Indiana Equine Liability Statute used to stop litigation
Posted: April 29, 2013 Filed under: Equine Activities (Horses, Donkeys, Mules) & Animals, Indiana | Tags: 4-H, 4-H Club, Animal, Equine, Equine Liability Statute, Equus (genus), health, Horse, Indiana, Sports, United States Leave a commentPerry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501
Issue of failure to post the required notice, not at issue when the plaintiff admitted reading the sign on the other building.
In this case, the plaintiff was an adult leader of a 4-H house club. The plaintiff had helped the kids and participated in the activity for years and owned seven horses. During an event, the plaintiff was moving to assist a child who had lined her horse up in a way that was irritating other horses. While moving to assist the child the plaintiff was kicked by a horse.
The event was held in a building that was only used once a year. Normally, all events were held at the horse building. The horse building had the required Indiana Equine Liability Act signs on all entrances into the building. The plaintiff had been in the Horse Building and admitted seeing the signs.
The defendant filed a motion for summary judgment, which was granted by the trial court based upon the issue that the accident was caused by a horse, and the defendant was protected under the Indiana statute. The motion was granted, and the plaintiff appealed.
Summary of the case
The plaintiff claimed the 4-H club was negligent for having a horse show in premises that were unsuitable for such activities. The plaintiff also argued that there were no warning signs as required by the statute posted around the building were the accidents occurred.
The court reviewed the statute and the required posting of the warning notice. The statute could not be used as a defense, unless there was a sign posted around the building or on the premises.
34-31-5-3. Warning notices required.
(a) This chapter does not apply unless an equine activity sponsor or an equine professional posts and maintains in at least one (1) location on the grounds or in the building that is the site of an equine activity a sign on which is printed the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.
(b) A sign referred to in subsection (a) must be placed in a clearly visible location in proximity to the equine activity.
(c)The warning notice on a sign referred to in subsection (a) must be printed in black letters, and each letter must be at least one (1) inch in height.
The court found that signs on the other building were sufficient to meet the requirements of the statute. It did so not by finding the signs were present, but by finding the plaintiff did not prove the signs were absent. An affidavit of the defendant stating the signs were present shifted the burden of proof to the plaintiff and the plaintiff failed to prove the necessary facts.
The plaintiff then argued that her injury did not arise from an inherent risk of an equine activity. (Really? The number-one thing’s horses do is kick; number two is bite and number three throw you off; This from a person who has been kicked, bitten and thrown off horses.)
The court found the plaintiff was injured by an inherent risk of hanging around horses.
The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn.
So Now What?
The obvious argument of the plaintiff was the injury was not due to the actions of the horse but because of the negligence of the 4-H. This normally is very effective in eliminating the defense of equine liability statutes. The human was liable; the horse was not the cause of the accident, just what was being ridden.
Looking at the argument a different way, the ladder failed not because the ladder broke, but because the person who placed the ladder where he did, caused the ladder to break.
The second issue is always having extra statutorily required warning signs, posting them wherever there are horses. It would have been easy to post a sign on the entrance with tape just for the event. Better, post a warning sign near the entrance into the grounds and on every building.
Finally, this was a lucky case. Another court could have ruled the club was negligent for creating the situation. Most courts have. Since equine liability acts have been enacted, lawsuits against horses have disappeared, however, suits against horse owners are on the rise.
Like a broken record, having all the participants, youth, parents and adults sign a release would have prevented this action, or at least made it even quicker to dismiss under Indiana’s law.
Plaintiff: Teresa Perry
Defendant: Whitley County 4-H Clubs Inc.
Plaintiff Claims: Negligence
Defendant Defenses: Indiana Equine Liability Statute
Holding: For the defendant. The acts that gave rise to the plaintiff’s injuries were protected from suit by the Indiana statute.
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By Recreation Law Rec-law@recreation-law.com James H. Moss
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Wilderness Medical Society 2013 CME Conferences
Posted: April 16, 2013 Filed under: Uncategorized | Tags: CME, Continuing education, Continuing medical education, education, first aid, health, Medical Specialties, Medicine, University Courses, Wilderness Medicine, WMS 2 Comments
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The ALL NEW Wilderness Medicine Magazine
Posted: March 8, 2013 Filed under: Uncategorized | Tags: FAWM, first aid, health, Managing editor, Medicine Magazine, Wilderness Medical Society, Wilderness Medicine, WMS Leave a comment
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Wilderness Medical Society Trailblazer, April 2012
Posted: April 24, 2012 Filed under: Uncategorized | Tags: #Trailblazer, health, Medical Specialties, Medicine, Wilderness Medical Society, Wilderness Medicine, WMS Leave a comment
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Latest edition of the WMS Wilderness & Environmental Medicine Journal is out.
