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Foster Swift: Equine Law

Honors & Recognitions

Congratulations, Julie! We're proud to share that Julie Fershtman has received two prestigious awards.

On April 13, 2013, she received the American Youth Horse Council's 2013 "Distinguished Service" Award. As the award itself states, she received it "[i]n recognition of years of dedicated service to the American Youth Horse Council and tireless efforts to touch the lives of youth involved with horses." For more information about the American Youth Horse Council, please visit www.ayhc.com/.

On May 7, 2013, Julie received the 2013 "Industry Award" from the Michigan Equine Partnership for her work over the years supporting legislation to promote and protect the Michigan equine industry. For more information about the Michigan Equine Partnership, please visit www.miequine.com/.

RECENT EQUINE LAW COURTROOM VICTORY

We're pleased to share that Julie just won a case in Michigan where she defended a boarding and training stable that was sued by a visitor who was injured in the barn aisle. Julie cautions that this case might have been avoided altogether if the stable required every visitor to sign its waiver/release of liability. (Julie, interestingly, drafted that stable's release document years ago but the stable only presented it to customers.) Make sure that your release is well-worded and complies with the laws of your state.

Other Articles

"The Seller's Contract Includes an "As Is" Disclaimer – Now What?" - Desert Mirage Magazine, August 2013

"What Mare Owners Should Look for in a Typical Horse-Breeding Contracts." - America's Horse Daily, September 14, 2012

Should Exculpatory Agreements Relieve Liabilities Founded on an Equine Activity Liability Act? American Bar Association - TIPS Animal Law Committee Newsletter, Fall 2012

Win Equine law Books!

We're always on the lookout for good article and update ideas for the Equine Law Blog. Please share yours! We'll give the sender of best tip of the month a free copy of Julie Fershtman's books, EQUINE LAW & HORSE SENSE and MORE EQUINE LAW & HORSE SENSE. Click here to send your ideas. [For more info on these and other publications written by Julie Fershtman, please visit www.equinelaw.net and www.equinelaw.info or call her directly at (248) 785-4731.]

Large Step Forward for the Horse Industry

We applaud the American Horse Council (www.horsecouncil.org) for its national marketing initiative for the horse industry. The AHC joined together ten national associations and large corporate industry stakeholders to make this happen. We await its marketing plan, which will propose ways to help people become more interested in horses and equine activities, either as participants or spectators.

THE NATION'S MOST SOUGHT-AFTER EQUINE LAW SPEAKER

Did you know Julie Fershtman has spoken at the American Horse Council Annual Meeting, Equine Affaire, Midwest Horse Fair, Equitana USA, US Dressage Federation Annual Meeting, North American Riding for the Handicapped (now PATH International) Annual Meeting, American Morgan Horse Association Annual Meeting, American Paint Horse Association Annual Meeting, US Pony Clubs, Inc.'s Annual Meeting, All-American Quarter Horse Congress, American Youth Horse Council Annual Meeting, American Riding Instructors Association Annual Meeting, CHA Annual Meeting, and numerous others? Consider signing her up for your convention. Contact Julie.

Are all Horses "Vicious or Dangerous"? More on the Connecticut Supreme Court Case

Many in the industry have been discussing the Connecticut Supreme Court case of Vendrella v. Astriab Family Limited Partnership. Oral arguments took place recently, and we await an opinion.  

Facts and Procedural History

The defendant in Vendrella operated Glendale Farm, located in in Milford, Connecticut, which sold flowers, vegetables and also offered horse boarding services. Customers in its retail operations could see and sometimes interact with the horses. In May 2006, plaintiff, a two-year-old boy, accompanied his father to the defendant’s greenhouse store to buy plants. His father parked in a customer lot adjacent to a paddock with three horses. After putting the newly bought plants in the car, plaintiff’s father brought him over to the horses, and they saw “Scuppy.” While plaintiff looked on, his father petted “Scuppy,” but the horse suddenly bit plaintiff on the right cheek, causing injuries.

