My nane is Jennifer Prentice and I own a Percheron gelding draft horse.  I board him for $80.00 a month on 500 acres of pasture.   The property is over 700 acres in total size.  The land owner and manager are different people, but they are related and both parties live on the property.

My horse got a puncture wound to the hock and neither the vet nor I was called until my horse had a severe infection.  Six days after the fist time the vet was out to the ranch, my horse was hospitalized and is still there to this date.  My vet billls have exeeded $1,500.00 dollars and if he is not better by the end of the week we will have to put him down.  Even if he makes it though the infection he will never be useable again.

Ace is 6 years old and is my prize horse.   He was sold to me at a ridiculous price because I am good friends with the previous owner.  Colorado has a zero liability act but that for equine activity.  Are they liable for not keeping debris and downed barbed wire cleaned up out of the pasture?   I have videotape of the property.  I also have video before and after of my horse.

Do you know anyone that can help me?   There are more details about this case I would like to discuss with you.  I hope you can help me.  Thank you .        

Jennifer Prentice

1. Was the writer aware of the presence of debris and barbed wire in her horse's pasture before the incident occurred? If she was, and if she consented to having her horse placed out there, she has a much harder argument for liability of the stable.

Why? Although I can't profess to know the intimate details of Colorado law, it's fair to argue that the writer, by letting her horse roam loose in a debris-riddled pasture -- knew that the hazards and risks were obvious. Arguably, she took a chance on her horse getting hurt and now cannot be heard to complain. That would be the stable's defense. Sounds like a persuasive defense to me -- what about you?

Now, if the horse were never before kept in those conditions at the stable, but the stable suddenly -- without the writer's knowledge or approval -- switched to this metal-infested pasture, the case begins to change and her position looks stronger against the stable.

2. Folks who have been reading my writings (I've been writing a monthly law column since 1993) know that I've been saying for years: "There's no such thing as a 'zero-liability' law." PLEASE read your law very carefully and I'm sure you'll agree with me.

3. Equine liability laws, especially the Colorado one, typically do not apply to a lone horse that is injured while loose in a pasture. The laws were designed to apply when a human is "engaged in an equine activity" and gets hurt, or a human "provides a horse" to another human and the horse recipient gets hurt (or worse) and suffers property damage related to the injury. Different scenarios altogether from the one here.

What this matter involves, pure and simple, is an allegation of negligence on part of the boarding facility in its care and keeping of the horse. I have written an article on this in the past, and my new book (which should be out in September or maybe as late as November) covers this, too.

4. I regret that this web site is not in the business of lawyer referrals. However, if the writer wants names of equine lawyers in Colorado (and there are very few), she is welcome to E-mail me.

Best wishes for the horse's good recovery and a happy ending to this sad situation.

(NOTE: The above is not to be deemed the rendering of legal advice; legal advice is only given in an attorney client relationship where the lawyer receives specific facts. Direct your questions to a knowledgeable attorney.)

-- Julie Fershtman

I own a horse boarding facility. For the past 5 years I have had a great bunch of people. I now have a boarder that never comes out and I have no way of getting ahold of her. She is 60 days behind in board and I an wanting to file some sort of lien against her. Can you please tell me which one to do, and where I would locate a form or in what format I should go about this? Thank you for your anticipated help....

L.C.

But then again, most stables (in my experience) use no written contracts, and there is simply nothing in writing to address the situation when the boarder falls behind on boarding fees. That probably explains why stables get stiffed so much, too.

L.C. does not specify what state she's from but wants to know how to impose a lien. The answer lies with the law of the applicable state. Just about every state has a stablemen's lien law (also called "agister's lien laws") on the books. These laws address the stable's entitlement to a lien on a boarded horse, the waiting period before a foreclosure sale can take place, and the specific procedures to undertake before, during, and after the sale. The laws sometimes address the question of whether the stable must have possession of the horse before the sale can occur. Bottom line, find the law & read it carefully. A knowledgeable lawyer in your state can provide guidance, too.

