and the guest actually does not discover or realize the danger, there could be liability if the guest is injured as a result of the dangerous condition. These standards really boil down to an evaluation of whether your conduct was reasonable under the circumstances. There are also some statutes in Utah that alter the common law, as discussed below.
If the guest is invited to use the property for recreational purposes and without charge, Utah statutes provide some protection against liability that could otherwise arise under the common law. Under Utah Code 57-14-3 and 57-14-6, so long as an owner of land does not charge for entry and is not “willful or malicious” in failing to warn against a dangerous condition, use, structure, or activity, the owner “owes no duty of care to keep the premises safe for entry or use by any person entering or using the premises for any recreational purpose or to give any warning of a dangerous condition, use, structure, or activity on those premises to that person.” This means that even where there would otherwise be a duty to warn about a dangerous activity or condition or prevent harm to a guest, if the guest is on the property without charge and for “recreational” purposes, there is not liability unless you are “willful or malicious” in failing to warn of a danger. This basically alters the common law on dangerous conditions to protect you unless your failure to warn or prevent a danger is so blatant as to rise to the level of intentional harm.
Another statute relates specifically to agricultural activities (written for agri-tourism). Under Utah Code 78B-4-512, it is an affirmative defense to liability to a person invited on your property for recreational participation in or viewing of agricultural activities if the person “deliberately disregarded” conspicuously posted signs, instructions, or other warnings given or if the person used equipment or animals during the activity in a manner “other than that for which a reasonable person should have known they were intended.” This does not alter your duty of care, but deals instead with the conduct of the guest. It makes clear that if the guest is injured as a result of his/her own stupidity, you are not liable.
One other statute relating specifically to equine activities deserves the most attention. Under Utah Code 78B-4-202, it is presumed that participants in equine activities are aware of the “inherent risks” of the activities and you will not be liable for injuries resulting from equine activities unless:
1) you provided the equipment and tack, the equipment or tack leads to the injury, and you were negligent in not realizing the problem with the equipment or tack;
2) you fail to make reasonable efforts to determine whether the animals provided to participants “could behave in a manner consistent with the activity of the participant,” (seems to mean you should not put someone on a frisky horse);
3) you fail to post warning signs regarding a dangerous condition on the property that you either knew about or should have known about;
4) you “commit an act or omission that constitutes negligence, gross negligence, or willful or wanton disregard of the safety of the participant”; or
5) you intentionally injure the participant.
This statute actually requires that you either post a sign identifying the inherent risks of equine activities or have those risks identified in a waiver signed by participants (and their parents if the participants are minors). This statute is different from the others mentioned above in the detail with which items 1 through 5 above are spelled out. For those involved in equine activities, this statute deserves careful attention.
Whereas the recreational activities protection of Section 57-14-3 is quite broad, this equine statute pares back some of that protection with the carve outs of items 1 through 5 above. And because the equine statute more specifically addresses the equine situation than the recreational statute, the equine statute would likely control. Although the property owner benefits from a presumption that the participant understands and appreciates the inherent risks of horse riding, the duty to avoid negligence is revived in item 4. There is also a specific duty to keep the tack in good repair in item 1 and to make sure the horses are suitable for riding in item 2.
In summary, you have some protection from liability just from the fact that you will take reasonable measures for the safety of your guests and warn them of conditions on the property they might not be aware of. You have further protection under Section 57-14-3 against liability incurred by guests using your property for recreational activities and without charge. Under Section 78B-4-512, if the activity can be categorized as “agricultural,” whether or not the guest pays to participate, the guest cannot sue for injury incurred as a result of ignoring warnings given or as a result of acting in an unreasonable manner. When the activities involve horses or livestock, it will be presumed that participants are aware of the inherent risks of participation, per Section 78B-4-202, but you must also take care with the tack and avoid negligently causing harm. Finally, a waiver or release is a way to ensure that participants will take seriously their own actions and will usually be enforceable.
Jacob D. Briggs is a partner with the Ogden, Utah, based law firm of Bentley Briggs & Lynch PLLC, practicing in the areas of estate planning, real estate, and commercial litigation.