Tuesday, April 21, 2015

Recap: Your Horse and the LawYER

Recently, I had the opportunity to talk to a local group of horse people about legal issues that can affect them and their horses. It was a wonderful event hosted by the Shelby Farms Equestrian Alliance. We had nearly 40 people present, ranging from insurance agents to horse trainers and other professionals to private horse owners.

I began by discussing state equine liability laws, focusing on Tennessee. Equine Activity Liability Statutes have been enacted in all 50 states. These statutes are designed to encourage equine activities by limiting the amount of financial liability associated with them. The reasoning is that equine activities provide many benefits to states - tourism, conservation, events - but there are many risks of injury involved due to the unpredictable nature of horse behavior. Therefore, these statutes provide immunity to equine professionals if an injury occurs - with some exceptions. As I said to the audience, there are almost ALWAYS exceptions.

We spent some time talking about the statutory definitions. For example, under Tennessee law, a "participant" is any person, amateur or professional, who engages in an equine activity. An "equine professional" is a person engaged for compensation either in instructing a participant or renting a horse to a participant, or in renting equipment or tack. Be careful though - these definitions are for legal liability purposes. We also talked about USEF rules, which state essentially that anyone who is paid to interact with horses in any way is considered a professional.

We also spent a significant of time discussing liability for horses at your home. My main point of advice is this: when a friend wants to ride your horse or be around your horses, have them sign a liability release form. Under the law, what happens when a person is injured by your horse on your property depends on the status of the injured person at the time of the injury. There are different rules relating to whether they were trespassing or a social guest, and the doctrine of attractive nuisance will apply in some situations.

But what about boarding a friend's horse at your home? Several of the audience members have one or two boarders to help with costs or because they like having other people around. You'll need at least three things: insurance, liability releases, and a boarding contract. Your homeowner's insurance policy likely will not cover your boarding operation, no matter how small. A liability release will discourage people from suing and protect you if they do. Finally, a boarding contract will articulate the terms and responsibilities of both parties. All three of these documents are important to have, even among friends.

Another concern many people had is what happens if the horse injures another person or another horse, regardless of where the injury happens. Generally speaking, the horse owner is not automatically liable but may have some liability under certain circumstances. Some examples:

  • If the horse has a dangerous habit and the owner does not warn of the danger
  • If the horse owner rides or handles the horse in a negligent way and as a result the horse injures someone
  • If the horse owner fails to provide adequate fencing or stall door latches
What all of these scenarios have in common is that the horse owner was somehow at fault. In legal situations, liability is linked directly to fault. Many of the audience members enjoy trail riding at public facilities, including Shelby Farms Park - which also has a large off-leash dog park. So what, they asked, happens if a dog comes running up to the horses, the dog owner chases the dogs and gets kicked? Well, it will really depend on whether the injury could have been avoided and by whom. If the horses panic and the horse owners do nothing to warn the dog owner that the horses may kick, then the dog owner might have a stronger case. If the dog owner ignores any warnings from the horse owners, then the horse owners might have a stronger case. The specific outcome will depend on the specific facts - if you have a specific question or issue, talk to an attorney (specifically!).

One topic I didn't quite have enough time for was responsibilities while trailering. Before you load up a friend's horse, check your state liability laws. In some states, if you take any compensation for trailering another person's horse, you must have a commercial driver's license. You should also check your insurance policies. If your rig is damaged, normal car insurance may not cover it. Additionally, any type of vehicle coverage most likely will not cover injury to the horses.

Here are my conclusions from this talk:

  • Liability is a concern for everyone - if you're not an equine professional, it is still a good idea to cover yourself with a Private Horseowner's Liability Policy
  • Know your local laws and do your best to help others know and understand them
  • Contracts are the best way for everyone to understand their rights and responsibilities
I very much enjoyed the opportunity to talk with local horse owners. It was a wonderful evening of hearing concerns and helping people navigate the murky waters of the law. I look forward to many more such opportunities.


If you would like to schedule a talk similar to the one recapped here, email Kjirsten at kjirstensneed@gmail.com. She is happy to talk to groups of any size!

