Liability and Horses (Book Excerpt)
- Nov 12, 2007
Horses often seem to be accidents waiting to happen, and everyone who has owned horses for any significant period can recount at least one horror story that starts with: "You aren't going to believe this, but ..." Less apparent, but equally true, is the realization that horse businesses, by their very nature, can be "accident prone." Agricultural jobs traditionally are among the nation's most dangerous. Whether horses are your vocation or avocation, it is important to shield yourself from as much potential liability as possible. Failure to do so can be devastating, personally and professionally.
Liability is an extremely broad legal concept, encompassing everything from an obligation to repay a debt to the responsibility everyone has for the consequences of their actions. For someone in the horse business, liability lurks behind every stall door, in every paddock, on every trail, and in every business transaction. When you buy a load of hay on credit, for example, you are incurring a liability, in this case the obligation to pay for the hay at some future point. Such liability, voluntarily assumed, is part of the normal course of doing business and is not the type of liability this chapter will address.
More troublesome is the potential liability that results when your actions cause harm to a third party. Liability for personal injury can include financial responsibility for medical bills, lost wages, loss of consortium, and punitive damages. Liability for damage to another person's property generally is limited to the economic value of the property, but that amount can be substantial.
The sources of potential liability are endless:
- If you board horses for other owners, you might be responsible for damages if one of those horses becomes injured while in your care.
- If you give riding lessons, you might be liable for injuries suffered by one of your riders.
- If you open your land for trail rides, you might be liable if a horse or rider gets hurt on your property.
- If you sell a horse, you may have a duty to disclose certain physical conditions of the animal, and you might be liable for damages if you do not do so.
- If a horse escapes from your property and causes injury to a person, another animal, or someone's property, you might find yourself responsible.
- If you lease your horse to another person, you might be liable if the horse injures the lessee.
- If an employee becomes injured, you might be liable.
- If you agree to transport another person's horse in your trailer, you might be liable if the horse in injured.
- You may even incur liability by doing nothing more than keeping your own horses on your own property. This could happen if a court finds that the horses are an "attractive nuisance," and thus an unreasonable danger to trespassing children who are injured.
The list continues.
Adequate insurance is a necessity, and you should discuss your needs with a reputable insurance agent who is familiar with the horse business. It should be obvious, though, that the only way to truly insulate yourself from all potential liability is to abandon the horse business altogether. Few horse enthusiasts are willing to do that, however, and the next best thing is to identify potential problem areas and plan accordingly.
Accidents do happen, no matter how careful a person is, and there always is a risk you will find yourself on the wrong end of a lawsuit. Being blameless does not make you immune from a lawsuit, and being right does not guarantee you will win in court if you are sued. Even if you do win, you likely will be faced with thousands of dollars in legal bills. When dealing with potential liability, it always is better to be safe than sorry. Attorneys like having a client ask them, ahead of time: "This is what I plan to do. Are there any problems?" Attorneys dislike having a client tell them, after the fact: "This is what I did. Can you fix it?"
This chapter addresses several fundamental concepts related to liability and offers some suggestions about how to protect yourself and your business.
Practice Preventative Legal Medicine
Many attorneys endorse the concept of a "legal audit," a review of your horse business with emphasis on potential problem areas and possible solutions. If you board horses and do not require written contracts with your boarders, for example, your attorney should be able to recognize the potential problem and draft a suitable document. If you do use a written contract, your attorney can suggest changes, if needed. After reviewing your plans and aspirations, your attorney can identify, and thereby help you avoid, many of the pitfalls on the path to your business goals.
Whatever your objectives in the horse business--from owning a safe and sound pleasure horse, to managing a band of productive broodmares, to competing successfully on the "A" show circuit--you probably already rely on the expertise of a team of professionals. A veterinarian and farrier are essential members of the team, no matter what the activity, and depending on your goals you also may need a trainer for your horse and a coach to help hone your own riding skills.
Just as important is your business team. The members should be selected with care and should include an accountant, an attorney, and an insurance agent. All should be familiar with the horse industry. A good accountant can be the difference between a business that shows a profit and one that does not, by offering financial planning and bookkeeping services and by guiding clients though the maze of state and federal tax laws, payroll questions, and workers' compensation requirements.
Attorneys and insurance agents can help guard a business investment, the former by anticipating problems and drafting written agreements to protect the owner's interests and the latter by providing adequate insurance coverage. An attorney also can help a business owner operate in compliance with local or state laws, among the most important of which are those designed to limit potential liability in certain situations. There will be more about this later.
