LEGAL ASPECTS OF HORSE MANAGEMENT
LESSON THREE: INTENTIONAL TORTS
This
lesson continues the law of torts; addressing intentional torts, defenses to
tort actions, equine liability acts and insurance.
INTENTIONAL
TORTS
Intentional
torts consider the defendant’s state of mind in determining liability. Unlike negligence claims, addressed in Lesson
2, where the lack of intent of the defendant will not affect recovery,
intentional torts have intent as part of the element of the claim. There are numerous intentional torts; this
lesson shall consider those frequently arising in horse related matters.
Intent to Harm
Intent
to harm is not a necessary element of an intentional tort. For instance, if the necessary elements of an
intentional tort exist, liability will result even though the defendant
intended no harm (e.g. a practical joke).
Another example would be the tort of battery; in battery the defendant
must intend the contact with the plaintiff—not intend to harm him or her.
Mistake
What
if the defendant is mistaken in the facts?
For instance, a hunter mistakenly shoots a horse thinking that it is a
deer? In such a case, the law places
liability on the person that intended the act (the shot from the gun),
regardless of his or her intent in doing so.
Insanity
Where
the defendant is insane, the inability of the defendant to have control over
intent will not preclude liability in that imposing liability makes those in
charge of the insane more careful. Also relevant
is the fact that the one who caused the loss should be the one who bears the
cost of the damage. Courts also impose
liability in such cases because of the significant difficulty in ascertaining
whether intent was present.
Transferred Intent
The
idea of “transferred intent” means that intent may be transferred to a third
party. In the above example involving
the hunter and the horse, if the hunter intended to shoot the horse, believing
it was a deer, and the bullet traveled past the horse and struck a groom there
would be a battery upon the groom even though the hunter did not intend to
shoot such person. The intent follows
the bullet wherever it lands.
TYPES OF INTENTIONAL TORTS
Battery
The
intentional tort of “battery” involves the intentional, voluntary and
un-consented touching or contact of another person in a harmful or offensive
manner. For example, one person shoves
or hits another—this would constitute the tort of battery, although battery can
also be a criminal offense depending upon the degree of the intent and act.
Assault
The
tort of “assault” involves the intentional and voluntary act of placing another
in reasonable apprehension of harm. What
is important is that the act was intended—it is not important that the person actually
intended to carry out a harmful action.
It is also not necessary to establish any physical contact with the
person.
For
example, Mary is mad at Carrie because she beat her in class at a show, and
Carrie has been a poor winner and rubbing it in. Mary in a fit of anger picks up a pitchfork
and swings it at Carrie—just to scare her.
The pitchfork misses Carrie. Mary
has committed a civil assault. (Note too
these facts would likely bring criminal charges as well).
In
the above example, if the pitchfork had hit her she would be subject to
liability for assault and battery. What
if instead of the above example Mary had swung a feather at Carrie? In this case there would not be an assault
because it would not be reasonable to be afraid of harm caused by a feather.
Intentional infliction of emotional
distress
The
tort of intentional infliction of emotional distress involves an intentional
act that is beyond decency to the extent that it causes another severe and
extreme mental anguish. Not just any
nasty conduct will do (e.g. calling someone a bad name/expletive). It needs to be completely outrageous, and
cause actual mental harm. (Not just hurt
feelings or sadness). A classic example
of this tort is where a person informs another that a close family member, or
dear pet, is dead, when they in fact are not.
The
necessary elements of a claim for intentional infliction of emotional distress
are: the actor intending to inflict emotional distress; extreme or outrageous
conduct; the conduct of the defendant was the cause of the emotional distress;
and the plaintiff’s damages were severe.
In
a case involving animals or pets this claim has met with success in some, but
not all jurisdictions. For example, Bob could
not take care of his horse due to a health problem, and agreed with Steve that
Steve would take his horse temporarily and care for it. Steve picked up the horse and after one day
sold it for slaughter. Bob asked Steve
if he could visit his horse and Steve continuously gave excuses
why that was not possible. Bob
became suspicious and with the help of an investigator discovered the horse’s
demise. Bob sues Steve for intentional
infliction of emotional distress.
