Can you be sued for your salty, crabby, emotional Mare?

I shared a story with a fellow blogger recently about our mare Bella, who meets the stereotypical perspective of (the not so positive) sides of a mare: touchy, easily annoyed, opinionated, and petulant.
We will literally love Bella to death; she is a beautiful girl, and a gorgeous mover.  We are so fortunate to have had her in our lives for the past 10 years, and hope we have another 10 with her.
However, those who know Bella agree that for all her positive traits, she can be a bit of a grouch to other horses.

Can having a horse, known to have a grouchy side, give rise to a legal liability?
In the world of dog bite laws, there is more or less a "one bite rule," where if a dog has never before bitten anyone, and the owners had no reason to know that a dog would bite a person, then the owners would (usually) not be held liable.

Source: addresses correcting horses that bite

Milt Toby wrote an interesting blog post on whether the "one bite rule" applies to horses, and he concluded that in some states at least, it does.
In a Connecticut case the judge held:
"The owner of a horse, classified as a domesticated animal, is only liable to an injured plaintiff if the owner had actual or constructive knowledge of the horse’s propensity to attack other animals or people." 

Personal injury law varies according to whether the property owner owed a duty to the injured party.
For example, a landowner doesn't owe as many duties to a trespasser as he would to someone invited onto the landowner's property.

It's hard to know what a judge or jury would consider "propensity to attack," or "violent propensity of the horse."
Many horses get worried when other horses get too close to their food.  If a child feeding treats or grain to horses in a paddock or over a fence and his hand is bitten by a horse known to be jealous or greedy around food, would the horse owner be liable?

Frankly, you never want to even be in the position where you have to defend yourself- such as having to argue a victim assumed the risk of injury of harm, or that the victim provoked the horse.

While the laws are not completely clear, and vary according to state, if the horse that we know to be grouchy or needy at times has never bitten (or intentionally kicked) any human or any horse or animal (or attempted to), then it is likely the horse does not have a 'propensity for harm.'

Source, The Equinest, "Horses in Motion" post

Takeaway: always be safe and smart, never allow non-expert horse people handle higher-maintenance performance horses (or ornery ones); feed food aggressive horses far from other horses; and have zero tolerance for aggression (i.e., if a horse is a kicker, tie a red ribbon in his tail when with others, and at home teach him kicking is unacceptable; find a great article here on kicking and correction).

I know that mares are given a hard time for stereotypical mare behavior, but I cannot end this post without firmly stating that many mares have highly desirable levels of sensitivity, patience, work ethic, and wisdom.
(And of course, the above discussion applies to geldings as well!)

Immigration Law: the International Equine Professional

Many disciplines and aspects of the equine world have need for foreign riders and equine participants.
This may include foreign trainers, riders, competitors, jockeys, grooms, and handlers.
Because immigration law can be complex, the next few blog posts will break down the main categories of equine immigration to the U.S.

Argentine Adolfo Cambiaso, with a handicap of 10 goals, considered by most as the best polo player in the world.

First: the International Equine Professional

My family often plays polo with Argentine polo players; Argentina is known throughout the world as producing some of the top polo players (such as Cambiaso, Figueras, etc.).   Argentine polo professionals often travel to the U.S. for the polo season or for competitions.

Notable professional equine athletes include Olympic riders, Pan American Game team members, and World Equestrian Game participants.  For such riders, the P-1A Visa  is likely the most appropriate and is for riders who intend a temporary stay in the U.S.
The P-1 Visa is reserved for riders who are exceptional in their field, a standard measured by whether the athletic achievement is recognized or renown in more than one country.

A U.S. sponsor, company, or employer must file a petition for the particular equine rider with the Citizenship and Immigration Services department.  The petition must contain details of the rider's international recognition, which might include: the rider's international ranking, a written statement from sports media or a recognized expert in the sport, or proof of significant participation on a U.S. or International team.

The P-1 Visa would permit the equine athlete to enter the U.S. for a specific competition, event, or performance, and might extend to an entire season of the horse sport (such as the summer polo season).  The equine athlete could also enter the U.S. for "promotional appearances."

