Yes, You Heard Correctly: Equine Liability Insurance Companies Can Actually be Your Friend!

19 10 2016

Throughout my career people inside and outside the insurance industry would quip “Insurance companies have two purposes – one is to collect premiums and the other is to deny claims!” Well, those are two functions of insurance companies at the appropriate times, but there are two other functions which are even more important to us. One is that insurance companies do pay claims when the claim is a covered risk (i.e., a loss which is covered by the insurance policy) which can be a lifesaver for you. The other important function is that they offer lots and lots of help for their insured individuals and businesses (they are called “insureds” in the legal/insurance world) which, when these insureds take advantage of this help, can prevent the loss from ever occurring in the first place. Remember that you and the insurance company are on the same team in one critical respect – you both have a vested interest in preventing your loss from ever occurring!

Whether we are talking general liability insurance, automobile insurance, instructor liability insurance, equine mortality insurance (and on and on), the vast majority of insurance companies (especially those companies with lots of claims experience in the type of insurance you need) provide a good amount of “risk management” or “loss prevention” materials for you to use. Those materials are excellent resources, typically, for information on how you can reduce the likelihood that you will ever suffer a loss.

How does this concept relate to the equine world? Well, by way of example, a company who writes liability insurance for a stable with a riding school will likely send out a risk management team or person to visit to the farm in person. What that person usually does is observe the farm to see if there exist any dangerous conditions (based upon the claims experience of that company and others in the industry) and analyze the potential for common loss scenarios at that facility. For example, if equine liability insurance companies have seen a steep rise in student injuries taking place inside horse stalls, they might suggest, or even require, the stable owner to install cross ties in each school horse stall and have the school implement a rule that no student is permitted in the stall to groom or tack his or her horse unless they cross tie the horse immediately upon entering the stall. Some schools even go so far as to have staff do the cross tying and the student is not allowed in the stall until the horse is cross tied. Or perhaps staff cross ties the more difficult horses and the students are permitted to cross tie the more compliant horses. It is a pretty simple concept – horses are big and heavy and cross tying them reduces the likelihood someone in the stall will be stepped on, kicked, bit and so on. It could still happen, but statistics kept and studied by equine liability insurance companies demonstrate that when horses are required to be cross tied in the stall, fewer ground injuries to the riders occur. It makes sense if you think about it.

The problem is that most of us do not think about loss prevention when we are at the barn teaching or working or tacking up. All riders have basic self-preservation skills or they would not be riding horses, but there is always more we can do to increase our attentiveness and work to be more observant of potential risks to humans, other animals and property. We all know it is not smart to make quick movements that might startle a horse and to wear tough shoes in case our feet get stepped on, but we can all learn more about safety and loss prevention. And it is absolutely FREE from most of our insurance companies. And the insurance companies want nothing more than for us to avail ourselves of all the information which they can provide to us. Because in the end, we do not want the loss to occur, we do not want to have to file an insurance claim and the insurance company certainly does not want to have to administer our claim or pay us any money for a loss. So our interests are very much aligned with the insurance company in a important way.

Call your insurance agent or carrier and ask about risk management or loss prevention information they may have available. If they have none, consider comparing their coverage and pricing with insurance companies who do offer that type of information. You will probably fare better in the event of a claim with a company who has enough experience and business acumen to make these sorts of materials available to its insured instructors, stables, riders, etc. And if you cannot find affordable insurance coverage with a company who offers the loss prevention materials, hop on the internet and google “risk management riding schools” or “loss prevention riding instructors” or something similar and see what you find. There are insurance companies who may not write your coverage personally yet will offer useful materials free of charge online that you can read and will find useful.

Stay safe and remember that insurance companies are not necessarily a hassle and that the best relationship to have with an insurance company is one of teammates where you are in partnership to protect you and your business and prevent you (and them, of course) from having a loss!

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2016 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.





Should I Let My Friend Ride My Horse?

5 07 2016

You know the scenario – Oh! You have a horse? I love horses! What color is it? Can I come out and ride sometime?  

Now what do you do? You want to be a good and hospitable friend or relative, but you also want to keep your potential rider and your horse safe and not traumatized – and keep yourself free from the regret and legal liability that could come if they were to have a negative experience together.

Should you let someone ride your horse? If you are extremely conservative and want to avoid all potential liability, then the answer is no.  But if you would like to provide the opportunity for this person to ride your horse if possible (and/or perhaps you need the help keeping your horse in top physical shape) then, like most everything with potentially serious legal ramifications, the answer is “it depends.”

Why is there no easy answer to whether you should let someone ride your horse? Because the answer will depend on many circumstances. A horse and rider combination should always be a good fit. A bad fit can spell disaster for you, your horse and/or your rider – and even perhaps bystanders – human and equine.

