Outbreak! Legal Ramifications for EVA at the Stable

As Dr. Knopf discussed in our previous postEVA (Equine Arteritis Virus) can cause mares to abort their foals.  Foals can be highly valuable from the moment of conception, not only from the costs that go into their breeding, such as the purchase of semen or the costs of live cover and veterinary bills for the mare, but foals are also highly valuable for their sale or competition value (their potential) based on their bloodlines.

This isn't a veterinary blog, so why are we discussing EVA?
 In order to understand the legalities of a potential suit, or to avoid legal liability, it is important to understand the underlying facts of a case; for example, with EVA we need to understand how the disease is transferred and what reasonable steps can be taken to prevent its outbreak.
Failure to take reasonable, prudent steps as a barn, stallion, or mare owner can give rise to legal liability.

Horses are personal property, and the negligent or wanton destruction of another's personal property can give rise to a cause of action.

As discussed in a previous post, a tort is a cause of action for injury or harm.  A common method of establishing a tort is to show that a person or entity was negligent, failed in a duty of care, and was the cause of the injury that occurred.
In the case of EVA, boarding barns typically owe a duty to the horses in their care to act reasonably like other similar boarding barns in the area.  Failure to fulfill this duty can result in damages, such as the fair market value of the foal, and other consequential losses suffered as a result of the breach of the duty.

Liability Prevention
If a boarding barn permits stallions to board at the facility, the barn should make efforts to determine that the stallion is healthy and free of transmissible diseases.

Incoming mares to the barn who have been bred recently should also be determined to be healthy and free of infectious diseases.

The owner of a stallion used for breeding should regularly test him for disease.
A mare's owner should carefully evaluate the health of a stallion prior to breeding her mare.

If EVA is suspected in any mare or stallion on the property a barn owner or the horse owner should take immediate precautions to isolate the horse and have it examined by a veterinarian.

Did your boarding agreement require any health exam or Coggins prior to bringing your horse to the property?
Do you think that equine facilities are generally pretty good at preventing disease outbreak on the property?

Precautions for Promiscuity: Sex Ed for Mr. Ed, a Guest Post

 Imagine your top competition mare is successfully bred to an expensive stallion, but towards the end of her gestation, her foal dies in utero.  It would be devastating.  What legal recourse would you have if the veterinarian's autopsy determined the foals death was caused by EVA?
As a barn owner, what precautions must you legally take to prevent an outbreak of EVA among boarded horses?

In this guest post, Dr. Knopf examines the transmission and necessary precautions of EVA: Equine Arteritis Virus.

A little larger than a horse! Dr. Knopf examining local species in Rwanda.

Sex Ed for Mr. Ed*
By Dr. Knopf
Written for exclusive use by Ribbons and Red Tape Blog

Many horse owners would be horrified to know that the sweet mare or ornery stallion in the stall next door could be naively harboring a sexually transmitted disease. Not unlike what we learned in our middle school health class, horses can harbor and spread a variety of STDs, many of them with potentially devastating consequences for the equine community and economy.

One sexually transmitted disease is Equine Arteritis Virus (EAV or EVA). EVA is seen throughout the world and research has shown that many horses are exposed to the virus without showing any symptoms of illness. While EVA can have reproductive consequences such as late-term abortion, death in foals and persistent infection in stallions, it can also cause acute flu-like symptoms in any horse. Often the first symptom is a fever - this makes it difficult to distinguish from other flu like viruses. EVA is an interesting virus because it is spread both through respiratory secretions of newly infected mares and is spread through sexual relations with chronically infected stallions. It is thought that as many as 50% of stallions in certain populations are infected with this virus and these stallions may carry the virus for years. Yes, the stallion at your barn could very well have this virus, completely unbeknown to all its caregivers. EVA is a tricky disease to prevent and diagnose as the flu-like symptoms are common to many diseases and many horses carry the virus (and are spreading the virus!) with no outward sign of disease. The increasingly common practice of shipping semen around the world is contributing to the continued spread of this disease. Health education has the same principles across species – promiscuity equals increased risk of disease!