Finally, I truly hope that the message in my book (Equine Law & Horse Sense), this column, and my six years of monthly articles is beginning to get through: GET IT IN WRITING! Stables have everything to benefit from a good written contract. Really. At a minimum, the contract can include an attorney fee provision so that the stable -- if it must resort to legal intervention to resolve a dispute with a boarder -- stands a good chance of getting the expense recouped.

Here's hoping that L.C. finds a good resolution to the non-paying boarder problem and, in the process, prevents the problem from happening again.

(NOTE: The above is not to be deemed the rendering of legal advice; legal advice is only given in an attorney client relationship where the lawyer receives specific facts. Direct your questions to a knowledgeable attorney.)

-- Julie Fershtman

I board horses and have a guest house I wish to rent out on the weekends to persons who bring their horses to ride in Yosemite and the local forest trails. Will incorporation protect my assets in the case of a lawsuit? Can I incorporate without including any assets and just record the income and expenses of the business while the corp. rents the land and guest house from me?

Thanks in advance for your help.

Yvonne Dukes

Y.D. also asks whether she 'can incorporate without including any assets and just record the income and expenses of the business while the corp. rents the land and guest house from [her]." I'm not so sure that I can answer this question, as phrased. The best advice I can give is that she would be wise to pose this question to a lawyer in her state.  

(NOTE: The above is not to be deemed the rendering of legal advice; legal advice is only given in an attorney client relationship where the lawyer receives specific facts. Direct your questions to a knowledgeable attorney.)

-- Julie Fershtman

For more information on this topic, see Ms. Fershtman's article: Will Your Corporation Limit Your Personal Liability?

I had a Bey Shah son standing at my farm that had to be put down in September 97. The horse was recuperating at the MU Vet. Hospital, from surgery to his right hind leg.

A little background on the horse; Boston Bay was syndicated as a yearling. The syndication opened on August 15, 1983 and was fully subscribed and closed on August 21, 1983. His breeding fee was booked at $5000 for non-syndicate members and $4000 for members. As I said, Boston was a Bey Shah son out of a mare that was a full sister to Bey Shah's mother (Llabaska). His breeding was impeccable. Due to financial and breeding disputes among the syndicate members, the syndication was dissolved. The owners of mares bred to Boston experienced difficulties with registering his get. Boston was sold to an individual and later suffered a shattered sesmoid in his left hind leg. These unfortunate incidents made it possible for us to obtain Boston for breeding. Although we never rode Boston, he was perfectly sound for breeding. We had Boston two breeding seasons and had developed quite a bit of interest in our breeding program.

Last year Boston dislocated the hock in his right leg and underwent two surgeries for that injury. Prior to making the decision to go ahead with the surgeries, my trainer and I discussed with the Vet in charge our concerns that the shattered sesmoid in Boston's weight-bearing leg would not hold up during recovery. We told the vet we didn't want to spend the money and put Boston through the discomfort only to have the weight-bearing leg go bad. We were told that precautions could be taken in that regard and we were told that even with a full leg cast, Boston would be able to lay down and get up on his own to rest the weight-bearing leg when he needed to.

We went forward with the surgeries. Boston was there for 5-6 weeks and was recuperating from the surgeries. On two different occasions during that time, I discussed my concerns with the Vet in charge about the weight-bearing limb and whether it was holding up. Both times the vet told me it was doing fine and assured me that Boston was getting up and down when he needed to. When I asked him how he knew that to be so, he told me he had seen him do it. My trainer was present with me at the time.

I was being told that Boston was making good progress and even talking to the vet (intern) responsible for Boston's daily care about when we could bring him home on August 31, 1998. The next day I received a call from the intern that the bone in the weight bearing leg had gone through the hoof.  To make a long story shorter, we had Boston put down on that day. I talked to the intern who was caring for Boston on a daily basis about what happened and he confirmed my fears that Boston had NEVER laid down, NEVER had any relief to that leg. It still brings tears to my eyes to think about what a trooper he was and all that I put him through. He gave it his all, and every indication was that he would have pulled through if proper care had been taken of the other limb. I requested copies of all the medical records including x-rays. Not one radiograph was ever taken of the left-hind until the day before Boston had to be put down.

As a result we've lost our total breeding operation and incurred almost $6,000 in medical bills. What has your experience been with cases like this. Will legal fees eat up anything we might hope to recoup?

