Equine Legal Solutions Horse Law

As discussed in Abandoned Horses - Finders, Keepers? and Abandoned Horses and Title, state laws are not necessarily on the good samaritan's side when it comes to taking care of abandoned horses. Likewise, state laws do not typically permit a boarding stable owner to sell a boarder's horse to satisfy a past due boarding bill without a lot of hassle and expense - see Reasons Not to Foreclose on an Agister's Lien, Abandoned Horses and Tack - What Can a Boarding Stable Do? and Nonpaying Boarders - Remedies for California Stables.

With articles about the unwanted horse problem making a very regular appearance in the nation's newspapers, now may be the optimal time to petition your state legislators. Ask them to change your state's laws to provide protections for persons who take in unwanted horses and for boarding stable owners. As reported in the Louisville Courier-Journal, Kentucky lawmakers have already proposed bills that would help persons in their state. When writing or emailing your own state's legislators, you may want to draw their attention to Kentucky's leadership on this issue.

Labels: other equine topics

In examining what being the registered owner of a horse means, it's helpful to consider what a horse registry does, and what its purposes are. There are really three basic types of equine registries: breed registries, discipline registries and color registries. Horse breed registries, such as the American Quarter Horse Association or the Arabian Horse Association, are open only to horses of certain specific parentage. Some horse breed registries, such as the Oldenburg Verbrand or the Hannoverian Verbrand, also require horses to meet certain conformation and performance standards. Equine discipline registries, such as the United States Hunter/Jumper Association or the United States Dressage Federation, are open to horses who compete (or plan to compete) in particular types of events. Equine color registries, such as the Pinto Horse Association of America, or the Palomino Horse Association, are open to horses (and, often, ponies) meeting certain color or marking requirements.

The main purpose of a horse breed registry is to promote horses of particular breeding, and the horses may engage in all sorts of different disciplines. The main purpose of a horse color registry is similar - to promote horses of particular colors and markings, regardless of what those horse do for a living. Conversely, the main purpose of an equine discipline registry is to promote a certain type of competition, which may be engaged in by horses and ponies of all different colors and breeding. Note that none of the horse registries have the purpose of acting as arbiters of legal ownership (as opposed to registered ownership).

Registration papers are not the functional equivalent of bearer bonds. Horse registries accept and record transfers of ownership based upon their own internal rules. They do not generally take sides in legal disputes over horses' ownership. Rather, when there is a dispute about a horse's legal ownership, the registries typically advise the warring factions that they won't deviate from the registry's rules without a court order.

Therefore, horse registry ownership records, no matter what type of registry, are not a very reliable indicator of the horse's legal ownership. Although each registry typically has rules requiring changes in ownership to be recorded with the registry, in reality, many ownership changes aren't recorded, for myriad reasons, few of which are sinister. For example, if a new owner doesn't plan to exhibit the horse in sanctioned competition or breed it, they may not bother to file the paperwork and pay the fee necessary to re-register the horse in their name. Or, they may plan to sell the horse and not want to wait on the transfer to come through, instead selling the horse with the signed transfer from the previous owner. The horse might be registered with more than one registry, such as both a breed and a discipline registry, and only one of those registries is important to a buyer, so they only file the transfer with one registry and not the other. A registered horse might be leased to a person who wants to show it, but the registry rules require the horse to be registered in the name of the person showing it, so the owner allows the lessee to transfer registration of the horse into the lessee's name. The reasons why a horse's registered owner might be different from a horse's legal owner are practically endless.

As a result, registration papers provide a presumption of who the legal owner of a horse is, but that presumption can be easily overcome. Here's a common horse ownership dispute fact pattern. Betty Buyer buys a horse from Sam Seller. The horse is registered with a breed association. The registration papers show Sally Salesman as the horse's owner but two years ago, Sally sold the horse to Sam. Sam fulfilled all of his obligations under the purchase agreement he had with Sally. At the time of sale, Sam explains to Betty that Sam purchased the horse from Sally, but never transferred the horse into Sam's name, and gives her the original registration papers and a transfer form signed by Sally. Before Betty sends in the transfer form, Sally (who is angry when she finds out Sam resold the horse to Betty) obtains duplicate papers from the breed registry and claims to be the owner of the horse, making Betty's life miserable and preventing her from registering the horse in her name. Frustrated because she can't show the horse at registry-sanctioned shows until she gets it registered in her name, Betty sues Sally, seeking a declaratory judgment that she owns the horse. Betty will almost certainly win her case, because even though the horse may be registered in Sally's name and Sally may have a set of original registration papers, Betty can show the purchase contracts and proof of payment evidencing her superior claim of legal ownership, which trumps Sally's registered ownership in this situation. Note that Betty could have avoided this legal hassle by immediately registering the horse in her name, however!

Labels: other equine topics

Some states have reacted to the burgeoning equine health care industry by seeking to regulate certain types of care and limit their practice to licensed veterinarians. As discussed previously in the context of the Maryland battle over equine massage, both sides of the debate present logical arguments.

In the latest chapter, a well-respected equine dentist won the right to keep practicing in New York.

Labels: equine liability, other equine topics

We've received a number of questions about our January 17 post, so many that we can't answer them all individually. However, the subject matter of the questions falls into some general categories, which we'll address here.

What if the Negative Information is True?