The viability of the claim
in the above example would depend upon the state in which the case was
filed. In some states, a case under
these facts would recognize a claim for intentional infliction of emotional
distress of a pet. Other states refuse
to recognize such an action based upon the fact that horses and other animals
are deemed personal property and there can be no recovery for anything other
than economic loss.
False Imprisonment
False
imprisonment is an intentional tort that involves the intentional confinement
of another without legal authorization.
For example, Mark runs a boarding stable, and Jim is a boarder. Jim is several months behind on his board
bill. Mark confronts Jim in a stall and
refuses to let him leave until the bill is paid. In this case Mark has opened himself up to a
tort claim for false imprisonment.
Trespass to Chattels
The
tort of “trespass to chattels” involves the intentional interference with a
person’s lawful possession of a chattel.
The tort can take the act of taking the property from another, blocking
access to the property, or destroying it.
A claim for trespass to chattels also requires damages. Note:
this claim is closely related to an action for “conversion” though such
a claim is actionable without damages.
An
example of trespass to chattels: Tim lived next to Jeff and occasionally rode
Jeff’s horse when Tim visited. One day
Tim on his own decided to go to Jeff’s and take his
horse down the road on a trail ride.
Jeff was planning on going to a show, but when he went out to the barn
he found his horse missing. Jeff was
unable to go to the show as a result.
Upon finding out that Tim “borrowed” his horse without permission, Jeff
sues Tim for damages suffered by reason of missing the show.
Trespass to Land
The
tort of “trespass to land” involves the intentional act of entering another’s
land, or causing a thing to enter the land, or remaining on the land, or
failing to remove a thing from the land where there is a duty to remove
it. Liability for trespass in such cases
will result regardless of the fact that there is no harm to the owner of the
land.
The
act of entering the land must be intentional to maintain a trespass action,
however it is not required that the defendant intend to enter another’s
land. The concept of intent relates to
whether or not the defendant acted on his/her own volition. By way of example, Sam was trail riding down
a new trail. The trail crossed into a
field. Unbeknownst to Sam, Jack owned
the field. Sam has committed a trespass.
Conversion
The
tort of “conversion” is similar to the tort of trespass to chattels, and arises
in a case where the defendant completely dispossesses the plaintiff of an
interest in property. Unlike trespass to
chattels, however, the defendant need not physically damage the property. In a case for conversion a plaintiff will be
permitted to recover the full value of the property that was converted.
For
example, John owned a $10,000.00 hunter that Joe claimed was his. While John was away Joe took the horse and
put him in his barn. Joe has converted
the horse and may be liable to John for $10,000.00 damages.
Defamation (Slander/Libel)
The
tort of defamation protects a person’s reputation. It involves the making of a false statement that
is expressly or implied factual and that gives another person, business or
entity a negative image. (A corporation
cannot sue for defamation, but rather can bring a claim for “commercial
disparagement”).
Truth
is a defense to a defamation claim. It
would also be a defense if the statement made is opinion and not represented as
fact. In addition, a dead person cannot
be defamed. There is also a different standard in connection with a public
figure. The press has successfully
limited attacks by politicians by raising the freedom of the press—actual
malice must be established to succeed in a claim against a political figure.
Slander
is the making of an oral communication, whereas libel involves slanderous
comments made in print. In general,
slander requires proof of damages, unless the comment is “slanderous per se”
since it states that another has committed a crime. Libel does not require proof of damages.
An
example of defamation: Sally wanted Lisa to buy her horse. A similar horse owned by Fred was for
sale. Sally tells Lisa that Fred’s horse
is a “poor mover” thinking that Lisa will therefore buy her horse instead of
Fred’s. Fred’s horse was a
“daisy-cutter” and typically won the under saddle classes in which he was
entered. Has Sally committed
slander? Probably not—it could be argued
that the comment was an opinion and not stated as fact.
But
what if Sally and Karen were competing trainers? Sally told Melissa, one of her students, that
Karen was drugging her horses to get a competitive edge. Karen was not drugging her horses.