If you think it would be worth the additional expense and time, I would be willing to consult with a local attorney. Can you recommend someone?

Your time and consideration would be greatly appreciated. I hope to hear from you.

Sandy Burris

First, as to the referral, I do not believe that Equine Insurance Specialists wants to be in the position of recommending counsel for specific situations. Frankly, neither do I. Please E-mail me and I will send some names of lawyers, if I have them.

Second, does the writer have a case? I, for one, cannot answer that. The question would need to be evaluated with the assistance of counsel and any experts that may be retained.

Let me share a portion of an article I wrote some time ago on veterinary malpractice. The article -- which will be incorporated into my new book -- is entitled: "Looks Like Veterinary Malpractice -- Now What?"

What is Veterinary Malpractice?

Generally speaking, the law imposes on veterinarians a duty to use reasonable skill, diligence and attention as may ordinarily be expected of a careful and skillful person in the profession. If a veterinarian treating your horse does something wrong which falls short of this standard, the grounds may exist to support a legal action for veterinary malpractice.

Over the years, the types of wrongdoing on which veterinary malpractice actions have been brought include mis-diagnosing a horse's maladies, administering improper medications or improper dosages, improperly performing surgery, improper follow-up care, and others.

Proving Veterinary Malpractice

Proving veterinary malpractice is not always easy. A veterinarian will rarely admit he or she has erred. Rather, the law demands that the aggrieved party (the plaintiff) must identify and specifically prove how the veterinarian erred. Successful cases usually require the plaintiff to prove the following:

First, the veterinarian had a legally-recognized duty to handle a professional matter in a certain way.

Second, the veterinarian somehow departed from, or "breached," that duty. Over the last several years it has become more important than ever to prove this through the testimony of an expert witness (typically another veterinarian knowledgeable of the standard of care to which your veterinarian should adhere). Some courts have held that expert witness testimony is required in order to prevail in a veterinary malpractice case.

Third, the plaintiff must prove "proximate cause." This essentially means that the veterinarian's malfeasance, and not some other reason, caused the horse's demise or devaluation.

Finally, the plaintiff must prove with reasonable certainty a sum of money that has been lost as a result of the malpractice (called "damages").

What Damages Can the Winning Plaintiff Collect?

Across the country, the states vary as to what the winning plaintiff in a veterinary malpractice case may collect. One of the largest jury verdicts ever issued on a veterinary malpractice case was in December 1996, when a Florida jury ordered a veterinarian to pay $950,000 to the owner of an accomplished race horse.

Generally speaking, damages in veterinary malpractice actions can include any of the following: if the horse has died, its fair market value around the time of its death, or if the horse survives the alleged malpractice, the amount of money in which the horse has decreased in value; lost profits such as stud fees or offspring; the likely value of lost race or show earnings; the value of time spent caring for the injured animal; money the plaintiff expended in caring for the horse after the wrongdoing; and/or the cost of procuring a substitute horse for the interests or purposes served by the horse who, you believe, was victimized by malpractice.

Other types of damages, which are very rarely awarded in veterinary malpractice cases, include money to compensate for the animal owner's pain and suffering, punitive damages, and attorney fees. A knowledgeable lawyer can determine what damages the state at issue has granted to winning parties in veterinary malpractice cases.

How can someone prove the value of a yearling that has not yet been proven through its performance on the track, in the show ring, or as a breeding animal? These problems are not necessarily insurmountable. For example, the horse's owner could hire as an expert witness an equine appraiser or an independent person knowledgeable of the industry and the horse's chance for success within it might make a difference in a veterinary malpractice lawsuit.

How Can You Develop Information for a Case?

A lawsuit is only as good as the evidence the plaintiff can present. Sometimes, the idea of bringing a veterinary malpractice case arises long after the horse has been destroyed. By that time, you may have lost the opportunity to have the animal examined independently or through a post-mortem examination.

With this in mind, if you suspect veterinary malpractice, try to secure as much evidence as possible of your horse's condition and the wrongdoing you believe the veterinarian committed. If it would be humane to do so, consider obtaining a second opinion by a respected veterinarian or facility. If the horse must be destroyed, consider ordering an immediate necropsy (autopsy) by a qualified professional, along with a carefully-written report.