Possibly a "promotional appearance," Argentine Nacho Figueras, handicap of 6 Goals

Family members (dependents) of the accomplished equine athlete would apply for a P-4 Visa in order to accompany the athlete, and there are other P Visa classifications for the equine athlete's support team, such as a coach or trainer.

-I know this post was "polo" heavy, but don't worry, I'll move to other disciplines in further immigration posts!-

Jumping with Joy!

I took the California Bar Exam at the end of July, and after an interminable 3.5 months of waiting, I received my results: I passed!
When I read my name on the pass list I was flooded with relief from stress and happiness of success;  I won't ever forget that monumental day.

Thank you for reading and learning along with me on this blog over my past year of law school, the bar, and now my results.  You have followed me on one of the most significant rides of my life.

I now plan on taking the Kentucky bar in 2012 so that I can even further meet the legal needs of our equine community. 
I am looking forward to continuing my blog and following the equine adventures of my fellow bloggers.

Happy Riding!

I have updated this blog's disclaimer in the left-hand column, and have included it below:
"I am an attorney licensed in the state of California.  As a reminder, no information on this blog should be taken as legal advice.  All information on this blog is only for the purpose of sharing our equine interests within a legal context.  This blog cannot create an attorney-client relationship between you and the blog author.  This blog is not a substitute for competent legal advice from a licensed professional attorney in your state."

The photo was taken a couple weeks ago with my latest hunter project, Sophie, a baby we bred to my father's first polo horse and a Criollo Argentine polo stallion.

Liability: Oh what fear you strike in the horseman's heart!

Liability: one of the greatest fears of barn or horse owners that they will be sued for an injury  caused  by their horse, or  that occurs on their property, and will then incur hundreds or thousands of dollars of costs in court or in a settlement (clearly, my own definition)

Bruce Lauritzen, "Horsefly." Oil on Canvas, 24" x 24"
For the rest of my photos of the "Equitation" Art Exhibit, click here for the Facebook album.

I started this blog as a place to collect information for my equine legal research project.  In my efforts to always expand my legal knowledge, I continue to mull over oddities and conflicts in the law (and trust me, there are many!).

I recently stumbled upon an interesting intersection of laws, so I wanted to write them out here to try to explain to my readers, and to myself, how they all connect.

Please note this post is NOT meant to provide a comprehensive list of every defense or cause of action available for horse participant injuries; these are a select few that I find both interesting and correlating. 

46 US states have Equine Activity Liability Acts (EALA), which limit the civil liability of a horse owner/ land owner/ show sponsor for damages incurred by an injured party, if the injuries arises from an "inherent risk" of the equine activity. (Click here for a map of state EALAs)

Defendant's defense when no state EALA:
For the 4 states that do not have an EALA, including California, liability can be limited by:

1. Having a participant sign a valid Waiver of Liability, and thereby acknowledge the risks involved in horse participation.

2. The theory of Assumption of Risk: if a Waiver of Liability was not signed, or if it is invalid, then a horse owner/ sponsor/ etc. can claim that by participating in riding or other such equine activity, the injured person knowingly Assumed the Risk of the dangers of riding.

3. Recreational Land Use Statutes: these are state-specific, but in California Civil Code Section 846, merely permitting riders onto your land, without specifically inviting them or charging them a fee to ride on your land, does not give rise to a duty to warn of dangers on the property

Plaintiff's Causes of Action
If the state does have an EALA, the Plaintiff would first argue that it should not apply to his or her particular situation (because of willful, wanton behavior, not an inherent risk to the horse activity, etc.).  And if the Recreational Land Use Statute is inapplicable for the situation, and the injured party did not sign a Waiver or Release (or it is invalid under the circumstances), the party may bring suit under:

1. Animal Control Act: this would be used most likely in a non-riding situation, but perhaps if a bystander is bitten or kicked by a horse at a facility.  For example, in Illinois the law is that:

"If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained."

