Horses and the Law

Scuppy, Part 2

Milt — Tue, 15 May 2012 10:00:00 GMT

What a difference a new court can make!

A little over a year ago, a trial court in Connecticut dismissed a personal injury lawsuit brought by the parents of a young boy who was bitten on the cheek by a horse named Scuppy. The family had been visiting Glendale Farms, a dual-purpose business where flowers, vegetables and other plants were sold and where horses were boarded. Visiting the horses apparently was a popular pastime for customers at Glendale, and the child was bitten after the family walked over to Scuppy’s paddock and started petting the horse.

The farm owners argued that they had no liability for the injury because Scuppy had no history of biting and the judge agreed.

After a review of state law involving personal injuries suffered during encounters with other animals, the trial judge wrote: "the owner of a horse, classified as a domesticated animal, is only liable to an injured plaintiff if the owner had actual or constructive knowledge of the horse’s propensity to attack other people or animals."

The decision amounted to a restatement of the so-called "one bite rule," which gives a dog with no history of viciousness a free pass the first time it bites someone.

Not So Fast

The parents of the injured child appealed the dismissal of their lawsuit, as losing parties in these sorts of things are wont to do.

The problem, the parents argued, was that the trial court applied the wrong standard. Rather than basing the decision on whether one particular horse—Scuppy in this instance—had a known propensity to bite, the trial court should have considered a more general question: whether horses in general have vicious tendencies. The legal basis for that argument was a 100-year-old Connecticut case involving a cat.

In Bischoff v. Cheney, the Connecticut Supreme Court held that the owner of an animal must use reasonable care to prevent the animal from injuring someone if the "domestic animal belongs to a species naturally inclined to do mischief or be vicious, or if it in fact be vicious," and if the owner of the individual knows about the dangerous characteristics of the species.

Cats, the court concluded, are not a species "inclined to mischief." By nature, the court generously added, a cat is "kindly and docile," and is "one of the most tame and harmless of all domestic animals."

Really?

I’ve been bitten or scratched by every cat I’ve ever owned. And a recent adoptee feline responded to our generosity by attacking Plumpkin, our older, resident cat. The injury resulted in surgery, several visits to the vet, and a hefty bill.

But I digress.

The Individual or the Species?

In February 2012, the Connecticut Court of Appeals determined that the lower court might have gotten it wrong. The appellate court agreed that rather than having to prove that Scuppy was a vicious individual, it might be possible for the parents of the injured child to win by proving that Scuppy’s owner knew that horses are potential biters as a species.

According to the Court of Appeals, there was substantial evidence in the record establishing that even if Scuppy did not have a propensity to bite, horses as a species do. For example:

Horses "have been doing it . . . since the beginning of time, biting and kicking," said Bernard L. Begley Jr., a local fire captain who said that he had been riding all his life.

Veterinarian Bradley W. Amery agreed that "a horse could bite you and cause serious physical damage" and that horses, by their nature, could bite someone.

The Court of Appeals reversed the dismissal of the parents’ lawsuit. The case is back in the lap of the trial court for a determination of whether Scuppy’s owner "had notice that Scuppy belonged to a class of domestic animal that possessed a natural propensity to bite, thereby endangering customers such as the plaintiffs invited onto their property."

Connecticut is one of 46 states with an equine activity liability statute that requires individuals to assume the risk of injury resulting from inherent hazards associated with recreational equestrian activities. There are some exceptions, including the negligence of the person providing the horse for the activity. The appellate court said that the statute did not apply here, and neither party addressed the statute in their arguments to the court.

Which is the proper standard for a court to properly decide a case like this one?

Should the fact that any horse might be a biter trump the fact that a particular horse never has bitten anyone before?

Abuse Of Trust

Milt — Tue, 08 May 2012 11:55:00 GMT

Horse rescues, in the tradition of Blanche DuBois, more often than not depend on the kindness of strangers to keep their stalls and paddocks open. Donations are the lifeblood of rescues and, sometimes quite literally, of the horses in their care.

It’s a complicated relationship, the one between donor and recipient. It’s a relationship built mainly on trust: for the rescues, trust that money and support will be there when it’s needed; for the donors, trust that the money will be put to the best use possible. Most rescues do an amazing job with far fewer resources than they really need, but some don’t. When donors’ trust is abused, and a rescue becomes part of the problem rather than part of the solution, animals suffer and other rescues are tarred with the same brush.

