Managing Your Equine Facility and Events During the COVID-19 Pandemic
Updated as of June 25th, 2020
At ELS, we have received a steady stream of questions from barn owners and horse show organizers related to the COVID-19 pandemic. The original version of this article, published on March 30, 2020, received more views than any other article ELS has ever published. Based upon the feedback and questions ELS receives, we are continuing to update this article as the COVID-19 pandemic evolves.
Currently, most areas are in the process of easing COVID-19 related restrictions on businesses and gatherings. As a result, many horse facilities have reopened and/or resumed lessons, training and other equestrian activities, or are in the process of planning to do so. Horse event organizers are also considering whether to proceed with previously scheduled events, as well as whether to schedule new events. And at the same time, COVID-19 infections are rising in different areas of the country.
Here’s the current state of the COVID-19 pandemic:
Given this data, equine facility owners and event organizers should consider the following factors.
Questions and Answers
Q: As I reopen my facility, resume lessons and training and/or plan to host clinics, shows and other events, should I be concerned about potential liability?
A: Yes. As a business owner, you have a legal duty to keep your employees and your customers safe. Therefore, if you violate of a state or local stay-at-home order, can’t or don’t follow all safety measures recommended by national, state and local health and labor authorities, and/or don’t strictly enforce safety protocols, any outbreak linked to your facility or event could result in legal claims.
Q: Other barns and equestrian events in my area are having people sign liability releases specifically for COVID-19. What, if any, protection does that provide?
A: No matter how well-written a liability release is, it can only protect against claims resulting from ordinary negligence, not gross negligence or willful misconduct. That means if there is an outbreak linked to the facility or event and gross negligence had a significant role in the outbreak, no liability release would effectively protect the facility or event. For example, if the facility or event violates state or local COVID-19 related orders and/or fails to implement health authority safety recommendations, that would likely be considered grossly negligent. In addition, a liability release would not provide the facility or event with any protection at all against claims brought by its workers. However, because a liability release can help protect equine facilities and event organizers that are operating in compliance with all applicable government requirements and safety protocols, ELS has developed a new COVID-19 liability release form for equine facilities [LINK TO NEW FORM] as well as a new COVID-19 liability release for equestrian events [LINK TO OTHER NEW FORM].
Q: If someone sued me, claiming they contracted COVID-19 at my facility or event, wouldn’t they have a hard time proving it?
A: Not if contact tracing leads directly to your facility or event as a source of infection. And once again, your judgment calls during this time of crisis will be viewed in the harsh light of hindsight. The horse industry already has a reputation as elitist and entitled, so it is hard to imagine a jury of hardworking people who lost their jobs and suffered severe financial consequences from COVID-19 will be sympathetic to arguments that you held your event because people really wanted to go to a horse show or that you resumed group riding lessons and youth camps because kids needed something to do.
In addition, even if you were to “win” a lawsuit, you would still lose. Unless you have insurance that pays for your legal defense (which is highly unlikely given the virus, fungi and bacteria exclusions common to commercial liability policies), you will have to pay tens of thousands of dollars out of your own pocket to defend yourself, and if the case goes to trial, you can expect to spend well into six figures for your legal defense. Even if your insurance pays for your legal defense, your insurer may decline to renew your coverage or raise your premiums significantly because of the lawsuit. Lawsuits are also extremely time-consuming and stressful, and the legal process typically takes many months, even years, before you get to the trial phase.
Q: Why are so many equine facilities and events operating in violation of government requirements and not following safety protocols?
A: Risky business practices are endemic to the horse industry. For example, many equine facilities rely on undocumented workers, fail to use any contracts or liability releases, and are uninsured or woefully underinsured. However, “everybody else is doing it” isn’t any more effective as a legal defense than it was when you were a kid explaining to your parents why you broke the house rules. And these facilities and events taking big safety risks won’t be on the hook to defend any legal claims against you!
Q: What if I implement rules designed to comply with health authority guidance, and people don’t comply?
A: When you implement the new rules, don’t just post them in prominent locations and hope people will read them and comply. Instead, distribute a copy to each customer or event attendee, accompanied by a communication explaining why you have adopted the rules and noting that violations of the rules will result in the violator being banned from the facility or event. That way, no customer or event attendee can credibly claim they didn’t see the rules and/or didn’t understand how important it was for them to follow the rules. If a customer or event attendee fails to comply with the rules, the facility or event organizers should take immediate action.
