There was a terrible mishap on a Kentucky back road a few days ago. A sport utility vehicle struck a loose horse that was wandering on the highway, knocking the horse into the other lane, where the unfortunate animal was hit a second time by an on-coming auto. That vehicle veered back into the lane where the horse first was struck and collided head-on into a third vehicle. One driver was killed and two other people were treated at a local hospital and released. The horse presumably was killed, although press reports were unclear about that.

Incidents like this one are tragic, and all too common. They remind us that fences have a purpose—keeping horses and other animals safe in their fields and away from highways and the property of other people—and they point out a major source of potential liability for horse owners and boarding farms.

Most states have laws requiring livestock owners to keep their horses and other animals behind fences sturdy enough to do the job. Just what constitutes a fence that is "sturdy enough" can be a difficult question, however. The standard for safe and serviceable fencing generally is not spelled out by law and may depend, at least in part, on what your neighbors are doing regarding fence construction and maintenance. Failing to have adequate fencing in the first place, or the failure to keep a good fence in serviceable condition, may constitute negligence if a horse escapes, wanders onto a highway, and is struck by a vehicle. Loose horse liability also may result if the gate in a sound fence is left open inadvertently.

Courts in some states consider a loose horse wandering on the highway as evidence of negligence by someone, either the owner of the horse, or the owner of the farm, or a farm employee. This presumption leaves the horse owner or farm owner in the uncomfortable position of having to prove that there was no negligence, which can be difficult since horses often escape at night when no one knows what really happened. Courts in other states take what seems to be a more sensible approach and require a motorist injured in a collision with a horse to prove negligence.  An attorney can provide guidance about any quirks in your state's laws. 

A few states, mostly in the West, are so-called "free range" or "open range" states where the law imposes no legal duty to keep horses and other animals off the highway. Wandering livestock are an obvious hazard in those states, and you drive at your own risk.

None of this is meant to suggest that the loose horse that started the fatal chain reaction in Kentucky was wandering the highway due to someone’s negligence. That fact-specific question is one for a court to decide. Although some personal injury lawyers might disagree with me, bad things sometimes happen without anyone being at fault. And that’s the real meaning of the word "accident."

If you haven’t walked your fence line lately to check for problems, now might be a good time for a stroll. Fencing that looks good during a quick drive-by might be perilously close to collapse and a close inspection may avert liability for a loose horse. Updating your liability insurance policy on a regular basis also is a good idea. If you don’t already have adequate coverage, get it.