Posted: April 5, 2012 Filed under: First Aid, Medical | Tags: #Edema, #HAPE, #Nifedipine, Altitude, AltitudeSickness, health, High Altitude Pulmonary Edema, Journal, Medicine, Wilderness Medical Society, WMS Leave a commentIf you work in the Outdoor Industry, you should be a member of the WMS.
The Articles in the Volume 23, Number 1, Spring 2012 edition of the Wilderness Medical Society (WMS) journal are great!
· Nifedipine for the Treatment of High Altitude Pulmonary Edema
· Background Rates of Acute Mountain Sickness-Like Symptoms at Low Altitude in Adolescents Using Lake Louise Score
· Peripheral Arterial Desaturation is Further Exacerbated by Exercise Adolescents with Acute Mountain Sickness
· Recombinant Angiotension-Converting Enzyme 2 Suppresses Pulmonary Vasoconstriction in Acute Hypoxia
· Physiological Bone Responses in the Fingers after More than 10 Years of High-Level Sport Climbing: Analysis of Cortical Parameters
· Medical Direction of Wilderness and Other Operational Emergency Medical Services Programs
· Novel Use of a Hemostatic Dressing in the Management of a Bleeding Leech Bite: A Case Report and Review of the Literature
· Wolf Spider Envenomation
· Managing Anaphylaxis in a Jungle Environment
· Increasing Creating Kinase Concentrations at the 161-km Western States Endurance Run
· Improvised Traction Splints: A Wilderness Medicine Tool or Hindrance?
· Animal-related Motorcycle Collisions in North Dakota
You are going to get great information by reading the newsletter, website and journal of the WMS. More importantly, I find the information is just as critical in telling you what not to do.
You can become a member of the WMS by going here. Sign up today and learn for the rest of the year.
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Arizona limited right for parent to waive child’s right to sue
Posted: February 17, 2012 Filed under: Arizona, Minors, Youth, Children | Tags: Animal, Arizona, Arizona State University, Equine, health, Horse, Minor, Parental Responsibility, Parental Rights, Release 1 CommentTITLE 12. COURTS AND CIVIL PROCEEDINGS
CHAPTER 5. LIMITATIONS OF ACTIONS
ARTICLE 3. PERSONAL ACTIONS
Go to the Arizona Code Archive Directory
A.R.S. § 12-553 (2011)
§ 12-553. Limited liability of equine owners and owners of equine facilities; exception; definitions
A. An equine owner or an agent of an equine owner who regardless of consideration allows another person to take control of an equine is not liable for an injury to or the death of the person if:
1. The person has taken control of the equine from the owner or agent when the injury or death occurs.
2. The person or the parent or legal guardian of the person if the person is under eighteen years of age has signed a release before taking control of the equine.
3. The owner or agent has properly installed suitable tack or equipment or the person has personally tacked the equine with tack the person owned, leased or borrowed. If the person has personally tacked the equine, the person assumes full responsibility for the suitability, installation and condition of the tack.
4. The owner or agent assigns the person to a suitable equine based on a reasonable interpretation of the person’s representation of his skills, health and experience with and knowledge of equines.
B. Subsection A does not apply to an equine owner or agent of the equine owner who is grossly negligent or commits wilful, wanton or intentional acts or omissions.
C. An owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine with or without the owner’s permission is not liable for injury to or death of the equine or the rider or handler.
D. Subsection C does not apply to an owner, lessor or agent of any riding stable, rodeo ground, training or boarding stable or other private property that is used by a rider or handler of an equine if either of the following applies:
1. The owner, lessor or agent knows or should know that a hazardous condition exists and the owner, lessor or agent fails to disclose the hazardous condition to a rider or handler of an equine.
2. The owner, lessor or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.
E. As used in this section:
1. “Equine” means a horse, pony, mule, donkey or ass.