In
this example, Sally has opened herself to a slander claim. In the horse world, where rumors abound about
farms, trainers, riders, and horses, caution should be exercised in order to
avoid crossing the line of gossip to defamation. A simple comment such as spoken in the
example above could result in a costly lawsuit.
Misrepresentation
The
tort of “misrepresentation is frequently raised in horse cases. A misrepresentation involves the making of a
material false statement that induces some action by the plaintiff; the mere
making of a false statement does not result in a misrepresentation unless the
plaintiff actually relies upon it. Misrepresentation can be negligent (such as
the defendant making a reckless statement) or intentional.
The
elements of misrepresentation (which must be established by clear and
convincing evidence) are: a representation that is false, that is material,
where the speaker has knowledge of the falsity or speaks with reckless regard
for the truth, where the statement is made with intent that it be acted upon,
where the plaintiff is ignorant of the falsity, where the plaintiff relies upon
it, where the plaintiff has the right to rely upon it, and where the plaintiff
suffers injury as a consequence of such reliance.
All
of the above must be established or else a misrepresentation claim will
fail. For example, even if a false
statement is made, but it was not reasonable for the hearer to act upon it, no
actionable misrepresentation will result.
There is no liability for casual comments, or
representations where the plaintiff could have easily ascertained the
truth.
A
misrepresentation may be intentional or negligent. Negligent misrepresentation, in addition to
the above elements, requires that the defendant had a pecuniary interest in
making the statement, and that the defendant owed to the plaintiff a duty to
act truthfully. In light of this
distinction, negligent misrepresentation is limited to commercial cases.
In
either negligent or intentional misrepresentation reliance is a key
element. Mere opinions or puffing are
not actionable. For example,-Martha is a
trainer looking for a horse to buy for a young beginning student. Kay, another trainer, shows Martha a green
broke horse that needs lunging for 30 minutes before mounting, and is tacked
with a twisted wire snaffle. Kay states
“this is a great horse for a kid.”
Martha’s client buys the horse based upon the representation.
The
above example would likely not be actionable.
It would not be reasonable for a trainer to rely upon a comment that was
arguably opinion, based upon all the facts indicating to a typical trainer that
it was a horse for an experienced rider.
But
what if the parents of the child who have no horse experience rely upon such a
statement? In this case there may be
more success with a misrepresentation claim since they have no knowledge of the
falsity. (Although
arguably it was still an opinion).
Unlike a trainer, an inexperienced layperson might not realize that the
horse needing lunging and a twisted snaffle indicated that it was not for
beginners.
A
misrepresentation claim cannot be based upon a statement that is mere
opinion. An example of this is in the sales
context; if a seller of a horse states that the horse "will be a sure
winner” at horse shows it will not give rise to a misrepresentation claim if
the horse never wins a ribbon.
What
if, however, a person is looking at a foal to purchase as a stallion and show
prospect and the seller tells the potential buyer that the horse would make a
great breeding stallion and show horse.
If the horse is bought with reliance on the statement, and it turns out
that the horse has breeding and training problems, and it was known to the
seller, the statement would be actionable even if it were deemed opinion; an
opinion is actionable where the defendant acts without good faith and
intentionally misleads the plaintiff.
Strict Liability
The
term “strict liability” refers to holding a defendant liable for harm
regardless of the due care taken. In
cases of horses, there is no general application of the doctrine. However, a particular horse can result in
application of strict liability in a case where the horse was known, or should
have been known, to the owner as full of dangerous propensities. Thus while the owner of an average domestic
horse will not be subject to strict liability for harm—the plaintiff must prove
breach of a duty—in the case of an excessively dangerous horse strict liability
will be imposed.
The
issue in such cases is most often whether the horse is in fact dangerous. For example, any horse will kick, bite, spook
or buck under certain circumstances—that is typical horse behavior and will not
result in strict liability. However a
horse that has an undue tendency to engage in such antics will result in the
imposition of strict liability provided the owner knows or should know of such
tendencies. If the owner is unaware and
has no reason to know of the horse’s dangerous behavior, strict liability will
not apply and negligence must be proven.