2. Domestic Animals Running at Large Act: again citing to Illinois as an example, if a horse is not kept restrained in a reasonable or necessary manner and becomes loose and injures someone, then the owner or custodian of the horse is liable for those damages to a person or property.

I always look closely at state EALA statutes, particularly because California is one of the rare states that has chosen thus far not to enact one.  There are pros and cons to EALAs, which I will discuss in a blog post at a later date.
It is intriguing to me that there are so many different avenues to bring suit or a defense when a person has been injured by a horse.
Does your state have an Equine Activity Liability Act?
If so, do you pay it any attention?

The Government and The Horse: Regulating Wild Mustangs

There are a number of bills and laws regarding the regulation of wild mustangs.
I'm sure you are aware that the government controls the life and existence of these horses, though the Bureau of Land Management (BLM) seeks recommendations from private, non-government persons, in managing the horses.
I've written on this topic before, and more fully explained the 1971 Act in that post.

The Wild Free-Roaming Horses and Burros Act of 1971

Sec. 3.
All wild free-roaming horses and burros are hereby declared to be under the jurisdiction of the Secretary for the purpose of management and protection in accordance with the provisions of this Act. The Secretary is authorized and directed to protect and manage wild free-roaming horses and burros as components of the public lands....
The Secretary shall maintain a current inventory of wild free-roaming horses and burros on given areas of the public lands. The purpose of such inventory shall be to: make determinations as to whether and where an overpopulation exists and whether action should be taken to remove excess animals; determine appropriate management levels of wild free-roaming horses and burros on these areas of the public lands; and determine whether appropriate management levels should be achieved by the removal or destruction of excess animals, or other options (such as sterilization, or natural controls on population levels).
I shared this documentary, among others, on my Facebook page.  The Napa Valley Film Festival is featuring three equine films (my favorite is the Wild Mustang Challenge, go check out the trailer that I posted!)
The documentary below is a one-sided point of view on the wild mustang issue.
Typically I prefer a documentary that shows both sides of the story, but nonetheless, I wanted to share it here because it is important we are aware of the laws and tensions affecting horses.
I personally do not think the best solution is to be hands-off with the mustang population, I think that would be inhumane.  
But watching the horses be shipped into Mexico was difficult footage to see, because once they cross our borders, we can't control the humane treatment of providing food and water.
A tense problem, indeed.

Everyone loves a little one: Babies and Breeding

I had two very special baby moments last week:

1. Our little filly Sophie is growing up, and I jumped her over her very first cavaletti! Milestone for the baby foal book! (note: she is now 4.5, so no, I am not riding or jumping yearlings!)

2. My sister had her little girl on Friday, and I am so happy to welcome a healthy and beautiful little niece!

All these babies on my mind leads me to, what else?! 
Legal implications of breeding agreements and foal exchanges!

Percheron Filly; Source

Have you ever used a breeding contract or been involved with a breeding arrangement, or think you might in the future?  We've bred 3 fillies successfully, but one mare (the one with the best pedigree, of course) just would not take despite multiple efforts. 
Fortunately we had an agreement in place regarding breeding fees, so we avoided any miscommunication.  We left our mare at a facility where she would be inseminated, so we had to consider a boarding agreement, vet agreement, and live foal agreements.

Some things to consider for breeding contracts:

1. If a live foal is guaranteed, then how is "live foal" defined?  Must it stand and nurse? Must it survive the first 24 or 48 hours?

2. If the mare does not take, would a repeat breeding be gratis? If so, how many times, over how long a period? Or would a refund be offered in lieu of further attempts?

3. What insurance would be required? If someone is breeding to your mare, would you require major medical/ mortality insurance?  What about the stallion's insurance (especially if live cover)? Or insurance for the foal? And consider insurance for your farm or ranch if horses are being brought to your facility for breeding or care.

(I had to exercise great restraint in not posting more foal photos!)

