Are You Hard to Resist?

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The following section is not legal advice. Readers should consult their own lawyers. To ask your own question, send it to Stable Management, P.O. Box 644, Woodbury, CT 06798, or e-mail jenn@stable-management.com.

I am currently being sued by someone who was walking down the road and stopped to pet one of my horses across the fence line. The horse mistook her fingers for some more grass that she was feeding him and her finger is quite useless now. Her lawyers are claiming “Attractive Nuisance.” What can you tell me about this and what is my best defense?

The doctrine of an “attractive nuisance” as it relates to horses, involves several questions. Among them:

  • In what state did the accident occur? Not all states have ever used the doctrine of attractive nuisance, and many of those states that once used it have discarded it.
  • What is the age of the person whose finger was bitten? “Attractive nuisance” applies only to young children who don’t understand the risk.
  • In what type of community is your farm located? There are considerable differences between a farm in a rural area and one in an urban area and the level of protection that you must provide to protect people from your horses.
  • What type of fence do you have?
  • What type of road do you live on, and how often do strangers approach your horses?

The answers to these questions help decide whether the doctrine of attractive nuisance applies.

And what is the doctrine of “attractive nuisance?” Black’s Law Dictionary, 5th Ed., says, “that person who has. . .[a] condition upon his own premises. . .which may reasonably be apprehended to be a source of danger to children, is under a duty to take such precautions as a reasonably prudent man would take to prevent injury to children of tender years. . . who may, by reason of something there which may be expected to attract them, come there to play.” The key phrase here is “children of tender years.” This doctrine applies only to children so young that they are unable to realize the danger of whatever is alleged to be the attractive nuisance.

In the past 30 years there have been several cases—most of them unsuccessful—alleging that horses are attractive nuisances. If the doctrine of attractive nuisance is being relied upon by the plaintiff, then I recommend that you and your attorney review the following cases: North Hardin Developers, Inc. v. Corkran, 839 S.W.2d 258 (KY Supreme Court 1992), Whitanock v. Nelson, 400 N.E.2d 998 (IL Appeal Court 1980), Zukatis v. Perry, 682 A.2d 964 (VT Supreme Court 1996), and Hofer v. Meyer, 295 N.W.2d 333 (SD Supreme Court 1980).

These cases all involve young children getting into a horse’s pasture and being injured by the horse. The only one of these cases in which the plaintiff was able to make even limited use of the doctrine was Hofer v. Meyer, which involved a young child in a housing development getting into a horse’s pasture. In the other three cases, the doctrine was not allowed by the court.

To win, the plaintiff must establish that the accident was foreseeable. And this is a stern test. The Illinois Appeals Court in Whitanock (involving a two-and-a-half-year old child) stated that: “In order to establish foreseeability it must be shown: (1) The owner or person in possession of the premises knows or should know that children habitually frequent his property; (2) a defective structure or dangerous agency is present upon the land; (3) the defective structure or dangerous agency is likely to cause injury to children because they, by reason of their immaturity, are incapable of appreciating the risk involved; and (4) whether the expense and inconvenience of remedying the defective structure or dangerous agency is slight when compared to the risk to children.” This is the position of the majority of states regarding accidents involving young children.

All four of these conditions must be met for liability to exist. In Whitanock, the Court determined that children, taken as a whole, should be aware that horses have ability to inflict injuries as they run, kick and buck, and that therefore the horse owner was not liable.

There have been several cases in which an adult’s finger (or other body parts) have been bitten by horses in situations that sound similar to yours. But, because your case seems to be revolving around the doctrine of attractive nuisance, I did not go into them. In the end, it is important to realize that the attractive nuisance doctrine applies in very limited situations—the primary condition being the age of the injured person.