Truth is a defense to defamation suits. Practically, that means you can still be sued for publishing negative information, even if it is true. And even if you prevail as a defendant in a defamation action, what have you won? Your name has been vindicated, perhaps, but that vindication has a big price tag. Defending a lawsuit is expensive - you can expect to spend $10,000 or more just to retain an attorney, and expenses well into six figures if your case is complicated and goes to trial. Note that you probably won't recoup these expenses if you win, because the law only provides for the award of attorneys' fees and court costs in very specific instances.

Defamation is just one cause of action available to someone who has had their professional reputation injured by the publication of negative information. Tortious interference with contract, tortious interference with business relationships, and tortious interference with prospective business advantage are three others. Note that truth is not a complete defense for those causes of action.

What is "Truth", Anyway?

If you are a defendant in a defamation lawsuit, you have the burden of proving that the negative information you published was true. All of it. At the same time, the plaintiff will be trying to undermine your truth defense by showing that the information, or at least some of it, was false. If you can't prove that all of the negative information was true, your defense will have holes, and you will have some potential liability.

"Where there's smoke, there's fire" doesn't apply to defamation lawsuits. If the subject of the negative information has a reputation for taking part in the types of activities described in the negative information, that doesn't mean that these particular allegations are true. And if these particular allegations are inaccurate, the publisher can be held accountable, even if there's a lot of factual support for other similar allegations.

The mere fact that negative information is consistent with what's already known doesn't make it true. What better way to discredit someone than to capitalize on existing rumors? Consistency might just mean the defamer is clever.

Due Diligence, and Why Advice from a Paralegal Friend is Not a Legal Opinion

If you operate a website and have some concerns about posting some information you've obtained, the most advisable course of action is to ask your lawyer for advice before publishing it. Sure, it might cost you, but the benefits will far outweigh the costs. First of all, your lawyer can advise you on what the risks are, and how to mitigate them. Your lawyer can provide you with tools to avoid getting sued, such as minor wording adjustments, qualifications and the like. Before you have a lawsuit filing deadline looming, you can find out if your lawyer would be the right person to defend you. If you ask for one, your lawyer can also provide you with a written legal opinion that what you're about to do is lawful. And if your lawyer turns out to be wrong, you can hold them (and their malpractice insurance) accountable. Unlike advice you might get from a friend, your lawyer's legal advice is completely confidential. So, if you elect not to follow all of your lawyer's recommendations, it won't provide the plaintiff with evidence you were negligent, because no one will know what your lawyer's advice was (unless you waive your attorney-client privilege).

If you need a lawyer, look for one licensed to practice in your state who has expertise in the area you need. Here's some suggestions for When and How to Hire an Attorney.

We note here that only lawyers can give legal advice. Paralegals, no matter how experienced/accomplished/knowledgeable, are not lawyers and therefore they can't lawfully provide legal advice. Advice from a paralegal, unless given in the context of an existing attorney-client relationship, is not confidential. Therefore, relying upon a paralegal's advice is very risky. Asking your paralegal friend for legal advice also puts him or her at risk. If a paralegal provides legal advice, whether or not they are paid for that advice, they are violating their state's unauthorized practice of law statute, which can have serious legal consequences for them. In addition, if the paralegal's employer finds out they've provided legal advice, even outside the office, they could get fired, and have a lot of trouble finding another job.

Won't Your Insurance Company Defend You?

If you operate a commercial website, you most likely have commercial liaiblity insurance. But will that insurance pay to defend your website in a defamation lawsuit? Your commercial liablity policy may specifically exclude coverage for defamation, or it may limit the amount of coverage. So, it's best to read your policy before posting negative information. If your policy doesn't provide sufficient coverage, it's best to know that (and go get appropriate coverage) before your website is sued.

So You're Saying No One Should Ever Publish Negative Information about Anyone?

No. However, before publishing negative information, the publisher should be aware of the significant risks associated with doing so. That means (honestly) assessing what the publisher hopes to accomplish by publishing the negative information, and deciding that it's worth the risks. Included in the decision should be an analysis of whether publication is the best means of accomplishing the goals.

Labels: equine liability, other equine topics

As previously discussed in You Cant Say That! What Horse People Need to Know about Libel, Slander and Defamation, claims of horse industry defamation are frequent, but successful lawsuits are rare. However, a recent situation has highlighted an area of great potential liability for both individuals and equine websites. Equine Legal Solutions certainly doesn't condone abusive training practices. However, we feel a responsibility to outline the legal risks of publishing animal abuse allegations.

Popular websites such as GoHorseShow.com and HorsemansLibrary.com have published accusations of abuse allegedly committed by multiple world champion Western Pleasure trainer Cleve Wells. The accusations concern a horse allegedly discovered at Mr. Wells' property with infected spur wounds and fractured bone in the bars of its mouth. The accusations are detailed, and they include graphic color photos of the alleged wounds. In some published accounts, the allegations include written statements that appear to have been made by the horse owner, another witness and two veterinarians. All of that information tends to make the accusations look more credible.

As a result, concerned horse people are reading these allegations, believing them, and spreading them like wildfire. To date, Equine Legal Solutions has received three separate emails and two telephone calls about these allegations, all from folks with no firsthand knowledge who are simply passing on what they have read and commenting upon it. Equine chat boards are live with commentary on the situation. Obviously, these allegations have reached a very wide audience and, presumably, have negatively affected public opinion about Mr. Wells.

