On a quiet fall night, very late, five high school-age boys are driving 50 miles per hour down a highway. There are no streetlights. The road has been resurfaced recently and is dark. Suddenly, a black horse wanders onto the road. The driver cannot avoid it or stop; the horse is much too close. In a violent crash, the car collides with the horse, and the horse goes through the windshield. Moments later the car comes to a stop. Four of the five boys emerge—shaken but with only small scratches. But the boy in the passenger seat is dead at the scene.

Several years ago this really happened. The estate of the deceased boy filed a lawsuit against the boarding stable from which the horse escaped, the trainer who brought the horse there, and even the horse’s non-custodial owners.

Who won? Who lost? In any case involving loose horses, the answer to these questions varies depending on where the accident happened.

Ever-Present Risks

Because of urbanization and the expansion of residential areas into the countryside, horse stables are closer than ever to highways and populated cities. This heightens the risk of accidents so, now more than ever, it is important to understand the law of loose horse liabilities.

Loose livestock laws tend to fall within the following categories:

Negligence

Areas of high population density typically follow the “fence in” rule, where horse owners and keepers are required to keep animals off of the roadways. In these areas, when animals escape and cause harm or damage, liabilities usually fall under the theory of negligence. This is the legal standard in most states, and it essentially requires an injured person to prove that the horse’s owner or keeper acted unreasonably and caused the horse’s escape. Examples of negligence cases include:

• The horse escaped from a sub-standard pasture. In 1995, Oklahoma’s highest court found that the plaintiff (the person who sued a stable) showed enough evidence that the stable’s fencing was in disrepair that his lawsuit could proceed on the issue of whether the stable was negligent.

• The stable left a gate open or had inadequate or defective gates from which the horse escaped. In a South Dakota case, the plaintiff’s car collided with a horse that wandered onto the highway. He sued and won. The court upheld the verdict based on evidence that the most probable manner in which the horse escaped was through an open gate, and the defendant horse owners were admittedly the last to check the gate.

• The horse had a history of escapes. In a 2003 Arkansas case, the court found, among other things, issues for trial as to whether the defendant landowners knew that their horse escaped before and should have taken precautions.

• The handler lost control of a horse. In a 2004 Michigan trial court ruling, the judge dismissed a case against the handler of a horse that spooked and ran away because it found that the plaintiff had insufficient evidence that the handler had acted improperly. And in a 1997 New York case, the defendants were unloading a racehorse from a trailer about 20 feet from a highway when the horse spooked and ran onto the highway. The horse was accustomed to vehicular traffic, and nobody could explain his spooking. The handler won.

“Open Range” Laws

In a few instances (usually in the western U.S.), states have abandoned the “fence in” rule and have adopted—either state-wide or regionally—the open range or “fence out” rule. These states typically have “open range laws” or “open range districts.” Some states have designated “grazing areas” or “grazing districts.” Motorists in these areas truly “drive at their own risk.” Without fences, livestock can wander freely onto the roads at any time.

In a 2007 Idaho case, for example, a motorcyclist was killed when he collided with a loose calf on the road in a designated open range district. His estate sued the animal’s owners and the landowners, but they cited in their defense an Idaho statute [Idaho Code § 25-2118] that adopted the “fence out” rule and protected them from liability when their animals wandered in a legally designated open range. Cases from the highest courts of Wyoming in 2002 and Texas in 1999 reached similar outcomes because the accidents at issue occurred in open range areas where horses could roam freely.

Motorists entering open range areas are usually cautioned with warning signs, and if a horse/car collision occurs, the motorist has little or no recourse against the horse owner or keeper.

“Strict Liability” Laws

A small number of states have “strict liability” laws. These laws could make the horse owner or keeper automatically responsible for property damages (such as automobile or trailer damage from a collision with loose livestock) and sometimes even for personal injuries caused by a loose horse that enters the roadway.

Criminal Penalties

In some states, owners or keepers of loose livestock could face criminal penalties, such as fines and/or imprisonment. In a 1994 California case, for example, a stable faced criminal charges of manslaughter after a horse escaped and killed a motorist. There, evidence proved that the pasture was in dilapidated condition and that horses had escaped many times before.

Who Is at Risk?

State laws and court rulings over the years suggest that people or businesses in these categories are at risk of claims or lawsuits involving loose livestock:

• horse owners and/or keepers. An Ohio statute makes the “owner or keeper” liable if they “permit [horses] to run at large in the public road. …” In a 1998 Ohio case, a horse escaped and injured a motorist. Though the owner stabled it on his father’s land next door, the court ruled that both people could possibly be liable. A jury needed to decide.

• stables and horse keepers.

• local governments and public officials. Even if they do not own or stable horses, local governments and government officials are sometimes sued because of loose horses. Although they enjoy special sovereign immunity defenses, a few cases have found governments liable. For example, in a 1995 Florida case, a well-intentioned police officer followed a loose horse along a highway and drove his car without lights or flashers. The problem was, a motorist in an opposite lane was unaware of the loose horse and collided with it. The court ruled that the officer could be sued because it was possible that his methods of “chasing” the loose horse created an unreasonable risk of harm to the motorist.

Defenses

Depending on the facts and law, owners of loose livestock have a few possible defenses, such as:

• The horse was properly restrained and the owner or keeper was not negligent.

• The horse owner or keeper played no role in the horse’s escape because someone else, such as a vandal or a driver who broke the fence, damaged the fence and caused the horse or horses to escape.

• The one sued, such as the horse owner, had no control over the way the horse was restrained.

• A third party was liable. In a 1998 Colorado lawsuit, the county’s snow plow operator filled a cattle guard with snow, which allowed cattle to escape onto a public highway. His liability was at issue. Similarly, in a 1995 Iowa case, animals escaped after a parked truck, owned by a local business, rolled down hill and broke the stable’s pasture fencing. The fencing had otherwise been in good condition. The stable owner was able to dispute the negligence claims brought against him by deflecting it onto the truck’s business.

• The one bringing the claim or suit was, himself, blameworthy, and principles of comparative negligence or contributory negligence (depending on state law) should apply.

So make sure you understand your responsibilities under the law, and make sure you have taken the necessary steps to protect the animals in your care from harm—and yourself from liability.

Attorney Julie I. Fershtman has more than 21 years of experience. She serves the horse industry and has authored two books on equine law. For more information, check out www.equinelaw.net.