Your horse is wrongfully killed. Now what?


If a horse is livestock and is injured, fair market value can be recovered because a horse is personal property.  This treats a horse the same as inanimate property, such as a car.  FMV is the amount an average person would pay for the property at the moment prior to death.


If a horse is a pet and is injured, FMV plus special or intrinsic value might be recovered.  (McMahon v Craig No. G040324, 2008 Cal.App. 4 Dist. WL 5610680. The jury in an Orange County suit against a veterinarian for negligence, deceit, and unfair business practices decided a dog had special value exceeding market value and awarded $39,000 for the death of a dog with a low FMV).


Some laws, such as the unique one in Tenn. Code Ann. Section 44-17-403 (2005),  allow up to $5,000 in non-economic damages for the negligent or willful harm to or death of a pet of another.  The definition of pet is limited to a domesticated cat or dog living in or near the household of the owner.  Non-economic damages were limited to, “compensation for the loss of the reasonably expected society, companionship, love and affection of the pet.”  This places pets closer to the category of a human.  If a spouse or child is wrongfully killed then loss of consortium or companionship can often be recovered, though not typically for more attenuated relationships, such as a cousin or grandparent.
 
The American Veterinary Medical Association (AVMA) does NOT agree with recovery of greater than economic FMV damages for the loss of a horse.
Some of their reasons:


1. Increased costs associated with recovery will reduce owners' interest in seeking animal-related services
2. An increase in available damages will drive an increase in claims and litigation and create associated additional costs for defense, settlement, and administration
3. The value of human-animal relationships will be placed above that of most human-human relationships


The greatest argument in favor of damages exceeding FMV is the need for society, through the law, to recognize that the relationship between animals and people are greater than between a person and his inanimate property.  Furthermore, if there is certainty that the wrongful death of an animal (such as veterinary malpractice) will result in damages exceeding market value, then that may encourage settlements outside of court, or will encourage harmed individuals to enforce their rights in court.  If a dog from the pound has a market value of $10, then nary an individual would incur the costs of court to receive that small amount.  If Legislature establishes that a wrongful death resulting from veterinary malpractice is permitted up to $X dollars (similar to medical malpractice statutes), then it may be more worthwhile for injured parties to pursue their claims.


How much do you think your dog, cat, or horse would garner if they were offered for sale right now?  What would an average person pay for your pet? If your dog has been highly trained as a seeing-eye dog, it may be worth more, though even that result is not certain.


If your animal were negligently killed by the vet today, would you be satisfied with receiving only the FMV?  Even if you aren't satisfied with receiving only FMV, do you think that those damages are the best for society as a whole, given the AVMA's reasonings?  Would you purchase insurance on your horse (or other pet) to recoup its value, and not deal with the court system at all?


There are clearly so many public policy issues involved in this discussion!  While instinctively we may think we deserve greater damages for the wrongful death of our pet, because we love them and care for them, awarding greater damages triggers a number of different and complicated results.

Horses must be pulling Santa's Sleigh

Not only did Santa give me a pair of sterling silver hunter spurs, but also a DVD of the World Equestrian Games 2010 in Kentucky!

Here is video of Phillipe Le Jeune's winning ride, and the award to the Canadian horse for best in show:




While I may have been most partial to the Brazilian's style of riding (Rodrigo Pessoa) and to the Belgian Chestnut (Vigo D'Arsouilles), I highly admire all the competitor's ability to show for a week, then switch horses in the final four and continue to exhibit such great riding.

Certainly inspirational to get ourselves in shape this winter for the spring show season!

Merry Christmas!

Horse meat for Consumption

Veterinarians, trainers, owners, and legislators are split as to whether horses can be slaughtered for human consumption (though I defer a listing of both sides of the argument until a later date).  But what about horse meat for non-human consumption?  

What about your lions, tigers, and bears (oh my!) who feast on horse meat?  Some zoos have switched to feeding beef, but horses have been found to be the most natural diet for zoo carnivores, and the meat most simulating what lions would eat in the wild.

Sensitive viewers beware of the photo below


A hungry lion receives a birthday cake made of 10 pounds of horse meat.

Arguments are heated on both sides.

Food for thought.


Horse Law Humor

There are numerous laws on the books that are unlawfully prejudicial or completely strange.  Most of these laws are never enforced, but it always a source of humor, disbelief, and curiosity to consider the laws and why they were written.  

