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.

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Boarding Horses is Not for the Faint of Heart

11 11 2014

Whether you are considering building a barn on your property or already have a barn on your property and are considering allowing boarders to come board horses on your property, you should think very carefully before embarking on such an adventure. Boarding horses is definitely, as the title says, not for the faint of heart. There are a myriad of issues that arise, legal and non-legal, from issues related to adequacy and safety of your facilities to temperament and safety of the animals being boarded.

The obvious concerns about personal or equine injuries which might take place on your property are probably the issue most people think of first and with good reason. Horses and ponies are large animals and it does not take much in the way of a wrong, even accidental, movement to do a lot of damage to a human being or another animal. We all know of situations where a horse kicks a dog or another horse, and that can certainly get expensive to remedy, but what is more often a concern to us is injury to people. Under certain circumstances injuries to people, especially young people, can cost a stable owner a fortune even if the stable is insured.

What do I mean? Well, children are the humans we as a society consider most precious. They have their entire lives ahead of them with what often seems like unlimited potential. It is that potential that, once squelched with death or a debilitating injury, can cost a stable owner and its insurance company (assuming the stable has liability insurance) a great deal of money to remedy. A claim for injury to a 50 year old person will in all likelihood not yield the monetary compensation that a claim for injury to a 5 year old will yield. And where there are horses and ponies, there are often children. And if you add to the mix the possibility that you are going to permit children’s group riding lessons, you have magnified the potential for injury and, at the same time, magnified your potential liability for those injuries.

In addition to the risk of human injury on site for which you could be potentially held liable, there is the risk of a horse escaping your facility and causing injury in the process, whether the animal runs into traffic and causes an accident or tramples someone off site during its escape, among other things.

Another risk relates the boarders themselves for what they may perceive as damage to their horse for which they blame you, the stable owner. Many times a disgruntled boarder has believed that the stable owner was negligent in permitting an unqualified worker to handle the boarded horses and claim that this worker did something which resulted in injury to that boarder’s horse. Maybe the barn manager read the turnout chart incorrectly and put two horses who do not get along in the same paddock by accident and one or both of them is injured. Perhaps it will not be a huge financial hit if it is a $500 retired pasture horse, but it could be a sizeable problem if the injury is to a $50,000 show horse.

Being hypervigilant at all times about the condition of your fencing and the vegetation growing in the fields and paddocks is not an easy job. If someone’s horse dies from ingesting a poisonous plant that should not have been growing in the fields, you may have a problem. If someone’s horse steps in a rabbit hole and breaks its leg, someone may claim you should have inspected the fields better for these hazards. Are they correct? Maybe or maybe not. But oftentimes it does not matter if they are correct or not because the claim will probably be made – because when a person, his child or his horse is injured, that person wants someone to blame. And if you are the stable owner, you will probably be on the list of people they would like to bear some of the blame.

However, if money is no object and you really enjoy the environment of a boarding facility and are comfortable with the risks it presents, then it may make sense for you to get into the boarding business or continue the one you have. Or if you know the risk and are of average means, but you feel you are compelled to get into or continue the business because of your love for it and you are willing to assume the risks, then it may be fine for you. Or if you live in a key location where people will pay substantial amounts for boarding services at your farm, it may make financial sense for you to enter or continue a boarding operation. But if you are an average person of average means with an average farm in an average location, you have a lot to think about. Lots of insurance coverage is an obvious necessity if you ever board even one horse and a good equine insurance agent should be the first person you call before opening your barn doors to boarders. And then a good equine lawyer so that he or she can explain to you the risks of your undertaking a boarding operation. Information is always empowering, so gather as much information on the risks of housing a horse boarding operation before you undertake it so that you are making the best decision that you can make for you and your family.

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.





I Didn’t Mean to Break the Law, I Just Needed Help at the Barn!