Each "publication" and "republication" of a defamatory statement can be counted for the purpose of determining liability. What is a "publication"? The written statements were "published" when they were given to another person, whether that exchange took place by email, hand delivery, or otherwise. So, the horse owner published her statement each time she sent it to a website or emailed it to a friend. Each time those statements were then passed on, whether posted to a website, emailed or otherwise, they were "republished". So, in situations like this one, there are usually many, many republications. Note that the republications are typically beyond the control of the original publisher, yet the original publisher can have liability for them. So here, the horse owner appears to be the original publisher, and therefore she may have liability for all of the republications.

While equine websites republishing defamatory statements might argue that they are simply reporting news (and therefore should be immune from liability), there are potential problems with that defense. If the websites don't make appropriate efforts to verify facts before publishing defamatory statements, i.e., if they are negligent, that can lead to liability. In addition, when websites make decisions about what materials to publish, such as in the case of chat forums where some negative threads are removed and others left intact, that exercise of discretion can lead to liability. The publishing website is in effect helping its readers decide which statements are credible.

Unless the subject of the defamatory statements is a "public figure," mere negligence is sufficient to defeat a fair report privilege defense. Here, while Mr. Wells may be well-known in certain segments of the horse industry, he is arguably not well-known outside the horse industry. Therefore, it's highly debatable whether he is a "public figure". If he is, he would almost certainly be a "limited public figure" - that is, a public figure only to a certain narrow audience.

If a court were to determine that Mr. Wells is a limited public figure, that may provide the equine websites with a viable defense, but that defense won't likely help the horse owner and other parties. Public figures are expected to endure a certain amount of public criticism and therefore, a public figure bringing a defamation case must show that the publisher of the defamatory statement acted wtih "actual malice" - that is, that they meant to the cause the public figure harm. Here, the witness statement allegedly made by Gary Russ looks like it was made with actual malice, because it calls for AQHA to take disciplinary action against Mr. Wells. On the other hand, in the absence of evidence to the contrary, the websites and individuals republishing Mr. Russ' statement likely meant no harm to Mr. Wells. (This is a situation where emails could provide evidence of actual malice, such as "I'm going to post this on my website and destroy this guy!" So, website managers, take heed of what you say when deciding to publish negative materials!)

On casual examination, there are some notable issues with the alleged evidence being published, perhaps enough to support a claim that those publishing and republishing the allegations were negligent in doing so. The typewritten statement allegedly made by the horse owner is not signed, nor is it dated. This statement alleges that the horse in question, Slow Lopin Scotch, is co-owned by Nicole Marrs (the alleged author of the statement) and Wayne Holley, her father. However, there are no published statements that appear to have been made by Mr. Holley. The statement allegedly made by veterinarian Larry McConnell is not dated. Neither Dr. McConnell's alleged statement nor Dr. Karen Adler's alleged statement is printed on clinic letterhead - rather, these letters simply have a typewritten clinic name and address at the top. In Equine Legal Solutions' experience, veterinarians' statements usually appear on clinic letterhead, particularly if they are made in anticipation of a lawsuit. There are no copies posted of the actual veterinary records with the original notes made by the examining veterinarians, or copies of the radiographs showing the bone fragments in the bars of the horse's mouth. The photos of the wounds are not time- and date-stamped. They also do not show any details that uniquely identify the horse in the pictures. Slow Lopin Scotch appears to be a bay with no white markings or brands, so the photos could theoretically be of any bay horse, taken at any time. If the evidence and allegations are in fact truthful, the defendants, not Mr. Wells, would bear the burden of proving truth.

While most opinions posted by persons commenting on the allegations are likely protected by the First Amendment, some are not. For example, if a chat board poster were to opine, "I used to work for Cleve and I'm not surprised," they are implying that they have special knowledge and therefore their opinion has a basis in fact. As a result, that poster could be liable for their defamatory statement.

Unlike most horse industry Internet defamation claims, Mr. Wells should have ample evidence to support damages claims. Given that Mr. Wells not only trains for private clients, but also sells training videos and tack to the general public, these horrific accusations are sure to have a measureable negative impact on his business. However, because the allegations impugn his professional reputation, Mr. Wells may not even have to prove damages. The court may consider the allegations to be per se defamation.

All things considered, this situation should be a cautionary tale for the horse industry - whether the allegations are true or not. Horse trainers should be aware that what happens in their barn may not stay in their barn. Training clients should check in on their horses. Equine website managers should be aware that evidence may not always be what it seems, and that if they publish juicy materials without proper due diligence, they could be liable. And finally, individual horse owners should be careful about what they say when they pass along negative information.

Labels: equine liability, horse training, other equine topics

Like equine dentists, equine massage therapists are facing legal opposition to their practice in certain states. Here's what's currently happening in Maryland.

Does it make sense to limit the practice of equine massage to licensed veterinarians?

Today, much like horse trainers, nearly anyone can call themselves an equine massage therapist and start charging for their services. Therefore, the experience and training of equine massage therapists differs widely. As a result, horse owners have few resources other than word of mouth to help them distinguish among the available equine massage therapists. Some equine massage therapists who have so little training and experience that they may actually do more harm than good. Others, such as Ilene Nessenson of Holistic Horse Bodyworks, are thoughtful practitioners with extensive training who provide real benefits for their equine patients.

