On September 11, 1998, I traded a 12 year old mare and $500 for an 8 year old gray mare. At the time of purchase, the horse trader said that if we didn't like the horse, "bring her back and I'll make it right". In addition, he told me that the previous owner gave the mare bute on long trips. I told him that we only trail rode close to home and expressed concern that she was given bute. I asked him point blank if there was cause for concern and he said no that the horse was in sound condition.

Within one month, our vet found Osteoarthritis in the back right leg with (P1, P2, & P3) and scar damage "from at least 10 weeks prior. Upon promptly returning the mare (and finding out that he had put down the mare we traded!), the horse trader said he wanted his vet to take a look at the mare. Therefore, we left the mare believing "everything would be made right".

A couple of days later, the trader called and said the mare had two fractures in the same leg. He said that the conditions our vet saw were correctable, but the two fractures evidentially caused by us were beyond repair and the horse needed to be put down. I was beside myself. Two horses we cared for had to be put down within one month?!! I could not say anything.

Two days later we received a money order for $430 (slaughter price evidentially) and he believes this is "making things right"! We had $1,250 in the horse we traded plus $500 for the mare and $500 in vet bills!

Do we have a case against this, so called, man? I live in Ohio and the transactions took place in Ohio.

Thank you for any assistance you may provide.

Jana Bellamy

Oh well, here it is (I'll soft-peddle it this time): Please get it in writing. Why? A written document would reflect the value of what J.B. gave up and what she paid. A written document would confirm the horsetrader's words that the horse was sound. Plus, a written agreement would spell out those words from the horse trader (words he denies) that he would "make everything right." J.B. is now a believer in written agreements, based on the disaster she just encountered. Chances are good that the horsetrader would have backed away from a written contract, and this would tip off J.B. that she was in for a bad deal; she could have called it quits before it ever started.

The beauty of J.B's dispute is that she is almost definitely within the jurisdiction of Small Claims Court. That's the "People's Court," where lawyers are not allowed to go. So, my best suggestion to her is to try out the case in Small Claims Court. As my book, Equine Law & Horse Sense, explains, folks like J.B. would be wise to: (1) make a clear dollar demand (but think this through CAREFULLY and do not sell yourself short); (2) provide supporting documents at the hearing like the vet bills and vet report -- maybe get a sworn affidavit from the vet, too; (3) provide any documents that support the value of the horse with which J.B. parted; (4) be organized and succinct at the hearing.

Certainly, J.B. can hire a lawyer to threaten the horsetrader with a demand letter. Don't expect miracles, though, and the cost of legal intervention might be huge compared to the amount at stake. J.B. can also hire a lawyer to "coach" her in a Small Claims Court venture. That's up to her.

J.B. should carefully inspect that check the horsetrader sent her before she cashes it. It might be a trap. That is, the check might have included language in it whereby J.B., by the act of endorsing and cashing it, released the horsetrader from any further obligations.

J.B. may not have had the foresight to write up a contract, but maybe she can -- by taking the horsetrader to court -- have the ability to "make it right" in the end.

-- Julie Fershtman

I have a horse drawn carriage business. A driver of mine (part timer) was kicked by my horse while driving. The horse buck kicked backwards through the front dash into the drivers chest causing driver to be thrown from carriage resulting in further injury. Horse was fairly new driven 31 times before the accident. The second time this particular driver drove him. Is the owner liable?

New York State, no workers comp or employment contract in place.

Thanks,

Arty Nichols

Mr. Nichols, it seems, has found himself in some legal hot water. My best suggestion to him is to direct his questions IMMEDIATELY to a New York lawyer or to a lawyer who can hit the books for him on NY law. He would want authoritative answers to these questions, for starters:

1. Was Mr. Nichols, as a matter of New York law, required to purchase worker's compensation insurance for the worker at issue? Are there any exemptions that may apply to the situation?

2. If the New York laws REQUIRE worker's comp insurance, and if Mr. Nichols did not procure it, what does NY do under the circumstances? For example, is there a NY fund from which the injured worker can draw for reimbursement of medical costs and lost wages? (And, if so, can that fund turn around and sue Mr. Nichols directly to recoup the $$$ paid out?) Are there penalties that the NY statutes impose on uninsured employers (like making Mr. Nichols personally liable)?

