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MHC Legislative Blog
by Jane Seigler, Immediate Past President, Maryland Horse Council
 
In a recent Maryland case, Garvine v. State of Maryland, et al., a jury decided that the sponsor of a charity trail ride (Oxford Grain and Hay Company) and the State of Maryland (the owner of the land (Fair Hill) on which the trail ride was held) were not liable for injuries sustained when the plaintiff (a participant in the trail ride) and her horse fell into a culvert near the trail. Although the court, on motion for summary judgement, did not discuss the legal doctrine of contributory negligence except to say that under the facts at issue it was a question for the jury to decide, it seems like a good time to provide a little refresher on Maryland Tort Law, and the principles that are applied when someone gets injured in a case involving horses, and subsequently sues.
 
In such cases, Maryland is one of the few remaining states (the others are Alabama, North Carolina, and Virginia as well as the District of Columbia) to apply the venerable “Contributory Negligence” standard to determine whether an injured party can collect damages from a person alleged to have negligently caused the injury. In short, the Contributory Negligence Doctrine states that if a plaintiff has, to even the smallest degree, contributed to his injury through his own negligence, he is completely barred from receiving any damages from the defendant. An example would be a rider who refuses to wear a helmet and sustains a head injury when his horse is spooked by the defendant driving an ATV too fast nearby. The plaintiff’s own negligence in failing to wear a helmet bars him from prevailing in a lawsuit against the defendant, even if the defendant was also negligent in his driving. Maryland courts have consistently upheld the doctrine of Contributory Negligence to bar recovery by obviously negligent plaintiffs.
 
The states that do not apply the Contributory Negligence Doctrine employ some version of Comparative Negligence. Under that standard, a negligent plaintiff is not barred from recovery, but instead the plaintiff’s negligence is compared to the defendant’s negligence, and the total amount of the damages awarded to the plaintiff is reduced in proportion to the plaintiff’s negligent contribution to his own injuries. Beginning in the 1950s and surging in the 1960s and 1970s, this standard was developed because it was perceived to be more fair, allowing the plaintiff to recover at least something to compensate for injuries when the defendant had at least some degree of fault. The obvious side effect of the spread of this standard was the increase in damage awards, which resulted in an increase in the number of lawsuits being brought (as potential plaintiffs were not deterred by the prospect of being barred by their own negligence). As a result, insurance premiums for high risk activities such as equestrian pursuits began to rise fairly dramatically in the 1980s. Many states responded by enacting “equine limited liability laws,” which attempted re-close the Pandora’s box opened by the adoption of the Comparative Negligence standard.
 
Currently, 48 states - all but Maryland and California - have enacted some form of equine  limited liability law. Each version varies from state to state, but in general they act to prevent an “equine activity sponsor,” “equine professional,” or other defined persons from being sued if a “participant” who “engages in an equine activity” suffers injury, death or damage from an “inherent risk.” These laws were intended to restore some of the protections for defendants from liability for injuries incurred during participation in risky activities. And, indeed, these laws do sometimes result in cases being dismissed on summary judgement. However, that result is not automatic, and in many cases, the result is determined by how the court applies each of the statutory terms (in quotes above) to the facts of the particular case, e.g., is a spectator at an equine event a “participant?” is someone who accompanies a friend to her barn just to watch and hang out a “participant?” What kinds of risks are "inherent" to the activity? Courts can sometimes come up with some seemingly counterintuitive answers to such questions of how the statutory wording applies to a given set of facts. For example, in a Tennessee case, Freidli v. Kerr, plaintiffs were passengers in a horse down carriage that overturned when the horse spooked from a loud noise. The court in that case ruled that the equine limited liability law did not protect the defendant carriage operator because the passengers were not participants of an equine activity and the carriage owners were not providers of an equine activity! The case law of many states with equine limited liability laws is now filled with lawsuits arguing over the meaning and applicability of the statutory terms and the often numerous exceptions set out in the statutes.
 
