Horses and the Law
IF THE HORSE GETS AWAY - WHO HAS TO PAY?

Disclaimer - This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

“When the horse has escaped, the fool shuts the gate.” – Unknown

Have you ever had your horse get out of the barn, paddock or pasture? Have you ever had a horse get away at a show or fair and take off down the midway? I think it is fair to say this has happened to some of us a time or two. In most cases the horse is caught with little or no trouble… BUT NOT ALWAYS!

What if your horses get out and find their way to a busy highway? What if a horse collides with a car or causes a crash resulting in serious injury or even death? What if the pasture fence was in poor condition and in need of repair? What is the owner’s responsibility in a case such as this?

The above described facts are not hypothetical. These facts are from a case which occurred in California. The case, Sea Horse Ranch, Inc. v. The Superior Court of San Mateo County, 30 CAL. RPTR. 2d 681, 24 CAL. APP. 4th 446, will be analyzed in detail later in this article. First, however, a review of general legal concepts concerning containment of livestock.

The law makes a clear distinction between wild animals and domestic animals. Certainly lions, tigers, poisonous snakes and the like are wild animals and are very dangerous. Horses, cattle, sheep, hogs and goats are considered domestic animals and are treated differently from wild animals. The owner or caretaker of wild animals is held to the highest legal standard of care referred to as “strict liability.” This means if a wild animal gets away and causes injury or damage, the owner is liable regardless of the reason the animal got away and regardless of the efforts taken by the owner to secure the animal. In essence, “if the lion gets away the owner has to pay.”

This strict legal standard does not generally apply to domestic animals. In a domestic animal situation the owner is held to general negligence standards often referred to as a duty of ordinary care. This means liability or responsibility for damage is not automatically assigned to the owner. In order for the owner to be held responsible, the injured party must first prove that the domestic animal got away due to the carelessness or neglect of the owner. For example, if the owner failed to close a gate or failed to repair a broken fence, the injured party would prevail. However, if lightning struck a tree and the tree fell on the fence causing an opening, the owner can successfully argue that he was not careless or negligent in that the escape was not the owner’s fault and certainly could not be anticipated. Therefore, though unfortunate, no one would be at fault.

Most states have enacted fence laws pertaining to domestic animals and highways. The open range laws of the 1800s have been repealed or repudiated in light of modern society with fast moving cars, trucks, motorcycles and trains. Thus, if the law states that domestic animals should not interfere with transportation or be permitted to run free, it then becomes the owner’s responsibility to properly confine the animal.

Generally, state law imposes on the owner of domestic animals the requirement to fence in the animals and to maintain the fence so as not to allow animals to wander onto neighboring property or roadways. It is wise to consult state and local fence law as some states and localities actually define the height of the fence and the type of construction needed depending on where the animal is located.

If the horse is near a highway or within an urban area, extra care must be taken to be certain the horse is adequately confined. Furthermore, if the horse has a history of escapes, extra care must be taken to prevent subsequent escapes.

A review of state law indicates that civil liability can be imposed upon the owner of domestic animals. This means the payment of monetary damages if the facts of the case show that the owner was careless or negligent in failing to keep his animals confined.

However, a point needs to be emphasized. This article discusses general principles. Most states follow the law as outlined in this article. However, it is wise to check the state in which you live. For example, in Ohio, it is a misdemeanor to permit an animal to run at large. The Ohio Courts have imposed strict liability in a criminal case on the owner or caretaker of a horse if the horse escapes–no matter what precautions were taken to prevent the horse from escaping.

In the case of State of Ohio v. Lynn Sellars, 1999 WL 254464 (Ohio APP. 5 Dist.), Ms. Sellars was convicted of a misdemeanor, failing to keep animals confined and fined $25. Ms . Sellars’ horse escaped the pasture and wandered out onto Creamery Road. There the horse was hit by a motor vehicle. The investigating officer learned that the horse was owned by Ms. Sellars and asked her to see the horse. Ms. Sellars told the officer the horse was out in the pasture but failed to inform the officer that the horse was indeed in the pasture, buried in the pasture, where he was put down due to injuries suffered in the accident.

