Kansas Laws & Statutes

image1

Kansas Equine Activity Liability Act

 Kansas Equine Activity Liability Act

Statute:

Under Kansas law, equine professionals and activity sponsors are not liable for injuries incurred by a participant that result from the inherent risks associated with equine activities unless the equine professional or activity sponsor i) provided the participant with faulty equipment or tack and such equipment or tack was faulty to the extent that it resulted in injury to the participant, ii) provided the horse to the participant without making reasonable efforts to determine the participant’s ability to engage safely in equine activities and to manage the particular horse based on the participant’s representations of their ability to engage in equine activities, iii) owns, leases, rents, or is otherwise in possession or control of the land or facilities upon which the injury occurred and the equine professional knew of the dangerous latent condition which caused the participant’s injury and did not warn the participant, iv) commits an act or omission that falls below the standard of care of a reasonable equine activity sponsor, professional or other person engaged in equine activities in the same locality, or v) willfully, wantonly, or intentionally disregarded the safety of the participant, which resulted in the participant’s injury.  Kan. Stat. Ann. § 60-4002; Kan. Stat. Ann. § 60-4003.

Further, Kansas law requires the equine professional to post and maintain clearly visible warning signs on or near the stables, corrals, or arenas where the equine professional or activity sponsor conducts the equine activities.  The lettering of the warning signs should be in black and a minimum of one inch in height.  Additionally, the warning signs and every written contract entered into by an equine professional or activity sponsor for professional services, instruction or rental of equipment or horses, should include the following statement:


WARNING
Under Kansas law, there is no liability for an injury to or the death of a participant in domestic animal activities resulting from the inherent risks of domestic animal activities, pursuant to K.S.A. 60-4001 through 60-4004. You are assuming the risk of participating in this domestic animal activity. Inherent risks of domestic animal activities include, but shall not be limited to:
The propensity of a domestic animal to behave in ways i.e., running, bucking, biting, kicking, shying, stumbling, rearing, falling or stepping on, that may result in an injury, harm or death to persons on or around them;
the unpredictability of a domestic animal's reaction to such things as sounds, sudden movement and unfamiliar objects, persons or other animals;
certain hazards such as surface and subsurface conditions;
collisions with other domestic animals or objects; and
the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the domestic animal or not acting within such participant's ability.

Case Law:

There is no Kansas case law interpreting the Equine Activity Liability Act.


Liability for Strayed Equine

Statute:

It is unlawful for equine to run at large in the state of Kansas.  Kan. Stat. Ann. § 47-122. The owner of an equine, who runs at large, is liable to any injured person for all damages resulting from the loose equine.  Kan. Stat. Ann. § 47-123..  Further, any injured person shall have a lien on the equine for the amount of the damages caused by the equine that is not paid by the owner. Id.  Therefore, any person who is injured by a strayed equine may retain the equine until the owner reimburses that person for all of the damages and costs incurred by the strayed equine. Kan. Stat. Ann. § 47-124.

Case Law:

Cooper v. Eberly
508 P.2d 943 (Kan. 1973).

In Cooper v. Eberly, the plaintiff was injured after his vehicle collided with a strayed horse, which belonged to the defendant.  The defendant ran a recreational business on his land which included horseback rides.  The defendant’s horse strayed from the defendant’s land through a gate that was left open on the pasture.  The court held that the defendant was liable to the plaintiff for his injuries from the collision.  In concluding so, the court reasoned that the defendant was negligent in allowing the horse to run at large because he did not post signs to deter trespassers, who may have potentially left the gate open, and he failed to padlock the gate through which the horse escaped.  In light of the defendant’s negligence, the plaintiff was awarded damages for his injuries.


Fencing Statute

Kansas law requires that all domestic animals, except cats and dogs, be enclosed by a fence composed of either posts and rails, posts and palings, posts and planks or palisades, posts and wire, rails alone, laid up in the manner known as a worm fence, or turf with ditches on each side, of stone, or a hedge composed of thorn or Osage orange.  Kan. Stat. Ann. § 29-101. According to Kansas law any one of the fencing listed below is legal. However, the following fencing requirements apply: (Kan. Stat. Ann. § 29-101, et seq.)

