|
Understanding Negligence
with Julie Fershtman, Attorney at Law
When horses are involved, there is virtually unbounded potential for
injuries -- injuries that can happen unpredictably and without a moment’s warning.
The gentlest horse could spook during a riding lesson and its rider could fall off; a
guest could slip and fall down a stairway leading to the hayloft; someone might get kicked
by a horse stabled in the barn.
What is negligence?
A highly authoritative widely-accepted definition is found in Black’s Law
Dictionary (5th Edition) which states, in part:
"Negligence is the failure to use such care as a reasonably prudent and careful
person would use under similar circumstances; it is the doing of some act which a person
of ordinary prudence would not have done under the circumstances or failure to do what a
person of ordinary prudence would have done under similar circumstances. Conduct which
falls below the standard established by law for the protection of others is unreasonable
risk of harm; it is a departure from the conduct expectable of a reasonably prudent person
under like circumstances."
Put another way, to be negligent, conduct must fall below a legal standard designed to
protect others.
Can someone be found legally negligent without intending
to inflict harm?
Yes. This is perhaps the most difficult and frustrating aspect of negligence liability.
The law does recognize the difference between negligence and gross negligence. "Gross
negligence" is sometimes compared with "willful and wanton misconduct," and
is understood in many states to involve an act or omission in reckless disregard of the
consequences affecting the life or property of another.
Can you provide examples that show the difference between
negligence and gross negligence?
Suppose a public riding
facility or horse owner has carelessly forgotten to adjust a horse’s cinch before
sending him out on the first ride of the day. If the saddle slips and the rider is
injured, that facility or owner will probably be found negligent.
However, if a facility or horse owner saddles a horse with broken cinches or girth
straps, knowing the equipment could fail at any time, that facility or horse owner will
likely be found to have committed acts of gross negligence when the equipment breaks and
injures the rider.
Who can be sued for negligence?
Inevitably, when a negligence lawsuit is brought, the attorney who represents the
plaintiff (the one bringing the suit) will attempt to sue all possible persons. Potential
defendants in a negligence case could include the individual(s) who caused the injury, the
facility where the injury occurred, the owner of the property, and the owner of the
horse(s) that caused the injury.
Can you be sued even if you were not directly involved in
an incident?
Yes. For example, the partners in a partnership can be liable, and an employer may be
liable for its employees who act negligently in performing their job duties.
What are "damages" and how are they determined?
Damages are the money a plaintiff is allowed to receive if the plaintiff can prove that
the defendant caused the personal injury and is legally responsible for the resulting
harm. Damages are evaluated by a judge or jury.
In many states, damages in negligence lawsuits can include (but are not limited to)
compensation for:
- the injury suffered
- damaged or destroyed personal property
- medical and hospital bills
- harm to marital relations (called "loss of consortium")
- lost past and future earnings
- and physical and emotional "pain and suffering"
What about punitive damages?
If a defendant is found to have acted intentionally or maliciously, courts in several
states might order him, her, or a legal entity, to pay the plaintiff "punitive"
damages. These types of damages are designed to punish the defendant and to discourage
similar wrongful conduct by others.
What kinds of equine activities have generated the most
negligence claims?
There are certain settings in which injured people have, over the years, sued
individual horse owners, professionals, and stables for negligence, including:
- "Vicious or Dangerous" Propensities
- Failing to Properly Supervise
- Equipment Defects
- Unsuitability
What are "vicious or dangerous" propensities?
Biting, kicking, bolting and bucking are some
behaviors that courts have classified as dangerous propensities. In many states, people
have been found to be negligent if they knew, or had reason to know, of these behaviors
and failed to take protective actions. Protective actions could include posting of
appropriate warning signs, and proper restraint and confinement of a horse. Plaintiffs who
have brought these types of lawsuits include social guests, prospective horse buyers,
lessees and business customers.
How about "failing to properly supervise"?
Negligence lawsuits have asserted that the
defendant’s failure to properly supervise the plaintiff caused the injury. These
types of lawsuits have historically been directed against riding instructors and riding
academies.
Aren’t "equipment defects" the
responsibility of the manufacturer?
These cases usually involve defective or improperly
adjusted saddles or harnesses.
Explain the kind of situation that could lead to a claim
of "unsuitability."
Some negligence cases assert that the defendant
(usually a riding stable or equine professional) failed to match the horse properly to the
rider, based on the rider’s actual or stated level of ability and experience.
How can you protect yourself from a negligence suit?
Having a basic understanding of what creates
liability is an important first step. Beyond this, horse owners and facilities should take
active measures to foresee and prevent, as much as possible, the conditions that give rise
to injuries, and potentially, liability.
Keep informed of specific ways to avoid liability
and to make your operations safer. Consider joining groups that are specifically organized
to promote safety in equine activities, and share safety information.
Why do I need liability insurance?
Even if they believe they have the
"perfect" program and precautions to avoid lawsuits, and even if their state has
adopted an equine liability law, horse facilities and horse owners should secure proper
insurance. The equine liability laws were not designed to end all lawsuits in the horse
industry.
IN CONCLUSION ...
Negligence lawsuits are serious,
time-consuming and expensive to defend. If you believe that you may be the target of a
negligence lawsuit, or if you seek to understand further how courts in your state have
handled negligence lawsuits, consult with a knowledgeable attorney. |
| This article does not constitute legal advice. When questions arise based on
specific situations, contact a knowledgeable attorney. About the Author Julie I. Fershtman
is an attorney serving the horse industry, who has won national awards for her equine law
expertise. Her biography is published in Who's Who in American Law. Her speaking
engagements in early 1999 include the American Morgan Horse Association Annual Convention
in Dearborn, MI (2/12), Equine Spectacular in Scottsdale, AS (2/13-2/14), and the Hoosier
Horse Fair in Indianapolis, IN (4/17-4/18). She can be reached at (248) 644-8645. Ms.
Fershtman is the author of the nationally-acclaimed book, Equine Law & Horse Sense,
which sells for $17.95 + $3 s/h (MI residents add 6% sales tax). To order, contact Horses
& The Law Publishing at (800) 662-2210 or send check or money order to Horses &
The Law Publishing, P.O. Box 250696,Franklin, MI 48025-0696. |
| 