12 01 2014

I hear that statement almost every time my clients discover that they have been misclassifying employees who work at their barns or farms as independent contractors instead of what they are – employees. This problem seems to occur more often than usual in the farm context. I think part of the reason for the increased occurrence may be that the people we hire to help in the barn are working outside a lot where we probably do not see them very much during their shift (either because we are inside or elsewhere on the farm or off the farm at our job) and so they just do not “feel” like employees to us, so we say. Lots of folks tell me that it seems to them that a person working for you needs to be around a lot and under your regular visual supervision to “feel” like an employee. And we generally tell our barn folks what we need (e.g., hay twice a day, grain once a day, at least 4 hours of turnout for each horse every day, don’t put Chief and Buddy in the same field and so on) and then we pretty much leave our barn workers to figure out the details of how to accomplish those tasks. They might give hay in the stall or in the field when they turn out. They might give grain at noon or 3pm. Most of us do not usually micromanage our barn workers unless there are specific reasons that something needs to be more regimented.

Unfortunately, the IRS has a very broad definition of who should be classified as an employee and yes, I suspect that the IRS definition would include most barn workers I know. Why does it matter if you misclassify a person? Well, because you have to withhold and pay employer “payroll” taxes directly to the IRS on behalf of employees if you are an employer. If folks are independent contractors, they are responsible for paying their own income taxes and all you have to do from an income tax perspective as the one who hired them is send them a 1099 stating what you paid them for the year after the end of the tax year and perhaps, if appropriate, deduct what you paid them from your taxable income – very simple, right? Well, having employees creates another layer of work for the person hiring. You have to think about employer payroll taxes and pay them in a timely fashion or you can be personally liable for failing to do so. If you have employees, you have to think about things like unemployment tax and W-2s. So it costs you more and more work and thought is required to hire an employee than to hire an independent contractor, so most of us really would like for all our workers to be independent contractors. But it almost always benefits the worker to be classified as an employee because part of the payroll taxes employers have to pay includes a Social Security tax and other taxes that benefit the worker.

Fortunately, the IRS has set forth very specific criteria for us to consider when deciding whether we have an employee or independent contractor. See IRS Publication 1779 for the details, but I will give you a taste of what they are here. If your worker uses your equipment when doing his or her job and you “direct or control” the worker’s work, then the worker is more likely to be an employee. If your worker has made a substantial investment in a piece of specialized equipment which he uses when working on your farm and he also goes to other farms to use the same piece of equipment there, he may be more likely to be an independent contractor, depending on other circumstances. These two represent a couple of the general ideas at work here and the IRS Publication 1779 goes into more detail about what factors influence how your worker must be classified.

If you have a CPA or lawyer, he or she can be very helpful in determining whether your worker is an independent contractor or an employee. Being that personal liability does attach to unpaid payroll taxes, you want to be very careful to classify workers properly. No one wants a visit from the IRS demanding that you pay years of unpaid payroll taxes which you did not pay because you misclassified your employee as an independent contractor. So take heed and be careful classifying your barn and farm workers because if you are wrong, the remedy imposed upon you can be very expensive!

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 I have time and know the answer off the top of my head! 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 $325). 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.





WANT YOUR EQUINE INSURANCE CLAIM PAID? BE SURE TO GIVE PROMPT NOTICE TO THE INSURANCE COMPANY OR YOUR CLAIM MAY BE DENIED!

19 11 2013

A recent federal court case in the Midwest strongly upheld an insurance company’s complete denial of an equine mortality insurance claim because the owner of the horse failed to give the company prompt notice of an injury to the horse – an injury that ultimately resulted in the horse’s death. The company successfully argued that if it had received notice of the claim in a timely fashion, it could have secured better veterinary treatment of the very valuable horse – treatment which would have likely resulted in the animal’s full recovery and thus avoided the owner’s devastating decision to euthanize the animal. This case reminds us all of the critical need for us to carefully comply with the terms of our equine health and mortality policies or the result can be that we receive no claims proceeds at all – even when we end up losing our beloved animal.