[1] https://coronavirus.jhu.edu/map.html
[2] https://coronavirus.jhu.edu/data/new-cases-50-states
[3] https://www.vox.com/2020/6/3/21258841/coronavirus-vaccine-covid-19-testing-usa-china-moderna
[4] https://coronavirus.jhu.edu/from-our-experts/early-herd-immunity-against-covid-19-a-dangerous-misconception
[5] https://www.medicalnewstoday.com/articles/fda-grant-remdesivir-emergency-use-for-covid-19-after-turbulent-week#Remdesivirs-modest-effects, and https://www.cnn.com/2020/05/11/health/remdesivir-rationing-doctors-coronavirus/index.html and https://www.cnn.com/2020/06/07/health/remdesivir-donation-runs-out-coronavirus/index.html.
[6] https://directorsblog.nih.gov/2020/05/07/study-finds-nearly-everyone-who-recovers-from-covid-19-makes-coronavirus-antibodies/, https://www.npr.org/sections/health-shots/2020/05/07/852360101/will-antibodies-after-covid-19-illness-prevent-reinfection and https://www.cdc.gov/coronavirus/2019-ncov/lab/serology-testing.html.
[7] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html
[8] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html
At ELS, we have received a steady stream of questions from barn owners and horse show organizers related to the COVID-19 pandemic. The original version of this article, published on March 30, 2020, received more views than any other article ELS has ever published. Based upon the feedback and questions ELS receives, we are continuing to update this article as the COVID-19 pandemic evolves.
Currently, most areas are in the process of easing COVID-19 related restrictions on businesses and gatherings. As a result, many horse facilities have reopened and/or resumed lessons, training and other equestrian activities, or are in the process of planning to do so. Horse event organizers are also considering whether to proceed with previously scheduled events, as well as whether to schedule new events. And at the same time, COVID-19 infections are rising in different areas of the country.
Here’s the current state of the COVID-19 pandemic:
- As of June 25, 2020, there were more than 9.4 million confirmed cases of COVID-19 worldwide, including over 2.3 million cases in the United States. So far, over 482,000 people have died, including over 121,000 in the United States.[1]
- Following the lifting of COVID-19 related restrictions, the daily number of confirmed COVID-19 cases is rising significantly in some states, including Arizona, Mississippi, Texas, South Carolina, Florida and California.[2]
- There are now more than 90 COVID-19 vaccines in development, and a few of them are in human clinical trials. However, “[t]here are four key elements that will determine how a vaccine will play out — how effective it will be, when it will be ready, how much of it would be available, and what the world does in the meantime to limit Covid-19.”[3]
- “To reach herd immunity for COVID-19, likely 70% or more of the population would need to be immune. Without a vaccine, over 200 million Americans would have to get infected before we reach this threshold. Put another way, even if the current pace of the COVID-19 pandemic continues in the United States – with over 25,000 confirmed cases a day – it will be well into 2021 before we reach herd immunity. If current daily death rates continue, over half a million Americans would be dead from COVID-19 by that time.”[4]
- Although some studies have shown the antiviral drug remdesivir has potential for shortening the recovery time for COVID-19 patients by up to four days, it is FDA-approved for emergency use only, and supplies are insufficient to meet demand, resulting in rationing.[5]
- Patients with COVID-19 who have recovered are testing positive for antibodies to the novel coronavirus, but scientists do not yet know if those antibodies will prevent the patient from becoming reinfected, and if so, for how long.[6]
- “Limiting face-to-face contact with others is [still] the best way to reduce the spread of coronavirus disease 2019 (COVID-19).”[7]
- Wearing a cloth mask primarily protects people other than the mask wearer by “provid[ing] an extra layer to help prevent the respiratory droplets from traveling in the air and onto other people.”[8]
Given this data, equine facility owners and event organizers should consider the following factors.
- Is there currently a government order limiting the size of social gatherings and/or sporting events? If so, can the facility owner or event organizers realistically ensure strict compliance with that size limit?
- What safety measures do the Centers for Disease Control and state and local health and labor authorities currently recommend to keep workers, customers and event attendees safe? Is it practical or realistic to implement these safety measures? What will it cost to do so, including purchasing personal protective equipment and paying workers to clean and disinfect as well as oversee and enforce compliance?
- Is the event sponsored or sanctioned by an organization that has issued its own requirements and/or guidance for safety related to COVID-19? If so, can the event organizers realistically ensure the event is in strict compliance with those requirements and guidelines?
- If there is an outbreak, and the need arises to shut down in response, does the facility or event venue have a practical, written, step-by-step plan in place to do that? Are key personnel ready and willing to implement that plan?
- If there is a COVID-19 outbreak linked to a particular equine facility or event, will liability insurance provide coverage for any related claims? The answer is likely “no,” because even before the current pandemic, most commercial liability policies contained an exclusion for claims related to viruses, fungi and bacteria. And if the facility or event does have insurance coverage, are all of the persons making key decisions for the facility or event covered by the policy?
- If the facility or event venue adopts strict social distancing rules and other safety protocols, can available personnel realistically enforce those rules?
