LEGAL ASPECTS OF HORSE MANAGEMENT
LESSON
TWO: TORTS PART I
What
is a tort? No, it’s not a type of
dessert (that’s spelled “torte”).
Rather, a tort is a legal term that relates to the liability that arises
in cases of personal or property damage caused by another’s negligent or
intentional conduct. Torts may be
negligent or intentional. This lesson
will cover the general legal principles concerning negligence; Lesson Three
will cover intentional torts, as well as defenses to torts, equine liability
acts and insurance.
Negligence
“Negligence” is a legal concept that
brings fear to the minds of many horse owners and businesses. Most horse persons have at one point or
another thought about the possible consequences of someone or something getting
hurt by a horse. Some may have been a
party to such a lawsuit.
How the law defines “negligence” is
best set forth in Black’s Law Dictionary (Ed.) which states:
Negligence is the failure to use such
care as a reasonably prudent and careful person would use under similar
circumstances; it is the doing of some act which a person of ordinary prudence
would not have done under the circumstances or failure to do what a person of
ordinary prudence would have done under similar circumstances. Conduct which
falls below the standard established by law for the protection of others is
unreasonable risk of harm; it is a departure from the conduct expectable of a
reasonably prudent person under like circumstances."
Translated in plain English,
“negligence” is conduct that is not “reasonable” and which causes an
unreasonable risk of foreseeable harm to another. This lesson will address only negligence as
a civil concept; criminal law issues are addressed in Lesson Six.
Negligence involves a legal concept
that is very fact specific when applied in an actual case. This lesson will
address the application of the above legal concept of “negligence” as it
relates to the horse world. Specifically,
we will cover negligence as it relates to instructors or trainers, farms,
boarding facilities and sellers.
A. GENERAL PRINCIPLES
Every negligence action requires
certain elements to be raised and proven.
Although the elements may vary somewhat depending on the form of the
negligence claim, or the jurisdiction it is brought, certain elements are
essential in all negligence actions:
1)
Duty
2)
Breach
(of duty)
3)
Causation
(a)Actual
Cause
(b)Proximate
Cause
4)
Damages
All
of these elements must be proven in order for a plaintiff to win his or her
case. For example,
Susan has a pony named Yoyo. Sarah is a friend of Susan. Susan watches Sarah’s riding lesson at Meadow
Mist Farm and hears Sarah’s riding instructor tell Sarah to use her crop before
the jump (Sarah’s horse is a “quitter”).
Susan tries this method while riding her pony Yoyo at her home. Yoyo reacts by stopping at the fence, causing
Susan to fall and suffer injuries. Is
Meadow Mist Farm liable for Susan’s injuries since Susan did something
suggested by Sarah’s riding instructor?
No, since under these facts there was no such duty owed to Susan by the
farm or the instructor.
(A). Duty
Without the defendant owing the
plaintiff a duty, no negligence action will succeed. The legal concept of “duty”, as it relates to
a negligence action was first stated in the old case of Palsgraf v. Long
Island Railroad Co., 162 N.E.2d 99(N.Y. 1928). In Palsgraf, the railroad guards tried
to boost a passenger onto a train that was moving. In so doing, a package that the man was
holding fell from his arms and onto the track where it exploded. The legal issue in the case was whether a
woman waiting on the other end of the train platform could recover from the
railroad for injuries suffered when the explosion of the package caused a scale
on the platform to fall.
In finding that no such duty existed,
Chief Judge Benjamin N. Cardozo delivered the (4-3) majority opinion, wherein
it was held that the forseeability of the risk defines the duty that is
owed. The court concluded that since it
was not foreseeable that the possible carelessness of railroad employees would
cause a package to explode resulting in damages throughout the station, no duty
existed. Important to this decision was
the fact that the package did not appear to contain anything explosive. This
principle applies in a horse negligence case, as seen in the above example with
Susan and her pony Yoyo. Since Susan was
outside the ambit of danger there was no duty owed to her by the farm or
instructor.
It may however be noted that in Palsgraf
a dissenting judge disagreed, and stated that there was a duty owed since there
was a general duty to refrain from an act that might hurt another and liability
might arise to even those outside the “zone of danger.”
This case is important in negligence
actions as it exemplifies the rule that a duty is only owed to those who are in
the foreseeable zone of danger. If there
a risk of foreseeable harm to the plaintiff, a duty is owed. However, this is determined within the realm
of reasonableness. The fact that there
is a remote possibility of injury will not give rise to a negligence
action. The risk of harm must be probable
not just possible.
However, the mere fact that a
risk is unlikely or remote will not always relieve a defendant of
liability. Even if the risk of harm is
remote, liability may be found where the seriousness of the harm is of such
significance that care must be taken.
