My client has a horse that he wants me to sell and I was wondering about the liability aspect. We’ve had the horse for years so I am very aware of some of the previous problems he had. For the first few years, he would buck, spook, rear, etc. on occasion. We have been working with him and these incidents have become fewer and farther between. The last time he pulled something was about six months ago.
How obligated am I to mention this problem to potential buyers if he hasn’t exhibited it in a long time? I don’t want to scare people off, but I am also not 100 percent positive the horse won’t ever do it again.
What you have here is a horse with dangerous propensities that you know about. When you are involved in the sale, there are two different areas of potential consequences.
The first potential consequence to you is your state’s consumer protection statute. These statutes usually involve triple damages and attorneys’ fees if you’re found to have violated them. These statutes require that businesses not misrepresent the product that they are selling. With this horse, any representation that this horse is “kid safe,” “well broke,” “appropriate for any rider” or “anyone can ride him‚” would violate the statute. If this horse sold for $10,000, and you were subsequently found to have misrepresented him, you’re potential damages could be $30,000 for the triple damages, plus attorneys’ fees, which could easily add another $10,000. In addition, your liability carrier will probably not provide you with coverage for a lawsuit based upon a consumer protection statute.
The second potential consequence is if the buyer should be injured as a result of a known propensity. One of the cases in my book discusses selling a horse with known propensities. A court could rule that your failure to disclose this propensity means you failed to warn the buyer that the horse had a potential for doing this behavior and, as a result, you are responsible for the damages. Depending on how seriously injured the buyer is, damages could easily go over $100,000. And again, because of the allegation of misrepresentation, your liability may not provide coverage.
Simply put:?Any misstatement of facts in response to a question would provide you with liability under the first consequence. The second consequence comes into play either because of a failure to volunteer information or misrepresenting facts. With this horse’s behaviors, it is unlikely that you could sell the horse for its value given those behaviors unless you misrepresent facts to the buyer, or the buyer doesn’t ask you any questions. Even under that situation, you could still be on the hook for the second consequence, if there is an accident.
You haven’t told me the age of the horse, so I’m going to give you two different scenarios. The first is that this is a relatively young horse and that these behaviors arose during its initial training. There would be a significant difference if you were talking about an older horse that had been trained and then developed these behaviors. With the older horse, there is probably a less convincing argument that you’ve been able to train these behaviors out of the horse. With the younger horse, some or all of these behaviors can be exhibited by a horse during the training process and are unlikely to reappear once trained.
With the younger horse, a description that the horse had some problems with his training, but that you believe that he is now trained, although you can’t be positive, would seem to be appropriate. With the older horse, I think you need to describe what went on and what you’ve done to correct it. Both of these answers are going to scare off some people, but losing a sale here is cheaper than the consequences.
James Clark-Dawe is the author of “Equine Liability.” For more, check out www.equinelawonline.com.