On May 3, New York Attorney General Eric T. Schneiderman, on behalf of the People of the State of New York, charged current and past directors of the non-profit Thoroughbred Retirement Foundation Inc. with "failing to properly oversee and manage the organization’s operations and finances in light of TRF’s unique responsibility for the welfare of more than 1,100 retired Thoroughbred race horses."

The complaint was filed in New York state court and is the first step in the legal process. The numerous allegations in the 35-page document are serious charges, but they are not proof of anything. Although TRF director John C. Moore told the Associated Press that the charges are not true, the defendants have not yet had an opportunity to file an answer. The road to trial likely will be a long one, and whether the allegations actually can be proved is a question for a jury to decide sometime in the future.

Keeping in mind that the complaint presents only one side of the story, it offers a sordid and troublesome look into the supposed inner workings of one of the largest horse rescues in the country.

Nature of the Case

The complaint charges that "many TRF horses do not receive adequate feed to supplement pasture grazing, particularly in the winter months, and much of the herd does not receive required maintenance care, such as tooth filing and hoof trimming, when needed. Horses have been deprived of proper treatment for injuries and medical conditions and turned out without adequate shelter. At some facilities, TRF horses have suffered severe malnutrition, prolonged and unnecessary pain, and death from starvation and exposure."

The allegations of neglect are the headline-grabbers, but at the heart of the complaint are more mundane charges that TRF directors breached their fiduciary duty to the organization.

The neglect, the complaint alleges, is a direct result of financial instability brought on by "years of mismanagement" at a "dysfunctional organization." The problems at TRF, according to the New York AG, include:

a herd of horses too large for the organization’s resources to support;
improper supervision of TRF horses and the organization’s facilities;
series of "irresponsible financial transactions" that protected assets of individual directors at the expense of the organization;
unauthorized use of endowment fund principal in violation of the trust agreement.

The complaint asks that the TRF directors be removed for the alleged violations of their legal duties of care and loyalty to the organization, and for improper administration of charitable assets and a not-for-profit corporation. The complaint also asks for an accounting from the directors for violations of those fiduciary duties and an injunction preventing TRF from accepting any more horses without prior court approval.

If the allegations in the complaint are true, it’s a classic story of good intentions gone terribly wrong. And while most rescues don’t have the luxury of properly utilizing a multi-million-dollar endowment, there are lessons here for everyone who takes in horses in need. Most important is this: balance the number of horses in your care with the resources available for their needs. Big hearts and empty wallets can be a dangerous mix, and the kindness of strangers sometimes doesn’t materialize.

If you run an equine rescue, how do you decide how many horses is enough?

Litigating The Derby

Milt — Tue, 01 May 2012 12:05:00 GMT

With the Run for the Roses just around the corner, here’s an interesting—and potentially lucrative—Derby party bet: How many of the 137 Derby winners listed on this year’s official mint julep glasses actually crossed the finish line first?

Hint: "All of them" is the wrong answer.

The 1968 Derby came down to a rousing stretch duel between favored Forward Pass and second-choice Dancer’s Image. Dead last when the field went by the stands for the first time, jockey Bobby Ussery and Dancer’s Image weaved through horses on the final turn and they were challenging for the lead at the top of the stretch. Under a masterful ride from Ussery, who dropped his whip with a quarter-mile to go and finished the race with a strong hand ride, Dancer’s Image was a convincing winner over the favorite.

Dancer’s Image was the best horse that day, no doubt about it. Boston automobile dealer Peter Fuller had a winner with his first Derby runner, Ussery joined an elite group of jockeys with back-to-back Derby winners (he won the previous year with longshot Proud Clarion), and Calumet Farm was denied its eighth Derby win.

Or so it seemed at the time.

A Bombshell

Three days later, Churchill Downs President Wathan Knebelkamp stunned the racing world—and a good bit of the world whose interest in Thoroughbreds began and ended on Derby Day—when he announced that Dancer’s Image had failed a routine post-race drug test. It was front page news, above the fold.

The horse’s urine sample allegedly contained traces of phenylbutazone ("Bute"), an analgesic medication that was prohibited on race day in Kentucky at the time. Ironically, Bute was legal in Kentucky a few years before the 1968 Derby and a few years after, and today it’s widely used for horses racing at tracks across the United States.