An insurance policy is a contract. Virtually all insurance contracts require that, as a condition to coverage, the company be given immediate or prompt notice of any potential claim. Such a requirement makes sense. The insurance company wants the opportunity to proactively participate in the resolution of the claim so as to hopefully help reduce the loss for you, especially when you are facing an equine lameness or health issue. Prompt notice can further aid insurance companies with conducting a thorough, timely investigation into an equine death, a critical factor for mortality companies because of the rampant insurance fraud which riddles many sectors of the equine industry.

Many people are afraid to contact the insurance company because they fear an increase in premium in the future. We all know the feeling of deciding whether to allow our automobile insurance company to pay for a small claim or whether to pay for it ourselves after we consider our deductible and the possible impact the claim might have on our insurance rates in the future. And as a result, most of us end up paying small claims ourselves. Claims on our homeowner’s policy are similar. If someone breaks into our home and steals a $500 television, we weigh the advisability of filing a claim with our homeowner’s insurance company and what it might cost us in increased premiums in the future.

The critical difference here is that horses are not automobiles nor are they homes. We need to stop thinking of them that way when it comes to insurance claims. They are more like people, frankly, at least in this context, and we need to consider whether we would let our health insurance company know if we ourselves had a serious injury or not. What if the health insurance company could refuse to pay our medical bills if we did not notify them of our injury quickly enough? They probably could deny the claim, truth be told, but our health system is structured so that we often cannot obtain medical treatment at the doctor or hospital without telling them our insurance information first. Then they notify the company of our injury or illness for us. We do not really have a lot of choice in the matter. If equine veterinarians required us to share equine insurance information up front, this article might not be as timely because the veterinarians would likely be notifying the insurance companies for us and we would not have the decision to make about when and whether to notify them. But typically, at least where I live, equine veterinarians do not ask for insurance information before they treat the animal. I cannot remember ever having a veterinarian (or their staff) ask me for insurance information. I am sure it probably happens more and more as more people insure their animals and/or veterinarians become increasingly concerned about getting paid, but it is not the norm around where I live at this point in time. And may not be where you live either.

Moral of the story – if your horse turns up lame or is injured or sick, advise your equine health or mortality insurance company as soon as possible because they may have a national network of contacts which could help your horse receive more or better treatment sooner – treatment which may end up saving his or her life and perhaps his or her soundness as well. The equine insurance carriers are your partners, not your adversary. Use them as such! Get your money’s worth and utilize all the loss prevention tools they have available for you. And it would be a terrific idea for you to right now, while you hopefully do not have a claim, to call to speak with your company’s “loss prevention” or “risk management” department to see what resources they may have for you in the event you do have a claim. You might be surprised how much they can help you and your horse!

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 I have time and know the answer off the top of my head! 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 2013 is $325). 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 You are Dealing With Horses Across State Lines, Be More Cautious Than Usual