For
example, Moira was a horse purchased by Mr. Smith at a local auction. He knew nothing about the horse, but felt
sorry for her as she looked as if she had not been well cared for. Mr. Smith turned her out in a pasture and fed
her, trimmed her feet, and de-wormed her.
After her condition began to improve Karen, a neighbor who rode whenever
given the chance, approached Mr. Smith and asked him if she could ride
Moira. Mr. Smith said fine and Karen
proceeded to get on. The minute Karen
was in the saddle Moira proceeded to rear and flip-over seriously injuring her. Unbeknownst to Karen and Mr. Smith was the
fact that Moira had reared and flipped-over on every rider that ever mounted
her.
Mr.
Smith would not be strictly liable since he had no knowledge of Moira’s
past. What if Mr. Smith was told at the
auction that the horse had serious problems in its past, but did not inquire
further as to the nature of the problem?
Under those circumstances, Mr. Smith could be strictly liable since he
cannot turn a blind eye to accessible facts that would have warned him of her
problems.
Vicarious
Liability--Employer/Employee
“Vicarious
liability” refers to holding a party liable for a tort that was committed by
another. It is typically imposed in an
employment setting; an employer is generally responsible for torts committed by
an employee in the scope of the employment.
If the act was committed in the furtherance of the employer’s business
it is not relevant that the employer had no knowledge of the employee’s
actions.
The
two critical factors in deciding whether an employer is vicariously liable
are: whether the tort was by an
employee; and, whether what the employee did was within the scope of
employment. For instance, an independent
contractor that commits a tort will not result in vicariously liability for the
employing party. An independent
contractor, unlike an employee, has significant control over the direction and
performance of the work.
For
example, Jeff was a groom for Misti Farm. He mucked-out stalls, groomed horses, and
kept the barn orderly and the tack clean.
He worked from 7 a.m. to 4 p.m. each day. Jeff would be an employee since he had to
follow the rules of the owner of Misti Farm,
including the hours worked. When Jeff
forgot to close a gate after turning out the boarder’s horse, Misti Farm would be liable for the injuries that resulted
from the horse getting loose.
Mary
had a mane-pulling and braiding business.
She traveled to farms that sought her services. She was asked by Misti
Farm’s owner to pull all of the horse’s manes for a set price. Mary controlled her style of pulling manes
and when she was to come to the Farm.
Mary would be an independent contractor and Misti
Farm would not, without further evidence of a duty, be liable if Mary neglected
to close a stall door behind a horse and it got loose. Mary would be the responsible party.
With
independent contractors there will be no vicarious liability unless: the
contract involves dangerous work where the principal is charged with a specific
duty, where the act will create a nuisance, where the act will probably cause
injury to others if care is not taken and where the act is illegal.
For
example, Mary was hired as an independent contractor to break two-year olds at
Meander Farm. The farm owner showed Mary
an open field that she could use to training.
The field housed a herd of boarded horses. The horse she was working with broke away
from her on the lunge line and ran to the herd where it proceeded to kick a
boarder’s horse breaking its leg. Even
though Mary was an independent contractor, and possibly did not act with good
judgment, Meander Farm could be found vicariously liable as it had a duty to
provide Mary with a suitable place to train, and certainly made a potentially
dangerous job more dangerous.
An
employer is also not responsible for actions of an employee that occur outside
of the scope of employment. Driving to
and from work are considered outside the scope of employment. However, if the employee engages in an
activity for the employer while on the way to work, the employer would be
responsible for any resulting negligence.
For
example, Sarah is a groom at Meander Farm. The farm owner asks Sarah to pick-up
grain on the way to work since she was unable to do so during her usual work
hours. Sarah agrees and the farm’s owner
faces potential liability when Sarah’s poor driving skills result in a vehicle
accident leaving the feed store.
With
respect to intentional torts, an employer will only be vicariously liable where
such torts are not unexpected in light of the employee’s duties.
Partnerships/Joint Ventures
Partners
are also vicariously liable for the torts of their partners when conducting
partnership business. For example, Mike
and Emma are partners in a horse sales business. Emma used too large a halter to lead the
horse from a field to the barn and the horse’s head slipped out of the halter,
enabling the horse to run off into the street where it hit a car. In an action by the car’s driver for injuries
sustained in the accident Mike could be vicariously liable for Emma’s
negligence.