Locating professionals with experience in the horse business can be simple or difficult, depending on where you live. Personal referrals from other horse owners in your area are probably the best recommendations, and the bar associations of many states offer lawyer referral services for attorneys. It is important that the team understands how your business operates and your goals. You should have the team in place before you need its services. Prevention and risk management, not damage control, should be your goals.
Assumption of the Risk
A long-standing legal principle is the straightforward idea that an injured person should not be allowed to recover damages resulting from an activity that the person participated in voluntarily, while understanding the hazards. In other words, a person "assumes the risk" of injury if he or she knows that an activity is dangerous but decides to take part anyway.
Assumption of the risk is more than an interesting legal concept. Depending on the facts, it is a defense that may be raised in a personal injury lawsuit to shift responsibility for harm from the defendant to the plaintiff. To be successful, a defendant must prove that an injured plaintiff (1) knew of a dangerous condition, (2) appreciated the nature and extent of the danger, and (3) voluntarily exposed himself or herself to the danger despite knowing of the hazard.
Implicit in the notion of assumption of the risk, at least as it relates to the horse business, is the idea that equine activities are inherently dangerous. An inherent risk is a hazard that is a fundamental and foreseeable consequence of the activity. Being kicked or bitten by a horse is a good example. If a person knows that horses often kick or bite but chooses to participate in an equine activity anyway, it is reasonable to think that the individual assumes the risk of being kicked or bitten.
Assumption of the risk has become a less viable defense in recent years, largely due to the influence of aggressive personal injury attorneys whose television advertisements create the impression that being injured is akin to winning the lottery. The proliferation of personal injury lawsuits and large damage awards by juries led to a meteoric rise in insurance rates for the organizers of horse shows, trail rides, and other recreational activities. Faced with growing concerns over increased liability and decreased profits due to high insurance premiums, the owners of many horse operations were forced out of business.
The legislative response to the situation was passage, in nearly all the states, of legislation that provides some protection for horse businesses. Discussed more fully later in this chapter and in the case studies, these equine activity statutes limit the duty of equine-activity sponsors and insulate them from lawsuits in many circumstances.
Not every injury that results from participation in an equine activity is the product of an inherent risk, however. While falling off a horse that shies away from a rabbit might be an unfortunate but not unexpected risk of riding, falling off because a stable employee failed to tighten the girth properly or because the tack was faulty is another matter entirely. If injury actually is someone else's fault, an award of damages against the individual causing the harm is proper.
In a very small number of situations generally involving the sale of unreasonably dangerous consumer products, courts will impose liability without a showing of fault on the part of the defendant. This legal concept is called "strict liability," and it has little application to the horse business. Generally, though, some injuries truly are the result of unavoidable accidents, and there is no liability without fault. The fault most often alleged in a personal injury lawsuit is negligence.
In the broadest sense, negligence is the failure to act reasonably given the facts of a particular situation. A reasonable person would be certain that a girth was tight and secure before putting a rider up on a horse, for example, and the failure to do so almost certainly would be negligent. Nor would a reasonable person use tack that was in poor condition.
To succeed on a legal claim of negligence a plaintiff must prove four elements: duty, breach of that duty, harm, and proximate cause.
- Duty--A duty is a legal obligation either to take or not take some action. The law imposes a general duty of reasonable care or behavior under the circumstances of the situation, and there may be specific laws that impose additional duties as well. Animal welfare laws that require the owner of an animal to provide adequate food, water, shelter, and veterinary care are good examples of legal duties.
- Breach of the duty--If there is no breach of the duty, there is no fault and no negligence. Failure to act reasonably and to follow whatever laws are applicable is a necessary predicate to a claim of negligence. There also is a distinction between a legal duty imposed by statute or common law and a moral duty resulting from the idea of "doing the right thing." Giving aid to an accident victim may be a legal duty for some first responders or medical professionals, but it is a moral duty only for most civilians. While a moral duty might be more pressing than a legal duty, breach of a moral duty generally does not give rise to a winnable negligence claim.
- Harm--This is the "no harm, no foul" rule familiar to everyone who has played pickup basketball. Breach of a duty, no matter how egregious, generally will not sustain a claim of negligence if there was no harm as a result because there is nothing that warrants compensation. A plaintiff who can prove breach of a duty but who suffered no harm has no damages. In a more practical sense, most personal injury attorneys take cases on a contingency basis, which means that the attorney gets paid a hefty percentage of the award (usually about one-third) if the lawsuit is successful. Attorneys are reluctant to take a case if there is no reasonable chance of a damages award, and a plaintiff who has suffered no injury will have difficulty finding representation.
- Proximate cause--The final element of actionable negligence is a direct relationship between the breach of the duty and the harm suffered. Just as it is possible for there to be a breach of a duty without any resulting harm, it is possible for there to be an injury not directly related to the breach of duty.