I know that breeding has come under increased scrutiny and criticism lately because there has been a growing awareness of the "unwanted horse" situation: slaughterhouses in the U.S. are closed, discretionary income to purchase horses is minimal, and horse owners are losing their jobs and farms and cannot feed their horses.  
However, breeding horses is necessary for the growth of various breeds and disciplines- and in my opinion- breeding is not the sole variable to blame for unwanted horses, and can be done responsibly.
So while I do not encourage casual, irresponsible "backyard breeding," I do encourage anticipating potential areas of conflict when choosing to breed your mare, offer brood-mare services (we used one for our orphan filly), or offer stallion services, and to come to an agreement in writing between the parties.

Foals are special: make sure every aspect of its conception, delivery, and lifetime is considered before taking that step, including contracts, insurance, and finally- a safe and happy home!

Welfare in the News: Only YOU can (help) Prevent Equine Abuse

In my work, I focus on the transactional aspect of equine law, such as boarding, sale, and shipping contracts/ agreements, labor and immigration law of equine competitors or grooms, land zoning and use for agriculture, and other aspects involved with the financial, business, and liability prevention of the horse world, or civil litigation for when contracts fail (or were never written).

Basically, I participate in almost every area involving horses!
However, I don't pursue suits based on equine welfare.  The reason is two-fold: 1) the prosecution of people who violate equine welfare is criminal law (and I am in civil) and 2) there are a number of animal rights groups, welfare watch groups, pro bono and non-profit organizations, etc. that do rescue abused horses and prosecute violators of welfare laws.

Photo Source: an intriguing new to me photographer, Michael Friberg

However, it should go without saying that even though I don't practice in welfare, I still care deeply for the well-being of horses. 

Los Angeles, CA is a city of extreme wealth (hello Hollywood), but also of extreme deprivation (contributing to the outrageous gang life).  Nevertheless, I am still shocked to disbelief at the horrible suffering of horses in the city.  Click here to read an article on a particular equine abuse case in LA (caution: graphic photo).

That article, and various other recent welfare news stories and blog topics have prompted me to point out some of my opinions on equine welfare issues.

Number One: I believe equine welfare is the responsibility of every horse owner.  If you have a pampered $100K horse in a show barn, you aren't relieved from being aware of welfare issues, and you should not turn a blind eye to the overpopulation problem in the U.S.  If you see abuse, report it.  If you think a horse isn't going to the right home, prevent it. (And don't forget abuse comes in many forms: while malnourishment is frequently in the news, it is also abuse to subject horses to cruel and unlawful training techniques.)

Number Two: I commend inventive and progressive rescue and rehabilitative programs.  I really love the programs where prison inmates are asked to care for and rehabilitate a horse; I think that is such a win-win situation.  Read this recent article on a newly opened equine program at a women's facility, here.

Number Three: I believe it is necessary to have laws on the state books that punish animal abusers, and also laws that provide for enforcement of those laws.  (See here for Nevada's recently passed "Cooney Law" that elevates animal abuse from a misdemeanor to a felony.  Scroll down until you see a picture of "Cooney" the dog.)

Number Four: be open minded.  Some people think rounding up wild mustangs is in the mustangs' best interest, and some think wild mustangs shouldn't ever be touched.  Some think that allowing horses to pull carriages is abuse, and others think that without a job, you are signing a horse's death warrant.  Celebrate the common ground: you both have horses' best interests at heart.  I am always so disappointed to see the dissension, rancor, and aggressiveness between horse people who really all just love and want the best for horses.  Find ways to share your points of view and move forward towards a solution, rather than get stuck debating the problem.

As I always say when it comes to anything with horses: prevention is key.  I'd rather prevent a horse from being abused than rescuing and rehabilitating it later.
 Sometimes horse abuse is not intentional, it just arises from a lack of knowledge and education. 
Everyone needs to know what training techniques are safe and acceptable, and which are not.  
Everyone needs to know where to take a horse, or the resources available, when one can no longer can afford clean and sufficient roughage and nutrition.

What do you think of my points of view in Numbers 1-4?
Do you think creating criminal laws is the best prevention, or through education and resources? (And if you think education and resources, do you think the government or non-profits/ individuals could serve that need?)