The lawsuit alleged negligence and recklessness on part of the defendants. They filed a motion for summary judgment alleging that they were not on notice of any “vicious or dangerous” history of “Scuppy.” In support, they produced an affidavit stating that the horse, in the 28 years defendant Astriab owned it, never bit or injured anyone. In opposing the motion at the trial court level, the plaintiff argued that "a horse, by its very nature, is capable of biting someone without provocation or predisposition and that this was known to the defendant.” The plaintiff also filed a veterinarian's affidavit which stated, among other things, that “biting is a natural part of horses’ lives, and horses can bite for many reasons.” In addition, the plaintiff also filed an affidavit of a captain of the local fire department stating horses “have been [biting] since the beginning of time” and that a horse’s propensity to bite is part of its nature. Even one of the defendants conceded, very generally, that “a horse could bite you.”

Dismissing the case, the trial court held: ‘The plaintiffs have failed to show, as they must, that the defendants were on notice that Scuppy specifically, and not horses generally, had a tendency to bite people or other horses. Therefore, the defendants owed no duty to the plaintiffs and are entitled to judgment on the plaintiff[s’] negligence claims as a matter of law.’’ (Emphasis original.) The Connecticut Court of Appeals reversed however. Here’s a link to its ruling. Thereafter, Connecticut's Supreme Court accepted the case.

The Issue

Is a horse owner chargeable, as a matter of law, with knowledge of vicious or dangerous propensities — even if the horse had no aggressive history — merely because the horse is a horse?

The Court of Appeals' Reasoning

The Connecticut Supreme Court is now considering whether to affirm or overturn the Court of Appeals' adverse ruling. The Court of Appeals ruled that dismissal was wrong, and a genuine issue of material fact existed as to whether horses generally possess natural tendencies to bite and injure people. The Court appeared to suggest that the defendant horse owner, as a matter of law, was somehow chargeable with knowledge of "Scuppy's" “viciousness” and therefore had a duty to use reasonable care to prevent people from interacting with the horse.

In reaching its conclusion, the Court of Appeals discussed the law of strict liability as applied to animals and recognized that “[t]he defining characteristic of liability" is that it ‘‘imposes strict liability upon a possessor of a domestic animal only when the possessor knows, or has reason to know, that the animal has dangerous propensities abnormal to its class.’’ Yet, at the same time the Court took into account that horses have a natural "propensity" to kick and bite, stating: "Knowledge by an owner of the vicious propensities of his or her particular animal is not always essential to a recovery in an action for injuries alleged to have been caused by the owner’s negligence. The owner of a domestic animal is chargeable with knowledge of the general propensities of certain animals and he or she must exercise due care to prevent injury from reasonably anticipated conduct." Citing 4 Am. Jur. 2d 434, Animals § 68 (2007). Taking it a step further, the Court looked to Connecticut law that appeared to blur the distinction between an animal's “vicious propensity" and its mere capability of hurting someone.

CONCLUSION

Connecticut's Supreme Court has the opportunity to get it right. A favorable ruling would distinguish a horse's mere "capability" of hurting people from a true, and unique "vicious propensity." An unfavorable ruling could inextricably connect a "capability" of causing harm with a "vicious propensity" for all horses. The latter would unquestionably be harmful to the equine industry.

Connecticut's equine industry is substantial. According to a study of the Connecticut horse industry a few years ago, Connecticut was estimated to have a higher population of horses (51,968, as of the report) than any other New England state and ranked 3rd in the density of horses nationwide (calculated by taking estimated number of horses and dividing by area of the state in square miles). This is an industry in need of protection. We'll keep you posted on the Connecticut Supreme Court's ruling after we receive it.

Categories: Liability


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Farmington Hills
T: 248.785.4731

is considered to be one of the nation's leading attorneys in the field of equine law. A frequent author and speaker on legal issues, she has written over 200 published articles, three books, and has lectured at seminars, conventions, and conferences in 28 states on issues involving law, liability, risk management, and insurance. For more information, please also visit www.fershtmanlaw.com and www.equinelaw.net, and www.equinelaw.info.

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