Before allowing anyone to ride your horse, the first thing you should do is check your insurance policies to see if they cover any damages that you, your rider or your horse may suffer during such a ride. Ordinary homeowners’ policies often do not provide liability coverage for you in these scenarios. There may be umbrella policies you can buy through equine membership organizations like the United States Equestrian Federation or the North Carolina Horse Council which cover these situations, but you need to read the policy to be sure you understand what it covers or, at a minimum, ask your insurance agent (preferably in writing so you have a record of the response).

Assuming you have insurance coverage for the activity, you should also have your rider sign a liability waiver and release. Such a waiver and release is one of the best things you can do to protect yourself from legal liability in this scenario. In addition to having a signed waiver and release in hand, you can enjoy the benefits of the North Carolina Equine Liability Act if you post in a visible spot where your rider will see it (and you should point it out to them!) an equine liability sign/warning in the required statutory format (in NC you can purchase the signs at http://www.nchorsecouncil.com for a very reasonable price). The sign can provide liability protections extended by statute in North Carolina to “equine activity sponsors” and “equine professionals.” If the required sign is not posted, then you cannot claim the benefits of the liability limiting statute.  Since the signs are inexpensive and easy to post, it makes sense to put up a few of these signs in prominent locations in your barn if they are not already posted.

Lastly, before putting your rider on your mount, you need to carefully evaluate your horse and the person who would like to ride your horse. Even if it is a family member and doing so will make you uncomfortable – you will need to ask this person some very direct questions. When you ask, always encourage him or her to be very conservative with his or her answers. Ideally, you could even have a form with questions listed and have this person complete it in his or her own handwriting and sign it. Your rider’s and your horse’s safety could depend on the accuracy of the answers given in response to your questions. Asking the right questions can also help protect you from legal liability in certain circumstances. Here are some examples of good questions to ask:

A.     Preliminary Evaluations of Your Horse and the Proposed Rider:

 

What are the horse’s and the rider’s temperaments, amount of training (and in what discipline(s)), skill level, soundness, fitness, health, age and size?   

  • Temperament. The temperament of the horse AND the temperament of the rider are equally important. A spooky, tentative horse may not do well with a timid, frightful rider. Likewise, a sluggish, older horse may not move at all if you put a tentative 12 year old on her. Try to achieve good matches. Good matches have a better chance of creating a good experience and lower the chances of a legal dispute. Would your laid back 70 year old dad have an enjoyable (or safe) ride on a green horse which is spooky and nervous? Or maybe he would enjoy a little spark? Again, it depends. It is up to you to investigate what everyone’s expectations are about the ride and think about what situations are best for your horse and your rider in order to ensure the horse’s and the rider’s safety (and thus minimize legal liability if something goes wrong).
  • Unique Circumstances.  Also keep in mind that while your horse may have a calm temperament, long ago he may have had a bad experience that has left him with a unique fear (of tall men, children, umbrellas, plastic bags or something else), so consider those things too when deciding whether a particular rider is suitable for your horse. And remember to assess the mood of your horse and your rider at the time of the ride because everyone can have a bad day now and then. Consult with your trainer about what he or she feels your horse needs and take care not to put your horse or rider in situations where either would be uncomfortable. Uncomfortable situations can lead to injury which can lead to potential legal liability for you.
  • Amount of Training & Discipline. A horse with very little training is never a good match for a rider with very little training. Also, a horse with a lot of training in a discipline other than the rider’s may be a bad match for that rider. Just because your rider won the last ten barrel racing championships in her state does NOT mean she is well qualified to ride a highly trained dressage horse. Personally, my favorite horse to ride is a horse which is well trained in my discipline – one who has done far more than I will ever ask him or her to do. In other words, I like for my horse to know more about my discipline than I do. Choosing that kind of mount helps to keep me safer than I would be in a scenario where I know more than the horse – because I am not a professional trainer who can help the horse learn. So remember to consider disciplines of the horse and rider before pairing them up – matching them can reduce the odds of your facing a legal dispute.
  • Health & fitness level of horse and rider. This factor probably goes without saying, but if your horse is not sound or is sick or weak or recovering from illness or injury, do not put a rider on the horse without very careful consideration and consultation with your veterinarian and trainer. Likewise, if the person who would like to ride your horse is currently ill or injured or recovering from a recent illness or injury, do not allow them to ride your horse without careful consideration of the horse’s temperament (see above) and proof of the rider’s consultation with the rider’s medical advisors as to the suitability of the rider for riding. As a lawyer, I would prefer that all my clients avoid allowing sick or injured riders ride and avoid having anyone at all ride a sick or injured horse because it seems like a recipe for legal liability if further injuries take place during the ride. If your rider has disabilities of one kind or another, work carefully with him or her and his or her physicians to make sure that the circumstances of any proposed ride will keep the rider safe and be comfortable for your horse as well. Many, many individuals with physical, cognitive or emotional challenges have enjoyed and do everyday enjoy successful rides on horses, so such challenges are not necessarily an obstacle to the ride. Just take appropriate safety precautions and stay informed of all relevant information in these situations. 
  • Size, Age and Strength Pairings. Think about the size, age and strength of your horse and your rider. If your rider is a very tall or very large person, putting him or her on a pony is probably not a great idea. That being said, there are many, many different “expert” opinions in the horse community about what appropriate weight and height limits are for horses, but the best advice is to investigate a few of those height/weight charts (most of which can be found online) – or ask your vet, use common sense and if you are not sure, do not risk it. You do not want to embarrass your rider or injure your horse by seating a person in the saddle who is too large for your horse. It could also be dangerous for your horse and/or the rider if you have a very large horse with a back so wide that were you to seat a tiny person on its back the rider’s heels would not even reach below the saddle, keeping the horse from feeling important cues from the rider’s leg. Also, if the rider does not have good physical strength, controlling a very large and strong horse with reins could be challenging or even impossible. Age is a tricky consideration because there are no general rules until you get on the ends of the age spectrum. While very young children and horses and much older adults and horses may be best suited for limited, assisted riding, the range of ability, strength and temperament makes age much less relevant to your analysis than you might think – both with regard to people and horses. Rather than focus too much on the age of a potential rider or horse, I would recommend that you focus more on the other factors discussed in this section A when deciding whether a rider and horse pairing is appropriate or is likely to result in injury to either.

