Breaking Loose

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Recently I had two horses break out of their paddock and end up running down the road. Thankfully, we got them back with no incident, but I was wondering what my liability is on that? We do routine fence checks, but these guys really did a number on some rails and I don’t think it could have been prevented. Still, what if a car had hit them? What if they had run around a yard with small children?

—Ann via e-mail

The second longest chapter in my book, “Equine Liability,” is on escaping horses, which may give you an idea of how complex this subject is. Liability can range from the other person being responsible for hurting your horse (open range) to strict liability for your horses escaping (no excuse accepted), depending upon where you live. Making an already complicated issue more difficult is the fact that many judges apply a strict liability standard, even when that is not the applicable law. Escaping livestock is a legal area in which any owners of livestock (whether cattle or horses) go to court at their peril.

The current legal thinking seems to be that the best way to guarantee that a horse wouldn’t escape is to not own horses. If you feel the urge to negligently own horses, then you will be responsible for the horses escaping, regardless of how careful you are. This may be a somewhat harsh view of the legal system, but it is colored by the fact that I’ve had a judge tell me that, “Of course your client is liable, the horses escaped, didn’t they?” And, that was before we even started the trial. Additionally, the legal standard was negligence, not strict liability.

And as if we didn’t have enough problems with this issue, we have the question of what is a reasonable fence for containing horses. I’ve seen horses that won’t cross a wire that is lying on the ground, while other horses will climb over a six-foot fence. The problem is that some horse owners think that one strand of electric fence is more than enough to keep horses in, while other horse owners swear that you need four boards, electric wire, and it had better be at least five-feet high. Imagine how you’d feel if you were on a jury and heard all the experts at trial telling you why “X” type of fencing is the only fencing that will hold horses, and anything else won’t work!

So at this point, although I’d like to tell you I think you did a reasonable job of containing your horses, the reality is that if you were sued, I’d probably be advising you to settle. All of this being said, there are some things that will improve your chances in court, but despite all of the following advice, my personal reliance here is more on my insurance policy than on my fencing.

The first thing that you want to do is know what your local and state laws are. Each state has different laws, and until you know them, you don’t know what the requirements are. For example, a legal fence in Tennessee is required to have five strands of barbed wire. If your fence doesn’t meet the legal requirements, then you already start with a presumption that your fencing is not appropriate for keeping livestock. In addition, some towns have ordinances that impose a higher requirement than the state does. The county extension can be a good source for this type of information.

The second way you can reduce your chances of being found liable is through regular, documented fence maintenance. You might notice the emphasis on “documented.” If you don’t document your maintenance, then you haven’t done it. One way to document your maintenance is through the use of a notebook, recording when you did what. For example, you might have entries that say, “14 June—Walked fence, checked charge, no problems found. 21 June—Walked fence, checked charge, charge down due to brush hitting hot wire, trimmed brush, rechecked charge, back to normal.”

Another way to protect yourself is by documenting your horse’s needs. If you have a horse that is consistently escaping, you need to be documenting how you’re attempting to outsmart your horse. If you have a horse that doesn’t escape, document the fact that your fence was broken, but that the horse failed to escape. You will need to be able to show in court that your maintenance of the fencing was consistent with the horse’s needs, and that you were diligent in maintaining your fence to those needs.

Always important with real estate is location, location, location. If your farm is along a dirt road where there are very few cars going by each day, your fencing requirements are different than if you are on the side of a major highway with thousands of cars going by each day at 60 mph. Both the requirements and the probabilities change drastically. If you’re in an area where your horses absolutely, positively can’t escape, think about dual fencing, where you have perimeter fencing with a buffer zone surrounding your regular fencing.

Should your horse escape, look to see if there is a reason that they escaped. Were they spooked by something or someone? Did someone leave a gate open? Did a moose or a buffalo plow through your fence? Take pictures and document what happened and what you did to prevent future problems. And if your horse does cause an accident, call your insurance company immediately.

I hope this answer gives you some guidance on coming up with a reasonable solution to this common problem.