Many horse owners have heard of the equine herpes virus, especially in the wake of the recent outbreaks in our country. There are several different forms of the equine herpes virus, the neurological disease being the type most recently seen and covered by the media. However, there is a form of the equine herpes virus that is a sexually transmitted disease. Not unlike the herpes virus in people, equine herpes virus type 3 (aka equine coital exanthema) causes unsightly sores and lesions on the genitalia of the horse. These ulcers can sometimes be found on the lips and noses of affected horses. One interesting difference in this form of herpes versus the herpes in people is that horses don’t appear to shed the virus once the lesions have healed.

While Mr. Ed may not be interested in a lecture on sexual education, it is prudent as a horse owner to be aware of potential exposure to disease and the prevalence of many sexually transmitted viruses. Of course, abstinence goes a long way in preventing many of these diseases but, your surprise trivia for the day, equine condoms do really exist!

Two Updated Clarifications from Dr. Knopf:

1. Equine condoms can be used for semen collection in stallions that are not trained/not amendable to collection using a phantom.  The condom can be placed, the stallion is allowed to breed in a natural herd setting, the semen is collected and then can be used for shipment for artificial insemination purposes. Obviously this won’t be used in the TB industry, but AI is the standard for pretty much all other breeds.

2. EVA is not the same as EHV-1.  There have been quite a few recent outbreaks of equine herpes virus (type 1) but they are the neurologic form (which is much scarier and more deadly than any of the other forms of herpes).  EHV-3 is the ‘sexual’ herpes. EVA is a completely different virus, it is not a herpes virus, though symptoms can be similar across viruses.

Discussion of legal ramifications of an EVA outbreak to follow soon!

See Dr. Knopf's other blog posts here:

* Mr. Ed was a talking horse on a now discontinued American television show by the same name.  For my blog post on Mr. Ed, click here.

ADA Compliance at the Stable

The other week I was meeting with some horse friends who are in the business of wine making and have opened a small tasting room.  They told me that it has been quite a bit of work making sure the tasting room is ADA compliant, and they pointed out the changes they had made, such as ramps and automatic doors, and appropriately marked signs that include the use of braille.

It made me wonder about whether riding stables: 1. must comply with ADA requirements and 2. if so, what stables can do to ensure compliance.

Allira approves of the stable's entrance ramp (though ADA compliance isn't typically required at private, non-commercial facilities) 

Who is required to comply?
It depends on the use of the facility and the date of construction.
Most buildings oeprating for commercial purposes (providing goods or services to the public) are required to comply.  This may include stables that offer lesson or training services to the public.
The ADA went into effect in 1992, so buildings constructed before 1993 are subject to some exceptions to compliance.  However, according to the California Building code (check your state!) remodels in excess of $130,000 must meet current compliance standards; remodels of a value less than $130,000 must dedicate 20% of the remodel costs to improving ADA accessibility.
You are only required to comply with the requirements as of the date of your construction; you are not retroactively charged with noncompliance of new rules (subject to the remodeling and some feasibility exceptions).

Ensuring Compliance = Lawsuit Prevention
You can hire a Certified Access Specialist (CAS) to conduct an inspection of your building; the CAS will issue you a report to note any areas that need to be improved.  Improvements are typically limited to those that are "readily achievable."
You can also check the ADA guidelines from its website; the 2010 ADA Standards for Accessible Design list the requirements for each aspect of a building- you can search for your particular question or concern (i.e., ramps, signs, bathrooms, etc.).

Because public stables are likely within the category of "recreational use" commercial facilities, there are distinctions in compliance from other commercial facilities (like a winery tasting room).  Your architect should be able to assist you in these issues, or you can call the ADA's governing body (the Department of Justice) with any questions (800-514-0301).  

But it's expensive!
Lawsuits are the primary method of ADA enforcement in California, and lawsuits can be even more expensive than compliance; in fact, there are minimum statutory penalties for ADA violations (in California it is $4,000) that can be compounded for each accessibility violation.
  Fortunately, tax credits and deductions are often available to offset the costs of compliance (Internal Revenue Code Section 44).

Have you ever been fined for an ADA violation, or have you taken preemptive steps to ensure compliance? 

In another vein, do you have a therapeutic riding facility in your town?  Or have you ever donated a trusted horse to such a facility?  In August our barn is showing at the Sonoma Horse Park charity show benefiting Giant Steps Therapeutic Riding Center.