In contrast, while equine veterinarians have extensive training and experience with the equine body and its functions, they generally have little or no training in equine massage unless they seek out that training. Therefore, the mere fact that someone is a licensed equine veterinarian does not mean that they have the qualifications and experience to be an equine massage therapist.

State-mandated licensing of equine massage would be expensive and burdensome for states to implement. Each state would have its own statutes, resulting in a confusing patchwork quilt of regulations for massage therapists who wanted to practice more than one state. Licensing enforcement would likely be sporadic and somewhat arbitrary. Because most customers would probably only check to see if the practitioner was licensed after there was already a problem, licensing requirements would be not be a very effective means of preventing harm to the horses. And, if we regulate equine massage, shouldn't other equine service providers be regulated, such as farriers? Surely, farriers perform a function that is at least as important as massage, with even more potential for lasting damage to the horse...

So if regulation is impractical, shouldn't consumers do their own homework before hiring an equine massage therapist. Short answer: Yes. Long answer: While we could hope that consumers would take it upon themselves to research the equine massage therapist's qualifications and experience before they hire them, the reality is that it won't happen most of the time. Horse owners are born optimists - they will hire anyone who promises to help their horses perform better. Doesn't the horse owner who hires a massage therapist without doing their homework get what they deserve? Perhaps they do, when the only consequences are financial. But what if the horse suffers? He didn't choose the massage therapist...

In short, there are no easy answers. I'll look forward to seeing what my readers think!

Labels: other equine topics

At Equine Legal Solutions, we receive a lot of contract questions from our forms customers. Here's one we received today: "How do I "sign" this Sale document and then email it to the buyer, then have them "sign" it and email it back? What about for international sales?"

To answer those questions, it's helpful to first examine the purpose of a signature and how equine contract law issues arise relating to signatures. Primarily, the signature on a contract serves to show that the person signing agreed to the terms in the contract. Signatures are generally disputed only when there is a question about whether the parties had an agreement, or if they did have an agreement, what its terms were.

In our equine law practice, we receive a lot of questions about whether signatures on horse related contracts should be notarized to "make them legal." A notary's job is to verify that the person signing is the person that they say they are, but notarization is certainly not required to make a contract legally enforceable. Although a signature's authenticity can be disputed - e.g., "That's not my signature," it doesn't happen very often in the horse industry. When authenticity does arise as an issue in equine contracts, the signature in question is almost always genuine and can easily be shown to be so by a handwriting expert.

In the horse industry, when the signature on an equine contract becomes an issue, it is typically in the context of a contract having been discussed and/or written, but not signed. Occasionally, the contract was actually signed, but the party who wants to enforce the contract can't find the signature page. To enforce a written contract, the person who wants to enforce it typically must have the signature of the person against whom he wants to enforce it. For example, if you sign a purchase agreement for a horse but the seller never signs it, you may not be able to compel the seller to sell you the horse.

More rarely, the defendant in a legal case involving an equine contract might admit to having signed a contract, but they don't admit to having signed the contract in question, claiming that the terms are different than the contract they signed. For example, the signature page might have been tacked onto a totally unrelated contract. In this case, the correspondence back and forth between the parties can be used to show what document the parties actually signed.

In this age of interstate and international transactions, the parties are often not in the same room and therefore cannot sign the same piece of paper. Contracts signed in counterparts (e.g., each party signs a different copy of the same signature page) are perfectly acceptable.

Because timing is frequently critical in closing an equine transaction, the parties may not want to wait to receive a signature page in the mail. Fortunately, there are many options for transmitting signatures. Overnight delivery services such as Federal Express can transmit signature pages in less than 24 hours. Even faster, the contracting parties can sign the signature page, then scan that signature page and email the scanned copy to the other parties. Or, they can sign the signature page and fax it to the other parties. Persons without access to a scanner or fax machine at their home can locate a nearby Kinko's, Office Max, Staples, or other store offering office services.

Labels: other equine topics

At Equine Legal Solutions, our boarding stable, breeding farm and trainer clients frequently ask us if they need to go and get a business license. The term "business license" can be confusing, because it seems to imply that special qualifications are needed to operate. In fact, many states and municipalities do regulate certain types of businesses, such as nail salons, and those regulations do typically have a basis in public health and/or safety. However, equine businesses generally are not regulated businesses for which special licensing is required, and so for the purpose of this article, "business license" will refer only to the general type of business license.

Municipalities (and sometimes counties) often require businesses of all types to obtain a business license. A business license is a lot like a dog license: it evidences nothing other than payment. The business license serves primarily as a revenue generator for the municipality. It is a thinly disguised tax. Typically, absolutely no qualifications are required to obtain a business license, other than filling out a short information-only form and paying a fee. Therefore, anyone with a checkbook, including criminals, cheats and liars, can get a business license. A business license is not a stamp of legitimacy.

In consultations, potential clients sometimes triumphantly reveal to ELS that the boarding stable, trainer or horse sales barn with which they have a dispute does not have a business license. They fervently hope that the lack of licensure is a smoking gun that can help them back the business into a legal corner or maybe even shut it down. Sometimes, they are convinced that a licenseless business cannot enforce its contracts. Often, this arises in the context of a deadbeat boarder trying to avoid their bills and take their horse out of the boarding facility without paying. But, the mere fact that a boarding stable doesn't have a business license doesn't change the boarder's obligation to pay for services received. Whether or not a business has a business license has absolutely no impact on its ability to enforce its contracts or carry out its business in any way.

