Ask An Attorney - Archive 5

Ask An Attorney - Archive 5

We own a boarding/training facility in NC. We have the limited liability law here, where we post signs basically stating that they are riding at their own risk, and we are not responsible for any injuries incurred while they are riding. We also have liability insurance for our facility, which covers students while riding, and the horses we board.

My question is: If a student is riding on their own, on a leased horse, and they happen to get injured, are we legally responsible if the parents sues us? Our insurance policy does not cover students while riding leased horses. Parent's are dropping off their children to ride, and assuming that our manager/trainer will be keeping an eye on them while they ride. We are a partnership, but are only named so on the lease of the property. We have no legal partnership at this point in time. Can they come after myself (the silent partner) if an injury occurs? The trainer is willing to take the responsibility of watching them, and I don't feel comfortable with that.

WOW! That's a lot of questions. Let me see what I can do by breaking them down for you and then briefly responding:

First, you ask if a student is riding on their own, on a leased horse, and they happen to get injured, are you legally responsible if the parents sues you. The problem is, what do you mean by "student"? (Are you providing riding instruction? If so, arguably there's a duty to provide reasonable supervision, applying only basic negligence standards) Also, what do you mean by "a leased horse"? Who owns the horse? (You?) If you provide the horse in a lease situation and you have not released yourself from liability appropriately, as permitted under the laws of your state, it's always possible that the lessee (the one to whom you leased out the horse) could attempt to sue you, especially if the lessee claims that the horse has a dangerous propensity which you allegedly failed to disclose.

Second, you mention that your insurance policy does not cover students while riding leased horses. Again, I'm not sure what you mean here, but you ought to contact your insurance agent right away to discuss the issue. In my opinion, any time you have a risk in connection with your equine operations, you'd be very wise to see that your insurance covers it.

Third, you state that parents are dropping off their children to ride, and assuming that your manager/trainer will be keeping an eye on the kids while they ride. Please see my earlier comments. If you're not in the business of providing supervision to the kids, it seems that the kids' parents are sadly mistaken. In a legal dispute, the parents will swear that you undertook a duty to supervise and you'll swear just the opposite. Consequently, it's time to (1) get your relationship CLEARLY confirmed in writing and signed by the kids' parents or legal guardians; (2) get your insurance in order; and (3) if you have not already done so, determine whether a release of liability can be done in your state and then get a GOOD one drawn up by a knowledgeable attorney. Ask the lawyer to explain to you, however, how releases have very limited effect where children are involved. You're still very much at risk, you'll learn.

Fourth, you state that you're a silent partner in a partnership and that it has not been formally established. You then ask whether potential plaintiffs those who sue) can come after you if an injury occurs. I suspect that you knew that the news is bad here: Although I can't vouch for the intricacies of NC law, the general rule is that in a general partnership ALL of the partners can be individually liable. This means that you, even though you're not actively involved in the operations, face the prospect of personal liability for what happens! This is VERY serious. Some of your options (and a NC attorney can better advise you on this area) may be: (1) form a limited partnership and become a limited partner - ASAP - and not a general partner (limited partners don't have this problem); (2) get out of the partnership altogether and make your relationship one of a $$ lender evidenced by a Promissory Note or other documentation, but disclaim all affiliation in the business operations in a legally-sufficient way; or (3) incorporate, but do it right; AND, always consider (4) make sure that you' re named as an additional insured on the business' insurance policy and that you're happy with the policy types and limits.

Best wishes for success with the NC facility!!

