Legal Commentary

Okay, campers.  Somebody please explain this one to me.

I decided I wanted to take at least one horseback riding lesson, because, well, I just want to.  We'll see where it goes from there.  I went up to the Bay Harbor Equestrian Club, where horses seem to live in nicer condos than most people, and I'm due to mount up this Thursday on "Nick," who is supposedly gentle on aging, "City Slicker" wannabe, never-been-on-a-horse-except-the-merry-go-round, where's the kickstand and the ignition key, what was that bubbeh said about Cossacks, rookie.

There is a big sign mounted just before you enter the riding ring (and it appears on the contract as well) that says:  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.  Well, that's not off-putting to me, because I'm tough (I taught an upper level bar course - business associations - as a visiting prof in the fall of 2006 to returning 2Ls at Tulane who had just undergone the post-Katrina 1L year in which they stuffed an entire year into the spring and summer terms, and I lived to tell about it).  But as a sometime participant in the dialogue about corporate governance, I kind of wondered why riding instructors got a free pass when there's so much debate about the business judgment rule and good faith and all that stuff as it applies to directors (who also supposedly get a free pass).  So I looked up the statute.

The statute expressly provides that the sign and contract must contain exactly that warning.  MCLA §691.1666(3).  And, I suppose it's literally true.  But this looks like an instance in which the exception subsumes the rule.  Yup, Section 3 says "Except as otherwise provided in section 5, an equine activity sponsor, an equine professional, or another person is not liable for an injury to or the death of a participant or property damage resulting from an inherent risk of an equine activity."  MCLA §691.1663.  But when we get to §5, we see (in relevant party) that the equine professional is nevertheless liable for (a) providing faulty equipment or tack if it is the proximate cause of the injury, (b) providing a horse and failing to make sure that the participant's ability fits that particular horse, and (c), the biggest catch-all, "commit[ting] a negligent act or omission that constitutes a proximate cause of the injury, death, or damage." 

So as I read this, there's a safe harbor against liability for anything arising out of the inherent risk of the activity, which, by the definition, includes about what you would expect:  ornery animals, animals that run into each other, and how animals react when they hear loud noises.  Nevertheless, that doesn't cover all the duties of reasonable care that you'd expect the professional to have even if there were no law at all.  What else is there?  Equine law experts, what gives?  Is this somehow merely burden shifting?  What am I missing?