As COVID-19 continues to alter our daily lives, many of us have found comfort in barn time spent with our four-legged friends. With so many spring and summer events cancelled, we are eager to get back in the saddle and into the show ring. However, the legal implications facing horse show boards and competition venues are complex and ever-evolving. Which rules and guidelines apply? What if someone at the show has or contracts COVID-19? How do we manage (can we manage) the risks inherent in a pandemic? This legal alert will explore risk management for horse shows in the age of COVID-19, including best practices, the efficacy of COVID-19 waivers, and prospects for statutory immunity.
Meeting Your Standard of Care through Best Practices
“Standard of care” is the legal yardstick by which we measure whether a person or business is acting in a reasonable manner. If a business breaches or violates its standard of care and someone is injured as a result, a judge or jury can find that the business is legally liable to the injured person. The best way for horse shows to meet their standard of care is to follow best practices in planning and preparing for events.
Best practices start with having a detailed, written plan for how the event will address and minimize the risk of exposure to COVID-19. A good starting place is the United States Equestrian Federation’s (USEF) Emergency Response Plan, which walks through the types of things to consider when developing a plan specific to your event.[1] But simply having a plan is not enough – you must implement and live your plan. From a liability perspective, having a plan that is not updated, followed, or that is even intentionally ignored, is worse than not having a plan at all.
Your plan should comply with all applicable requirements and guidelines from your governing body or bodies. If you are a USEF affiliate or hosting a USEF-rated competition, your plan must incorporate the mandatory requirements found in the USEF’s COVID-19 Action Plan.[2] In addition, check with your breed/discipline association and your state and local government for requirements or recommendations. For example, in Kentucky, three sets of state requirements could apply: Minimum Requirements, Horse Show Requirements, and Venues and Event Spaces Requirements.[3] The state requirements overlap with each other and with the USEF Action Plan on topics such as maximizing work from home and electronic options, staff health screenings, face coverings, and social distancing, but the Kentucky Minimum Requirements also require items like a plan to ensure testing of symptomatic staff within a certain period of time and mandatory staff training on COVID-19 and the applicable state requirements.
As part of living your plan, you should consider how you will enforce it and then train your staff accordingly. Both the USEF and Kentucky require the use of face coverings. Both also require that shows ask an individual to comply and, if the person refuses (and is not exempt), either deny entry to the person or remove the person from the show grounds. What is your enforcement plan? Think in terms of a tiered system of soft and hard enforcement. Soft enforcement includes making masks readily available across the grounds, signs, floor markings for social distancing, and routine announcements reminding participants and spectators of masking and other protocols. If you’re seeing sloppy compliance or non-compliance, soft enforcement can also be in the form of show management holding (socially distanced) trainers’ or competitors’ meetings to reinforce the importance of following the protocols. It can also come in the form of hiring off-duty, uniformed police officers, since their presence alone can encourage compliance. Hard enforcement means denial of entry, asking someone to leave, and, if necessary, escorting that person from the premises. If you see persistent non-compliance from a specific barn or group, consider whether hard enforcement might mean banning them from competition. Of course, the goal is to avoid the need for hard compliance. Consider training your staff on de-escalation techniques and push the themes of “we’re all in this together” and “we want to be able to compete, so please help us make this show happen.”
Finally, your plan should recognize what you do not know and plan for contingencies. Revisit the plan as our understanding of COVID-19 evolves and as applicable requirements and guidelines change. Since as many as 40 percent of COVID-19 cases are asymptomatic, encourage employees, volunteers, and contractors to take advantage of free testing in your area before, during, and after the competition. Consider having staff operate in small pods with minimal face-to-face interaction with other pods. This could minimize disruptions in the event a staffer becomes symptomatic or has to quarantine due to potential exposure or an asymptomatic positive. Consider the conditions and circumstances under which you would cancel the show. Will you rely on local positivity rates? Will you consult with state and local health departments? How far in advance do you need to make the call to be considerate to participants, sponsors, venues, and staff? An insurance check-up – like an annual physical – is always a good idea, but this is especially so in the age of COVID-19. Check your liability policy for language excluding claims related to communicable or infectious diseases. If your policy excludes coverage for these claims (or if the policy isn’t clear on the subject), ask your agent if you can add coverage. It may be cost-prohibitive to do so, but at least you will have a better understanding of your risk. If you have event cancellation insurance, make sure you know what the policy covers and the type of documentation you will need if you have to make a claim.