2. “Release” means a document that a person signs before taking control of an equine from the owner or owner’s agent and that acknowledges that the person is aware of the inherent risks associated with equine activities, is willing and able to accept full responsibility for his own safety and welfare and releases the equine owner or agent from liability unless the equine owner or agent is grossly negligent or commits wilful, wanton or intentional acts or omissions.
HISTORY: Last year in which legislation affected this section: 1998
NOTES:
Premises Liability
SCOPE OF IMMUNITY.
This section does not shield stable owners from claims for negligent supervision, which do not involve horseback riding or activities directly relating thereto. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 965 P.2d 47 (Ct. App. 1998).
Grant of summary judgment in favor of the riding stable operator was proper where the document that the rider signed contained sufficient information to have been considered a release; further, this section does not completely deprive injured equine riders of a remedy and thus it does not violate the anti-abrogation clause, Ariz. Const. art. 18, § 6. Lindsay v. Cave Creek Outfitters, L.L.C., 207 Ariz. 487, 88 P.3d 557, 2003 Ariz. App. LEXIS 162 (Ct. App. 2003).
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Not a final decision, but I believe an indication of where the law of AED’s is heading however the basis for the decision is nuts!
Posted: January 30, 2012 Filed under: Health Club, New York | Tags: AED, Automated external defibrillator, health, Health club, New York Leave a commentMiglino, Jr., etc., v Bally Total Fitness of Greater New York, Inc., et al., 2011 NY Slip Op 9603; 2011 N.Y. App. Div. LEXIS 9478
Calling 911 according to this court is starting a rescue which creates liability for failing to complete the rescue!
This case was appealed and upheld in Miglino, Jr., v Bally Total Fitness of Greater New York, Inc., 20 N.Y.3d 342; 985 N.E.2d 128; 961 N.Y.S.2d 364; 2013 N.Y. LEXIS 111; 2013 NY Slip Op 780.
There are a lot of motions, trial and appeals to go in this case before you could rely on this decision. However it is indicative of where the law is probably heading. If the statute requires you to have an AED (Automatic External Defibrillator) at your facility, you may be liable if you do not use it.
In this case, the deceased was playing racquet ball when he suffered a heart attack. An employee of the health club where he worked called 911 and went to his side with an AED. The employee left for an unknown reason and came back. When he left the deceased was still breathing. When he came back, a physician was attending the deceased.
At no time did the health club employee use the AED. The family of the deceased sued the health club. The allegations were that since the New York statute (General Business Law § 627-a) mandated the health club have an AED, then it was negligence not to use the AED. Whether or not the AED would have helped has seemed to have escaped the confines of the litigation.
The defendants moved to dismiss for failure to state a claim upon which relief can be granted. This means the allegations in the complaint of the plaintiff do not meet the minimum requirements to state a legal claim under the law and therefore the plaintiff’s case should be dismissed.
The legal basis of the motion was the statute did not require the use of the AED and any use of the AED was protected by the AED Good Samaritan Act, (Public Health Law § 3000-a). The motion of the defendants was denied and the defendants appealed that denial.
So? Summary of the case
First the appellate court looked at the statute requiring health clubs to have AEDs and employees trained in how to use the AED’s.
General Business Law § 627-a: automated external defibrillator requirements:
1. Every health club [with more than 500 members] shall have . . . at least one [AED], and shall have in attendance, at all times during staffed business hours, at least one individual performing employment . . . who holds a valid certification of completion of a course in the study of the operation of AEDs and a valid certification of the completion of a course in the training of cardiopulmonary resuscitation provided by a nationally recognized organization or association.
The court also looked at the AED Good Samaritan law.
“3. Pursuant to [Public Health Law §§ 3000-a and 3000-b], any public access defibrillation provider, or any employee . . . of the provider who, in accordance with . . . this section, voluntarily and without expectation of monetary compensation renders emergency medical or first aid treatment using an AED which has been made available pursuant to this section, to a person who is unconscious, ill or injured, shall be liable only pursuant to [Public Health Law § 3000-a].
The court stated the purpose of the statute was to save lives and therefore the health clubs were required to use the AEDs. “Stated differently, why statutorily mandate a health club facility to provide the device if there is no concomitant requirement to use it?”
A basic axiom in US law has always been there is no duty to rescue unless you placed the victim in the peril from which he needs rescued. By that, you can come across someone who is in need of help and you have no legal obligation to help.
Once you start to help though, you cannot leave the victim at that point. Once you start first aid, you cannot abandon the victim unless higher medical care arrives on the scene.