DEFENSES
TO TORT ACTIONS
Generally
There
are a number of defenses that are available to defendants in negligence
actions. In an intentional tort case
privileges are used to accomplish the defense.
In either case, a successful defense will defeat a plaintiff’s
claim. This is true even though the
plaintiff has successfully established a prima facie case for a particular
tort.
Defenses Based Upon Plaintiff’s
Conduct
The
plaintiff’s conduct frequently gives rise to important defenses in a negligence
claim: contributory negligence, comparative negligence, and assumption of the
risk. Horse cases typically give rise to
such defenses in light of the plaintiff’s typically voluntary involvement in a
high-risk activity.
Contributory Negligence
“Contributory
negligence” involves the plaintiff’s failure to act with due care for his or
her own safety, where such is the actual and proximate cause of his/her
injuries. This is a defense that must
be plead and proven by the defendant—it is not the
plaintiff’s burden to show that due care was taken. Contributory negligence will also not bar an
intentional tort claim.
For
example, Teresa was schooling her horse on the cross-country course at the farm
at which she boarded. The farm had
suffered a storm earlier in the day and branches had blown down on the course, but
Teresa did not walk the course to check that it was clear. During her ride her horse landed on a branch
and fell injuring Teresa. Even though
the farm was negligent in failing to inspect the course after the storm, Teresa
was contributorily negligent for failing to do so and all recovery would be
barred.
If
contributory negligence is found it acts to completely bar the plaintiff’s
recovery. However an exception exists known as “last clear chance.” Even where a plaintiff was negligent, recovery
may be had where it was the defendant who had the “last clear chance” to avoid
the harm.
Comparative Negligence
Many—but
not all--states have adopted “comparative negligence” as an alternative to
contributory negligence since it is fairer to a partially negligent
plaintiff. Unlike the all or nothing
approach of contributory negligence, in “comparative negligence” the recovery
of the plaintiff is reduced based upon the extent of his/her negligent conduct—the
more the plaintiff is negligent, the less the recovery.
By
way of example, Emma boarded her horse at Elms Farm. She rode her horse and then put him back in
his stall. However she neglected to
slide the latch completely through to secure the door. Her horse figured out the error and escaped
trotting down the driveway. Although the
gate at the road was kept closed at all times, the owner of the farm had left
it open to quickly retrieve a forgotten item from the house. Emma’s horse ran out the open gate into
traffic and hit a car. The car was
totaled and Emma’s horse was killed.
In
a suit by Emma against the farm owner, the negligence of Emma would not bar
recovery in a state that has adopted comparative negligence; rather, Emma’s
recovery would be reduced by the proportion of her negligence. (For example, if Emma were to recover a
judgment of $10,000.00 and was found 50% responsible, her recovery would be
$5,000.00).
Note
that in the example, had Emma lived in a state that has not adopted comparative
negligence her negligence would completely bar recovery, regardless of the farm
owner’s negligence.
Assumption of the Risk
The
defense of “assumption of the risk” is based upon the concept that no liability
should result where the plaintiff has consented to, or agreed to assume, a risk. Assumption of the risk may be expressed—as
with a contractual release—or implied.
In the high-risk world of horses, assumption of the risk is frequently
raised in defense of a liability claim.
Assumption
of the risk only arises if the plaintiff voluntarily and knowingly assumed the
risk; risks cannot be assumed if they are not known. If assumption of the risk is present, the
plaintiff’s claim fails completely, as it works to eliminate the duty that is
owed to the plaintiff.
Examples
of assumption of the risk include: Paul
signed a release of liability prior to riding that acknowledged the risk of
changing ground conditions. Paul’s horse
fell in a ground hog hole and Paul was thrown and injured. Paul assumed the risk of the injury and
recovery would be barred. This would be
a case of expressed assumption of the risk.
Melissa
was a student at Lilac Farm and was an experienced rider. She was watching another rider on a difficult
mount and saw the rider get bucked off—twice.