Consider the following example. A stable employee fails to tighten the girth for a client who is taking part in a trail ride in a mountainous area. The employee clearly has breached his duty of reasonable care, satisfying the first two elements of a negligence claim. If the saddle slips and the client is injured, the third and fourth elements are satisfied. But if the client is injured by a falling rock before the saddle slips, and the injury is unrelated to the loose girth, the necessary link between the breach of duty and the injury is broken.
A distinction also should be made between "ordinary negligence," the topic of this chapter thus far, and "gross negligence." The latter is more serious, and amounts to intentional conduct on the part of the defendant that puts others at risk. The principle difference between the two is that ordinary negligence generally results from inattention or carelessness, while gross negligence involves an actual or constructive intent to do harm to a person or property. The difference is especially important in the enforcement of liability waivers. While some courts are reluctant to enforce waivers for ordinary negligence, a waiver for gross negligence almost never will be enforced in court.
In some states, a related defense to a personal injury lawsuit is "contributory negligence," which recognizes the duty of both parties to a transaction to act reasonably. While it may be negligent for a stable owner to put a green rider on a green horse, it also may be negligent for the green rider to misrepresent his or her riding ability. Contributory negligence reduces, but does not eliminate, an award of damages.
Probably the most important thing anyone can do to forestall a lawsuit is to conduct the business in a "reasonable" manner, but you must know what this standard of reasonable care means in practice.
Separating the paddocks of two aggressive breeding stallions with a double row of four-board plank fencing almost certainly is reasonable conduct; separating those two stallions with a single strand of barbed wire probably is not. It is not sufficient that a farm owner did the best he or she could under the circumstances--perhaps a single strand of barbed wire is all the fencing the owner could afford--the standard of care is objective, that of a hypothetical "reasonable person," not subjective, relating to a specific individual. Nor is it always safe to do things the same as everyone else in your area. It is possible, although not likely, that everyone you know fails to meet the reasonable care standard.
On the other hand, reasonable care does not require a superhuman effort. Nor does it require you to always adopt the best option. The fencing examples above represent two extremes, and there may be a middle ground that also would constitute reasonable care under the circumstances. Usually, reasonable care will be simple common sense: Make certain that your fences are in good repair and that there are no dangerous holes in the paddocks; inspect stall interiors for nails or other protruding objects; keep tack and other equipment in good repair; be aware of the physical condition of the horses in your care; hire competent help (often easier said than done); match the ability of your riders to your horses; and pay attention.
Negligence becomes even more problematic if the law presumes that you did not exercise reasonable care, and you must prove that you did. Strange as that might sound, it happens frequently thanks to the law of "bailments," which flips the common notion of innocent until proved guilty on its head.
A bailment has nothing to do with money paid to get a friend out of jail. Instead, a bailment is created when one person (the "bailor") transfers possession of personal property to another individual (the "bailee") for safekeeping. A bailment is created, for example, when you send your horse to another person's farm for boarding or for any other purpose, or when you give your horse to a commercial van driver for transport, or if you leave your horse at a veterinary clinic for treatment.
Bailment does not involve a transfer of ownership of the property, only possession. The bailee has a legal duty to exercise reasonable care with respect to the property until it is returned. If the property cannot be returned to the bailor in the same condition as when it was transferred to the bailee, a rebuttable presumption that the bailee was negligent is created. In a lawsuit for seeking reimbursement for damages to the property, the bailee has the burden of rebutting the presumption of negligence.
A general word about presumptions might be in order here. A legal presumption is an assumption that a particular fact is true, based not on actual proof of the fact, but instead on the existence of another fact or facts. In the case of bailments the fact that the property was not returned to the bailor in the same condition it was in when transferred to the bailee creates the assumption that the person who was taking care of the property, the bailee, was negligent.
In a lawsuit the plaintiff, the bailor, must initially prove only that the property was not returned in the same condition as it was when it was transferred to the bailee. At that point the burden of proof shifts to the bailee, who must try and prove that he or she was not negligent. This can be a daunting task, and if that burden cannot be met, the bailee loses. It should be clear that the general rule of bailments favors the owner of a horse being boarded rather than the owner of the boarding farm.
The general rule can be altered by contract if the parties agree that the transfer of possession of property does not constitute a bailment. Claim tickets for self-parking an automobile at an unattended lot frequently attempt to disclaim the creation of a bailment for the obvious reason that the owner of the parking lot does not want to shoulder the responsibility of reasonable care to keep the cars safe.
Courts generally enforce such claims, particularly if the lot is unattended and the driver selects the parking space, locks the car, and keeps the keys. There is no reasonable parallel when the property in question is a horse rather than an automobile. A court is more likely to find a bailment when possession and control of the property is surrendered to another person such as a valet parking attendant or a farm owner.