There was some confusion about whether Dancer’s Image would lose the Derby winner’s share of the purse, his status as first-place finisher in the race, and the gold winner’s trophy. The rules of racing in Kentucky at the time specified that a positive drug test would result in redistribution of the purse, but the rules also were clear that the order of finish would not be affected.

Calumet Farm, apparently, would get the farm’s eighth Derby victory after all.

Or so it seemed at the time.

Send in the Lawyers

Some traditionalists viewed Peter Fuller as an interloper from the North, and probably hoped he’d fold his tent, go back to Boston, and leave the Derby spoils to Calumet Farm. He didn’t. Never a man to duck a fight, Fuller mounted a series of legal challenges that questioned the reliability of the drug testing procedures in place in Kentucky during the late 1960s and the competence of the racing chemist who called the "positive" on Dancer’s Image.

"I do not feel in any way that I am a poor sport," Fuller told the racing commission about his decision to question the test results. "I have to clear my horse’s name."

Fuller lost in administrative hearings before the Churchill Downs stewards and the racing commission, won in Franklin Circuit Court, then lost again when the case made its way to the Court of Appeals. His legal team then argued that even if the rules took the purse away, Fuller still was entitled to the gold trophy, but he lost again. Fuller’s legal fees, by this time, were more than double the winner’s share of the Derby purse.

The most exciting two minutes in sports had become a slogging marathon. Five years after Dancer’s Image crossed the finish line ahead of Forward Pass, the winner’s trophy finally was hand-delivered to Calumet Farm. Hardly anyone noticed. The gold trophy now resides, along with Calumet’s other trophies, in the International Museum of the Horse at the Kentucky Horse Park.

No one ever had challenged a positive drug test with the fervor and resources that Fuller brought to the table, and although he lost the battle, he eventually won the war. The legal controversy produced one of the most important administrative law cases in the state and the rules of racing were rewritten in the aftermath of the dispute.

A Forgotten Story

Dancer’s Image today is little more than an asterisk in racing’s record books, and that’s not fair to either the horse or his owner. If you'd like to know more, Dancer’s Image: The Forgotten Story of the 1968 Kentucky Derby, is the first thorough investigation into the race and the legal wranglings that followed. It recently won the Dr. Tony Ryan Book Award for the best book about Thoroughbred racing published in 2011.

Is the book mistitled? Does anyone remember Dancer’s Image and the ‘68 Derby?

Across the Pond

Milt — Tue, 24 Apr 2012 11:18:00 GMT

A couple of weeks ago, I wrote about the workings of Kentucky’s equine activity law. This is how a somewhat similar equine-related personal injury claim was handled in England.

Nadine Turnbull was exercising "Gem," a 7-year-old Arabian gelding owned by a friend, when the horse suddenly bolted, ran across a field, and dashed through a gap in a hedge. Gem then tossed Turnbull onto a paved highway and she suffered a serious head injury in the fall. She filed a personal injury lawsuit against Gem’s owner, Rebecca Warrener, seeking damages for chronic migraine headaches and other problems allegedly arising from the incident.

Gem was wearing a bitless bridle at the time on the accident. The horse’s teeth had been floated and Gem’s owner did not want to irritate his sore mouth with a traditional bit. There was testimony that Gem had worn the bitless bridle before without problems, but only while walking and trotting in an enclosed training area. On those occasions, and in general apparently, Gem was a well-behaved horse, responsive to his rider’s commands. Turnbull’s injuries occurred the first time that Gem ventured outside without traditional tack.

England’s version of our state equine liability laws is the "Animals Act 1971," which imposes liability on an animal’s owner for injuries caused by an animal in some—but not all—situations. Horses, thankfully, don’t fall into the "dangerous species" category of the law. This classification is limited to wild animals likely to cause serious injury unless they are properly restrained. Lions and tigers and bears come to mind, and their owners are, and should be, liable for all injuries the animals cause.

Horses, on the other hand, get a break. Their owners are responsible for injuries suffered by someone else only when the harm results from some uncommon and dangerous characteristic of the horse that also is known to the owner. It’s a variation on the "first bite rule," which gives a dog a pass the first time it bites someone, if there is no history of biting or other vicious behavior.