16 10 2013

Oftentimes the horse you are considering buying or leasing is in another state. Or perhaps you need to send your horse for treatment or training in another state. Or you regularly show your horse in another state. What is the legal impact of crossing state lines in those situations? The various issues that can be impacted are many more than this article could cover in the allotted space, but hopefully we have highlighted some common concerns for you. Examples always seem to help illustrate these types of issues best, so we will use a few here.
Imagine that you live in North Carolina and you are looking for the perfect reining horse. You find an amazing two year old gelding prospect with a stellar lineage in Wyoming. His price is high, $75,000, but the Seller is a well-known and successful trainer who is willing to keep him for 6 months and put him into her intensive training program for you before sending him to North Carolina. Thrilled with your find and the proposed terms of the transaction, you hire a reputable, local Wyoming veterinarian to conduct a thorough prepurchase examination on him, including radiographs of all four legs and feet and he checks out beautifully. You make arrangements with the Seller to pay for him and for her to start him in her training program. Then you line up a shipper from Colorado to pick him up and bring him to North Carolina in six months on one of his regularly scheduled routes to the east coast.
What can go wrong?
Example #1: When the gelding arrives in North Carolina, he is fine at first and then goes lame on the left front. Your North Carolina vet checks him out, takes radiographs and advises you that he has significant navicular concerns and that there is no way that the Wyoming vet could have missed these concerns if he had truly conducted a thorough prepurchase examination with the radiographs you requested.
So it appears here you were the victim of veterinary malpractice.
Example #2: When the gelding arrives in North Carolina he is sound, but based upon his physical condition and his lack of education, he does not appear to have been in a training program for the last six months. The Seller claims he was in training and that you simply do not understand how to ask him to do what he has been taught to do.
So it appears that the Seller has failed to provide the training promised and thus has breached your agreement with her.
Example #3: You get a call when the shipper picks up the gelding after his six months of training and he confirms the horse is in great condition when the Seller puts him on the shipper’s trailer. The Seller contacts you and also lets you know the horse is in perfect condition when he gets on the trailer and even takes pictures on her iPhone and texts them to you so you can see how beautiful he is when he is boarding the trailer. The shipper advises you that it will be at least 3 days before he can get the gelding to North Carolina because of the distance and the need to stop and stable the horse overnight along the way. You try to contact the shipper every few hours to check on the horse and after the first day the shipper stops returning your calls or providing you with updates. You become concerned and the next telephone call you get is from a veterinarian in Lexington, Kentucky who owns an equine layover facility. Apparently your gelding was delivered to the facility for an overnight stay and when he was taken off the trailer he was three-legged lame with multiple lacerations all over his face and legs. The veterinarian asked the shipper what happened and he claims that the horse would not climb off the trailer for the last 36 hours so he just left him on and the horse apparently became agitated and thrashed around inside the trailer, hurting himself. In short, your gelding ends up spending a week in Lexington at an equine specialty hospital being treated for multiple injuries caused by the excessive time on the trailer before he can come home to North Carolina – and even then he may never be sound again. And because of the trailer trauma, the gelding understandably now has an intense fear of trailering and will have to be tranquilized in order to get him on any trailer in the future.
So this time the Seller is not at fault, but a shipper from Colorado has been negligent in shipping him and has caused harm to your horse.
The Common Thread
The common thread here is that you have a real, valid legal claim against another person or company who resides in (or is based in) another state. Can you sue someone in another state? Absolutely! You can certainly sue where he or she is located and maybe where you are located, depending on his or her relationship with your state (whether they do business there or have other types of connections there). And since the amount of your damages is arguably over $75,000, you may be able to sue in federal court as well if you and the potential defendant reside/are headquartered in different states.
So what is the problem? The problem is that is incredibly expensive to sue someone, period. And especially so in another state or in federal court. But when you add thousands of miles to the picture (or the complexity of federal litigation), the dollar signs keep increasing. Definitely in Example #1 (and perhaps all the examples) you will need to hire an expert to testify on your behalf about what was the proper thing for the defendant to do in your situation. Experts are typically very expensive (several hundred dollars an hour).
Also, in lawsuits you engage in something called “discovery” which involves, among other things, taking depositions of key individuals in the case. To take someone’s deposition, you are generally required to go where that person resides. That could mean traveling with your lawyer (who is also expensive) to Colorado or Wyoming (and perhaps Kentucky in Example #3). Out of state depositions typically cost anywhere from $2,000-$5,000 per person by the time you factor in all related expenses.
The bottom line is that pursuing someone in another state is extremely expensive, so you should take as many precautions up front as possible to make sure you minimize the chance of a legal claim (e.g., have two different veterinarians do pre-purchase examinations if the horse is expensive; buy health and mortality insurance on the horse before shipping; carefully research shippers and check several of shipper references; and buy travel insurance for the trip from Wyoming to North Carolina). In short, be very, very careful when entering into transactions over state lines so you can avoid the stress and heavy expense of an interstate legal dispute.

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 I have time and know the answer off the top of my head! 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 2013 is $325). 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 advertisements for legal services.





NC Liens for the Care of Horses

19 06 2013

The two most common calls I seem to be receiving these days in my equine practice are from people who (a) have had horses left in their care for which they are not being paid board or (b) have allowed someone else to keep their horses only to find out later that the person has given away or sold or euthanized their horse without their knowledge or permission.