This link will take you to a more complete listing of some outlandish horse laws, but these are some of my favorites (some of these include "antique laws"):

A misworded ordinance in Wolf Point, Montana: "No horse shall be allowed in public without its owner wearing a halter."



In Omega, New Mexico, every woman must "be found to be wearing a corset" when riding a horse in public. A physician is required to inspect each female on horseback. The doctor must ascertain whether or not the woman is, in fact, complying with this law! 


A Fort Collins, Colorado Municipal Code: "It is unlawful for any male rider, within the limits of this community, to wink at any female rider with whom he is acquainted."


It is strictly against the law in Bicknell, Indiana, for a man to leave his new bride alone and go riding with his pals on his wedding day. The penalty is a week in jail.


Paradise, California, retains a most unusual law that says it is illegal to let a horse sleep in a bakery within the limits of the community.


And my favorite: 


An attorney can be barred from practicing law in Corvallis, Oregon, should he refuse to accept a horse in lieu of his legal fees.



Clearly horses have always been an integral part of our lives to have such specific laws!

Note: I have not researched each of these statutes, so it is possible some may be inaccurate, antique, or untrue.

One of my absolute favorites


I love Mr. Ed.  Not only is this show about a horse, but such a clever horse!
He may or may not be inspiring some of my research paper.  Actually... he is.

The first clip is the very first time the new owner meets Mr. Ed.  
To tie this in legally (always the point), pay close attention around minute 8:15, 
"Horse trading is a thieving, conniving, double-crossed business at best, but THIS beats all!"
Part III of my research paper is about that very topic.  How prime.



I included this clip so you can actually know and hear what Mr. Ed is all about!



"How now brown cow?!"

Update May 2012
It appears that the prior youtube links are not streaming.  I've attached a new one below.


Case of the Year 2009

Issue: Are people crazy?
Rule of Law: yes. at least in Arizona.

Here are the facts of the case equine practitioners considered the silliest of the year.

One morning in September 2007, Coates was jogging on the side of a private dirt road in Elgin when he saw his neighbor, S., riding his horse towards him on the same side of the road. Neither man yielded to the other and Coates “r[an] into the face of [S.'s] horse.” S. then turned his horse towards Coates in an attempt to calm it, at which point Coates began shouting at S. and shoving the horse's head and neck. Afraid his horse would become “spooked” and cause an accident, S. swung the reins at Coates, striking him twice on the shoulder, and yelled at him, warning him not to “try to spook [his] horse again.” S. began to ride away and Coates ran alongside S. shouting at him and taking pictures on his cellular telephone.


Coates testified he was familiar with horses and their behavior, having been around them most of his life, and he knew horses could become “spooked” and throw their riders if disturbed. Other evidence showed that, despite this knowledge, he persisted in shouting and shoving S.'s horse's face and neck.



Fortunately, the horse rider prevailed- not on a "who had the right of way" issue, but on the jogger's "disorderly conduct" after they collided.

A horse of many colors


I have been researching for three solid days a seemingly simple question,
but an outrageously unclear answer.

How is a horse legally defined?

Like The Horse of Many Colors in the Wizard of Oz,
it seems that a horse can be any number of legal definitions,
depending on the facts at hand.


Among the options:

A horse is livestock.
Just like cattle, sheep, pigs, etc.
Except in most states it is illegal to kill them for human consumption.
What makes horses immune from being eaten, but not the others?
Is that fair?

A horse is property.
This is the traditional view.
So if your horse is negligently killed, then you can recover their Fair Market Value at the time of destruction, like your car.
But a horse is not treated legally exactly the same as inanimate property,
so if a horse isn't the same as all other property, then what is it?

A horse is a pet.
This has become the prevailing tradition in California.
Pets have rather strict limitations in California law,
and some cities are elevating the pet status from being "owned" to being "guarded" by their human owners.  This change opens the door for a third party to claim guardianship over your pet,
can limit the veterinary options available, such as humane euthanasia, and can expand the tort recovery for a negligently destroyed pet- perhaps moving into the thousands and millions of dollars in "special damages," similar to recovery if your child or spouse has been killed (though loss of consortium, loss of relationship, etc is not included, but more so, "intrinsic value" grounds are used.)
With such classification should horse slaughter for any purpose be prohibited?
If a pet, can abandoned, retired, or overpopulated horses ever be humanely slaughtered for non-human-food purposes? (For example, horse meat has been found as the best natural-substitute for carnivorous animals in zoos, such as lions)
Can horses be used in medical or scientific research?
Can horses be used as an economic investment if legally considered a pet; will horses be subject to labor laws like humans?