Shows and competition venues should consider all of these factors when tailoring their individual plans. While meeting the standard of care will not always deter claims or lawsuits, following best practices provides a solid starting point for your defense in the event of a claim. It documents the careful planning, preparation, and implementation that went into making the show reasonably safe for participants and staff.
Should You Use COVID-19 Waivers?
COVID-19 waivers (“COVID waivers”) are an increasingly popular tool used by businesses in an effort to limit legal exposure. However, like many popular trends, we have yet to see if the waivers have any staying power. From a litigation perspective, there are serious questions about their enforceability. Asking someone to waive potential claims related to “the inherent risks of being in public during a pandemic” is a much more abstract concept than asking them to sign the typical “inherent risk of equine activities” waiver.[4] We do not yet know all or even most of the risks associated with COVID-19 and, as a result, courts may not enforce COVID waivers. To compound this concern, courts in a majority of states (including Kentucky) have found that waivers signed on behalf of minors are not enforceable in at least some situations.[5] Even putting enforcement concerns aside, COVID waivers – like most waivers – generally do not protect against gross negligence or willful misconduct. In the context of COVID-19, this could look like a show that fails to follow their plan or a participant or staff member who knows he/she is positive and, nevertheless, comes to the competition.
Despite all of these challenges, a well-written COVID waiver can be useful to establish that a person was given fair notice of the potential for exposure and the potential risks of that exposure and chose to participate anyway. If you decide to use a COVID waiver as part of your risk-management plan, consider including the following features.
- Draft the waiver in plain English with minimal legalese.
- Make the waiver a standalone document. Avoid using combination waivers that lump in the standard equine activities language with vague references to “communicable and/or infectious diseases.”
- State the known risks of COVID-19 and the scope of the waiver in a clear and conspicuous manner.[6] Does the waiver include claims arising from negligence? Is it limited to the show board/committee, the venue, and staff, or does it include claims against other participants?
- One COVID waiver per person, signed by that person. Do not permit trainers to sign on behalf of participants. Develop a system for participants to access, sign, and submit the waiver online but avoid using fine print with a “Click Here to Accept Terms & Conditions” box.
- Use a specific waiver for minor children that requires the person signing to warrant and represent that she/he is the parent or authorized legal guardian.
- Use the waiver as a vehicle for compliance. Consider attaching a copy of the show’s COVID-19 participant requirements and safety protocols. Include language in the waiver that references those requirements and states that the participant acknowledges receipt and agrees to comply.
As discussed above, a well-written COVID waiver has uses beyond enforceability. Even if a court finds that the waiver does not bar a claim, your show will still have important written evidence that the participant was warned of the risk in plain English and chose to participate anyway.
What about Statutory Immunity?
Several states and the federal government have enacted – or are considering – some form of statutory immunity to protect businesses from COVID-19 related claims.[7] States like Kentucky limit that immunity to certain sectors, such as health care providers and PPE manufacturers.[8] At least 10 states offer immunity to a broad range of businesses through heightened burdens of proof.[9] For example, under Tennessee’s new COVID-19 Recovery Act, businesses are protected unless a plaintiff can prove (i) causation by clear and convincing evidence and (ii) that the business acted with gross negligence or willful conduct.[10] The former will likely require proof of a verified, contact-traced outbreak at the business, and evidence that the plaintiff was at the business during a certain window of exposure.
While statutory immunity can provide some liability protection, horse shows should view it as a backstop rather than the centerpiece of their COVID-19 risk-management plan. As with any immunity statute, COVID-19 immunity statutes will face court challenges on a variety of issues from the scope of immunity to the type of proof required to meet any exceptions. Even if your state offers immunity for your event, it is not a substitute for careful planning and implementation of best practices.