B.    Details of the Ride Itself: 

  • Location, location, location. Where would the ride take place? An arena? A riding ring? A pasture? With or without other loose horses present? Along a public road? Along a level, wide and easy trail? Along a steep, treacherous trail? Or somewhere else? 
  • Environment at the location. As we know, the more chaotic or dangerous the riding environment, the higher the odds are of injury and resulting legal liability. Likewise, if the ride takes place away from your barn, there is the potential of more third parties becoming involved if there is an incident. 
  • The audience. Would an equine professional, you and/or anyone else be in the vicinity during your rider’s ride on your horse? From a legal liability perspective, I would advise never, ever allowing someone to ride your horse without you present unless it is pursuant to a lease or other legal arrangement, you have confirmed insurance coverage for you and the horse, the rider has signed a waiver and release and you are very comfortable with the horse/rider pairing. The next best thing to your being present would be to have a trainer who is very familiar with the horse be present during the ride.  The bottom line is that it would be a very bad idea to allow a person to ride your horse for the first time alone with no one else present. If something happens and no one is present to relay the course of events, that can potentially be detrimental to the health of the horse and the rider and make any necessary determination of potential legal liability very difficult if a problem arises.
  • Safety ConsiderationsAbsolutely require everyone who sits on your horse to wear an ASTM/SEI certified riding helmet. I understand that it may not be legally required in some situations and that certain riders may feel that a helmets cramp his or her style, but when it comes to someone else riding your horse, you simply must ignore this resistance and require that they wear an ASTM/SEI certified equestrian riding helmet if they want to even sit on your horse. Having this requirement in place and enforced will almost certainly help you from a legal liability perspective should a rider be injured.
  • Clear the Decks. Keeping other loose horses out of the area where your  rider will be riding your horse is also a good idea. We are all familiar with a horse’s herd mentality and rather than risk the loose horses’ behavior influencing your horse’s behavior, it is easier and safer to remove that variable from the equation in order to give your horse and rider the best odds of an enjoyable ride – and for you to lower the odds of your facing legal liability for a bad situation.

If you determine your proposed rider is an appropriate match for your horse after considering and addressing all of the above issues, try to choose a place where there is plenty of room, a calm environment (away from construction and bad weather, for example) and a time when everyone (horse and rider) is well rested, well fed and adequately prepared for the ride. Tell your rider about any quirks he or she may need to know about your horse that will make his or her ride more enjoyable and successful and keep an eye out (or have your trainer keep an eye out) for the whereabouts of your rider and your horse so that if anything goes wrong, you will know quickly and you or your trainer can get help on site as soon as possible – whether for the rider or for the horse.

Hopefully these factors are useful to you when considering, from a legal perspective, whether to allow someone to ride your horse. It is a wonderful thing when you have a good and trustworthy person who is well suited for your horse available to ride your horse for you! He or she can be a huge help to you by riding when you may not otherwise be available.

 Good luck, stay safe and happy riding!

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2016 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.