This should be of particular interest to horse owners and operators
since frequently the potential risk of serious injuries is great. The magnitude of the potential harm (broken
bones, death) is so great that care may need to be taken to protect others from
a remote risk.
(B). Breach
An additional essential element to a
negligence claim is the existence of a breach of the duty that is owed to the
plaintiff. For example,
--Mary is a riding instructor. She is giving Jim his very first riding
lesson. Jim grooms his pony Kip and then
tacks him up as directed to by Mary. Kip
is led down the mile long driveway to a riding ring, where Jim is told to
mount. Mary does not check Kip’s girth
before Jim gets on, though she always typically does so. As Jim begins to mount the saddle slips and
he is injured. Mary has breached a duty
to Jim.
In this example, Mary has breached a
duty owed to Jim to guard against a foreseeable risk of harm—the risk of a
saddle slipping. Important
considerations in determining the existence of a breach are the foreseeability
of harm, the potential gravity of the harm, the effort required to take
precautions, and the defendant’s conduct.
In the above case, it is clearly a foreseeable risk that a girth may
loosen prior to mounting, the potential for harm is great, the defendant had no
awareness of either the risk or the necessary precaution, and the effort of
precautions (tightening the girth immediately prior to mounting) was
minimal.
An additional factor to be considered
in determining whether someone has breached a duty is the notion of the
“reasonable person.” In order to avoid
liability it is critical that a defendant act as a “reasonable person” would
have if faced with the same circumstances.
The fact that the defendant acted with good intentions and thought he or
she was guarding against a risk is not enough; the issue is whether a
“reasonable person” would have.
A “reasonable person” under the law is
not overly cautious or perfect. A
“reasonable person” is what is considered to be an average prudent person. As such, a “reasonable person” is assumed to
know facts that most adults do in the community—regardless of the fact that the
person may be new or a visitor to a given community. For example, a city person visiting a farm is
deemed to know that a horse may kick, since individuals residing in both a city
and the country would typically understand this fact.
This standard of care may require
application of certain circumstances, or particular facts relating to the
defendant. For instance, a defendant’s
standard of care may need to be considered in the context of the fact that the
defendant is physically or mentally disabled, a minor, or has superior
training. Similarly, a circumstance—such
as an emergency—may be considered in determining whether care was exercised.
Whether the standard of care has been
met may also be apparent from a statute.
A statute may dictate that its violation results in civil liability, or,
it may set a standard of care that if breached may result in negligence.
Horsepersons must recognize that any
time a corner is cut (such as in not checking the girth before mounting) it is
likely that an accident—and a breach of duty—will occur.
(C). Proof (Evidence) of Negligence
(1). Custom
It is the burden of the plaintiff to
prove a case of negligence. Custom is
one such way that a plaintiff may establish a breach of a standard of
care. For example,
---It is customary in riding for mares
and geldings not to be turned out with a stallion. Jeff, a groom at Echo Farm, turned out the
stallion “Dynamite” with a group of mares.
Shortly thereafter Dynamite was injured by the kick of an irritable mare
causing serious injuries. Since Jeff did
not act as is customary in the horse world it may be found that he breached a
standard of care and Echo Farm, as Jeff’s employer, would be liable for damages
to the stallion’s owner.
Of course evidence of custom may also
be used by a defendant. Complying with a
custom may either establish that someone acted reasonably (non-negligent) or
unreasonably (negligent).
Note: If the custom also constitutes the violation
of a statute, the custom will not be the standard of care for a negligence
claim. The statute, not the custom,
prevails. For example, if it were customary in riding to ride facing traffic,
but the law stated that riders must ride with traffic,
a rider would not have met the standard of care by riding against traffic.
(2).
Res Ipsa Loquitur (translated: “The
thing speaks for itself”)
“Res ipsa loqutur” is a Latin term that relates to the type of
evidence that permits a jury to infer that negligence and causation resulted
from the mere occurrence of an event and the defendant’s involvement in
it. This concept is applied where there
is an event that would not occur in the absence of negligence, and the
defendant was the cause of the event. It
is used in a case where there is no direct evidence and it permits an inference
of negligence (which may be rebutted).
For example, some (but not all) courts
will use res ipsa loquitur where a horse gets loose on a highway and causes
injuries.
D. Causation (Factual and Proximate)
The element of causation demands that
a defendant is only liable for damages that are caused by him or her. Causation may be either factual or proximate.
Factual causation involves the facts
that actually occurred. It concerns a
finding that “but for” the actions of the defendant the plaintiff would not
have been harmed. Proximate causation on
the other hand concerns whether it is fair to hold the defendant responsible
for a harm that was foreseeable and could have been avoided.