(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 have been involved in an unforeseen mess. I attended a sale in April, and the fellow that asked me to go with him and point out good bred mares to cross on our studs, paid for them with an insufficient check. He had already placed the 8 mares (3 had foals, 3 more foaled later, 1 was open and 1 was in foal for '99) at my place. He presented himself as legit when he bid on the horses, but, as we found out, he was anything BUT that! My questions are: 1. Who should be responsible for the costs incurred for the care of these horses? I was asked by the hot-check guy to board them. Then the check bounced, and since then, felony charges have been filed against the guy that wrote the check. (The total cost of the mares was almost $30,000.) I signed a "keeper agreement" with the Nevada Brand Inspectors. The guy that had the sale tried to accuse me of conspiring with this hot-check guy---which was NOT true! Then the sale guy told me that he was not responsible, since he didn't own the horses, that he was just an agent. Even though he did not follow the "Conditions of Sale" that he has listed in the catalog. He took the check, and never even asked for a driver's license! The sale guy did finally buy a little hay for the mares, but not very much. I have had the expense of their care almost totally. Including vet bills. The sale guy would not return the mares to the owners and admit the truth, and the owners don't want to pay the bills because they feel that they were already rooked. The man that held the sale is well known in the auction world. He was very rude almost every time I called to try to get more feed. Now he is telling me that he will tie up the Agister's lien in civil court for years if he has too, in order to make it impossible for me to sell the horses.

I am not a bad person, but neither am I wealthy. I was also lied too in this deal. I thought that I would get the board and training, etc., from the hot check guy. Now, not only am I lost as to what I can do, but I am being threatened that I will have to try to continue feeding them, until I can't do it anymore.

The mares are all in good shape. They are fed 3 times a day. I am a widow, and live on my widow's pension of $1205. per month, plus what I make off of my board, etc. I can not afford these mares much longer.

Is there anything to the threat that this guy has made to me about tying them up for so long? Can he interfere with the proceedings on the Agister's Lien? What about the owner's? Do you think that the sale guy will have to pay them? I hate to think of the owners. They thought that they were going to sell their mares when they heard them go through the ring.

I know this is long, but I need some ideas on what to do. I would appreciate any response. Thank you for your time.

Sincerely,
Tracy Smith

Dear Ms. Smith:

You really are in a mess here. It's unfortunate that deadbeats are often so slick and appear so trustworthy -- just as the deadbeat was in your situation. Let me share my thoughts with you.

You're right that you have an agister's lien on the horses for the costs of their care and keeping. My book, Equine Law & Horse Sense, explains the agister's lien. But the agister's lien laws differ widely from state to state. Therefore, the only one who can really say for sure whether the auctioneer 's threat -- the threat to block your lien foreclosure efforts -- is legit is a lawyer who knows the applicable law of the state you're from (I don't believe you mentioned the state). That lawyer can also address your question on the rights, if any, of the owners who placed the horses at auction.

Given the variations in the laws from state to state, this question really calls for response by a lawyer in your state or one that can research the law for you.

Sorry I can't be of more help. Good luck.

(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

Yesterday I lost my horse to a case of choke. When they opened up his throat post-mortem, they found the cause to be a hay-cube. It had caused major damage to his esophagus: small cuts in the tissue wall around it and severe bruising. It was still dry and compressed in the center, even after they had pumped gallons of water, DSSO, and more water down his throat for hours (2 days) trying to soften it. I would like to approach the hay-cube company about their product killing my horse. Please send me your advice.

Thank you,

Leslie Trombley.

Dear Ms. Trombley:

What a tragic loss! I'm sorry to read of it. I have written an article on products liability, and I encourage you to read it. It's on numerous web
sites, including www.quarterhorses.com in the Equine Legal Guide. (This web site may have it, too.) Here's a link to the QH web site Quarter Horses.

As my article indicates, products liability cases can be very complex. Characterizing the case, alone, can be tough: Is the case based on a defectively manufactured product (such as a cubing process that makes all cubes sold by the company unsafe to consume?) or a design defect (one bad batch only), or failure to warn or give proper instructions? These are questions the lawyer will grapple with.

When a products liability battle gets tough, it's a fight of expert -v- expert. This costly battle might make sense if you're suing GM over a car that killed a human, but when a horse dies, most states don't look at the losses/damages the same way. Consequently, unless the horse was worth A LOT, and unless your state allows you to recover "pain and suffering" damages for the loss of your horse, you may take months to find a lawyer interested in handling your case.