Wild Horse Annie: Catalyst for the Beginnings of Legal Protections For America’s Wild Horse and Burro Populations

14 04 2016

In the 1950s, there was a secretary in Nevada named Velma Johnston who loved horses. Velma was stricken with polio as a child and was disfigured as a result. She had suffered ridicule and discrimination thereafter and developed a great empathy those also suffering mistreatment. One day Velma was driving down the road near her home and saw blood trailing from a horse trailer full of wild mustangs which was traveling in front of her on the highway. She followed the trailer to a rendering facility and the horror which she witnessed there caused her to dedicate the rest of her life to lead a fight to protect one of our nation’s greatest treasures – our wild mustangs (also referred to as wild horses and burros).

Velma Johnston started her fight to protect and preserve America’s wild mustangs at the grassroots level in the mid 1950s. Local schoolchildren and their mothers made up the bulk of her supporters. Her group became determined to raise public awareness of the dire situation with American mustangs and fight for government protection of the herds. At some point she was snidely dubbed “Wild Horse Annie” by one of her strongest detractors and was vilified by a large group of those in favor of continued “mustang hunting.” Her life was threatened many times to the point where Annie was answering the door to her home with a gun she held behind her back for protection. Nonetheless, her message resonated and her campaign spread like wildfire within the American public’s conscience. The outrage at the mistreatment and neglect of these beautiful horses and burros kept expanding further and further. Velma, in defiance of her detractor’s attempts to marginalize her with his “Wild Horse Annie” label, insisted that her friends begin calling her Annie.

Annie and the herd’s supporters began lobbying members of Congress in earnest, demanding that they take action. Their relentless efforts eventually led Walter Baring, a Nevada Congressman, to introduce federal legislation which would outlaw the use of motor vehicles to hunt wild horses on public land. The legislation became known as the Wild Horse Annie Act and became law in September of 1959.

The Wild Horse Annie Act was a brave and groundbreaking first step, although it fell short in many ways. Even at the time it was passed into law, it was becoming increasingly clear that America’s herds of wild horses and burros needed direct management and protection. The relentless public outcry to Congress demanding such management and protection continued for more than a decade. Finally, in 1971, Congressmen and women had received more letters demanding action to ease the plight of the wild mustang herds than had ever been received regarding any issue in history outside of war related issues.

Finally, in 1971, in response to the outrage Annie had kindled and when the estimated population of wild horses in America had dwindled to around 17,000 from a million or more around 1900, Congress passed the Wild Free-Roaming Horses and Burros Act of 1971 which protected the herds from various types of mistreatment and affirmatively stated that “Congress finds and declares that wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene” and that “it is the policy of Congress that wild free-roaming horses and burros shall be protected from capture, branding, harassment or death; and to accomplish this they are to be considered in the area where presently found as an integral part of the natural system of the public lands.

Since 1971 there have been amendments to the 1971 law and other laws have been passed and Court orders entered, all of which serve to further the goal of protecting America’s wild free-roaming horses and burros. The population of wild horses and burros is now upwards of 45,000 and is maintained on over 31 million acres of federal land, but it was the efforts of a small town secretary in an insurance office with a huge heart who sparked the fire which resulted in Congressional (and court) action to protect these majestic national treasures – America’s wild horses and burros.

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2016 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.





Are You “Legally Barned”? – Construction and Renovation of Horse Stables on Your Property

1 09 2015

Construction on a horse farm is always an exciting prospect. Sometimes in a good way and sometimes not so much, but always an exciting time nonetheless! This article will help you to begin thinking about legal issues that might be relevant in connection with the building or renovating of a horse barn on your property. Of course every locality will have different requirements with regard to barns (which might further differ depending on whether you are renovating or building), so you will need to do a lot of research about your own locality. However, this article should give you some general ideas of things about which you should be thinking before embarking on your construction project so that you can be “legally barned” when all is said and done.

What factors should you consider when planning to renovate or build a horse barn?

First, check the zoning of the area where you plan to renovate or build the barn. Is the zoning classification, if one exists, one which permits horse barns within it? Do not assume that an agricultural classification includes horse barns. And do not assume that because the horse barn is there that you are automatically permitted to renovate it. Call the zoning authorities and ask. Better yet, email them and get a written confirmation of the zoning classification and what that classification permits in terms of structures. There can also be county zoning classifications overlying or underlying city zoning classifications, so pay careful attention to be certain you have discovered any and all applicable zoning laws which apply to your property and that you know what those laws are, what they permit and what they do not permit to occur within those classifications.

Next, check to see if your property is subject to any restrictive covenants which would affect the ability of your property to be home to a horse barn. If not, just because it is there now does not mean you are entitled to keep it there. A check of the property’s title history at the local deed registry in the county where your property is located is the easiest way to find out if there are any restrictive covenants affecting your property. If you find some applicable covenants on the public record, read them thoroughly to see if they address the issue of horse barns, barns generally or agricultural buildings generally. If you do not know how to find covenants on the public record, you can hire a title searcher to assist you for a relatively reasonable sum of money. It is important that you understand exactly what you are restricted from doing on or with your real property.