For
example,
--Sarah was hauling Sue’s horses, but
failed to fill the already low fuel tank with gas. The truck stalled causing an accident with
the truck and trailer and injuring the horses.
In this case “but for” Sarah’s neglect the harm suffered by the horses would
not have occurred, and it was foreseeable that a truck without gas might stall
and cause an accident.
Note: Causation in fact does not need to be proven
with exact certainty; liability may result if it more likely than not that the
defendant’s conduct caused the harm.
Unlike factual causation, “proximate
causation” relates to the fairness of holding the defendant responsible. It relates to the concept that one should not
be responsible for all consequences of one’s actions to the extent the
consequences are unforeseeable.
It is not necessary that the defendant
foresee the exact plaintiff and the harm suffered; rather, a person will only
be responsible if the danger of harm is to a class of which the plaintiff is a
member. It is also not necessary that
the defendant be capable of predicting the exact manner in which the harm
occurred so long as the harm that was actually suffered was in the same general
sort that may result from the defendant’s conduct. For example,
--Sue is a riding instructor and decides
to challenge her student Mark, who has never ridden, with a spirited
Thoroughbred, who was just retired from the track. The horse bolts to the barn with Mark,
resulting in him falling and striking his head.
Although Mark was wearing a helmet, he had an “eggshell skull” which
resulted in significant head injuries that a normal person would not have
suffered in such a fall. Sue would be
liable regardless of the inability to foresee Mark’s exact injuries, since her
negligent conduct started the events that resulted in a foreseeable harm (a
fall off the horse causing a head injury).
What is the effect on proximate cause
if a person (a rescuer) attempts to assist the plaintiff in avoiding the harm
caused by the defendant and the rescuer either is injured, or the plaintiff is
injured more seriously? In such a case
there is no break in the causation and the defendant may be found liable to the
extent that the rescue attempt is for an imminent harm, and the rescue effort
is in response to the risk caused by the negligent act.
For
example,
--Nathan (a trainer) had a horse
breakaway from him while being led to the field to be turned-out. Nathan carelessly had the halter unbuckled
over the horse’s head, and the headstall was not behind one ear, permitting it
to slip-off. The horse started to head
toward the road, and Karen, a boarder at the farm, jumped out to catch the
horse. The horse trampled Karen, who was
injured, and proceeded to run down the driveway where it hit a car. The car was totaled. In this case, even though an act intervened
(Karen) Nathan would be responsible for the harm both to her and the car. It is foreseeable in this case that someone
might attempt to grab the horse.
Similarly, once a negligent act has
occurred it is also irrelevant that someone else failed to prevent it. With limited exceptions, there is no
obligation to render assistance to one faced with harm. However, most states contain “good Samaritan”
laws, which provide immunity to persons that help at the scene of an
accident.
For
example,
--Sarah lost control of her trailer
and it crashed, causing her horses to get loose on the road. A passing motorist stopped to help, but
began chasing the horses causing them to run into cars and get hit. The motorist would have no liability for
negligence.
(E).
Damages
The final element required in a
negligence case is damages. If no
measurable harm was caused by the negligent act, no liability for negligence
will arise.
2.
Types
of Negligence Claims involving Horses
(A). Instructors/Trainers
An instructor or trainer owes a duty
of care to a horse’s owner or a student.
While an instructor is not obligated to prevent a risk that is inherent
in riding, he/she is bound to not increase the risk. For example,
--Carla was learning to jump and,
after several successful attempts over a crossrail, her instructor Karen set up
an oxer which she told Susan to canter.
Although this jump was a height that Carla was comfortable with, it did
not have a groundline and the second bar of the jump was lesser in height than
the first. Carla’s horse misjudged the jump, left the ground too early and
landed on the jump causing the horse (and Carla) to fall.
In the above example, even though
Carla knew that jumping was more dangerous than flat riding, and knew that a
horse might misjudge a jump and fall, it was nonetheless the instructor’s duty
not to increase the risk inherent in jumping by failing to provide a ground
line. An instructor is deemed to have
superior knowledge of riding issues, and liability will ensue if the standard
of care is not met.
Thus, for example, an instructor may
be responsible for selecting too difficult a horse for a particular student,
for using broken or faulty tack, for failing to check tack, for the location of
the lesson (e.g. in the vicinity of loose frisky horses in a neighboring
field), or failing to take appropriate action when a lesson horse begins to act
unruly.
(B).
Farms/Boarding Facilities
When a person boards a horse at a farm
a “bailment” is created. This legal
concept is applied any time a person leaves property in the care custody and
control of another. A bailee is the
person to whom the property is left, and the bailor is the owner of the
property. In the typical horse arrangement,
the horse owner is the bailor and the boarding farm is the bailee.