_______

All this confusion requires clarity.
Courts cannot be expected to know how to decide cases with such ambiguity in the law,
and equine participants --as subjects of the law-- require foreseeability of how their behavior will be received by the court system.

I feel horses are a valuable economic force in our nation, and that should not be stripped away from the investors.
I don't believe that horses deserve the same legal protection as humans,
but I do hold a high standard for the ethical treatment and welfare of these beasts under our control (that includes wild horses on Federal land).
I think there would be great loss and great gain to any one of these definitions being the unequivocal final categorization of a horse.
Therefore, the legislature must undertake to more clearly define the equid body of law.
That is no small feat, and would be at great cost.


Follow the money! By following the hoof prints!

As noted by the American Horse Council:

The Economic Impact Study’s results show that the horse industry directly produces goods and services of $38.8 billion and has a total impact of $101.5 billion on U.S. GDP.
Racing, showing and recreation each contribute between $10.5 and $12 billion to the total value of goods and services produced by the industry.
The study concludes that there are 9.2 million horses in the U.S., including horses used for racing, showing, competition, sport, breeding, recreation and work. This includes horses used both commercially and for pleasure.  1 out of every 63 Americans is involved with horses.  The industry directly provides 460,000 full-time equivalent (FTE) jobs.
Dressage Warm-Up: World Cup 2005
Quite the impact, no?!
The American Horse Council is a great website by the way; it keeps you up to date on current equine legislation in particular fields.  It's nice to know that President Obama signed the HIRE act-- which extends the benefit of  "expense deduction for assets, including horses, purchased and placed in service through 2010."  
Furthermore, "The Section 179 expense deduction allows an owner who purchases a horse or other business property and places it in service in 2010 to expense up to $250,000 of the cost.  This applies to horses, farm equipment and any depreciable property used in a business."  While there is some fine print, such as different tax tiers for expenses incurred, as a general principle, if you spend $750,000 in eligible property and horses as part of the business, then $250,000 can be written off on the 2009 tax return, and then you depreciate the balance.
The section also includes the numerous benefits of hiring an unemployed worker- payroll taxes are forgiven and there is a $1,000 tax credit given per hired employee- these benefits would be claimed on your 2011 tax return. Cool.
In conclusion, I urge you to know your tax rights, and to consult an equine specialist attorney or CPA to ensure you are receiving the benefits to which you are entitled as a horse and/or ranch owner.

Does California do things the Cowboy way? On a hand shake?


I found Florida Administrative Law Code 5H-26 today.  It contains new laws (two years old) governing the sale and purchase of horses.  At the very top of the list I found some of the most interesting provisions:


(1) Any sale or purchase of a horse or any interest therein in Florida shall be accompanied by a written bill of sale described in Rule 5H-26.004, F.A.C., except as provided in subsection (8).
(2) A person shall not act as a dual agent in a transaction involving the sale or purchase of an interest in a horse without:
(a) The prior knowledge of both the Purchaser and the Owner; and
(b) Written consent of both the Purchaser and the Owner.
(3) No person acting as an agent for a Purchaser or an Owner, or acting as a dual agent, in a transaction involving the sale or purchase of a horse or any interest therein, may receive consideration, compensation, fees, a gratuity, or any other item of value in excess of five hundred dollars ($500), related directly or indirectly to such transaction, from an individual or entity, including any consignor involved in the transaction, other than the agent’s principal, unless:
(a) The agent receiving, and the person or entity making, the payment disclose in writing the payment to both the Purchaser and Owner; and
(b) Each principal for whom the agent is acting consents in writing to the payment.


In summary, if a trainer arranges for two people to meet, for one to sell and one to buy a horse, the trainer cannot take a 10% commission as a finder's fee from both!  If the trainer wants to do so (be a dual agent), then it must be established BEFORE the transaction AND in WRITING.  And look closely at provision (3), limiting a trainer to receive $500 from the transaction, unless in writing and both parties (when both are represented by the same trainer)  agree in writing.  On a standard $20,000 horse, $500 is a pretty far cry from the typical 10% commission (which, by the way, is infrequently put into writing in the California horse world).