Final Thoughts
Risk management in the age of COVID-19 is an ever-evolving challenge, but identifying best practices and putting them into action can help horse shows rein in potential liability and provide safe opportunities for competition. Know the applicable governing body, state, and local requirements, be smart about how you use COVID waivers, and never rely entirely on statutory immunity. It is impossible to eliminate all liability risks, but careful planning and living that plan give shows, venues, and equestrians the best chance for a return to safe and fun competition.
Footnotes
[1]See United States Equestrian Federation, COVID-19 Emergency Response Plan, August 18, 2020, available at: https://www.usef.org/forms-pubs/4Tog688hc10/covid-19-emergency-response-plan–
[2]See United States Equestrian Federation, COVID-19 Action Plan, August 18, 2020, available at: https://www.usef.org/forms-pubs/XhKGVYiiwTA/usef-covid-19-action-plan-for-operating
[3]See, e.g., Minimum Requirements for All Entities, Kentucky Healthy at Work Guidance Version 3.0, effective July 10, 2020, available at: https://govsite-assets.s3.amazonaws.com/PuhOvvxS0yUyiIXbwvTN_2020-7-10%20-%20Minimum%20Requirements.pdf; Requirements for Horse Shows, Kentucky Healthy at Work Guidance Version 3.0, effective July 10, 2020, available at: https://govsite-assets.s3.amazonaws.com/1bjXrMecSSeEy8LR3mDk_2020-5-29_-_healthy_at_work_reqs_-_horse_shows%20draft%203.0.pdf; Requirements for Venues and Event Spaces, Kentucky Healthy at Work Guidance Version 3.0, effective June 29, 2020, available at: https://govsite-assets.s3.amazonaws.com/wHu3QCJdS6Bleg8gV5qR_HAW%20Venues%20and%20Events%20Spaces%20-%20FINAL%20-%202020-06-22.pdf
[4]See, e.g., KRS 247.4027 of the Kentucky Farm Animal Activities Act which endorses the use of waivers related to participation in equine and farm animal activities.
[5]See, e.g., Miller, as Next Friend of her Minor Child, E.M. v. House of Boom Kentucky, LLC, 575 S.W.3d 656 (Ky. 2019) (holding that pre-injury liability waivers for commercial businesses signed by a parent or guardian on behalf of a minor child are unenforceable under Kentucky law.)
[6]See Symptoms of Coronavirus, Center for Disease Control, available at: https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html?utm_campaign=AC_CRNA
[7] Congress has considered legislation that would impose strict nationwide limitations on COVID-19 tort liability. In anticipation of a “risk of a tidal wave of lawsuits” the proposed bill offers immunity for businesses, educational, religious and nonprofit institutions, local government agencies and healthcare providers for exposing people to COVID-19. SeeSAFE TO WORK Act, S. 4317, 116th Cong., §2 (2020), available at: https://www.congress.gov/bill/116th-congress/senate-bill/4317/text
[8]See Kentucky Senate Bill No. 150, March 30, 2020; see, e.g., states including Alaska (S.B. 241, enacted April 9, 2020), Massachusetts (S2640, enacted April 17, 2020), New Jersey (S2333, enacted April 14, 2020), New York (S75006B-A90506B-Chapter 56 (Section GGG),and Wisconsin (2019 Wisconsin Act 185, enacted April 15, 2020, as well as the District of Columbia (B23-0734), have enacted similar protections for healthcare workers and personal protective equipment manufacturers.
[9] Like the contemplated federal legislation, some states have already enacted legislation limiting COVID-19-related civil liability for a broad range of businesses. See, e.g., Georgia (S.B. 359, enacted August 5, 2020), Kansas (H.B. 2016a, enacted June 8, 2020), Louisiana (HB 826, enacted June 13, 2020).
[10]See Tennessee COVID-19 Recovery Act (SB 8002/HB 8001), August 17, 2020.