The general rule of bailments also can be altered by law, such as a peculiar Kentucky statute that in very limited circumstances negates the usual presumption of negligence on the part of the bailee. Kentucky Revised Statute 422.280 provides that the owner of a horse being boarded remains responsible for damage to or loss of the animal unless the harm is due to the negligence of the farm owner. That's normal and expected.
Then the law adds a twist that appears to be unique to Kentucky: "Evidence that the (bailor) delivered horses to the (bailee) and that the horses were damaged or lost while in the care and custody of the (bailee) shall not be sufficient to create a presumption of negligence on the part of the (bailee) ..." In other words, the owner of the horse still can collect if the animal was harmed while in the care of the farm owner, but only if the horse owner can prove negligence. The law shifts the burden of proof from the farm owner (who as a bailee ordinarily would have to prove that he or she was not negligent) to the horse owner (who must prove that the farm owner was negligent).
Several years ago, following a devastating fire at a prominent American Saddlebred farm in Central Kentucky, the owner of two horses that were killed in the fire sued the farm owner. At the close of a trial in federal district court the jury was instructed that the burden of proof was on the horse owner to show that the farm owner had been negligent and had failed to exercise the reasonable care expected of an ordinary prudent trainer of American Saddlebreds. The owner of the horses failed to do so and lost the lawsuit.
It is speculative to suggest that the verdict was unique to Kentucky and would have been different in a state where the general rule of bailments would have applied. But there is no doubt that the owner of the farm would have had the burden of proof elsewhere.
Duty to Others
Landowners have a duty to persons on the property. The extent of that duty depends on the legal relationship between the parties.
A landowner has the highest duty of care to an "invitee," a person who is on the property for the mutual economic benefit of both individuals. Typical examples are customers shopping in a store or clients visiting a farm. The property owner has a duty to protect an invitee from harm, either from risks the owner is aware of or from risks that the owner could discover with reasonable care. An obviously icy sidewalk outside a store is an example of the former; rickety but not obviously dangerous chairs in an area adjacent to a show ring are examples of the latter. In either case the property owner generally has a duty to make the land safe for the customers.
A "licensee" is an individual who has permission to be on another person's property, but who is there without providing any economic benefit to the owner. Foxhunters who cross a farmer's land with the owner's permission, for example, are licensees. So are social guests. The property owner owes a licensee a duty of reasonable care but not an affirmative duty to make the grounds safe.
"Trespassers" are individuals who go onto another person's property without permission to do so and under that circumstance the landowner's duty of care is very limited. Landowners generally are not liable for injuries suffered by a trespasser unless those injuries are intentionally inflicted. The same is true for animals trespassing onto another person's land.
This does not mean that a landowner cannot defend himself or his property from an intruder if threatened. It does mean that a property owner cannot install booby traps designed to harm trespassers and that being on another person's property illegally, standing alone, seldom warrants an attack on the offender. The use of deadly force against another person almost never is appropriate to protect property, even if that property is a horse that's treated as a member of the family. A horse owner probably would be justified in shooting a pack of dogs attacking a foal, however.
So What's Attractive About a Nuisance?
The situation changes dramatically if the trespasser is a child, and state laws impose a higher duty of care on a landowner under a legal principle called "attractive nuisance." A landowner generally is liable for injuries suffered by trespassing children if:
(1) the property owner knows, or has reason to know, that children trespass on the property;
(2) the property owner knows, or has reason to know, that there is a condition on the property that poses an unreasonable risk of harm to children;
(3) the trespassing children, because of their youth, are unlikely to recognize the danger posed by the dangerous condition;
(4) the property owner fails to exercise reasonable care to protect the children;
(5) correcting the condition is relatively easy.
A backyard swimming pool is the classic example of an attractive nuisance and anyone owning a pool is well advised to fence it in to keep roaming children out. Horses grazing in a pasture, like swimming pools, are magnets for curious children, and a property owner may be liable if a trespassing child is injured by a horse.
Liability will depend on whether your state considers horses in a pasture to be an attractive nuisance. Not all states do and you should consult an attorney familiar with the law and with court interpretations of that law in your area. In Kentucky and Louisiana, for example, horses grazing in a field generally are not considered an attractive nuisance.
About the Author
Milt Toby is an author and attorney who has been writing about horses and legal issues affecting the equine industry for more than 40 years. Former Chair of the Kentucky Bar Association's Equine Law Section, Milt has written eight nonfiction books, including national award winners Dancer’s Image and Noor. He teaches Equine Commercial Law in the University of Louisville's Equine Industry Program.
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