Questions and Answers
Q: As I reopen my facility, resume lessons and training and/or plan to host clinics, shows and other events, should I be concerned about potential liability?
A: Yes. As a business owner, you have a legal duty to keep your employees and your customers safe. Therefore, if you violate of a state or local stay-at-home order, can’t or don’t follow all safety measures recommended by national, state and local health and labor authorities, and/or don’t strictly enforce safety protocols, any outbreak linked to your facility or event could result in legal claims.
Q: Other barns and equestrian events in my area are having people sign liability releases specifically for COVID-19. What, if any, protection does that provide?
A: No matter how well-written a liability release is, it can only protect against claims resulting from ordinary negligence, not gross negligence or willful misconduct. That means if there is an outbreak linked to the facility or event and gross negligence had a significant role in the outbreak, no liability release would effectively protect the facility or event. For example, if the facility or event violates state or local COVID-19 related orders and/or fails to implement health authority safety recommendations, that would likely be considered grossly negligent. In addition, a liability release would not provide the facility or event with any protection at all against claims brought by its workers. However, because a liability release can help protect equine facilities and event organizers that are operating in compliance with all applicable government requirements and safety protocols, ELS has developed a new COVID-19 liability release form for equine facilities [LINK TO NEW FORM] as well as a new COVID-19 liability release for equestrian events [LINK TO OTHER NEW FORM].
Q: If someone sued me, claiming they contracted COVID-19 at my facility or event, wouldn’t they have a hard time proving it?
A: Not if contact tracing leads directly to your facility or event as a source of infection. And once again, your judgment calls during this time of crisis will be viewed in the harsh light of hindsight. The horse industry already has a reputation as elitist and entitled, so it is hard to imagine a jury of hardworking people who lost their jobs and suffered severe financial consequences from COVID-19 will be sympathetic to arguments that you held your event because people really wanted to go to a horse show or that you resumed group riding lessons and youth camps because kids needed something to do.
In addition, even if you were to “win” a lawsuit, you would still lose. Unless you have insurance that pays for your legal defense (which is highly unlikely given the virus, fungi and bacteria exclusions common to commercial liability policies), you will have to pay tens of thousands of dollars out of your own pocket to defend yourself, and if the case goes to trial, you can expect to spend well into six figures for your legal defense. Even if your insurance pays for your legal defense, your insurer may decline to renew your coverage or raise your premiums significantly because of the lawsuit. Lawsuits are also extremely time-consuming and stressful, and the legal process typically takes many months, even years, before you get to the trial phase.
Q: Why are so many equine facilities and events operating in violation of government requirements and not following safety protocols?
A: Risky business practices are endemic to the horse industry. For example, many equine facilities rely on undocumented workers, fail to use any contracts or liability releases, and are uninsured or woefully underinsured. However, “everybody else is doing it” isn’t any more effective as a legal defense than it was when you were a kid explaining to your parents why you broke the house rules. And these facilities and events taking big safety risks won’t be on the hook to defend any legal claims against you!
Q: What if I implement rules designed to comply with health authority guidance, and people don’t comply?
A: When you implement the new rules, don’t just post them in prominent locations and hope people will read them and comply. Instead, distribute a copy to each customer or event attendee, accompanied by a communication explaining why you have adopted the rules and noting that violations of the rules will result in the violator being banned from the facility or event. That way, no customer or event attendee can credibly claim they didn’t see the rules and/or didn’t understand how important it was for them to follow the rules. If a customer or event attendee fails to comply with the rules, the facility or event organizers should take immediate action.
[1] https://coronavirus.jhu.edu/map.html
[2] https://coronavirus.jhu.edu/data/new-cases-50-states
[3] https://www.vox.com/2020/6/3/21258841/coronavirus-vaccine-covid-19-testing-usa-china-moderna
[4] https://coronavirus.jhu.edu/from-our-experts/early-herd-immunity-against-covid-19-a-dangerous-misconception
[5] https://www.medicalnewstoday.com/articles/fda-grant-remdesivir-emergency-use-for-covid-19-after-turbulent-week#Remdesivirs-modest-effects, and https://www.cnn.com/2020/05/11/health/remdesivir-rationing-doctors-coronavirus/index.html and https://www.cnn.com/2020/06/07/health/remdesivir-donation-runs-out-coronavirus/index.html.
[6] https://directorsblog.nih.gov/2020/05/07/study-finds-nearly-everyone-who-recovers-from-covid-19-makes-coronavirus-antibodies/, https://www.npr.org/sections/health-shots/2020/05/07/852360101/will-antibodies-after-covid-19-illness-prevent-reinfection and https://www.cdc.gov/coronavirus/2019-ncov/lab/serology-testing.html.
[7] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html
[8] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html