The trainer then got on the horse and was also thrown. The prior day a student was injured on the
very same horse. Thinking that she could
possibly help with the horse she got on and was also thrown and hurt. It could be argued that, even without a
release, Melissa assumed the risk of injury by riding the horse. This would be a case of implied assumption of
the risk.
Implied
assumption of the risk is divided into primary and secondary assumption of the
risk. In primary assumption of the risk
the plaintiff assumes the risk of injuries that are inherent in a sport or
activity. In such a case it is deemed
that the defendant owes no duty to the plaintiff. Primary assumption of risk completely bars a
claim. For example, Tim was an adult
learning to ride. He knew that riders
sometimes fall and get hurt. He was
assigned a horse named Daisy for his lesson.
When asked to trot by the instructor, Tim lost his balance on Daisy and
he fell and was hurt. This would be
assumption of the risk completely barring the claim since falling off is a risk
inherent in riding, and nothing that Daisy or the instructor did increased the
risk.
Likewise,
Sarah was an experienced rider that decided to ride and jump her horse despite
the fact that a heavy thunderstorm had left the riding ring full of puddles and
mud. Her horse slipped landing over a
fence and Sarah was injured. Sarah knew
the risks of falling while riding in mud and assumed the risk.
In
secondary assumption of the risk, the plaintiff’s acceptance of a risk does not
act as a complete bar to recover if the defendant has increased the risk
inherent in a sport. In such a case the
defense is not an absolute bar to a claim, but rather is decided under
comparative negligence principles.
Other defenses
The
following considers defenses that do not involve the plaintiff’s conduct.
Statutes of Limitation
Statutes
of limitation are laws designed to protect against the bringing of a stale
lawsuit. Such statutes bar the bringing
of a claim after a certain period of time following accrual of the action. In order to succeed on this defense a
defendant need only show that the statutorily prescribed time has past.
There
is rarely argument over what statute of limitations period should be applied (eg. state laws have different limitations periods depending
on the nature of the claim—contract or tort).
Rather, the issue frequently debated is what is the
starting point for purposes of measuring the time requirement. The issue is when the claim “accrued.”
In
personal injury actions the time period typically accrues at the moment of the
accident. Cases where injuries appeared
over a period of time are less clear and typically are decided based upon when
the plaintiff knew or should have known of the injury. Typically tort claims are subject to much
shorter limitations periods than contract claims.
Immunities
Immunities
may give rise to a defense based upon the status of the defendant, such as a
family, parent or governmental immunity.
However, these immunities to a greater or lesser degree have been
limited to the point of obscurity.
Self-defense
Self-defense
and self-defense of property are defenses to an intentional tort claim. For example, Harry was placing his saddle in
the tack room of a private boarding stable after he rode. Margaret wanted to use the saddle—without
Harry’s permission—and tried to grab it from him. Margaret was shoved back in Harry’s efforts
to hold onto the saddle. Margaret’s
assault or battery claim could be defended with Harry’s self-defense of
property.
Consent
A
plaintiff’s consent may result in a defense to an intentional tort.
EQUINE
LIABILITY ACTS
Equine
liability acts have now been passed in the majority of states. These statutes seek to reduce the number of
horse-related liability claims. In a
state that has such an act potential plaintiffs are not prohibited outright
from suing, but the likelihood of recovery is greatly reduced, resulting in
some potential plaintiffs walking away from a lawsuit. In states that have adopted such laws, a fall
off a horse no longer means a quick personal injury settlement.
While
all states laws are different, there are certain common elements to the
acts. They typically apply to equine
activity sponsors, professionals or “other persons.” Secondly they limit the liability of such
individuals from injuries resulting from the inherent risks of equine
activities. Injured participants are
restricted from bringing an action where the injury resulted from an inherent
risk. The acts typically define what
constitutes “inherent risks.” This term
is defined broadly to include almost every reaction that a typical horse may
have.
By
way of example, the Virginia Equine Activity Liability Act is set forth in
total:
§ 3.1-796.130.