Exceptions Make the Rule

The Animals Act also has liability exceptions for injuries due "wholly to the fault of the person suffering it" and for injuries "suffered by a person who has voluntarily accepted the risk thereof." Similarly, contributory negligence and comparative negligence laws in the United States recognize that an injured person may bear some (or all) responsibility for the injury, and state equine activity laws amount to legislatively mandated assumption of the risk.

The attorney representing Gem’s owner argued that all horses can be unpredictable—it’s hard to disagree with that assessment—and that Turnbull assumed the risk of being injured by taking part in an obviously risky activity. Lord Justice Lewison of the London Court of Appeal agreed:

"An individual who chooses to ride horses for pleasure no doubt derives enjoyment from being able to control a powerful beast," the justice said, according to press reports of the case. "But inherent in that activity is the risk that, on occasions, the horse will not respond to its rider’s instructions, or will respond in a way that the rider did not intend.

"That is one of the risks inherent in riding horses. That is all that happened in the present case."

The decision also recognized that being thrown from a horse does not necessarily mean that the rider gets hurt:

"The evidence was that riders fall off horses every day and do not sustain severe injury. Almost everyone who has ever ridden will have the experience of having fallen off a horse, getting up and remounting."

Thanks to the Animals Act, Turnbull received no compensation for her injuries.

Although the laws in England differ somewhat from state liability statutes in this country, there seems to be at least one common legal denominator on both sides of the Atlantic: lawsuits take forever to resolve. Turnbull’s fall occurred in March 2006, more than six years before an appellate court in London finally handed down a decision.

Our own legal system moves at glacial speed, when it moves at all, and winners and losers alike often wind up frustrated with the process.

Have you spent time in a courtroom, as a plaintiff or defendant? Does the system work to protect both horse owners and injured individuals, or is it hopelessly broken?

Ethical Dilemma

Milt — Tue, 17 Apr 2012 12:17:00 GMT

It’s an ethical question, not a legal one, and I want your opinion.

What do the Grand National Steeplechase and a weekly New York Times column on ethics have to do with each other? And why should we care?

Confused?

The 125th Grand National was run over four-and-a-half miles and 30 monstrous fences at Aintree Racecourse near Liverpool, England, on Saturday. Forty horses faced the starter; only 15 managed to finish the grueling race. Two horses, including this year’s Cheltenham Gold Cup winner and early Grand National favorite Synchronised, were euthanized after falls. Those deaths brought the number of equine fatalities in the Grand National to a dozen over the last 10 years.

A couple of weeks earlier, in the Magazine section of the Times, Ariel Kaminer’s column, The Ethicist, fielded a question about the ethics of watching professional football. The inquiry was sent in to the column by a reader who wondered whether it was ethical even to watch football, given the growing amount of evidence that players run the risk of serious brain injury or death from collisions with each other. A bothersome implication of being a football fan, apparently, is that watching the games each week amounts to an implied endorsement of an unnecessarily dangerous activity.

Kaminer interviewed Michael Gladwell, one of the leading researchers investigating the dangers of concussions in football players—and, somewhat surprisingly, a football fan. Gladwell likened watching the games to being a fan of gladiator combats. He speculated that in 15 years, "no reasonable person will admit to watching football."

The column’s namesake ethicist opined that fans who watch football games, whether in person or on television, are "participating in the mass phenomenon" and by doing so "reinforce on-field violence as a cultural norm." This support gives the sport "that much less incentive to reform itself."

Horses as Gladiators?

I like steeplechasing and the Grand National. A visit to Aintree almost 40 years ago when I worked for The Blood-Horse was my first of many international trips. I also like flat racing and Standardbreds; eventing, show jumping, and reining; polo and horse shows. But I know that anything involving horses is potentially dangerous for both the human athletes and the equine ones, some activities much more so than others, and I always watch with trepidation.

It never occurred to me, though, that watching horse sports might be an endorsement of the status quo. Or that watching might mean that I didn’t care about the horses. Or that millions of people watching the Grand National, or a high-level three-day event, or the Kentucky Derby, might destroy any incentive for those in charge to make the game safer for horses and riders.

There is no way to make horse sports entirely risk-free, at least not without doing away with the activities entirely. That might be the ultimate goal of some animal rights groups, but it’s an extreme result that is outside the mainstream. The question is not whether reducing the risk of injury is a worthy goal; the question is how.

Is The Ethicist right? Is it unethical for someone who is genuinely interested in promoting the safety of horses and riders to watch horse sports?