Once you have confirmed that (a) a horse barn is indeed allowed within your property’s zoning classification and either (b) you have no restrictive covenants restraining the use of your property in any way OR (c) you do have restrictive covenants which affect your property, but they do not prohibit building a horse barn on your property, then you can move to the next step, which is assessing your horse(s)’ needs when it comes to shelter while considering potential legal liabilities and ramifications resulting from the way you choose to renovate or build your barn.

Just as there are local and state authorities who may issue zoning regulations and there may be multiple private and public individuals who restrict what can be done on your property (including the dimensions of buildings which are permissible on your property), there are also building permits which may need to be obtained in advance and building codes which may or may not have to be followed when constructing or renovating your barn. Odds are that there will be at least some parameters within which you must construct or renovate your barn and you need to know those parameters up front so that your builder can plan for them. It is an unwelcome surprise to realize when you are partially through a project that there are limitations or requirements of which you and your builder were previously unaware. Tearing out and reconstructing portions of the barn is exponentially more expensive than becoming educated about applicable building code requirements in advance and building or renovating the structure “legally” from the beginning.

From a cost standpoint, research your materials and do a cost-benefit analysis to determine the best materials for your project, both from a cost and durability perspective. While some materials may be cheaper, they may deteriorate more quickly and give rise to unsafe conditions sooner than you anticipate. Unsafe conditions are of course one of your lawyer’s biggest concerns because they expose you to potential legal liability for damages suffered by other people, animals and property present on your property. Your liability and hazard insurance company also is concerned about your using safe construction materials in a responsible fashion so as to minimize the likelihood of injury or damage. Insurance companies are typically so worried about it, in fact, that they will often devote an entire department to risk management or loss prevention. You should find out from your insurance carrier whether they have an equine loss prevention or risk management team and if so, whether they will send a representative to your farm to review safety precautions with you. If so, have them come to do it! It is virtually always a free service of your insurance company because they want to help you be safe so that they do not have to pay any insurance claims. In other words, they have a vested financial interest in keeping you “legally barned.”

Think also about ventilation, storage areas (hay, feed, tack and other), vermin prevention, sprinkler systems, fire hazards, quarantine areas for sick horses, safety check schedules to follow, disaster response plans, drainage of rings, stalls and paddocks, lighting and other electrical features, masonry, locks, bolts, paths and footing (in barn and outside), typical weather events (thunderstorms, windy days, hurricanes), typical horse behavior (kicking walls, cribbing), what other animals will be present on the farm, how many humans are in or around the barn at any given time, automatic feeding and watering devices, size of stalls, shavings for stalls, automobile/tractor parking options and restroom facilities. Many of these items may have their own set of applicable regulations.

Knowing the legalities of renovating or building a horse stable on your property in advance of your project will pay off handsomely when you can avoid pitfalls suffered by so many when they embark on a similar project. Talk with others about their barns, read all you can on the topic and listen to what they all have to say!

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2015 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.





When Does it Make Sense to Sue?

18 05 2015

Many, many of you have called me and emailed me about unfortunate experiences you have had in the horse world. For some of you with excellent factual scenarios and supportive law, I offer encouragement, you engage our firm and we together dive into the facts and circumstances and work towards getting you out of the situation in a better position than when you started – either through settlement or litigation – or both. What you may not realize is that those clear cut situations are by far the exception, not the norm. The vast majority of the time the calls I receive involve situations where it is simply not cost effective to hire a lawyer to pursue someone in a lawsuit. We might be able to negotiate some sort of settlement with the other party involved, but making the choice to pursue litigation is a very important one and you should know the factors which should go into your decision about whether or not to sue someone.

First, look at the amount of money at issue or the monetary value of your “damage” from the situation. If someone misrepresented a $1,500 horse to you and you bought it, even if you did everything you should reasonably have done to protect yourself, it is likely not going to be cost effective for you to hire a lawyer to try to get your money back from the seller of that horse. When you ‘re talking about a $50,000 or $150,000 horse, it is a slightly different analysis, but at least when you are looking at dollar amounts of that magnitude there is the potential that with that amount of money at stake, if your case is good, it may be worth pursuing in court.