In essence, equine limited liability laws codify into statute the common law doctrine of “assumption of the risk.” Assumption of risk applies when the plaintiff voluntarily and knowingly assumes responsibility for any injury that might result from participation in an inherently risky activity. This assumption of the risk may be express, as when a participant signs a well-crafted liability waiver and release (notably, the court in Garvine threw out the liability release signed by the plaintiff because it was found to be poorly drafted and did not clearly communicate the intent to release the defendant from liability - so make sure your liability releases are written by a lawyer experienced in Maryland equine tort law!). In other cases, the assumption of the risk may be implied by the circumstances, i.e., the plaintiff is shown to have knowledge and understanding of the risks involved and agreed to participate anyway.
 
Maryland, a common law state, has always applied the Contributory Negligence and Assumption of the Risk Doctrines, which tend to be very protective of defendants in cases of injuries that result from participation in inherently risky activities such as equine activities. There is no evidence that enactment of an equine limited liability law, which would just codify the existing assumption of the risk doctrine, in Maryland would reduce the already low numbers of lawsuits filed in cases of horse-related injuries. Nor is there evidence that insurance rates would be lowered by the enactment of such a statute. Insurance rates tend to be set using nationwide statistics. According to a representative of Markel Insurance, at least as of 2006, “the rates in Virginia, North Carolina, and Alabama [which, similar to Maryland, employ the Contributory Negligence Doctrine], have not been affected by their equine statutes. In fact, the rates in those states are comparable to the rates Marylanders pay.” (Thanks to Jennifer Dietrich Merryman, and her article “BUCKING THE TREND: WHY MARYLAND DOES NOT NEED AN EQUINE ACTIVITY STATUTE AND WHY IT MAY BE TIME TO PUT ALL OF THESE STATUTES OUT TO PASTURE,” 36 U. Balt. L.F. 133 (Spring 2006), for this insurance information, and for the historical background on the genesis of equine liability laws.) 
 
Jane Seigler
Immediate Past President, Maryland Horse Council
Published in News

In April, the Maryland General Assembly adjourned its 439th Session. Sit with that for a moment. The General Assembly, in its regular once-a-year sessions and occasional special sessions, has met 439 times since it first met at St. Mary’s City on February 26, 1635. The Maryland General Assembly first met more than 140 years before the United States of America was founded.  

One of the core missions of the Maryland Horse Council is to represent the interests of the equestrian community to the legislators. During the session, MHC’s Legislative Committee meets weekly in a phone conference to discuss newly introduced bills that might be of particular interest to the equestrian community.  If the committee decides a bill will have impact on the equestrian community, the committee will seek to more fully understand the pros and cons of the bill through research, outreach to segments of the community that might be particularly affected, and other means. The committee will also try to anticipate the “unintended consequences” of seemingly well-intended bills. The committee will endeavor to use MHC’s existing general policy positions, combined with their interpretation of the potential impact to our community, to shape MHC’s position on a specific bill.
When finances allow, MHC retains the assistance of a lobbyist, either to work on a specific issue or to assist MHC with the entire session. When finances do not allow, then MHC relies on motivated horse-people to grassroots lobby.
 
439th Session Report
In our weekly conference calls, we evaluated over 60 bills that could have an effect on horse people, their farms, businesses and even their pets. We testified at hearings, submitted written testimony on other bills, and took positions without written testimony on others. Our grassroots army was a force, and legislators noticed. Maryland’s equestrian community benefited particularly from MHC past president Jane Seigler’s, and committee members Joanne Stone’s and Christy Clagett’s dedication and persistence, not to mention willingness and ability to physically spend numerous days in Annapolis each week during session, testifying and meeting with legislators on our behalf. On occasion, they were also joined in Annapolis by rank and file MHC members willing to come and testify - probably the most effective lobbying tool there is.
  