The court found the health club employee had started to rescue the deceased when he “directed that a 911 emergency call be made, sought medical assistance within the club, and took the decedent’s pulse.”
All three of the things the employee did were marginally, if at all, a rescue or first aid. If directing someone to call 911 constitutes starting a rescue, don’t expect me to pick up the phone if you are dying or tell someone else to call.
The court continues this stretch into the wild blue yonder with this statement. Since the health club employee was trained in the use of the AED, “his failure to use the device was tantamount to not acting carefully.”
Negligence can be proved for acting or in some cases for failing to act. However the failure to act had to have been predicated upon a duty to act that was more than speculation or hypothetical. Here the court has taken the fact that training now requires you to act on that training or you are liable. How far will this court go to hold someone liable for the bad luck in dying one day?
· I am trained to provide first aid, yet I do not have the proper equipment, am I now liable when I cannot help the person so I do not help the person?
· You are bleeding but I have no gloves or blood borne pathogen protection, even though I’ve been trained to stop your bleeding. Am I now liable for placing my family’s and my health above that of a stranger?
· You are dying in the middle of a gun fight. I am safe and you are still surrounding by bullets, am I liable for not running out in the street to safe you when my training might assist you? Am I now required to risk my life because I have the training to save yours?
This seems like a stretch; however I don’t see these examples as any greater stretches than where the court has gone in this case.
The court found that because this was a preliminary motion that there may be enough information to keep the plaintiff’s claims alive, not matter how far this court had to stretch to do so.
So Now What?
The only thing this court has done for sure is scare people away from calling 911 when they see someone in trouble. Look at the liability of an elderly person with no physical ability and no training being held liable for the injuries of someone when all they did was call 911. They have no other skill set to assist someone in need, yet according to this court, calling 911 is the same as performing first aid.
My analysis, the standard of care on having and using AED’s is changing to one of if you have it by statute you must use it by law. First there are several issues that have not been discussed in this case that would eliminate any liability of the defendants.
1. A physician is the senior medical person on the scene it is probably illegal for the health club employee to perform any medical care while the physician is in attendance.
2. Would the AED have done anything?
3. Is taking a pulse or calling for help rescue?
4. If there was a pulse, does that not eliminate the need for the AED?
If this case continues on its present track, I think if you live in New York there are a few things you need to do.
1. Go back to the legislature to define performing medical assistance to not include calling 911 or directing someone to call 911.
2. Go back to the NY legislature and include in the Good Samaritan act that directing someone to get help does not create liability on your part from an injured third party.
And probably put an AED in your business, learn how to use it and use it.
What do you think? Leave a comment.
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NPS has a draft Health People Health Parks Program
Posted: December 22, 2011 Filed under: Uncategorized | Tags: fitness, health, natural landscapes, secies, well-being Leave a commentGreat program to help us and the parks.
Here is the statement from the NPS website.
What is Healthy Parks Healthy People US?
Healthy Parks Healthy People US is a holistic approach to promoting the health and well-being of people and the sustainability of the planet.
Healthy Parks, Healthy People US is a National Park Service initiative working to reintegrate human, environmental and ecological health into the mission of public parks and public lands. Although Healthy Parks Healthy People US is based within the National Park Service, it works with national, state, and local parks, as well as business innovators, healthcare leaders, scientists, foundations and advocacy organizations to foster the health-related role that parks can and do play in our society.
It’s a great idea, I hope it works.
What do you think? Leave a comment.
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I write sometimes about emotions: anger, frustration or grief
Posted: May 14, 2008 Filed under: Climbing, Idaho | Tags: Anger, Family, Grief Loss and Bereavement, health, Idaho, Mental Health, Support group Leave a commentIn this case a family has taken their grief over the loss of a mountain climbing son and created an organization to assist in finding lost climbers. The Jon Francis Foundation was set up to help families search for missing loved ones.
Jon Francis was a 24 year old climber who was missing for a year on an Idahomountain.
Jon’s father is also writing a book detailing the year long search for his son.
In all the family has undertaken a lot of work to help others they do not know. It has very real and well founded goals of helping others. All of the work is driven over the loss of a loved one. Always remember when you are dealing in this situation you are dealing with more emotion than many people can deal with. This emotion does not fade like most, in some cases it may continue to build.
In this case it has resulted in helping others who may be in the same terrible situation.
Stillwater family turns grief into purpose