Pre-purchase exams: evaluate everything, and write it all down!

This might be silly, but indulge me. Raise your hand if you’ve ever bought a horse. Now, raise your hand if you had a pre-purchase exam done before buying the horse…and now, raise your hand if you documented everything leading up to, during, and after the pre-purchase exam. I expect that the number of hands raised went down with each question. Whether you are a buyer, seller, veterinarian, or agent for either the buyer or seller, it is best to write down everything related to the exam. This will serve to both educate and protect all parties involved in the event of any conflict.

Why have a pre-purchase exam?

Pre-purchase exams, or vet checks, are intended to find any preexisting or potential problems that may affect the horse’s soundness and suitability for the prospective buyer. The American Association of Equine Practitioners (AAEP) remarks that while a pre-purchase has a place in deciding whether to buy a horse, the exam must be put into perspective. It is best to consider the exam as an examination of discovery.

The people involved

Several people are involved in the pre-purchase exam, including (but not limited to): the buyer, the trainer, the buyer’s and/or seller’s agent, and the veterinarian. In these scenarios a trainer may or may not have legal agent status – if you are concerned about this, ask an attorney. The buyer’s trainer may be responsible for assessing the buyer’s expectations and determining whether the horse is suitable. Because buyers have different levels of experience and expectations, the veterinarian should determine the particular buyer’s expectations and define limitations of the exam, always emphasizing that the pre-purchase exam is not a guarantee and does not eliminate risks.

The potential buyer owns the information produced as a result of the exam. However, the buyer should be careful to maintain a level of confidentiality to insure that the horse’s reputation is not altered as a result of inappropriate dissemination of medical information. If the buyer does not purchase the horse and reveals confidential medical information and the horse’s reputation is altered, the seller may have a cause of action against the former potential buyer.

The buyer or their agent may request the horse’s medical history, which may then be produced by the seller or their veterinarian. These medical records must be returned at the end of the examination.

Pre-examination procedures

Before the exam even starts, there are some suggested procedures. First, the exam and its procedures should be thoroughly reviewed with the buyer and seller. Any written release forms should be obtained before the examination. If the veterinarian is familiar with the rules of the discipline for which the horse is being purchased, they should explain how those may apply to the exam – for example, any height requirements. The veterinarian should also review state and international disease testing with the buyer.

Ideally, the seller should provide a history for the examining veterinarian. This helps to legally bind the seller and gives information that the buyer might not have otherwise requested. 

Physical examination

The Merck Veterinary Manual suggests four sections for the examination:
·      Observing the horse in the stall
·      Observing the horse walk and trot on a straight line, doing flexion tests, and longeing
·      Observing the horse under saddle
·      Diagnostic procedures such as radiographs and ultrasounds

In many cases, a buyer may elect not to take radiographs or ultrasounds if nothing in the longeing, trot-up, or flexions suggested any underlying unsoundness. The above procedures are merely a suggestion. Individual state veterinary boards may publish standardized pre-purchase examination procedures for veterinarians to comply with.

Report of findings

The veterinarian should prepare a summary report of his or her findings. The report should describe any abnormal or undesirable findings, including opinions as to the functional effect of these findings. It should also note any tests that were recommended to but declined by the buyer. The AAEP publishes guidelines for pre-purchase exams as well as specific guidelines to report the exams. A practical guide to pre-purchase exams published by the AAEP can be found here.

Pre-purchase exams are important tools for understanding a horse’s physical abilities. A buyer must keep an open mind and view the exam as an opportunity to gather and interpret information. The veterinarian must be able to communicate their findings to the potential buyer and educate the buyer about any abnormalities.

Legal issues

Sometimes exam results turn out to be incorrect. For the veterinarian, it is important to emphasize that nothing in the exam is a guarantee of future soundness – the exam is intended to find abnormalities, not to confirm future soundness. If you as a buyer think there may have been a problem with the pre-purchase exam, contact an equine attorney. Mistakes in the pre-purchase may give rise to a claim of veterinary malpractice, but such a claim can be difficult to prove.