3. Does NY Law recognize an assumption of risk argument for folks injured on the job? (Most states would prefer to protect injured workers and would abandon such an argument in an employer/employee setting -- but you never know.) New York HAS recognized assumption of risk when folks who are equine industry professionals are hurt doing their job [See the case of Ron Turcotte v. Fell, for example].

4. What "damage control" can and should Mr. Nichols do now? Should he now procure worker's comp for his other workers?

5. Finally, if things are looking bad, a competent NY lawyer can advise on "planning ahead" for possible liability by getting certain finances in order. I would suggest that any efforts folks like Mr. Nichols make in this regard be done with the direct help -- in advance -- by a knowledgeable lawyer. Doing it wrong could expose folks to liabilities for fraudulent conveyances and under other theories.

Best wishes to Mr. Nichols for good, focused legal advice from a lawyer who can hit the books for him. I hope the outcome turns out favorable.

-- Julie Fershtman

I have a friend who is stabling a mare at a city-owned and resident leasing stables. She always payed board in cash and never received receipt. Now the stable sent a bill stating back board costs and vet bills in the amount of $1,400.00.

But to come to find out the stable has been using the horse for lessons and has been making money off of the horse. The stable is now trying to take my friend to small claims court to take possesion of horse or payment. They will not let her take the horse off premises.

As a business is this legal? Can a stable keep an animal for back rent while still acumulating a higher bill? Doesn't the stable have to do a lien-sale on the horse rather than small claims? Are there any other cases likes this one on file and where can I find them?  Also can she countersue the stable for using her horse for lessons? She lives in California.

Thanks,

Amy

Question one appears to be whether the stable can, on its own use a boarded horse for lessons and not credit the income against the owner's board tab. The answer depends on what the contract between the parties contemplated -- maybe Amy's friend was getting reduced board in exchange for the use of her horse. Maybe the stable was wrongly taking "freebies" by using the horse without permission. If the latter was the case, the stable is acting improperly -- it, as I see it, cannot exercise such control over the horse until it becomes the legal owner through a legally proper stablemen's lien sale. The horse's owner would be wise to bring a counterclaim for the likely income the stable derived (but don't expect the stable to be truthful and admit it earned a pile of cash from the horse). An aggressive horse owner might even consider pursuing an injunction to stop this use by the stable (but small claims courts might not have the power to issue an injunction).

Question two is whether the boarding stable can demand that the horse stay on the property. The answer depends on the language of the California stablemen's lien law. On a national level, most of the laws give this right to the stable. But the owner has a rather extenuating circumstance here -- I doubt the law allows the horse's use in lessons (but someone ought to hit the books and learn for sure)! If the law allows the stable to retain possession, and if your friend is fearful that the horse will be hurt, this might be grounds to override the legal requirements. After all, continued possession in her case could mean a daily threat to the horse's well-being. This is another supporting basis for an injunction.

Question three is whether stables can keep an animal for back rent and still accumulate a higher bill? Again, that depends on the law. Quite possibly, the law might allow the stable to keep possession for a certain waiting period, after which time the stable can conduct a sale (with specific legal requirements typically written into the laws). Sounds unfair, doesn't it? That is, the stable's board bill mounts up and the owner can't cut the losses and take out the horse. Sadly, though, that may be the law. Horse owners aren't alone. Numerous states have garage keepers lien laws that are strikingly similar!

Question four is whether the stable must conduct a Stablemen's Lien Sale on the horse instead of Small Claims. I defer to the California stablemen's lien statute and am afraid that I'm not in a position to give you a legal opinion here. Some state laws -- and I do not speak of the California law in particular -- can actually allow this to occur. However, the stable would only get a dollar judgment and not a judgment of possession of the horse. Of course, in those states, once the stable tries to enforce (that is, get money from) the judgment, it can seize and sell off certain assets of the judgment debtor. A horse may qualify as such an asset!

The final question is whether there any other cases likes this one on file and where might Amy find them to use for her defense. <sigh> I'm afraid that question exceeds the scope of my volunteer duties as the equine lawyer donating time for basic questions. What Amy's friend truly needs is a lawyer who would be hired to look up or direct her to proper California law. (Sad to say, the time I donate to this web page doesn't contemplate some hours of hitting the books on the intricate elements of law in a certain state and case law construing it...).

I wish Amy's friend and her horse a happy resolution to this messy situation.