Furthermore, the statute also lists certain treatments that must be revealed to a buyer if the treatment was performed on a horse within 7 days prior to sale.  Included: acupuncture and electro-stimulation because it can conceal the "true conformation of the horse." Fascinating.

All this to say, California does not have a congruous statute.  California has hardly any equine administrative laws outside of drug regulations or the racing industry actually.   Presumably if someone wished to bring a case in California it would be on generic "consumer fraud" principles.  While very possibly a sufficient form of recovery, those principles do not provide specific remedies for this particular type of equine fraud as the Florida statute does.

One of the local equine lawyers told me that the greatest volume of fraud she has seen is when Trainer 1 has a client who is willing to pay, say $50,000.  Trainer 1 talks to Trainer 2, who has a client selling a horse for, say $40,000.  Trainer 1 and 2 collaborate and agree to work out a deal to give themselves the greatest commission..  Trainer 1 returns to her client and says that Trainer 2 has a horse at her barn for $50,000.  Voila, instant price inflation based on (what should be) confidential information (the amount willing to pay) between trainer and client.  Trainer 1 has not acted as an advocate for his/her client, but has abused the trust by fraud.

Equally fascinating as the Florida statute: why California seems to be missing an entire body of law.





Insurance and the Horseman


Gerry Spence

Alan Coren


Ah Insurance! The last lawyer I worked with said "If I had a nickel for every time I had a client complain about insurance companies, I would be a millionaire.  The sooner the better if people can realize that insurance companies are in the business of making money, not giving out money."

It can be so aggravating to pay for insurance for years, then at the moment you need the company to follow through on its obligations to you, your accident or incident happens to fit an obscure exclusion, leaving you without coverage.

However, it is incredible when you have faced loss and just like that (snap!), a check arrives in the mail from the insurance company.
And it is for those moments that we continue to insure ourselves in areas not required by law (the way car insurance is required for all drivers).

It is important for you to identify the liability risks you face so you can choose insurance policies right for you.  California does not have an Equine Activity Liability Statute like most states, though there is likely some protection, albeit uncertain, from the standard tort defense of Assumption of Risk
Here are some examples of insurance policies for the equine involved:

If you are a Ranch owner
In lieu of a standard homeowner's insurance policy, opt for a Farm and Ranch policy which can cover barns, outbuildings, and horses killed by fire, drowning, lightning, etc
Have special insurance coverage for employees, they are often not included in Farm and Ranch policies

If you host equine events
Commercial Equine Liability Insurance
(And you could have risk of loss clauses in a waiver separate  from the entry forms)

If you lease horses
Mortality and major medical injury (and possibly major surgery) coverage on the horse you lease

If you board other peoples' horses
Care, custody, and control insurance policy
(And of course if third parties are riding on your property, it can be a great idea to get personal waivers.) 


Insurance requires a lot of personal research, but there's a good reason we have the saying, better safe than sorry!

Use it don't Abuse it

I believe horses often need "tough love."  They are unpredictable, big heavy strong animals, and we need to treat them as such.  However, jerking down on a halter's lead rope, or prodding with small spurs is a far cry from other more extreme uses of force.

Currently I am researching animal welfare and the law.  The professor I work with has requested that I look into animal abuse and to see if there are ways the law can stop the abuse.  I love that I am in a position to advocate for horses that are abused.  But I dislike the fine lines that are often drawn between punishment and abuse.  And I HATE having to see the photos and watch the video clips of forms of abuse.

I've been focusing on whipping because New York has recently passed laws regulating the use of whipping racehorses.  I'm not a racing expert, so I never knew the limitations that were needed in that field.  For example, Europe permits only ten smacks with a whip on the homestretch, whereas the US does not have any limitations.  However, California has passed strict laws regulating the type of whip that can be used, and requires that the end of the whip be padded.  This has been met with great argument in favor and against.  I've read that one jockey was quoted saying that the whip is no longer a whip, it is like hitting the horse with a marshmallow.

