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by Glenye Cain Oakford

When the Horseracing Integrity and Safety Authority implemented its Racetrack Safety Program in July 2022, it was a watershed moment for Thoroughbred racetracks. For the first time, tracks would operate under a uniform, national set of safety rules covering everything from veterinary inspections, to human safety programs, to racetrack surfaces maintenance—regulations designed, as HISA’s Chief Executive Officer Lisa Lazarus later put it in a press release, “to ensure that all racing participants prioritize horse and jockey health and welfare above all else.”

HISA’s rules apply first and foremost to licensed racetracks. But attorney Amanda Luby—who owns the Welbourne Stud Thoroughbred operation and is chief legal officer for Alliance Captive Management, specializing in risk assessment, risk management and regulatory compliance—says HISA’s safety regulations around racetrack maintenance could have ongoing legal and insurance implications for private training centers, even when those facilities technically are not under HISA’s jurisdiction.

“If there are protocols that are identified in HISA’s safety regulations that are universal to training centers as well as racetracks, then it is incumbent upon the training facility to comply,” Luby cautioned. “Otherwise, you expose yourself not only to the regulatory violations, which could have a trickle-down effect on all covered horses at such facility, but it also could expose the training facility to potential commercial liability, as well.”

The HISA standards, underpinned by data and findings from the industry’s nonprofit Racing Surfaces Testing Laboratory, have established a clear set of protocols for track surface maintenance and monitoring, detailed on page 42 of the HISA Racetrack Safety Rules. These include regular documentation of maintenance and daily measurement of moisture content, cushion depth, and weather conditions. The rules state that “surface test methods and surface material test methods must be documented and consistent with testing standards from internationally recognized standards organizations including ASTM International, American Society of Agricultural and Biological Engineers, or other relevant international standards, and when possible for unpublished standards, methods consistent with those documented by the Racing Surfaces Testing Laboratory.”

Owners of private training facilities might find that task list daunting, tallying up the potential cost in staff time, water usage, and more to help fulfill those requirements at facilities that aren’t specifically regulated under HISA—especially given how different the operations are at private training facilities, where there might be more jogging or easy galloping and relatively few workouts at speed, as compared to racetracks.

“Most of the exercise and work performed on training surfaces in Ocala is legging up work or starting young horses, but we’re not getting past an exercise level that I think is a fair comparison to that of the racetrack,” said trainer Jena Antonucci, who operates a training center at her Bella Inizio Farm in Ocala. “I think that’s a really important detail to not overlook. Most trainers want to receive their horses at the track three-eighths to, say, half-mile fit or a quarter to three-eighths fit. They want to finish the conditioning and education themselves at the racetrack.

“From a general point of view, most farms are very conscientious about their surface,” she added. “If they don’t have a good surface, they’re not going to have sound horses. They won’t be able to maintain their clients at the track and they’re not going to be able to sell horses at the sales if the horses are falling apart. I don’t believe the margins are there, from a business point of view, to implement a whole layer and level of HISA things when a lot of the training centers function underneath that level of HISA and are functioning as farms, not as training centers with published works.”

But Dr. Mick Peterson, professor of Biosystems and Agricultural Engineering at the Univerity of Kentucky and co-founder of the Racing Surfaces Testing Laboratory, believes unregulated facilities can meet the HISA standards, thanks partly to the RSTL’s own testing and monitoring services. The RSTL, a 501(c)(3) nonprofit, offers annual inspection, along with use of its database and testing of track material, for about $7,000 at training centers with a dirt track, if the center’s track is narrower than a regulated racetrack (the inspection cost for a regulated racetrack with a single mile dirt surface is about $11,000, Peterson says). The RSTL also can help training centers make connections to other experts who can assist in improving training surfaces.

Peterson suggests that training centers invest in a laser level, which he considers crucial for checking that a track is graded correctly, for around $800. “We suggest folks buy a Bosch kit from Home Depot and then buy a fancier and easier-to-use Lenker rod,” he said. The RSTL can provide assistance with using the equipment as part of their inspection service, he noted.

“Each training center is going to have to do its own cost analysis,” Luby said, if they want to try to maintain HISA’s safety protocols. But the question remains for private training facility owners: is HISA-style surface maintenance necessary for facilities with their own diligent maintenance programs and good safety records on their particular track?