Second, look in the mirror. Did you do everything a reasonable person would or should do in your situation? If not, you could be found by a judge or jury to have contributed to the bad situation; in fact, if your contribution reaches a certain level of unreasonableness you may be found to be “contributorily negligent,” meaning your own negligent behavior contributed to (or made worse) your own damages. In North Carolina contributory negligence is a complete bar to recovery for the Plaintiff (the person suing for damages), so it is a big deal if you have done something which contributed to the situation. Even if someone misrepresented a $50,000 horse to you, it may not make sense to pursue the seller if you did not do the appropriate amount of investigation (or “due diligence”) to determine the appropriateness of the horse before purchasing. For example, a judge or jury may consider whether you had your trainer go with you to assess the horse before purchasing, whether you had a veterinarian perform an examination on the horse (including in some situations radiographs and blood tests for drugs) before purchasing, whether you researched the show history of the horse (if applicable) before purchasing, whether you had the owner or his trainer ride the horse for you so that you could see the horse’s movement and behavior before purchasing, whether you and/or your trainer rode the horse before purchasing and perhaps other steps that would be advisable in your particular circumstances. Of course not all equine disputes involve a purchase and sale transaction. Even if your conflict does not involve a purchase transaction, there are still things that a judge or jury will look to you to have done which are simple common sense, reasonable, responsible behaviors. For example, if your stable fed coastal hay to your horse which caused him to colic and die because he was allergic to coastal hay, but you did not make sure the boarding agreement noted the allergy and specified “No Coastal Hay” when this issue was such an important requirement for his health, you will likely have a problem if you try to pursue the stable as being negligent for feeding coastal hay and attempt to hold it responsible for the horse’s death. Failure to note the allergy in your horse’s boarding agreement (or lease agreement or purchase contract, etc.) could well be seen as contributory negligence on your part.

Third, assuming you win your case and get everything you want in terms of a money award (a rarity in most cases), can you collect it from the defendant(s)? Remember the old saying that you cannot get blood out of a turnip? Spending a fortune on lawyers and winning a case is great, but if you cannot enforce the judgment because the defendant(s) has/have no money, it is quite a hollow victory. Not to mention you are in a potentially worse position than when you started because you have spent a great deal of money to get a judgment that is, as a practical matter, worthless to you. So think about the collectability of a judgment if you win.

While there may be many other factors to consider in your particular situation, for purposes of this article the last thing I will mention is that you need to think long and hard about the tremendous financial and psychological toll any litigation will take on you and your family. Not to mention the inordinate about of time it will consume – time you could spend doing other more pleasant (and arguably more productive) things. Many of you have heard me analogize litigation to organizing our attic or basement or garage. It seems like a great idea at first, but once we have all the junk pulled out and strewn all over the place, we look at it, are exhausted and think to ourselves “Why did I think this was a good idea? Now I have to organize and put most of it back in there and I really do not feel like doing that because I am exhausted.” That is how most people feel after they get deep into litigation. It is miserable, even with the nicest lawyer in the world who tries to make it palatable for you. It is expensive, from both a financial and emotional perspective, and, more times than not, that money and mental energy could be instead used for something which is much more rewarding to you personally (and perhaps financially too).

So, while it may seem like the thing to do when you are feeling wronged by someone in the horse world, consult an equine attorney early on and think very carefully about whether a lawsuit is the best alternative for you and your family. You might be surprised how many times it is not. Am I talking myself out of work? Maybe, but I would rather my clients know what they are in for on the front end than to plow forward and regret it when it is too late to get out without paying a large financial and emotional price, regardless of whether they actually win in court.

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2014 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.





Traveling with Trigger

22 04 2015

Few things are more fun than loading up your best equine friends and hitting the road for a horse show or a beautiful trail ride somewhere outside of your usual stomping grounds. Granted, the loading part may not always be fun for some of us, but hopefully you will have fun when you finally arrive at your destination and get tacked up. This article will give you a few things to keep in mind when traveling with your horse. We will call your horse Trigger for purposes of our discussion.

1. Is everybody healthy?

Make sure you have checked out Trigger physically for symptoms that he may not be feeling well. If he has runny eyes and is not eating well, you may not want to add stress to his life by taking him outside of his familiar surroundings or risk transmitting illness to other equines where you are headed. Why is this fact relevant from a legal perspective? Well, a sick horse (a) is more likely to not behave in the way he usually behaves; and (b) might get another horse sick. If you head out knowing that your horse is sick and then Trigger acts out and causes human or property damage or transmits his illness to another horse at the show or on the trail or in the horse motel, there is potential legal liability for you because you knowingly took him off the farm when you knew he was not feeling well.