Would you Warrant that your Warranties are Warranted?

When warranties come with our kitchen appliances sometimes we have to pay for them, sometimes we have to send in paperwork to secure them, and more often than not, the rules of the universe dictate that the appliance will break the day after the warranty expires.

Warranties in horse transactions usually don't involve a "won't go lame in 6 months or your money back" guaranty, but do revolve around assertions made by the seller to the owner in regard to the suitability and use of the horse.

Photo Source: HorseandMan.Com

In the law there are two main types of warranties: implied and express
An example of express warranties in horse sales is in the following case:

On Rate Your Horse Pro I read a pleading by a California horse buyer who sued the seller for negligence, fraud, breach of contract, and other grounds- the dispute revolved in large part around the seller's alleged warranties about the horse's suitability for the buyer's use.
According to the pleading, the seller told the buyer that this particular horse was very safe for beginners; that he was great on trails, safe around water and motorcycles, was perfect for children, and preferred to stand still rather than move at all.  
(I believe most of us would classify such a horse as "bomb-proof.")

But after purchase, the buyer fell off the horse when the horse "violently bucked and threw a tantrum and broke gait into a canter" (quote is paraphrased, keep in mind this was written by the buyer's attorney!); the buyer claimed that the warranties the seller had made about the horse being safe and slow, etc. were false.
And the court held that the buyer won.
The horse had been purchased for $6,800, and the court gave the following monetary judgment:

Special damages, including actual medical expenses totaling $22,676.42;
Breach of contract damages totaling $8200;
Emotional distress damages totaling $50,000;
Future medical expenses totaling $7,500;
Pain and suffering totaling $200,000.
The total judgment amount awarded is $288,376.42

The lesson to be learned from this case is two-fold;
First, your purchase of sale agreement needs to specify whether any warranties are made about the horse or not, and who bears the risk of any breaches of those warranties.
Secondly, apart from what your sale agreement dictates, in the effort to close a sale the seller must take great care that what is said about the horse is true, and the seller most likely should not make a verbal or implied warranty that the horse would be a great fit for this particular buyer; additionally, it would be wise to remind beginning riders/ buyers in writing and verbally that horses are unpredictable animals and cannot be relied upon to act consistently on any given day.

As a seller of a horse, what kind of warranties do you make- either verbally or in a written contract- as to the suitability of the horse for the rider? ("This horse will be perfect for your 2'6" competition goals," vs. "this horse will cinch the Championship medal for you this summer")
Or, what kind of warranties do you expect from a seller when you buy a horse? ("Will this horse have the ability to go up to 4' jumper courses/ Grand Prix Dressage in the next year?")

And speaking of unexpected bucks, my old reliable 17 year old arthritic mare gave an enormous buck today out of the blue; horses are unpredictable so keep your heels down and your helmets on!

Independence for our Courts and Horses: Happy 4th of July!

To my fellow Americans, Happy Independence Day!

(I know, it's a Californian not an American flag, but we do fly both!)

Our country has been built on one particular solid premise: Justice for All.
It is through our independent court systems that we pursue and enforce integrity, fairness, and justice.
It is my fervent hope that in this next year the courts and judges strive for upmost impartiality and respect for our Constitution and our legal ideals, and the strength to withstand temptations from financial or political powers.
I advocate for maintained (if not increased) funding for the court systems to ensure justice and to permit equal access to the courts.  Sufficient funding is required to allow courts to implement essential tasks, including the provision of timely justice; we shouldn't have to wait two or more years to begin judicial dispute resolution.

I also advocate for justice and fairness for our horses, and hope this next year brings greater clarity to the horse slaughter debate, to the enactment of felonious crimes for horse abuse, and for fair dealing in horse transactions small and large.  This past year has seen a top equestrian embezzle from her city to support her quarter horses, drug cartels laundering their money through horse operations, drugging violations in the racing world, and a top trainer was video taped committing atrocious acts of violence on Tennessee Walking Horses.
It isn't a pretty picture for our horses, and it is my hope that transparency, fair play, and justice will be brought to our nation's great equestrian communities.

After all (and rightly applicable to all equines, stabled or free):
"Congress finds and declares that wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people."
(Public law 92-195, 1971) 

Happy 4th of July to you and your horses!