“I think this is more of a horseman and care conversation, about the details horsemen put into their trade, their craft and occupation of preparing horses and making sure they’re paying attention to the surfaces they’re training on,” Antonucci said. “And I think most people at training centers know how to train on their track. They know the nuances of it.

“You can go to 10 facilities in Marion County, and every one of them has a different surface, and every one of them is putting their best foot forward to have a good surface, because every product, every end result, comes off of those surfaces.”

Trainer Mark Casse, who also operates a private training facility in Ocala, says his program already operates largely around HISA best practices. His training track’s maintenance, though, doesn’t adhere to all of HISA’s racetrack protocols for documentation, regular moisture content monitoring, and the like.

“We do ours more by sight and by experience,” Casse explained. “We’ve been doing this a long time. We have one person that all they take care of is maintenance. We spend a lot of money on equipment. We’re very big on keeping moisture in our track, and we have a really good sprinkler system that does that. We already operate at the highest standard you can. About every three months we bring somebody in to look at our track, grade it, and make sure everything’s good. Safety is the most important, and we do not spare any expense when it comes to our racetrack.”

At Bella Inizio Farm, where the training track is a sand surface with fiber in it to retain moisture, “the track is conditioned every day,” Antonucci said. “It’s monitored for moisture with an automation system, and it’s conditioned every morning before training. … We try not to make things over-complicated at the farm.

“If you have to bring in a specialist for testing, that’s not going to be free,” she added. “If HISA is going to tell a training center what kind of surface they need to have—or mandate or recommend—there aren’t margins to rebuild surfaces.”

But Luby and Peterson indicate that relatively simple, voluntary steps can help mitigate risk. Peterson compares the HISA-required exercise of documenting a training surface’s condition and daily maintenance as an example, invoking surgeon and author Atul Gawande’s book “The Checklist Manifesto,” which explains how simple checklists in medical settings have been shown to reduce errors and improve hospital safety and overall performance. In the context of a training surface, Peterson says, daily documentation can help reveal and correct problems before a horse or human gets injured. In the case of a lawsuit or insurance claim, documentation also can help show that a facility took every reasonable precaution to avoid issues that could injure a horse or rider.

“The daily record-keeping, for me, is absolutely critical,” Peterson said. “My theory on racetracks is that, even by documenting it, you’re actually improving the quality of the maintenance. Because, essentially, you’re doing that checklist every day.”

COMMERCIAL LIABILITY

The potential legal ramifications of HISA’s standards may not be a hot topic of conversation among training centers yet. But attorney Luby cautions that they should be on facilities’ radar, because courts and insurers could regard HISA’s requirements as reasonable standards that training centers already should be aware of and meet.

HISA’s rules note that the safety regulations apply both for covered horses (those who have had a timed, published work either at a track or a training center) and for covered persons (licensed handlers and “any other horse support personnel who are engaged in the care, treatment, training, or racing” of covered horses). HISA defines a training facility as a location that isn’t a racetrack licensed by a state racing commission and which operates primarily to stable covered horses and to conduct timed and reported workouts. But HISA’s Rule 1020, which sets out these definitions, specifically refers to a “private facility” as one “not under the jurisdiction of the Authority.”

Even so, Luby notes that a private facility outside of HISA’s jurisdiction could be exposed to commercial liability if a horse or exercise rider, for example, were injured on a training surface that didn’t meet HISA safety standards.

“Commercial liability is based on the concept of premises liability,” Luby explained. “If you have a HISA standard that goes to racetrack safety and a horse or rider is injured as a result of a failure to implement those standards, then all of a sudden you have created a pretty big opening for a plaintiff’s lawyer to successfully sue that training facility.”

Like most states, Florida has a statute—the Equine Limitation of Liability Statute—that limits liability for equine activities due to the “inherent risk” of working with horses. And agricultural law, which is highly complex, might offer some exemptions, as might workers’ compensation in certain situations. But the law doesn’t protect a private facility in every circumstance.

“There are explicit exceptions to that limitation of liability, and one of those is if there is a latent defect that the equine facility owner/manager is aware of, i.e., something that is hidden or otherwise not known by the equine activity’s participants, and one of those participants is injured,” Luby explained.