This article addresses the former situation. You have a horse on your property and the owner or other possessor of the horse (lessee, family member, etc.) is not paying the agreed upon boarding fees. What can you do? Well, assuming you have an agreement for how much they are supposed to pay you for board (written agreements are obviously best, but an oral agreement, especially if made in front of a witness, can be okay too), you may be able to successfully assert a boarding lien, also known as an agister’s lien or a stablemen’s lien, on the horse in your possession.

The statutes that you need to read are N.C. Gen. Stat. Section 44A-2 through 44A-6. You can find them at http://www.ncleg.net/gascripts/Statutes/Statutes.asp. Just put “44A” in the top search box. These statutes explain how to go about asserting a lien on a horse in your care when you aren’t being paid proper board for the animal. Basically they provide, in summary, that if you board animals for people for pay and you don’t get paid, you have a preferential lien on that animal so long as you don’t voluntarily give up possession of the animal and so long as you follow the requirements of those statutes. The statutes provide that once you have not been paid for a period of 30 days you may begin the process to assert your lien on the animal. After 30 days of not being paid you can serve a notice on the owner of the animal (or person with whom you dealt regarding the animal) that contains very specific factual information set out in the statute and giving them ten days from the day that they receive the notice to respond via certified mail and, if they disagree with your assertion of the lien, to request a hearing before the court to determine whether you have a lien. If they do not request such a hearing and you have met all statutory requirements, then you will be entitled to sell the animal at a public or private sale, depending on the situation. Typically a public sale is better because you are permitted to buy at that type of sale whereas you cannot buy the horse yourself at a private sale.

Once you’ve reached the point where you are permitted to sell the animal, you have to give notice of the sale to the owner (or person with whom you dealt regarding the animal) and that notice has to contain very specific information as well. If you follow the letter of the statute properly with regard to all the notices and the sale itself, the buyer at the sale will take title to the horse free and clear of any liens and the proceeds of the sale will pay, first, your reasonable expenses in pursuing the debt (the statute does not include attorney’s fees specifically, but you may have an argument that you are entitled to them), second, the past due boarding obligation owed for the animal’s board and care; and last, any surplus must be paid to the owner (or person with whom you dealt regarding the animal) or, if you cannot find him or her, into the clerk of court for the county in which you have been boarding the horse.

This is of course a very simplified summary of the law regarding liens on boarded animals, but hopefully it has given you a flavor of how the lien process works. And we are of course assuming here that you can actually find buyers to come to your sale if you have one. Right now there is a surplus of horses and in many situations, even where the statutory procedure is followed perfectly, there will be no buyers present at the sale to bid on the horses being sold. If that is the case then you’re still unfortunately out of luck when it comes to that horse. If you’re having a public sale, you can bid in at the amount of your damages and the horse becomes yours. That may be good or that may be bad, depending on your perspective (and the horse!). Then you have a choice to make about whether you keep the horse for yourself or donate the horse to USERL or similar organization. In some cases, I have had clients who asserted a lien on a horse which was left at their property without payment, sold the horse at a public sale, had to buy the horse themselves for the amount of their lien (basically just forgiving the debt to themselves) and ended up selling the horse to a buyer in another state whom they strategically located and contacted about the horse because of that animal’s specific attributes. That is a rarity, of course, but can actually happen and it is truly wonderful when it does!

My recommendation is to hire a good equine lawyer at least for the first time you decide to assert a boarding lien on a horse in your care. Once you’ve been guided through the process once by a legal professional and developed an internal procedure for asserting such a lien, the next time you just might be able to handle it all by yourself!

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 I have time and know the answer off the top of my head! 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 2013 is $325). 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 advertisements for legal services. I have to tell you that in bold, says the State Bar.





Possession Just May BE 9/10ths of the Law with Horses…

23 04 2013

We’ve all heard it before from our parents, grandparents, man at the country store down the road, police officers and others. “Possession is 9/10ths of the Law!”