At most, not having a business license means that the business might have to pay some monetary penalities to the municipality or county for not having obtained a license when they were required to do so. On occasion, the monetary penalties can be steep multiples of the original licensing fee (with interest). Some of the more aggressive cities regularly review state corporate filings and seek to collect business licenses from those corporations having listed addresses within their city limits, even if those businesses do not operate any kind of facility open to the public. If the business doesn't pay the notice when they receive it, the city can turn the account over to a collection agency, and it may adversely affect the business's credit. So, to avoid an expensive surprise later on, it makes sense for equine businesses to check with their city or county to see if a business license is required, and if it is, obtain one and keep it current.

One small caveat about obtaining a business license: you may start receiving more junk mail. Municipalities sometimes generate more revenue for themselves by "renting" their business license data to third party vendors, such as credit card companies. So, don't put any information in your licensing application that you would not want to be made public, such as an unlisted phone number.

Labels: other equine topics

Here's an interesting article from Arizona about just the kind of legal quagmire that "abandoned" horses create.


This case is a good illustration of how:
(1) It's often unclear exactly whom should be notified when horses are found, and even law enforcement may not be able to tell you the right answer
(2) Failure to notify the appropriate authorities can have negative financial consequences for the finder of a lost horse
(3) Even months and years after the horse goes missing, the lawful owner can reclaim the horse
(4) When reclaiming the horse, the lawful owner may be able to avoid reimbursing the well-meaning people who have paid to take care of his horse
(5) The fact that the horse was donated to a rescue and adopted out to a third party does not necessarily change (1) - (4) above.

Labels: other equine topics

With the declining economy, Equine Legal Solutions is receiving a sharp increase in calls from people wanting to know if they can keep an "abandoned" horse.

Is the Horse Really Abandoned?

Many calls ELS receives about keeping abandoned horses are from boarding stable owners who have a boarding relationship with the horse owner. Because there is a boarding relationship in place, the horse is not legally considered abandoned and the horse owner still has all ownership rights. Rather, the boarder has breached the boarding agreement, and therefore the boarding stable must seek breach of contract remedies. This is still true even if there was never a written contract, the boarder never signed anything, the boarder hasn't been out to see the horse for months, the boarder moved away and can't be found, the boarder is in jail, etc. The bottom line is that the stable will have to follow the proper legal procedures or get the boarder's written permission before they can keep, sell or give away the horse. If they don't, they risk being sued.

Finders, Keepers?

In other cases, the caller has simply found a horse and has no idea to whom the horse belongs. Sometimes, the horse is running down the road. Other times, it has mysteriously appeared in the caller's pasture overnight. The caller wants to know if they can get legal title to the horse. The short answer is NO. The horse's lawful owner has not lost their legal claim of ownership simply because the horse got loose (or even if the owner turned it loose). If you find a horse, you should call your local sheriff and/or animal control to find out what to do with the horse. While you are waiting for an answer, keep in mind that the found horse may have health problems, and therefore you should keep it separated from your own horses.

Can I Get Reimbursed for Care?

The short answer: Maybe. If you are a boarding stable, you have legal recourse against the boarder for the cost of care. If a horse shows up on your property and you provide care for it, you may have a legal case based upon unjust enrichment or other legal theories. But, the bottom line is that you can't count on being reimbursed. Even if you have a legal case against the horse owner, it will not likely be cost-effective to bring that legal case, particularly if the horse owner is of modest means. So, if you provide care for a found horse, you should do with the assumption that you are doing so purely for the horse's benefit, and that the lawful owner could show up at any time and take that horse away without giving you anything more than a "Thank You."

What about Registration Papers?

Unless you can get legal title to the horse, you can't get registration papers in your name. You can get legal title if the horse owner gives it to you or if you obtain a court declaration that you are the lawful owner. Otherwise, you have no hope of getting the horse registered in your name with any well-established breed registry. End of story. The fact that you might know the horse's registered name or that it is a purebred horse will have no impact on whether you can get it registered in your name. (If it was that easy to get papers, horse thieves would simply steal horses and then get duplicate papers for them.)

Labels: other equine topics

A West Virginia woman who attended a party is now suing her host because she fell while trying to get on the host's horse. She alleges that her host was negligent for serving alcohol and then offering to let her ride one of his horses. Never mind that she didn't even make it all the way onto the horse!


Here's the news story from the West Virginia Record

This case is a great example of why every horse owner should have their social guests sign a liability release before they ride (or even come near) horses. If the plaintiff in the above case had signed a liability release in which she assumed the risk of horseback riding, her case would have been a lot less attractive prospect for plaintiffs' lawyers (many of whom work on a contingency basis). A sound liability release would also help prevent the plaintiff from winning her case, and would provide a good basis for the defendant to negotiate any settlement amount downward.

The case is also a great illustration of why horse owners should consider having a homeowners' umbrella liability policy that includes horse-related accidents, and/or a horse owner's liability policy. Here, unless the party-host-turned-defendant had insurance coverage that will pay to defend him in this suit, it could cost him tens of thousands of dollars to defend himself against the plaintiff's claims.