“The limitation of liability pertains to the assumption of risk by human participants,” she added. “It’s silent as to the equine participants, who are obviously personal property. So you potentially expose yourself to the loss of a horse that may be injured as a direct result of failure to implement those safety standards—but you also expose yourself to potentially much greater commercial loss if a human is significantly injured or killed stemming from that failure to implement the safety protocol.”

Under Florida Statute, another exception to the limitation of liability is if the equine facility owner/manager “commits an act or ommission that a reasonably prudent person would not have done or omitted under the same or similar circumstances or that constitutes willful or wanton disregard for the safety of the participant, which act or omission was a proximate cause of the injury.”

MITIGATING RISK, AND PREMIUMS

It’s possible that some clients, before sending horses to a facility, might eventually weigh whether a training center’s track maintenance protocols are in line with those HISA requires of racetracks. But it’s more likely that the first questions a training facility owner or manager will get along those lines will come from the facility’s insurer.

“Any reputable insurance company, their agency and their underwriters are going to ask questions about whether or not you have safety protocols in place,” Luby said. “Insurance is completely data-driven and sets its premiums based on loss histories and safety protocols that you have. Any training facility—whether it is private or a training center as defined by HISA regulations—would do itself a favor by informing its insurer of all its safety protocols and the extent to which it might be accredited under HISA to provide timed workouts. It literally can go to whether they receive lower premiums or not.

“Insurance companies don’t like to pay claims,” she continued. “Particularly with regards to premises liability, we are seeing an increasing number of property coverage exclusions or general liability exclusions due to an operation’s failure to implement safety protocols that are known, are data-based, and have become industry standards.

“Once something becomes an industry standard, if you fail to adhere to it, that becomes part of the analysis of any claim submitted for payment. So, depending on the contractual language of the insurance policy itself, if a training center fails to adhere to certain safety protocols, they may expose themselves to having their claims denied.”

A BASIC TO-DO LIST

Even if a private training center isn’t following HISA surface maintenance protocols like a regulated racetrack, there are some simple steps they can take to help reduce their exposure to problems (and potential resulting lawsuits) around their facility in general.
“Some of the basic things don’t cost a lot of money,” Luby said.

Develop and publicize safety protocols.

“There are certain safety protocols that are kind of common knowledge in the horse industry, but put them in writing in English and Spanish and make them available in your barns and barn offices,” Luby suggested.

Have regular safety meetings—and empower workers to speak up.

“Have quarterly or annual safety meetings, especially if your workforce changes regularly,” Luby said. “Encourage your employees to be on the lookout for things that pose risk. If someone is aware of an inconsistency on the track surface, they should feel able to speak up. Silence is an absolute killer to the improvement of safety protocols.

“Every training facility needs to have quality control and safety procedures in place. Write them down, make sure everyone is familiar with them, provide them to your insurance agent, and keep them handy.”

Use documentation.

“People are afraid of putting things in writing, but it actually lends credibility to your adherence to protocols,” Luby explained. “If there’s a problem—a section of the track becomes unsafe, a hole opens up, or a rail is down—quarantine that area from any interaction with horses or human participants and apply your safety protocols. If you document your adherence to protocols, all of this goes to show your immediate response. Under Florida Statute § 773.03(2)(d), ignorance is not going to be a defense.”

Talk to your insurer.

“Just having a regular discussion with your insurance agent is a really good protocol to have,” Luby said. “Insurance agents specialize in helping you identify risk points. And that could also be a conversation one should have with a lawyer that specializes in premises liability.”

Private training centers are not in the same position as strongly regulated state-licensed racetracks, as Luby acknowledges. “But from an insurance perspective and a commercial operations perspective,” she said, “it behooves anybody who is trying to be successful to maintain the strictest safety standards.”

RSTL co-founder Peterson emphasizes that the lab’s extensive expertise and data can help training facilities do that to the benefit of the horses and the people who work with them.

He points to cases where the RSTL has helped training centers use ground-penetrating radar and other techniques to identify and address issues. In one case in Florida, the RSTL introduced a training center with a grading issue to an out-of-state grader operator who not only corrected the problem but also helped train the on-site maintenance staff. “We then went back to look at it, and the track was dramatically improved,” Peterson said. “It was so much more consistent from the inside to the outside.”