As an eager young law student I realized that from a technical perspective, this old saying simply isn’t true. If you stole something, possession is not okay. You are still legally wrong and will have to give back what you took if you get caught. Likewise, if you find something and the owner shows up, odds are a court will make you return it to the owner under an “unjust enrichment” theory. Or if you remove your child from custody of your ex-spouse, possession can get you into BIG trouble – so possession actually hurts you in that instance. You get the jist here.

After two decades of experience practicing law, I am coming to realize that although while technically possession is NOT 9/10ths of the law, possession sure does make things easier from a practical perspective in many, many situations – especially with horses.

What do I mean? Well, if you own a horse and you keep him in your barn, you are in good shape from a legal and practical standpoint. You presumably take good care of your horse, you are in a position to know what is going on with your animal from a health perspective and you can see for yourself whether he looks fat, skinny, sick, anxious and so on. Having possession of your own horse is about the lowest risk situation for you and your horse (assuming your farm is a safe place and that you are an informed horse person).

Now put your horse in someone else’s barn just a few miles away. While there are stable managers who are wonderful, hardworking folks who will care for our horses more diligently than even perhaps we will, many of them are overworked and simply do not have the time to spare to examine every horse nose to tail every day. Often they are just doing their very best to make sure all the horses’ basic needs are being attended to and are only checking them out for obvious injuries or illness/lameness. But since they are just down the road, you can go by reasonably frequently to see how your horse is looking, acting and going under saddle as only you can do. But even that is not the same as your being with your horse every day. So, as a practical matter, the “risk” to your horse (and your legal rights) elevates a little because you have relinquished possession of your horse. An injury can take place that you do not witness, unapproved food might be fed, unauthorized people might ride your horse and cause damage to themselves or your horse. And so on.

And now, take it one step further and send your horse for training in another city or another state. The further away your horse is sent, the less frequently you are going to be able to visit and check on him or her. The more you will have to rely on the observations of others whom you may or may not know very well. The more you will have to trust that your horse is receiving the proper food, hay, turnout, exercise and treatment in general. Risk to your horse and your legal rights elevates.

So, I know it seems obvious, but keeping your horse close to you and under your supervision is ideal. But for many of us, doing so is not possible or practical. We live in town, we work all the time or many other factors exist that make an on site arrangement with our horse impractical. So remember, the further away your horse is going to be kept, the more infrequently you will be able to visit and the more investigation you need to do on the barn and the trainers in advance of sending your horse there – and the more important it is that your trainer or barn manager being a diligent, conscientious and knowledgeable horse person. In short, the more direct supervision you have of your horse in person, the better – in general. Some owners are not truly “horse people” and their animal is far better off with the trainer or stable owner, but that is the exception, not the rule.

The possession thing seems to work in reverse as well – it can help you and your legal position if you are in rightful possession of someone else’s horse. If you are operating a boarding facility, have a horse boarding with you and the owner stops paying board on the animal, you are better off keeping that horse on site if possible. In fact, the statute which grants boarding liens to stable owners requires that you not voluntarily relinquish possession of the horse or your lien is extinguished. However, if the owner of the horse trespasses on your property and takes the horse away without your consent, that does not constitute your voluntary relinquishment of the horse, thankfully. But be sure you have stated in your boarding contract that owners who have defaulted on board payments cannot take possession of their horse and that any attempt to come onto your property to do so will be deemed a trespass. Also, institute barn hours when the owners are welcome and when the barn is closed and state in the contract that any visits from the owners during closed hours will be deemed a trespass. These up front efforts can help if you get into a legal battle with the horse owner over boarding payments or boarding liens.

So, while you are still the owner of your horse even when it’s in someone else’s possession, it’s very difficult to know everything that is transpiring and, conversely, if you have someone else’s horse on your property, your odds of being paid past due board are much greater if you still have possession of the animal at issue. So maybe those old folks were not misinformed – maybe possession is closer to 9/10ths of the law than I previously believed!

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 I have time and know the answer off the top of my head! 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 2012 is $325). 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 advertisements for legal services. I have to tell you that in bold, says the State Bar.