When Must Suit be Brought?

Don't wait if you suspect malpractice. Almost every state has a law on the books that specifically limits the time in which licensed professionals, such as veterinarians, can be sued for malpractice. These laws are known as statutes of limitations and they vary from state to state. In some states, such as Michigan, the statute of limitations for a veterinary malpractice lawsuit is only two years from the date of the last treatment or six months from the date the malpractice was discovered, whichever occurs last.

Finding a Lawyer

Even if you have a strong veterinary malpractice case, finding a lawyer to handle it can be the biggest problem. Why? In the vast majority of states, the winning plaintiff in a veterinary malpractice case stands to recover far less than what he or she would recover if the matter involved medical malpractice. Because of the limited amount of damages the winning plaintiff can usually recover in a veterinary malpractice case, and because of the high cost of hiring expert witnesses to substantiate the malpractice and the damages, lawyers might be inclined to refuse to handle a veterinary malpractice case under a contingency fee arrangement unless the evidence is compelling and the damages at stake truly warrant this arrangement.

Alternatives to the Malpractice Case

In addition, or as an alternative, to a malpractice case, a horse owner might consider challenging the veterinarian's license by lodging a complaint with the state regulatory board that disciplines veterinarians or has the power to control or suspend their licenses. A proceeding directed against a veterinarian's license may not compensate you for your loss, but if successful it could result in a restriction or even a revocation of the veterinarian's license. A successful proceeding will at least give you the satisfaction of knowing that the veterinarian, if he is truly culpable, cannot injure other peoples' horses.

Best wishes for an acceptable resolution.

(NOTE: The above is not to be deemed the rendering of legal advice; legal advice is only given in an attorney client relationship where the lawyer receives specific facts. Direct your questions to a knowledgeable attorney.)

-- Julie Fershtman

Two years ago I sold one Arab mare and gave another one away. Both to the same person with a signed paper stating that a condition of the sale was that the horse which was given to them was never to be sold for profit. They live in another state so phone calls were the only method of communication.

Several times I was told horse was fine and getting along with them great. I had the opportunity to access a CD ROM from the Arabian reg, and found that the given mare was sold within a month of them receiving her. Since they had signed a paper saying they would not sell the horse what would be my legal recourse in this situation. Can I sue them for breech of contract and also can I sue for the value of the mare?

I live in the state of Ohio and the transaction took place in the state of Ohio. The persons who received the horses are from the state of Michigan. Also this took place in Jan. 1997 but I did not find out that they had sold her until summer/fall of 1998. Is there a time limit on when you can sue.

Thank you,

Kathy Hopkins

Ms. Hopkins wonders whether she now has a breach of contract case. That's a tough question, and we cannot tell until someone takes a good look at the contract to see whether a violation (or "breach") really occurred. Did the "recipient" really re-sell the mare for profit, in violation of the contract? Does the contract forbid the "recipient" from giving the mare away again? (Geez, if so, this mare is truly the gift that keeps on giving!) Were you entitled to advance notice if the mare was to be given away?

If the contract is silent on lots of these issues, the case gets a bit complex, as you look to the parties' intentions at the time the contract was made. And guess what: each party to the contract will have completely different ideas on that topic!

The next questions cannot be answered definitively, either. Those questions were: (1) if Ms. Hopkins has a case, what can she sue for? (2) has the statute of limitations run out, which would prevent a lawsuit after too much time has passed? I'm afraid I cannot venture a guess, as it's unclear which state's law applies -- Michigan or Ohio. The answer may differ depending on the governing state law. Maybe the contract t specifies what state's law applies (I put this in every contract I write). Or, if not, a lawyer needs to evaluate the circumstances and advise you accordingly.

I'm clueless on these inquiries, as they really require an intensive review of the contract and surrounding circumstances. That's a job for a lawyer in a one-on-one attorney-client relationship.

(NOTE: The above is not to be deemed the rendering of legal advice; legal advice is only given in an attorney client relationship where the lawyer receives specific facts. Direct your questions to a knowledgeable attorney.)

-- Julie Fershtman