The following section is not legal advice. Readers should consult with their own lawyers. To ask your own question, send it to Stable Management, P.O. Box 644, Woodbury, Conn., 06798, or email [email protected].
I have heard horror stories about horses getting loose (out of their paddocks) and causing car accidents. Who is responsible in such a case? I own a barn and check my fencing regularly, but every once in a blue moon, a horse does get out by jumping. Am I liable?
—Donna Mulcahey, Wisconsin
For such a simple question, there unfortunately is no simple answer. In my book Equine Liability, which will be coming out this fall, one of the longest chapters deals with horse escapes. Here is the introduction:
This chapter deals with the legal issues that arise if your horse escapes. More so than with any other chapter, the results in these cases depend on where the incident occurred. Not only does state law affect the results, there are often local ordinances involved. For example, depending on where in Texas a car hits your horse, either you’re strictly liable for the damages that your horse caused, the driver is strictly liable for injuring your horse, or a determination needs to be made as to who was negligent. Obviously, this results in a very confusing situation.
In this country, there are three basic theories on liability for escaped horses. The most restrictive is strict liability, where the only issue is whether your horse is confined or not, although even strict liability statutes may have exceptions. The second is a negligence system in which the fact that a horse escaped creates a presumption of negligence, which you can rebut by showing that someone else was at fault for the horse escaping or that the fencing was reasonable for keeping horses. The third system exists in parts of the West and is called “open range.” In open range areas, a horse owner does not have to have any fences and his horse can roam at will.
Obviously, the first issue that you are going to have to decide is what are the laws in your area. Your local county extension office may be able to help you determine what laws apply.
In cases that involve horses escaping, courts tend to look at the following issues:
- What is the applicable law where the escape occurred? The court will look at state, county and town or city laws to determine what standard should be applied.
- Was the fencing appropriate for its use? This includes whether it was sufficiently strong to keep a horse contained, but also the location where the accident happened. If you live next to a highway, your fencing has to be better than if you live on the end of a dirt road.
- Did the horse have a history of escaping? The more frequently your horses escape, the more likely it will be determined that your fence is not sufficient to contain your horses.
- Was there any event that led up to the horse escaping? For example, was the horse chased out of its pasture or paddock by a neighbor’s dog?
- Does your state have a legal definition of what is a ‘legal fence?’ Does your fence meet that standard?
- How frequently is the fencing checked? If you never check your fencing, it is going to be hard to argue that you aren’t negligent.
- Was there a gap in the fencing caused by something or someone other than the horse or the owner? For example, did a car go through the fence, allowing the horse(s) to escape?
- If the horse escaped through a gate, was the gate properly secured? Horse-proof latches are the best design, but there are questions as to what is a horse-proof latch.
Many of these issues boil down to opinions, rather than scientifically verifiable facts. For example, how frequently do you need to check your fence? Is once a day, once a week or once a month enough? If you check your fence once a week as opposed to once a month, does that significantly decrease the chances of your horses escaping? Although I have opinions on these questions (as I assume most readers do), there is no proof that I am aware of that there is a relationship between the frequency of fence checks and the frequency of incidents.
And the news gets worse. Horse and barn owners usually face a universal assumption: if your horse escapes, you must have been negligent. And this assumption extends to judges. I have a case on appeal where the trial judge made that assumption and ignored any evidence that my client wasn’t negligent. Instead of innocent before proven guilty, horse owners in these cases are often guilty until proven innocent.
Given the above, a specific answer is impossible, but I hope that I’ve given you some useful guidelines. My best answer for escaping horses is a good insurance policy.