Finally, the case is also a good example of why living in a state with an equine activity statute doesn't prevent horse owners from being sued. Here, West Virginia's equine activity statute actually spells out several affirmative responsibilities that are quite helpful to support the plaintiff's claims. For example, Section 20-4-3(1) states that "Every horseman shall [m]ake reasonable and prudent efforts to determine the ability of a participant to safely engage in the equestrian activity, to determine the ability of the horse to behave safely with the participant, and to determine the ability of the participant to safely manage, care for and control the particular horse involved." Because part of the plaintiff's claims depend upon the idea that the defendant made an unsafe activity even more unsafe by serving alcohol, the plaintiff is sure to point to this statute and allege that the defendant didn't fulfill his duties.

Labels: equine liability, other equine topics

You receive a lot of emails about semen, and hardly any of them are from spammers.

"Honest horse seller" is an oxymoron, and you can prove it.

Recent horse purchasers often suffer from an agitating condition known as buyer's remorse.

Insurance and contracts are for pessimists. Accidents and lawsuits only happen to optimists.

No sold horse ever acted "that way" at home.

If you subpoena the vet records for a horse who has "never taken a lame step in his life," you'll find radiographs.

Your clients have a $20,000 show saddle, a $100,000 horse trailer and a $75,000 truck, but can't pay their bills.

Part of your professional qualifications are listed on the belt buckle you're wearing.

Labels: other equine topics

Here in the foothills of the Cascades, spring has (finally!) arrived. The grass has come up seemingly overnight, the sun is now making more than a brief appearance, and daytime temperatures have warmed to the 60s. In short, it's time for the first trail ride of the year, with long gallops through grassy fields and leisurely walks beside rushing rivers. I mentioned this to a friend and was surprised when she looked a little panicked and declined to go along. What was the problem? In short, she was afraid her horse would act up and hurt her.

When your very expensive and time-consuming hobby no longer satisfies you, it's time to evaluate whether you need to make a change. Like human relationships, equine relationships can be more heartache than happiness. Just because a horse and a person are both amazing individuals doesn't necessarily mean that they will make an amazing team. Here are some signs that your equine relationship may be broken.

(1) Your horse consistently intimidates you or even scares you. You spend your entire ride wondering what dangerous thing he's going to do next, and you feel relieved when you dismount in one piece. Because you never know what your horse will do, you always have to be on your guard.

(2) Your horse often can't or won't do what you ask of him. Maybe your horse really can't do what you are asking him to do - his conformation, athletic ability or temperament may not match up well to the job at hand. Is it really fair to try to make a Western Pleasure champ out of a hot-tempered, high-headed horse?

(3) Your horse does his job, but lets you know he's not happy about it. Perhaps the horse is physically able to do the job you've selected for him, but he just doesn't like doing it. For example, he'll jump around a course, but keeps his ears pinned the whole time.

(4) You and your horse have a personality mismatch. As in human relationships, sometimes two nice people just can't get along. The relationship between a horse and a human is an intensely personal, and human/equine personality conflicts are fairly common. Maybe you are a perfectionist who makes constant adjustments, but your horse works best when left alone. Perhaps your horse is forward and energetic, but you are timid.

Any of the above situations is a recipe for misery, both human and equine. What remedies are there?

Training. Professional training can go a long way toward correcting attitude problems and filling gaps in a horse's education. For example, a spoiled horse can relearn manners, and a green horse can learn how to do his job. However, training is not a panacea. It can't fix personality mismatches or make a horse suitable for a job that doesn't come naturally to him. And if the horse owner can't or won't continue the training at home, the horse will revert to his former self.

Job Change. If your horse is unhappy in his current job, find him another one. Try out a bunch of different events to see what he does best. Maybe your jumper would rather be a trail horse, or your Western Pleasure horse would rather chase cows. He just might surprise you!

Ownership Change. When a horse and rider just can't get along, or a horse is ill-suited for the rider's chosen discipline, it's time for a change. As long as you are honest with prospective buyers about your horse's challenges, you can sell or give him to another home with a clear conscience. Horse people are natural optimists. They believe they'll be able to solve problems and overcome obstacles, and sometimes, they can. Just because a horse intimidates you doesn't mean he'll be able to do that with his next owner. Likewise, your horse may be happier with a rider who asks less of him, more of him, or asks him to do something different. When the horse has gone to a new home, at least you will no longer be frustrated, and there's a good chance he'll be happier, too.

Labels: other equine topics

On receiving an email announcement of the Unwanted Horse Coalition's new database of places willing to accept donated horses, I was surprised to find that the UHC's checklist contained what I believed to be a critical omission. It didn't include the IRS database where potential donors can verify the tax-exempt status (or lack thereof) of any organization to which they are considering donating a horse: http://www.irs.gov/charities/article/0,,id=96136,00.html

Labels: other equine topics

It was with great sadness that I read the obituary for Jim Weaver, forwarded to me by my mother last week. Mr. Weaver, along with his wife Dinah, served as a 4-H leader for many years in Miami County, Ohio.

Mr. Weaver, a barrel-chested man with a booming, friendly voice, was a well-known figure at the Miami County Fair, where he and his family always camped out for the week. A man ahead of his time, he rode a motorcycle (complete with sidecar) and shaved his head, both remarkable things in the late 1970s conservative Midwestern farming community where I grew up. From about age 10 on, I was a member of the Weavers' club, the Springcreek Rounders (affectionately dubbed "Skinhead's 4-H" by kids in other clubs).

