Foster Swift Agricultural Law News
January 27, 2015
Owners and operators of farms that offer certain agritourism activities to the public, such as horseback riding and horse-drawn hay or sleigh rides, sometimes assume that liability waivers or releases are off-limits. Many operators fall prey to common myths surrounding these documents. Let’s explore some of these myths and dispel each one.
MYTH: “Liability waivers/releases are unenforceable and ‘not worth the paper they’re printed on.’” The fact is, courts in Michigan have shown a willingness to enforce liability releases where properly written and signed, and several court rulings exist that have dismissed lawsuits on the strength of these documents. But there are limits. Read on to learn more.
MYTH: “Everything can be released away.” Not true. Under Michigan law, claims of gross negligence and willful and wanton misconduct cannot be released away. But claims of ordinary negligence usually can be released away; so can several claims involving violations of the Michigan Equine Activity Liability Act.
MYTH: “A parent can sign away his or her minor child’s claim against an agritourism facility.” Not true. In recent years, the Michigan Supreme Court has reaffirmed that a parent or legally appointed guardian cannot release away his or her child’s right to sue. Consequently, in Michigan a release might be capable of barring an adult’s claims but not those of his or her minor children.
MYTH: “A facility’s sign is identical to a liability release so a posted sign eliminates the need for a release.” Agritourism facilities sometimes post signs such as “ride at your own risk.” A sign is not the same as a liability release, however. People might deny seeing a posted sign, but a liability release serves as an affirmation in writing that the signer understands risks and has agreed to release the facility from liability from the consequences of its negligence.
Michigan’s Equine Activity Liability Act requires “equine professionals” to post warning signs on the property that state the following:
WARNING Under the Michigan Equine Activity Liability Act, an equine professional is not liable for an injury to or the death of a participant in an equine activity resulting from an inherent risk of the equine activity.
In addition, this statute specifies that “equine professionals” should include this language within their contracts and releases.
MYTH: “A liability release eliminates the need for insurance.” Never does a release – regardless of how well it is worded − eliminate the need for proper liability insurance. People who sign these documents can, and sometimes do, file lawsuits. Sometimes these cases fail (your release might help cause the case to be dismissed early on), but sometimes they don’t. Make sure that you are properly insured with a policy of commercial liability insurance (or other insurance designed to protect you for business activity).
MYTH: “An old form release is just as effective as one that has been drafted by a facility’s own lawyer.” Form releases found in stores and online might be easy and inexpensive, but many do not account for the unique requirements of your Michigan laws. Although no lawyer can guarantee that a release will keep you lawsuit-free, a release drafted by a knowledgeable lawyer can be an important component of an agritourism facility’s risk management efforts.
This article is not intended to constitute legal advice. Where questions arise based on specific situations, consult with a knowledgeable attorney.
In This Issue
- A Guide to Land-Lease Agreements for Farmers and Landowners
- President Obama Signs Tax Increase Prevention Act
- Managing Risk In Contracts
- Executive Women in Agriculture Conference Provided Abundance of Information