Definitions
As used in this chapter, unless the
context requires a different meaning:
"Engages in an equine
activity" means (i) any person, whether mounted
or unmounted, who rides, handles, trains, drives, assists in providing medical
or therapeutic treatment of, or is a passenger upon an equine; (ii) any person
who participates in an equine activity but does not necessarily ride, handle,
train, drive, or ride as a passenger upon an equine; (iii) any person visiting,
touring or utilizing an equine facility as part of an event or activity; or
(iv) any person who assists a participant or equine activity sponsor or
management in an equine activity. The term "engages in an equine
activity" does not include being a spectator at an equine activity, except
in cases where the spectator places himself in an unauthorized area and in
immediate proximity to an equine or equine activity. "Equine" means a
horse, pony, mule, donkey, or hinny.
"Equine activity" means (i) equine shows, fairs, competitions, performances, or
parades that involve any or all breeds of equines and any of the equine
disciplines, including, but not limited to, dressage, hunter and jumper horse
shows, grand prix jumping, three-day events, combined training, rodeos,
driving, pulling, cutting, polo, steeple chasing, endurance trail riding and
western games, and hunting; (ii) equine training or teaching activities; (iii)
boarding equines; (iv) riding, inspecting, or evaluating an equine belonging to
another whether or not the owner has received some monetary consideration or
other thing of value for the use of the equine or is permitting a prospective
purchaser of the equine to ride, inspect, or evaluate the equine; (v) rides,
trips, hunts, or other equine activities of any type however informal or
impromptu that are sponsored by an equine activity sponsor; (vi) conducting
general hoof care, including but not limited to placing or replacing horseshoes
or hoof trimming of an equine; and (vii) providing or assisting in breeding or
therapeutic veterinary treatment.
"Equine activity sponsor"
means any person or his agent who, for profit or not for profit sponsors,
organizes, or provides the facilities for an equine activity, including but not
limited to pony clubs, 4-H clubs, hunt clubs, riding clubs, school- and
college-sponsored classes and programs, therapeutic riding programs, and
operators, instructors, and promoters of equine facilities, including but not
limited to stables, clubhouses, pony ride strings, fairs, and arenas at which
the activity is held.
"Equine professional" means
a person or his agent engaged for compensation in (i)
instructing a participant or renting to a participant an equine for the purpose
of riding, driving, or being a passenger upon an equine or (ii) renting
equipment or tack to a participant.
"Intrinsic dangers of equine
activities" means those dangers or conditions that are an integral part of
equine activities, including but not limited to, (i)
the propensity of equines to behave in ways that may result in injury, harm, or
death to persons on or around them; (ii) the unpredictability of an equine's
reaction to such things as sounds, sudden movement, and unfamiliar objects,
persons, or other animals; (iii) certain hazards such as surface and subsurface
conditions; (iv) collisions with other animals or objects; and (v) the
potential of a participant acting in a negligent manner that may contribute to
injury to the participant or others, such as failing to maintain control over
the equine or not acting within the participant's ability.
"Participant" means any
person, whether amateur or professional, who engages in an equine activity,
whether or not a fee is paid to participate in the equine activity.
Acts
1991, c. 358; Acts 2003, c. 876.
§ 3.1-796.131.
Horseracing excluded
The provisions of this chapter shall
not apply to horse racing, as that term is defined by § 59.1-365.
Acts
1991, c. 358.
§ 3.1-796.132.
Liability limited; liability actions prohibited
Except as provided in § 3.1-796.133,
an equine activity sponsor, an equine professional, or any other person, which
shall include a corporation, partnership, or limited liability company, shall
not be liable for an injury to or death of a participant resulting from the
intrinsic dangers of equine activities and, except as provided in §
3.1-796.133, no participant nor any participant's parent, guardian, or
representative shall have or make any claim against or recover from any equine
activity sponsor, equine professional, or any other person for injury, loss,
damage, or death of the participant resulting from any of the intrinsic dangers
of equine activities.
Except as provided in § 3.1-796.133,
no participant or parent or guardian of a participant who has knowingly
executed a waiver of his rights to sue or agrees to assume all risks
specifically enumerated under this subsection may maintain an action against or
recover from an equine activity sponsor or an equine professional for an injury
to or the death of a participant engaged in an equine activity. The waiver
shall give notice to the participant of the intrinsic dangers of equine
activities. The waiver shall remain valid unless expressly revoked in writing
by the participant or parent or guardian of a minor.