-- Julie Fershtman

Thank you for reading this. I have a very frustrating situation. How can you prove that your horse did not receive the training and care that a trainer agreed to do and has already been paid for when there is only a verbal agreement?

My horse has been in training for almost a year. I paid for the first 5 months and the rest of the year the trainer did it on his "own time". I no longer had pay the monthly training fee as before, but would continue to pay all other costs, such as hay, vet bills, and shoes. The incentive would be to share future winnings that the trainer would be able to generate on this horse. (a win/win situation)

To make a long story short, it seems the trainer gave up on this horse way in the beginning and just said, "she is coming along fine." I was to be informed on her progress. She brought the horse back a week before entry fees were due for "the big race" saying that the horse did not have the right attitude. She even gave her a month off as an "effort to bring her out of it" and now wanted me to take her back, suggesting she would be a better prospect as a five year old.

She had not been shod for at least 9 weeks when I got her back, and I now find out the farrier we agreed to use only shod her one time. The rest of the time members of her family did this horse's feet, and the mare was sedated for the procedure to make easier for the less capable farrier.

My horse is here now, and I can't even get her to lunge for me in a round corral. She is very stiff, sore and acts sour. She will suddenly spin to go in the opposite direction without be cued to do so, and tries to kick at me if I force her to go the right way. If I get it on videotape will that be of any help? How can I make this person accountable for her specialized training when this horse is a nightmare at the basics. (By the way, she was able to do the basics before she left.) Thank you for you time and opinion.

Nancy Dermody

The $64,000 questions are: (1) are there legal theories addressing a possible case against the trainer? (2) if so how does one prove it? and (3) if she can get past (1) and (2), what kind of damages or relief can she expect.

Whew! I'd love to be paid $64,000 for each answer, but (sigh) I'm merely an uncompensated attorney volunteering a few minutes here & there before retiring from a hard day's work. We do not know what state our writer is from, and we recognize that laws may differ, but let's generally go through the questions:

(1) The case. The case would be for negligent care (state bailment laws may apply here) and possibly breach of contract -- after all, the trainer contracted to train the horse, but the writer says she didn't fulfill her promise. State deceptive trade practice laws may apply here too, so someone ought to hit the books to find out. Aggressive attorneys might even consider a claim of fraud for what happened, if a careful review of the facts revealed a good faith basis to raise it. I can't comment.

(2) Proving the case. Of the world of judges in the U.S., it's my opinion that probably only 4% know anything about horses. If my estimate is true, you have a 96% chance of getting a judge clueless about horses. Your job will be tough, as you'll have to do a lot of educating. A jury trial will pose the same burden. Guess what might happen:

-- You show your video of what a mess your horse now is & the judge asks: "So What? Can you prove the trainer did this? Where's a video of the pussycat horse you had before the trainer?" Your lawyer can discuss whether to take or use a videotape with you, after you explain all of the facts to him or her. I'll defer to your lawyer.

-- You'll explain that you believe the horse would act better if the trainer did his or her job. The trainer will probably swear under oath that she DID do her job. The judge will be baffled. So will the jury. Who can be believed?

Proving your case and gathering your evidence are strategy matters you and your lawyer must discuss. As a trial lawyer, I grapple with these matters all the time. Certainly, industry folks can be hired as consultants to help your lawyer do the job. For starters, are there witnesses at the trainer's barn who saw your horse become a permanent fixture in the stall or pasture without any attention by the trainer? That would help. Can a vet or farrier testify that your horse's legs are permanently messed up as a direct result of improper care? That would help, too.

(3) Damages. Can you prove that your horse is totally and permanently lame from what happened? If so, you may have a case to recoup your money as well as the lost value of the horse. Do you want a refund of the fees you paid the trainer? Maybe your law allows you to recover that, too. Can you recover your legal fees if you win? Maybe -- especially if your state deceptive trade practice law applies here & the judge invokes the attorney fee provision (which they sometimes have the discretion to do if they find a "willful" violation of law). Overall, don't count on winning back your legal fees; 12 years of law practice tells me most judges will not award fees to the winner. Other damages questions can be answered by your lawyer, after he or she has examined the law of your state for you and understands all of the facts.

You and your lawyer have a lot of work to do. Here's hoping the matter resolves itself to your satisfaction -- without a $64,000 legal tab!

-- Julie Fershtman