   

Fences composed of posts and rails, posts and palings, posts and planks, or palisades, or composed of posts and wires


  • Must be at least four feet high
  • The bottom rail, board or plank should not be more than two feet from the ground.
  • Should be sufficiently close in order to prevent horses from going through.

 

Worm fence


  • Must be at least four and one-half feet high to the top of the rider
  • Thoroughly staked and ridered, or if not staked and ridered, must have the corners locked with strong rails, takes or posts

 

Fences composed of stone


  • Must be at least four feet high
  • Must be at least eighteen inches wide at the bottom and twelve inches wide at the top

 

Fences composed of turf


  • Must be at least four feet high
  • Must be thoroughly staked and ridered
  • Must have a ditch on outside not less than two feet wide at the top and three feet deep

 

Hedge fences


  • Should be of such height and thickness as is sufficient to enclose animals, other than cats and dogs

 

Fences composed of posts and wires


  • Posts should be of ordinary size for fencing purposes
  • Posts should be set in ground at least two feet deep
  • Posts should not be more than twelve feet apart
  • Posts should have holes through posts or staples not more than fifteen inches apart
  • Fence should have four separate strands of fence wire not smaller than “No. 9.”
  • Fence should be equipped with rollers and levers, at suitable distances, in order to strain and hold the wire straight and firm.

 

Electric Fences


  • Must have at leat on fourteen gauge wire or its equivalent not more than forty-eight inches from the ground

 

Barbed-wire fences


  • Must have at least three wires
  • Third wire must not be less than forty-four inches or more than forty-eight inches from the ground
  • The bottom wire must not be more than twenty-four inches or less than eighteen inches from the ground
  • The center wire should be equidistant between the upper and lower wires.
  • All wires should be well stretched and barbed
  • Barbs should not be more than nine inches apart
  • Barbed wire should be constructed of two wires not smaller than “No. 13,” or one wire not smaller than “No. 9,” or wires not having less than 950 pounds breaking strength
  • Barbed wires must be securely fastened to posts not ore than two rods apart and not less than twenty inched in the ground and set in a workmanlike manner, or
  • The posts may not be more than forty-eight feet apart with slats placed perpendicularly, not more than twelve feet apart, between the posts and fastened to the wires by staples or with holes in the slats.

Obtaining Information on Local Fencing Ordinances:

Local fencing ordinances are created and enforced by each city.  The following table summarizes who a person would contact to obtain information on local fencing ordinances in some of the larger cities in the area:

   

City


Contact

 

Olathe


Code Enforcement at 913-393-3275

 

Overland Park


Plans Examiner at  913-895-6225

Recreational Use Act

Statute:

A landowner in Kansas, who makes any part of their land open to the public for recreational purposes, does not have a duty to keep their land safe for others, or to give any warning to such visitors of dangerous conditions unless the landowner i) willfully or maliciously failed to guard or warn visitors against dangerous conditions, or ii) charges the visitors who go onto the land for the recreational land unless the land is leased to the state or a subdivision thereof.  Kan. Stat. Ann. § 58-3203; Kan. Stat. Ann. § 58-3206.  Additionally, a landowner who invites or allows a person to come onto their property for recreational purposes does not i) extend any assurance that the premises are safe, ii) confer status upon the visitor under which the landowner would owe the visitor a duty of care, or iii) assume responsibility or liability for any injury to any person caused by the visitor.  Kan. Stat. Ann. § 58-3204.

Case Law:

Bingaman v. Kansas City Power & Light Co.
1 F.3d 976 (10th Cir. 1993).

In Bingaman v. Kansas City Power & Light Co., the plaintiff’s husband drowned in a weir at a Kansas lake, owned by the defendant . The plaintiff alleged that the defendant acted negligently, maliciously, wantonly, willfully and recklessly by failing to “remove, correct, guard or warn against the unreasonably dangerous condition at the warm water discharge weir.”  The defendants responded with the defense of immunity through the Recreational Use Act.  However, the court was persuaded that the weir area was not open to the public.  The court based this conclusion on evidence that showed that the defendant had employed measures to block off the weir area from recreational uses.  Accordingly, the court held that the defendant did not directly or indirectly invite or permit the plaintiff to use the property recreationally, and therefore, the defendant was not immune from liability under the Recreational Use Act.