I have to say that I don't remember a single horsemanship lesson from my Springcreek Rounders days, but what I do remember is how welcome the Weavers made me feel as a new member in their club. As a painfully shy child, it was typically an excruciating experience to join anything where I'd have to meet new people. But in the Springcreek Rounders, everyone was made to feel part of the club, even if, like me, they rode English and had to wear a helmet (both highly unusual in 1970s rural Ohio). In the Springcreek Rounders, the Weavers strongly encouraged each child, even those who had "real show horses," to participate in the fair's fun day, and they made sure that no one failed to have a partner for the Ribbon Race or Drunkard's Paradise. Just now, I realized that while I had believed that marching with the club's banner in the all-fair parade was a great honor, it was really the Weavers' thoughtful solution for the members whose horses couldn't be relied upon to safely carry them in the parade.

In a world where it was still okay to touch kids without fear of lawsuits, Mr. Weaver was generous with hugs and reassuring pats on the back. He had a real knack for spotting the child trying to shrink into the background, and bringing them right up to sit with him and feel included. Without putting them on the spot, he paid special attention to members like Jody, a slightly overweight boy with a speech impediment who really struggled with basic horsemanship. At an age where every kid just wanted to fit in, the Weavers made sure they did.

Mr. Weaver, you were a kind and generous man. You were loved, and you will be missed. Goodbye, and Godspeed.

Labels: other equine topics

Because of the dollar amount involved, many horse-related cases end up in small claims court. Here are a few tips for getting the most out of your small claims experience:

Cases that Should Go to Small Claims.

• Claims where you are seeking money damages only in an amount equal to or less than your state's small claims limit.
  

• Claims that exceed the small claims limit but may be too expensive to litigate in regular civil court, such as claims in the $10,000 - $15,000 range. Note that in such cases, you would have to reduce the claim amount to the small claims limit.

• Claims that are not rock-solid, especially those with more emotional than legal appeal. The cost of litigating in small claims is low, so if you lose, it will not cost much (but note that if the other side incurs attorneys' fees, you may have to pay them).

Cases that Should Not Go to Small Claims.

• 
  

• Claims of $25,000 or more.

• Claims where you have a good basis for recovering attorneys' fees (such as a breach of contract case where the contract specifies attorneys' fees, or a case that involves a claim providing for statutory damages, such as copyright disputes).

• Cases where small claims will have no jurisdiction over the defendant, such as where the defendant lives outside the United States.

• Cases in which you are seeking an order for the other side to do something, such as give you possession of a horse.

Advantages of Small Claims.

• No attorney is necessary, and while you can have an attorney assist you in preparing your case (which we recommend), you must speak on your own behalf in court. Considering that in regular civil cases, you can expect to spend $10,000 or more in attorneys' fees alone, this can be a benefit. This can also be a detriment if you are not a skilled public speaker - see disadvantages below.

• Your claim will likely be heard much more quickly than in regular civil court, and you will receive a decision quickly after the hearing. In situations such as boarding disputes where you have ongoing costs until the matter is resolved, this is a distinct advantage.

• Your court costs will generally be $100 or less, compared to $500-1,000 per filing for regular civil court. You can typically ask for those costs as part of your claim. This is not true in regular civil court, where court costs are rarely awarded.

• Despite the fact that you can't have an attorney speak for you in court, if you have an attorney assist you with your case, you can claim attorneys' fees as part of your small claims court claim and have a good chance of being awarded such fees if you win your case. This is not true in regular civil court, where attorneys' fees are rarely awarded.

Disadvantages of Small Claims.

• Your claim is limited to the amount set by your state, typically under $10,000, plus court costs and attorneys' fees.

• You can only seek money damages.

• Small claims court is unpredictable. Some of our clients have gone to small claims with seemingly rock-solid cases and lost. Others have gone with shaky cases and won.

• The quality of the jurisprudence (i.e., qualifications and experience of small claims judges) is not always very high). See our note about pro tem judges below. You cannot expect the US Supreme Court (or even Law & Order, for that matter).

• You have to present your own case to the judge and can't have an attorney speak for you.

• It can be hard to collect a judgment, as the remedies available for collection in small claims are more limited than those in regular civil court.

Serving the Other Party. We recommend hiring a professional process server rather than relying on the service by certified or registered mail that some small claims courts allow. Most people (especially deadbeat types!) know that no good news ever arrives via registered or certified mail, so they won't sign for it. By the time you figure out that the other party isn't going to sign for the registered or certified mail, the allotted time to serve the other party has usually expired, which means you will have to go and get a new court date, then start the process of serving the other party all over again. Sheriffs are also not usually a good option, as service of process is not one of their primary job responsibilities, so you can imagine how they feel about having to do it. A good process server will get the other party served in the allotted time and file a proof of service. You can usually add the cost (~$150) to your claim. Recommend contacting the National Association of Professional Process Servers for a referral to one in your area.

Obtaining the Necessary Forms. Check the Internet to see if your small claims court has a website. Many small claims courts now have websites where you can download the appropriate forms directly from the website. If not, and the forms are only available through the courthouse, your process server may be able to obtain the forms for you.

Filing the Necessary Forms. Your professional process server can file the forms for you - no need to orbit parking garages looking for a space and stand in long lines!