2. Do you have the proper paperwork?

Every state requires some sort of paperwork demonstrating the health of the animals you are transporting within, to or through their jurisdiction. Some may only require a negative Coggins dated within the last six months, some may require more extensive documentation. Research the requirements of the states within which you will be traveling – even if you are just passing through – because every state line you cross gives rise to requirements about which you may or may not be familiar. And be sure to rely on an authoritative source, not just hearsay from friends. Do a Google search on equine transportation requirements. The following link is used by lots of folks to determine these requirements (but I am not endorsing any particular place to look, of course): https://www.usrider.org/EquestrianMotorPlan.html. Failure to have the proper paperwork can result in fines to you, some of which can be sizeable, depending on the state. It can also result in law enforcement requiring you to turn back and leave the jurisdiction – not something you want if you are eagerly anticipating a fun outing with Trigger.

3. Did you check out your trailer?

As with number 1 above, you need to check out your horse trailer before you load Trigger and embark, especially if it has been a while since you used it. Failing to check tire pressure and the security of latches, fasteners, dividers, windows and other key parts of your trailer can spell disaster if the wrong horse steps on the wrong spot or bumps into the wrong thing inside the trailer – or you hit a pothole in the road and things start flying open or apart. If the worst happens and you are in an accident and someone or something is damaged, there is a very good possibility that it will come out in the course of an investigation that you failed to do a safety check on your trailer before loading Trigger and departing the farm.

4. What’s the Weather Like?

While it seems common sense that folks would not load up Trigger in the middle of a thunderstorm or blizzard, I will state the obvious anyway. We are all aware of a horse’s sensitivity to the weather and the impact that bad weather can have on a horse’s behavior, not to mention the adverse effect it has on traffic on the very roads where you will be traveling. If you load up Trigger in the middle of a windstorm and head for the mountains thinking that you will eventually drive out of the storm and everything will be fine and you are wrong, things can go bad quickly. If your trailer is blown off the highway or debris is blown underneath the trailer and gives you a flat tire, your biggest problem is probably the safety of you and your own horse and the damage to your own trailer. But in the worst case scenario we lawyers like to worry about, the trailer breaks free or Trigger gets upset and kicks the door off the trailer and falls out, causing an accident. I have no doubt if that were the case and someone were injured or someone’s car was seriously damaged, law enforcement – as well as the lawyer for that person (or those people) – would be investigating what the weather was like when you loaded Trigger and will be asking you if you thought trailering in the middle of a storm was a good idea. And the answer is no, it is not a good idea to load a horse in a trailer for travel in the middle of inclement weather if it can possibly be avoided. There are always emergency situations where you have no choice, but where you do have a choice, try not to travel with Trigger when the weather is such that the safety of you, Trigger and others is compromised.

There are certainly other legal factors to consider when deciding whether and how to travel with Trigger, but these are some good basics for you to consider at the outset.

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2014 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.





The Tangled Web of Potential Liability at Horse Shows

16 02 2015

Many of us are familiar with the scenario of a local lesson stable which teaches group riding lessons and occasionally takes a group of kids to a local horse show. Some of the kids bring their own horses, some bring horses they have leased from the stable and some kids bring horses leased from elsewhere. All the horses pile on stable-owned or parent-owned or rider-owned trailers and the kids pile in cars (or perhaps the cab of the truck trailering the horses) and everyone heads for the showgrounds.

These are the types of scenarios which make for the most fun, camaraderie and learning for the kids and their trainers and give the riders a chance to finally demonstrate in a public way all the riding skills which they have (hopefully) mastered. Shows are very exciting for everyone involved. Everyone may not get a ribbon, but everyone will learn and work hard and usually have at least a little bit of fun if not a lot of fun. Unfortunately, these typically wonderful scenarios are also the scenarios which can turn scary very quickly and can make for the most complex liability determinations in the equine legal world.

Why is a show scenario complicated from a legal perspective? Well, because so many different people are at the show in so many different roles and most of those people have valuable property with them at the show, whether it is a horse or expensive saddle, nice trailer or other items of value. Every person at the showgrounds (and some not at the showgrounds) has a “duty of care” to which the law expects them to adhere and each person might owe different duties to different people. Which duties are owed to whom by whom is determined by what role he or she is playing in the show environment. Is the person an exhibitor/participant? Is the person a show manager? A groom? Parents of exhibitors? Spectators? Trainers? Stable owners? Trailer drivers? Janitorial or cafeteria staff? Siblings of exhibitors? The list goes on and on.

Why all this fuss and focus on all these individuals? Why do we care? We care because when something happens at a horse show which causes damage to a person or property and that person or owner of that property wants to be compensated for that loss, the law gives us rules about how to determine who is responsible for that loss. And when you have a scenario such as a horse show where so many different people are present for so many different reasons, the legal rules often overlap or conflict and can get extremely confusing.