A bailee is
required to exercise reasonable care towards the bailor’s property. If the purpose of the bailment is solely to
benefit the bailee he/she must take extraordinary care.
--Susan boards her horse at Brookriver
Farm. She needs a place to keep her
horse and pays the farm $400.00 per month for full care board. The farm is obligated to take reasonable care
of Susan’s horse.
Compare
the following example:
--Mark agrees to let Bill have his
horse on a month to month basis so that Bill can compete in barrel racing. Since the primary point of the bailment is to
benefit Bill, Bill as the bailee is obligated to take extraordinary care of
Mark’s horse.
What is reasonable care? It is the care that is accepted as reasonable
for horses; as previously stated, instrumental in reaching a conclusion of
whether care is reasonable is custom and usage in the industry.
It is also important to remember in
any negligence case that it is not necessary to find that the defendant
intended to commit harm. By way of
example,
--Sally boards her horse at Merryriver
Farm. Her horse is out in a field that
is fenced with horse-suitable wire mesh fencing. A section of the fence however is torn;
Sally’s horse gets his leg stuck in the gap and is seriously injured. The farm was aware of the gap in the fence,
but hadn’t yet gotten to fix it. The
farm is liable regardless of the fact that it did not intend the horse to get
hurt.
Lastly, it should be noted that a farm
is liable for the negligence of its employees; care must therefore be taken is
hiring, training, and supervising a farm’s staff.
C.
Property
Owners
In addition to the above, a farm owner
has responsibilities to one on his/her property. The legal system historically classified
people on the premises of others. There
are:
--trespassers
(no permission to be there)
--licensees
( social guests)
--business
invitees (customers).
The importance of the distinctions
lies in the fact each is afforded a different duty or standard of care from a
property owner. For instance, a
landowner is required to take little, or no care in connection with a
trespasser. A licensee is afforded
greater care than a trespasser, but the invitee is entitled to reasonable care
from the land owner.
As the above illustrates, the
classification of persons on one’s land limits the liability that is owed to
such person otherwise. It essentially
acts to limit a landowner's liability.
For
example,
--Paul has a private cross-country
course that he uses to school his horses.
Sam, an aspiring eventer, sneaks onto the course while Paul is away, and
is seriously injured when his jumping horse hits a branch while landing over a
jump. Paul in this case would owe no
duty to Sam as a trespasser. If Sam was
a student of Paul’s the result might be different since it could be argued that
Paul was negligent in not inspecting and repairing the course prior to jumping.
The freedom from liability for
injuries to trespassers is not without exception. Courts typically conclude that a child
trespasser is entitled to different treatment in certain cases. This is also known as the “attractive
nuisance” doctrine. Child trespassers are
owed a duty by landowners for harm caused by an artificial condition (man-made,
not natural condition) on land where the landowner knows or has reason to know
that children are likely to trespass, that there is a great risk of harm, and
that the burden of eliminating the danger is small compared to risk of harm.
The duty owed licensees is somewhat
greater than trespassers. A landowner
owes a licensee the duty to warn of known dangers that the licensee is apt to
discover.
For
example,
--Rose gave Jim permission to ride
across her land to access a trail. Rose
knew about a loose wire that was sticking out near the gate, but forgot to warn
Jim about it. Jim’s horse got caught in
the wire and was injured. Rose may be
liable for failing to warn Jim about the wire, or repairing it.
In the above example, the result would
be different if Rose did not know about the wire since she was not obligated to
inspect the property for dangers, and was only obligated to warn of known
dangers.
Unlike licensees and trespassers,
invitees are entitled to full reasonable care by a landowner. A landowner owes a duty to invitees to
inspect for dangers, repair dangers, guard against dangers, and warn of
dangers. This includes not just known
dangers, but also dangers of which a reasonable landowner would be aware. The landowner is obligated to find any
dangers. Therefore, how a person is
categorized on one’s land can greatly affect liability.
However it should be noted that some
courts do not categorize persons that enter another’s property and rather see
such status as a mere factor to be considered in determining liability.
D.
Lessor’s
Liability
It is generally recognized that a
lessor of land is not liable for defects on the leased premises since, not
being in possession, there would not be knowledge of
the defect or the ability to guard against it.
However this rule is subject to six exceptions. A lessor may be subject to liability: where there is an undisclosed dangerous
condition known to the lessor but not the lessee; where the condition poses a
threat; where the premises are leased to the public; where the area is under
the lessor’s control; where there is a contractual duty to make repairs; or,
where the lessor has negligently made repairs.
The above demonstrates general
principles of tort law and negligence, particularly as it relates to those in
the horse world. The following lesson
will continue looking at tort law and address intentional torts, defenses to a
tort action, equine liability acts, and insurance.