The officer, not seeing the humor, charged Ms. Sellars with violating RC 951.02 which provides:

“No person, who is the owner or keeper of horses, mules, cattle, sheep, goats, swine, or geese, shall permit them to run at large in the public road, highway, street, lane, or alley, or upon unenclosed land, or cause such animals to be…on premises other than those owned or lawfully occupied by the owner or occupier of such animals. The running at large of any such animal in or upon any of the places mentioned in this section is prima facie evidence that it is running at large in violation of this section.”

The Court of Appeals upheld the conviction on strict liability grounds. The next question becomes: can one’s carelessness actually rise to a level of a crime imposing not only civil liability but criminal liability as well?

I chose the Sea Horse Ranch, Inc. case to illustrate the point that in a worse case scenario not only can an owner be subject to civil liability but also criminal liability including incarceration. In the Sea Horse Ranch case, an automobile struck a horse that was running free on Coastal Highway 1. A passenger in the car was killed when the impact with the horse crushed the roof of the passenger compartment. The accident occurred on a busy highway directly in front of the main driveway to the ranch in a dark area with no street lights or highway lighting.

The officer responding to the scene noticed no less than eight horses running free on the highway and the horses were dark brown and could not be easily seen by the officer’s headlights. The investigating officer further noticed old, weather worn, bug invested and rotting fence posts. Several cross boards had been knocked off the posts where the wood was rotten, leaving a hole in the fence. The fence was so dilapidated that when the officer leaned on a cross board it fell off. The cross boards were mounted improperly on the outside of the fence posts, making them more easily pushed out from animals on the inside. Contrary to common practice, there was no wire strung along the inside of the fence to keep horses away from the cross boards nor was there any electrical wire around the inside of the corral.

The evidence further established that the ranch had a history of horses escaping and an employee of the ranch told the officer that horse escapes were a “frequent occurrence.” Another employee told the officer that horses had escaped “more times than they could count.” The owner of the ranch had previously been cited by the Humane Society for having horses loose on the highway.

As a result of the officer’s investigation, the state filed involuntary manslaughter charges against the owner. Involuntary manslaughter is a lesser charge of murder and carries a serious penalty, including incarceration. Involuntary manslaughter generally requires proof that a human being was killed and that the killing was unlawful. A killing is “unlawful” if it occurs: one, during the commission of a misdemeanor inherently dangerous to human life; two, in the commission of an act ordinarily lawful but which involves a high risk of death or bodily harm and which is done “without due caution or circumspection.” Involuntary man-slaughter contemplates “negligent acts which are aggravated, reckless and gross and which are such departure from what would be the conduct of an ordinarily prudent careful person under the same circumstances as to amount to a disregard or indifference to human life. Criminal negligence is of a higher degree of culpability than ordinary civil negligence and is measured by an objective standard.

The owner argued that he should not be liable on a criminal charge arguing that he was not grossly negligent or that his conduct was not indifferent to human life. The Court, however, held that the circumstances of this case supported a charge of criminal negligence or involuntary manslaughter. The dilapidated condition of the fence, the improper construction of the fence, the failure to follow the common practice of installing some kind of wire to keep the horses away from the fence, the failure to have a perimeter fence on the border with the highway and the numerous previous escapes were sufficient evidence to give rise to a charge of involuntary manslaughter.

The Sea Horse Ranch case illustrates the importance of continual maintenance of the confinement apparatus of your horses. Not only does the horse owner have an obligation to erect and maintain suitable confinement, but the law, in a worse case scenario, will impose not only civil liability but criminal liability if the owner is grossly negligent in his maintenance duties.

Enough legal talk–it’s time to hitch horses.

Ken is a practicing attorney in Myerstown, Pennsylvania, where a good bit of his practice involves negligence cases. Ken and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six horse hitch for the past few years at most major shows in the east.