As I am more proficient in non-racing English riding, namely jumping, I was "happy" to come across an article about the use of the whip in show jumping.  (Happy is in quotes because it is fortuitous as to my research, but unfortunate as to the experience of finding the information)

Here is a video clip accompanying the article:



As the article says: 
"The FEI and the United States Equestrian Federation (USEF) have both initiated charges under their respective rules against Michael Morrissey (USA), following an incident in class 101 at the Wellington CSI 2* held on 27 February 2010. The FEI will also be investigating the role of the Ground Jury in this incident."


I imagine some will find this clip completely harmless- that the horse is a large animal and the whips are like mere taps.
Others will likely say that if a horse is not well trained enough to perform without that kind of hitting, then the horse and rider shouldn't be out there at all.
Then of course there are the more ardent activists who would say a whip should never be used on a horse, just as you should never whip a child (though perhaps a hand slap would be okay on the flanks, like spanking a child's bum?)

If you think excessive (unreasonable or cruel) whipping should be regulated, should it be done by individual industries (dressage or racing federations), etc, individual equine organizations (such as AQHA, HJA, etc),
or should it be done by the law?

Should it be civil with fines imposed (jockeys are typically fined about $500 for misusing a whip in a race),
Or should it be a criminal misdemeanor, and the equivalent of horse abuse, such as neglecting a horse causing it to die of starvation (California Penal Code Section 597.1)?

Whips can be beneficial in riding- sometimes a whip is used in dressage with no more force than a single fly landing on the horse hide.
Sometimes a whip is used in racing to guide the horse off the rail where the footing is often deep and dangerous.

I personally don't carry a whip on my horse.  I believe he must have been abused by an owner in the past, and so now is terribly scared of any whip in any situation.
And with my horse, he responds better to firm kindness and persuasion than to force.  I think he knows that at nearly 2,000 pounds there isn't much I can force him to do!

I am firmly against excessive whipping.
But I am having a harder time defining the line,
and then knowing the remedy.
(Thus, my research project!)

Horse Imagery

While I could discuss legal issues involved in the copyright and distribution of images of your horse, or perhaps issues of "horse labor" law and the hours and conditions permitted to use horses in advertising, I think for today I'll just enjoy the beautiful photos!









It seems horse ads have great appeal and effect!

Cross-Country Conundrum


Cross Country (X-Country) is one of three phases in Three Day Eventing competitions.  X-Country consists of approximately 15 outdoor hurdles composed of natural-looking elements, and the rider must maneuver a galloping horse around the course within a certain time frame. 



This New York Times article (2008) discusses the 2006 riding death of a young woman from my area.  Her parents contend that their 17 year old daughter's death was a wrongful death on the grounds that "the death was caused in part because the course was made more dangerous to make it more 'thrilling' to spectators."
________________

Is this a classic case of "assumption of the risk?"  Or were the course makers deliberately creating an unreasonably dangerous course for the sake of excitement?

I made the personal decision that X-Country was too risky for my taste.
Yet I feel my personal decision should not be forced onto other consenting adults; however, I would like to see a comprehensive evaluation by X-Country experts of what constitutes a safe course or not.  The evaluation should be drafted into concise written standards, then followed by X-Country course hosts.  Failure to adhere to those standards would give rise to negligence per se.

Riders should never participate in a higher level that they, or their horse, are unprepared to complete safely and successfully.



About me!


Welcome to Ribbons and Red Tape, a blog about horses and the law!



I was raised in a riding and ranching family in Northern California, and I currently live with my husband in San Francisco.

My first pony was a green, POA, rescue pony named Sierra Blue, who had a penchant for rolling while being ridden, bolting for home while out on X-C, and wiggling under the paddock fence in nightly escapades.  I was just 5 years old when we became a team; despite her mischievous ways I loved her dearly, and she taught me important lessons of how to be a persevering and determined rider.

I continued my riding career to achieve the H-A ranking in the United States Pony Club (and competed in Tetrathalon Nationals in Lexington, Kentucky and Dressage Western Regionals in California),
served as a team member and president of my Westmont College polo team,
and am a hunter/jumper on the California show circuit.
Recreationally I have also enjoyed endurance riding, cutting, and vaulting;
I'm always looking for more equine fields of riding and sport to join, in case you have recommendations!


I am an attorney licensed to practice law in both California and Kentucky.

Have a question, comment, or submission?
I welcome guest post submissions, as well as horse photos!
Contact me:

RibbonsandRedTape@gmail.com
www.CharltonEquineLaw.com