Choosing a Court Date. If you are the plaintiff (i.e., the person suing), you will usually be given a choice of court dates when you file your complaint. We recommend choosing one that is convenient for you, but likely to be inconvenient for the defendant, such as a Monday morning.

Pro Tem Judges. In some small claims courts, you have the option of permitting your case to be heard by a pro tem judge (i.e., not a real judge). Recommend against this option, even if it means your court date will be delayed, as you want your case to be heard by an experienced and qualified judge.

Presenting Your Case. You will have approximately three minutes (literally) to present your side of the case. Because you will have such a short amount of time to make your point, you want to make sure that you can state your case in a clear and concise fashion that makes sense. Recommend practicing out loud to a friend or family member who is (a) not a horse person and (b) not intimately familiar with the case already. If their eyes glaze over while you are talking, you need to improve your delivery. Remember that the judge has likely never even seen a horse up close, so won't know "technical" terms such as "mare" and "gelding."

Evidence. Small claims court is very lax about civil procedure, which means that the judge can consider evidence that wouldn't be admissible in regular civil court. Be sure to bring all documents with you, and have them well-organized so that you can put your hands on a document immediately if the judge requests it. Do not be surprised if the judge does not want to see ANY documents, though - their goal is generally to dispose of cases as efficiently as possible.

Witnesses. Although small claims courts typically allow notarized statements, live witnesses are almost always more convincing. Make sure that your witness knows how to state the relevant information clearly and concisely - remember that you will only have about three minutes, TOTAL. You can usually subpoena the testimony of reluctant witnesses.

What You Can Expect to Receive if You Win. Small claims judgments are almost always limited to money, which means you cannot expect the court to order the other side to do anything, such as give you possession of a horse.

What Happens if the Other Side Doesn't Show Up? Typically, you win by default. However, the other side may have a certain amount of time to appeal the default judgment and get a new court date.

Collecting Judgments. The defendant typically has 30 days to pay a judgment. After that, you can petition the court to allow you access to different types of collection methods. If the defendant has a job, we recommend garnishing their wages, as the employer is legally required to comply with a garnishment order. Second best is garnishing a defendant's bank account and third best is placing a lien on the defendant's house.

Top 5 Small Claims Mistakes

1. Not timely and properly serving the other side.
2. Not correctly and timely filing the proof of service.
   
3. Rambling on and on at the hearing, and worse, breaking down in tears, making yourself (and your case) look irrational.
4. Bringing "witnesses" with you to court who are not directly relevant to the case.
5. Wasting the judge's time by not being organized and prepared. Judges are human beings and courtesy and preparation matter.
   

Labels: other equine topics

Weekend before last, I had a great opportunity to ride in a very small clinic with Cleve Wells. As many of my readers know, Cleve has multiple AQHA and APHA World titles in Western Pleasure to his credit and he has also coached amateur and youth riders to pleasure titles. Seeing as how I am primarily a hunt seat rider, I came with few expectations other than to pick up some tips to make my lazy show gelding use his shoulders more consistently. But, in two days, I came home with enough homework to last for the next six months!

In addition to the specific exercises we took away, the clinic was an excellent reminder of some principles of horsemanship that are now considered by some to be old-fashioned ideas:

-Get your horse BROKE! If he's really broke, he should be able to do his job, no excuses. Cleve gave the example of people who get huffy if the reiners are warming up near them in the ready ring - show horses should be broke enough that it doesn't matter. His prescription - quit whining, get your horse broke. When discussing this point with a friend of mine who is a dressage trainer (but by no means a DQ!), she said it reminded her of the upper-level dressage folks campaigning to eliminate the walk from upper level tests because their horses were "too brilliant" to walk.

-There is no substitute for wet saddle blankets in the training and development of your horse. A tired horse is a cooperative horse. Your horse isn't cooperative at the end of the time you have available? Tie him up, come back and ride him again. Repeat until you get the desired results.

-Reverse psychology works. Your horse wants to throw his head up and run off? Canter him around that 10-acre field until he's begging to stop, then canter him some more.

-Riding your horse around in draw reins and other tiedowns will make him want to raise his head the moment you take that stuff off. Want him to put his head where you want it? Teach him to be obedient to the bridle instead.

-You can't get mad when training your horse. If you get mad, tie your horse up, cool off, come back and ride him again when you can think calmly.

-Your relationship with your horse is not democratic - he should obey your commands. Period.

-There are no real shortcuts in horsemanship. For example, you will not get clean, quiet, consistent lead changes without the absolute obedience of your horse's ribcage.

-Obedience and fear are not the same thing.

-Just like any other athletic endeavor, you must push your horse in his training for him to reach his full potential.

-The smaller the child that can ride a horse, the more marketable it is. Cleve pointed out that the most talented horse is not very marketable if only pros can ride it, because pros don't have any money, and even if they did, they wouldn't want to buy something hard to ride, considering they get PAID to ride horses like that.

-Allowing a talented horse to get away with little infractions and otherwise treating him as "special" will lead him to believe that he IS special and he'll turn into a brat with no work ethic. The best horse in the barn should have to work as hard as the least talented horse in the barn.

-Being uncomfortable may be a reason, but it is not an excuse for bad behavior.

-If you're looking for a show horse and you want to win, choose the broke, consistent one over the flashy but inconsistent one.

Labels: other equine topics