Acts
1991, c. 358; Acts 2003, c. 876.
§ 3.1-796.133.
Liability of equine activity sponsors, equine professionals
No provision of this chapter shall
prevent or limit the liability of an equine activity sponsor or equine
professional or any other person who:
1. Intentionally injures the
participant. 2. Commits an act or
omission that constitutes negligence for the safety of the participant and such
act or omission caused the injury, unless such participant, parent or guardian
has expressly assumed the risk causing the injury in accordance with subsection
B of § 3.1-796.132; or 3. Knowingly
provides faulty equipment or tack and such equipment or tack was faulty to the
extent that it did cause the injury or death of the participant.
Acts
1991, c. 358; Acts 2003, c. 876.
As
the above statutes reflect, the equine sponsor is immune from suit provided the
act of the horse was “intrinsic” to horses, as that term is defined. The exceptions to this are in cases of
intentionally injuring the participant, or, where the defendant acted
negligently and there was no expressed assumption of the risk by the
participant (or parent or guardian), or, where faulty equipment was provided
that was responsible for the injury.
As
with any of the equine liability act statutes, they must be followed precisely
in order for an equine professional to be protected. Thus, in the Virginia law a release must
specify the intrinsic dangers of horses that are being assumed.
No
release will be effective against intentional acts or faulty tack.
It
must be stressed that great care needs to be taken with respect to the
releases, notices, etc. required by a particular act. A defendant that does not precisely fall
within the statutory language or requirements will not be permitted to hide behind
the act in defending a liability claim.
INSURANCE
Generally
The
importance of insurance in the high-risk, expensive, world of horses cannot be
overemphasized. An investment in a
costly show prospect can quickly turn to disaster when it permanently disables
itself in a field excursion.
A
student’s untimely fall can result in a lawsuit that potentially can bankrupt
the defendant.
Gambling
without insurance puts your business and personal resources at risk—all of your
resources. Despite the benefits of
releases, equine liability acts, and good horse management practices, lawsuits
can and do occur and even if you win, without insurance you will have to pay
your defense costs. The following are
the types of insurance typically used by horse owners and farms.
Equine Medical and Mortality
Insurance
This
type of policy is a form of life insurance on your horse and covers death of
your horse from most circumstances.
Such policies also typically cover necessary death by euthanasia.
The
need for this type of insurance typically depends upon the value of the
horse. For example, if someone owns a
$500 backyard horse as a pet, it is likely the cost of insuring the animal
would be prohibitive in light of the amount that would be lost in the event the
animal dies. On the other hand, a horse
that is a $50,000.00 show horse would subject the owner to a greater loss in
the event of death, so insurance may be considered. Lastly, it should be noted that many leases
and boarding situations might obligate the owner to have insurance for the
horse regardless of the horse’s value.
Care, Custody and Control
Boarding
stables, and those who care for other’s horses will likely need “care, custody,
and control” insurance. This insurance
covers injury or death of boarder’s horses or horses under your control in the
event that you are determined to be negligent.
You are covered up to the limits of the policy for the value of the
horse.
Commercial liability
A
riding instructor or trainer should consider a commercial liability policy, as
should boarding, training and sales barns.
This policy would cover general liability that may arise from a horse
business. It does not however cover
injuries or harm to your client’s horses—which would need to fall within a care
custody and control policy.
Farm and Ranch
All
horse facilities should have a general farm and ranch policy. This insurance covers loss to real and
personal property. It does not cover
loss to horses specifically.
Worker’s Comp
This
is necessary if you have employees.
Injuries to your employees are covered, but not injuries caused by
employees to others. (For that a
liability policy would be needed).
Other types
There
are many other types of insurance that may be relevant for your horse
operation—a meeting with your insurance agent and/or attorney would be
advisable. For instance there is:
trailer insurance; insurance for riding clubs; mortality and theft; major
medical; loss of use; infertility; individual (non business related) horse
liability; race horse owners liability; horse show coverage.