Other Case Law:

Nichols v. Unified School Dist. No. 400
785 P.2d 986 (Kan. 1990)

A high school student fell and was injured while running to the locker room after a football practice.  The court dismissed the claim reasoning that the student was involved in a recreational activity and the school district had not acted negligently.

Klepper v. U.S.

825 F.2d 1440 (10th Cir. 1987)

A man was paralyzed when he dove into shallow water at a lake owned by the defendant. The plaintiff claimed that the Recreational Use Act did not preclude the defendant from liability because their actions were willful.  The court held, however, that the defendant’s negligence was not extreme enough to be considered willful.  Therefore, the defendant was immune from liability under the Recreational Use Act.

Requirements for valid waivers/releases:

Kansas law has held that waivers of liability are not void on the ground of public policy.  Anderson v. Union Pacific Railroad Co., 790 P.2d 438, 440 (Kan. App. 1990).  Waivers of liability will be upheld, under Kansas law, unless the agreement is contrary to public policy or is illegal.  Id.  Kansas courts do, however, strictly construe waivers of liability against the party who drafted the waiver.  Id.  Furthermore, Kansas courts will not enforce the waiver unless the language of the waiver is clear and concise, the waiver was fairly and honestly entered into and both parties understandingly entered into the waiver. Id. at 346-47. 

Workers’ Compensation Law

Under Kansas law, the Workers’ Compensation Act does not apply to agricultural pursuits and employment incident thereto, other than those in which the employer is the state. see Kan. Stat. Ann. § 44-505.  However, operation of boarding and training facilities, lacking crop growth or breeding operations, is not deemed an “agricultural pursuit” and falls outside the exemption. If crop growth or breeding activities take place alongside boarding and training activities, the activity which generated the injury will be reviewed to determine if exemption applies or not.

Anti-discrimination Law

Kansas law makes it an unlawful employment practice for an employer to discriminate on the basis of disability without a valid business necessity.  Kan. Stat. Ann. § 44-1009.  Furthermore, it is an unlawful employment practice to use any form of employment application or to make any inquiry in connection with prospective employment which expresses any limitation, specification, or discrimination because of disability unless based upon a bona fide occupational qualification.  see Id. For purposes of the anti-discrimination statute, an employer is any person in the state employing four or more persons.  See Kan. Stat. Ann. § 44-1002.

Agister Lien Law

Kansas law recognizes a stablekeeper’s lien and an agister’s lien.  The stablekeeper’s lien attaches to the horse and covers the feeding and caring for the horse. Kan. Stat. Ann. § 58-207.  The agister’s lien attaches to the horse as well and covers the payment of rent for the pasture lands.  Kan. Stat. Ann. § 58-220.  The liens are self-enforcing.  The owner of the horse has a sixty day opportunity to cure the lien.  The agister or stablekeeper is required to give the owner of the horse fifteen days written notice prior to the sale of the horse.  The written notice must be sent to the owner’s residence or place of business.  If the owner’s residence or place of business is unknown, the notice must be published in the county newspaper at least once a week for three consecutive weeks.  Additionally, notices must be filed with the county clerk.  Kan. Stat. Ann. § 58-211. Once the horse has been sold, the stablekeeper or agister should give the County Treasurer the balance of the sale after the deduction of the lien.  Kan. Stat. Ann. § 58-221.

© Denise E. Farris, Esq. (January 2016).  This article may not be reprinted or reproduced in any manner without the consent of the author.  Contact:  Denise Farris, Farris Law Firm LLC.  dfarris@farrislawfirm.com.

DISCLAIMER

This article provides general coverage of its subject area. It is provided free, with the understanding that the author, publisher and/or publication does not intend this article to be viewed as rendering legal advice or service. If legal advice is sought or required, the services of a competent professional should be sought. The publisher shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.