Below are some of the bills that were passed and are either waiting for the Governor’s signature (or veto) or have already been signed into law. For information on bills which stalled, died or were killed this session, please see the archives of equiery.com and mdhorsecouncil.org
 
Animal Welfare 
The 2019 crop of animal welfare bills touched on seizure requirements, cost of care of seized animals, and animal abuse registries. MHC monitors these bills to ensure that the best interests of the animals are paramount (as opposed to the interests of those humans or entities that may be responsible for their care either before or after seizure) while ensuring that constitutional rights of animal owners to due process are not violated (i.e. that owners are not effectively treated as guilty before a fair trial convicts them of being guilty). MHC works with members of the Maryland States Attorneys Association as well as representatives of humane organizations to find common ground and workable solutions on these bills.  We testified against the cross-filed HB 135/SB 152 as many of its proposed provisions, no matter how well-intended, violated constitutional rights.  The legislators agreed, gutted the initial bills, and amended them such that they merely gave the judges clearer expressed permission to order a convicted owner to pay restitution for the costs of caring for the animals as the case pended. MHC supported the amended version, which passed both houses and is awaiting the Governor’s signature.
 
Ag & Farm Bills
Horse farm owners are one of Maryland’s largest landholding industries; MHC monitors legislation that affects this vital aspect of our equestrian community.  We supported the following bills (or supported amended versions) which passed:
 
• HB 331/SB 133 Farm Vehicles Registration and Authorized Use: This bill makes permanent the expanded travel radius for K-tags (a.k.a. Farm Tags) to 25 miles.
• HB 904/SB 546 Agriculture Nutrient Management Monitoring/Enforcement: This was a sweeping bill intended to affect three different areas of Maryland’s existing Nutrient Management law, which requires any farmers with a certain number of “animal units” or a certain amount of annual revenue to file a Nutrient Management Plan. The bill was heavily amended before passage to more specifically address those farmers with a larger impact on water quality but who more overtly refuse to comply.  Of particular note for horse farmers are new or increased fines for failure to comply with certain requirements of existing law, such as failure to have a Nutrient Management Plan or failure to file annual reports. The bill also requires farmers who receive manure from other farms to report where the manure came from. The bill also creates some new requirements for Confined Animal Feeding Operations. There are very few such CAFOs involving equines in Maryland (the race tracks and the Prince George’s Equestrian Center being the notable exceptions).
Harford County Crop Damage Permits
Bill HB 401/SB 923 will put into law the ability for farmers in Harford County with Crop Damage Permits to use the most efficient and effective tool for harvesting deer who are damaging crops: rifles (with the exception of when the deer hunting season is restricted to shotguns). MHC generally supports bills which strengthen the effectiveness of Crop Damage Permits.
 
Exempting Ag-Buildings from Certain High Occupancy Codes
MHC supports efforts that enable farm owners (including horse farm owners) to be able to provide activities for the general public without onerous or unrealistic permitting requirements on existing ag-related buildings. We are pleased that the Governor has signed into law HB 639 which adds Allegany, Anne Arundel, Baltimore, Kent, Prince George’s, and St. Mary’s County to the list of counties (Carroll County, Cecil County, Garrett County, and Howard County) that exempt existing ag structures from requirements to retrofit with high occupancy public requirements, such as bathrooms and sprinklers.
 
Land & Open Space
From easements on private lands to the acquisition by the state of lands intended for public use, MHC monitors these bills for how they will affect landowners and how they will provide opportunities for riders. The following bills passed in this session:
 
• HB 20/SB 344 State Ag Land Transfer Tax – Non Ag Use Exemptions: Prior to this bill, developers could avoid paying agricultural land transfer tax on land that was currently being used for an ag activity (such as hay growing), despite the land having been previously assessed at a higher tax use (such as commercial or residential); with the amended version of this bill, developers will now have to pay a minimum of 35% of the ag assessment from year 4 and beyond.
• SB 25 Recording Conservation Easements, Covenants, Restrictions, and Conditions: There are times when title companies or others working on behalf of land purchasers are legitimately unable to find whether or not a property is encumbered by an ag or conservation easement, usually because the easements are several decades old and may or may not have been properly filed initially. When this bill becomes law, entities which hold easements, such as Maryland Agricultural Land Preservation Foundation, the Maryland Historical Trust, the Maryland Environmental Trust, and DNR will have access to land records, and will be compelled by law to properly record notice of easements, covenants, restrictions, and conditions in the land records of the county in which the property interest is located. 
 