Please read my article soon. Best wishes.

I have heard from a few stallion owners that they are required by law to run an electric fence around their stallion's paddock/stall, etc. I have neither seen any information supporting this statement, nor heard it from enough "horse people" to quite believe it. Is this true?

Since these laws may vary by state, I will tell you that I live in Missouri and have lived in Minnesota. We have one stallion and are planning to purchase our first piece of land large enough to actually have our horses "live" with us.

Hmm... the stallion owners may be onto something. Possibly, one of them learned from an ordinance [NOTE: an "ordinance" is a local law affecting a municipality such as a village, city, or township] enforcement officer about the requirement for electric fencing and then installed it. Or, someone housing a stallion may have looked up the local large animal ordinance (also called a livestock ordinance or sometimes horse or farm animal ordinance), or other ordinances addressing commercial equine facilities in order to comply.

So, what do you do when everyone seems to cite a rule, but nobody can produce a copy? You're very wise to insist on seeing it in writing! As I see it, you are left with two possible options here: (1) BEFORE you put an offer on land, contact the municipality where you plan to buy the land for your own horse property and get a copy of the horse/large animal/farm animal ordinances and any ordinances that address your planned use. Read them carefully to see if they affect, or destroy, your planned use; or (2) hire a lawyer to do (1) for you and to issue an opinion letter as to how the ordinances affect your planned use, and, if so, what are your chances of securing a variance of some type. (You may be surprised at the ordinances, too. Believe it or not, my own municipality wanted to pass an ordinance banning all electric fencing since a few "city-slickers" on our Planning Commission assumed that electric fencing was inhumane! They dropped that idea, fortunately!)

The May issue of EQUUS magazine featured an article I wrote on equine zoning and land use issues called "Horses Welcome." The article has lots of information that you might find useful. You might want to order a copy from the EQUUS folks.

Best wishes that your horse facility dreams become a reality soon! Believe me, you'll love having your horses at home, and they'll love it too.

-- Julie Fershtman

Is it common practice for a vet to leave a halter on a yearling overnight unattended? This resulted in the death of the gelding and the insurance company said this was a common practice. Is the vet or the insurance company liable? What should I do? I have found many articles on not leaving a halter on and asked many experts and they all said that it is very dangerous. Thanks for your reply.

Do you have a case? That's hard to say because you have not given enough facts. You do say that "experts" advise you that horses should not be left with a halter on overnight. I suspect that just as many "experts" might go the other way. There are arguments on both sides of the issue, and people have strong feelings either way. Some say it's a necessity in the event of an emergency (like a barn fire) or if the horse got loose overnight and needed to be caught; others say the horse could get its head caught (on a fence post, its leg, or something).

Now, there are other issues within the one you raised, but your facts do not address them -- such as: Do authoritative, established veterinary manuals advise against haltering horses overnight? (if so, this would help support a case) Was the horse turned out with a too loose halter that was just waiting to get a hind leg caught when the horse scratched? (if so, more stuff for a case) If the horse was turned out, were the fence posts of the type just waiting to catch an ill-fitting halter and then break a horse's neck? (this, too, gives you something to consider) Was the horse receiving special treatment (an I.V., a patch, bandaging) that made it necessary to halter him? (this would support haltering) Obviously, these facts and issues could predicate -- or defeat -- a claim for negligence.

Finally, you ask what you should do. As I see it, here are your options: [1] Do nothing; [2] Consider discussing your case with a knowledgeable attorney who has all the facts and can help you decide whether to pursue legal action; or [3] consider filing a complaint against the vet with the licensing authority in his state.

For some more information, please read my article on veterinary malpractice, which is found in the Equine Legal Guide of the "Quarterhorses.com" web page
(this web page should link you over to it).

Good luck.

-- Julie Fershtman