For example, let’s say that there is a 3 year old boy Jimmy sitting on a lead line pony named Misty waiting to show. Show management did not anticipate the high number of exhibitors who showed up and so the classes are crowded and moving slowly. The lead line class is the last class of the day. Jimmy’s parents put yawning Jimmy on Misty about 10pm and he is then standing in line with other exhibitors before his class enters the ring. A little girl Sally on a leased quarter horse named Red is waiting to go into the class ahead of Jimmy and realizes she has forgotten her gloves. Sally asks one of her friends Kim to hold Red while Sally runs into the barn to get her gloves. Unbeknownst to Kim, Red is an escape artist. Sensing a golden opportunity for freedom, Red yanks his reins out of Kim’s hand and takes off, bumping into Misty, who becomes annoyed and bucks. Jimmy falls off and breaks his arm. Red is happy as a lark running free and eventually ends up on neighboring property owned by private landowners Mr. and Mrs. Smith. Mr. Smith sees Red calmly grazing in his front yard and goes outside to try to catch him, despite the fact that Mr. Smith is not a horse person and does not know anything about handling horses. He just loves animals and does not want Red to get hurt because he can see that he is loose in an unfenced area. Although well-intentioned, Mr. Smith lunges at Red in an effort to grab his reins and in doing so startles Red, who takes off again and drags Mr. Smith a few feet, causing injuries. Red keeps going and runs into the road in front of the neighbor’s house and gets hit by a man on a motorcycle. Red and the motorcyclist are both injured and the motorcycle is totaled.

What a mess! But this type of scenario is not at all unusual, believe it or not. It would take me ten pages to go through all the potential liabilities for the various people who are involved here, so I will spare you the in-depth analysis. But here are a few things to think about:

The broadest interpretation of liability might say that the show management is responsible for everything because they were not adequately prepared for the number of folks who showed up for the show. Some would say they should have had a registration deadline a few days before the show started so that they could line up adequate personnel to keep the show moving. And maybe capped the number of exhibitors to an amount they could comfortably manage. Should they have moved the lead line class to earlier in the day given the young age of those participants? Because if the show hadn’t run late, then Sally would not have been standing around so long and Red and Misty would not have been so grouchy and willing to misbehave and Jimmy wouldn’t have gotten hurt and Red would not have run away. But is tracing all that back to show management an unreasonably long stretch in order to assign fault?

Perhaps Mr. Smith should be liable for Red’s and the motorcyclist’s injuries and motorcycle damage because he lunged at the peacefully grazing Red, spooking him and causing him to run into the road? If he had not lunged at Red, perhaps he could have peacefully collected Red’s reins and led him back to the showgrounds?
Is Sally liable for not telling Kim that Red was an escape artist so Kim would know to hang on to Red extra tight? Or is Red’s owner liable for leasing a horse who likes to escape?

Are Jimmy’s parents liable for his injuries because they used using poor judgment in allowing him to stay up so late for a lead line class and thus surrounding a tired and cranky little boy with lots of tired and cranky horses?
Was Sally’s trainer liable for not being on site with Sally to hold Red while Sally went for her gloves?

You see how these speculations can go on and on. It is very difficult sometimes to parce out where the liability should rest for any given harm which occurred.
So what is the lesson to be learned from this example? First, be sure you have good health, liability and property insurance (on you, your kids, your horse, your trailer and other property) in place and paid up in case something bad happens at a show – TO you, your horse, your child or your student or BY you, your horse, your child or your student. Second, make sure you only work with reputable, insured trainers and attend shows managed by reputable show managers in safe, well-maintained locations owned by trustworthy people, companies or governmental entities. Third, while at the show keep an eye on your horses, your children, your trainer and yourself for signs of stress and fatigue and when you see it, respect it and remove yourself, your child, your horse and your property from situations where they may endanger themselves or others as a result of this stress and fatigue. Use common sense to be careful and remember that the health and safety of humans and horses is paramount to and more important than any ribbon or trophy. Good luck at the shows and be safe!

If you get into a bind and need assistance or just want to ask some questions to avoid getting in a bind, feel free to email me at dburch@rl-law.com. I often will answer a short and simple question for free if you are in North Carolina and I have time and know the answer off the top of my head! Or often know good equine lawyers in other states if you need a referral. If you don’t hear back from me quickly, it’s not because I don’t love you or think you have a great question or because I don’t know the answer (usually), I’m probably just really busy and haven’t had a chance to email back. And you can always buy the first hour of my time for $250 (my usual hourly rate for 2015 is $350). Lots of folks will save up all their equine (and some corporate or real estate) legal questions and short documents and sit with me for an hour and we will do as much as we can during that hour and it’s only $250. You can check out my Twitter feed @nchorselawyer as well as our firm’s Equine Law Group web page at http://www.rl-law.com/equine if you’re interested, and yes, in addition to providing what I hope are interesting and informative stories, this blog and the Twitter feed referenced above are also (in one way or another, I guess) an advertisement for legal services.