Racing Related
Prior to bill HB 80/SB 132 (Horse Racing at Fair Hill), the law required that any profits made by the Cecil County Breeders’ Fair, Inc., be donated to Union Hospital of Cecil County. This law will repeal that requirement.
 
Equine-Based Therapeutic Programs for Vets
he amended SB 105 MD (Veterans Services Therapy Horses) will now contain an expanded definition of “nonprofit training entity” (as applied to the Maryland Veterans Service Animal Program) to include trained therapy horses for interaction with veterans. Previously the law applied only to therapy dogs.
 
Fair Use of Shared Resources
As it has for the last 25 years, MHC actively works to ensure that horseback riders (and others) are not unfairly excluded from enjoying the outdoors due to expanding dates for deer hunting with firearms. MHC has enjoyed moderate success over the years at stemming the tide and keeping curbs on the expansion, but the challenges become greater every year. Expansion proponents find ways around MHC’s well-laid and well-respected objections. MHC seeks like-minded user groups as allies on these issues.
 
Between the 2015 and 2016 legislative sessions, MHC crafted a compromise statewide position (hunting must end at 10:30 a.m. on any additional Sundays of firearm hunting) that we hoped would put the issue to bed. In 2016, with the support of Farm Bureau and numerous trail groups such as Trail Riders of Today (TROT), MHC attempted to spearhead state-wide compromise legislation, which did not pass. Nevertheless, the 2016 effort has yielded an unexpected benefit: when faced with yet another county-specific “local courtesy” bill (such bills are called “local courtesy” bills because legislators from other counties tend to support them, expecting the same “courtesy” when their own county-specific bills come to a vote) to expand the hunting of deer to Sundays (or to more Sundays, for counties that already have some Sunday hunting) and a roomful of stalwart equestrians appear in opposition, legislators seem to have kept the 10:30 compromise in their toolkit, readily proffering it as the compromise for whatever controversial firearm legislation is on the table at the moment. 
  
Below are only those bills which passed this session.
• HB 199 added one Sunday for deer hunting in Wicomico, but before the bill was passed, it was amended limiting hunting from an hour prior to sunrise until 10:30 a.m.
• Signed by the Governor before this issue went to press, HB 242 authorizes DNR to allow a person in Cecil County to hunt any game bird or mammal, on Sundays on public and private land.
• Dorchester expands Sunday Hunting of Deer with bow, muzzleloader and firearms on private property: HB 618/SB 889, HB 619/SB 890  and HB 620/SB 888.
• Originally, SB 390 would have opened up all Sundays on all public and private land  throughout the deer hunting season. The bill was amended and whittled down to just St. Mary’s County, but expanded to apply to all species of game bird or mammal on public and private land.
 
Conclusion
Many thanks to Jane Seigler for her leadership of the MHC Legislative Committee, to Kim Egan Rutter for identifying and summarizing the status of bills MHC monitored, and to all the committee members for their time, valuable knowledge and input, and individual ability to attend hearings and to be active in the legislative process: 2019 Legislative Committee Chair - Jane Seigler, Committee Members: Kim Egan Rutter, Christy Clagett, Royce Herman, Crystal Pickett, Jennifer Sponseller-Webster, Neil Agate, Joe Michael, Jacquie Cowan, Joanne Stone, and Gale Monahan.
 
You can get full information about bills, including their full texts, any amendments, and which legislators voted for/against, by going to mgaleg.maryland.gov and typing in the bill number in the “Find legislation by number” box at the top of the home page.
Published in Legislative