Thursday, January 29, 2009

Loose Horses. Confusing and Complicated.

Ok. Now you have had some time to digest what a scary liability filled world you live in. You have updated our releases, looked around and lowered your liability exposure and finally feel safe and secure again. Time to get you all worried once more. What if an animal gets off your property and someone gets hurt?

Just like with liability in general, your liability and responsibilities will depend on your state. You have two sources of law: the state code and the case law that interprets what the state code means. For example, the state code may say "[a] person who owns or has responsibility for the control of a horse, mule, donkey, cow, bull, steer, hog, sheep, or goat may not knowingly permit the animal to traverse or roam at large, unattended, on the right-of-way of a highway. Now the courts must interpret “knowingly, highway, right of way and unattended. Each state will have a code and a big pile of case law to interpret that code. See “” for an example of just how complicated this can be.

Some states have strict liability. That means if the animal is out and causes damages you pay. Nobody cares if you were at fault or negligent or knowingly did anything. You go straight from duty to damages with no stopping at breach or causation. Its out, you pay. Some states only hold you responsible for personal injuries if you negligently or knowingly let the animal get out. How they interpret “negligence” can range from “if its out you must have been negligent” (hence it becomes strict liability) to “you must have left a gate open or had ratty old fences or common practices that prove it’s your fault” or you win. Lastly, some states simply do not care. They put the burden on anyone out there to avoid loose livestock and fence it out or swerve around it if it’s on the road. You have no duty at all. They have a duty to not get hurt.

Why so much variation and interpretation about estrays? There are many reasons, but the biggest ones are that loose animals can cause serious damage and that often leads to insurance claims. Insurance companies can afford to fight legal battles as far as they can go. One loose horse can cause wrecked cars, dead people, permanent physical damage and extensive property damage. Someone has to pay and that is usually the insurance company. The other reason is simply the states historical traditions. Western states usually see livestock as having a right to everywhere they are not fenced out. Free range grazing is the norm so if you want a cow free yard or road you need to pay for the fence to keep them away. Eastern states are the opposite. You fence in or else. Depending on how often a code is updated adjoining counties may conflict so your farm may be half fence out and half fence in!

When you read case law you are usually reading the appeal of the original verdict. Most trial courts are not courts of record. You may read a short blurb or a news article about the case, but it is not until the appeal that legal opinions are rendered for publications by the courts. If its gotten as far as an appeal there is either a serious injury or an insurance company involved. A case like that would have taken several years and tens of thousands of dollars to reach an appellate decision. You do not see case law about Dobbin getting loose and eating neighbors Pansy patch. You see case law about horses on the road and smashed cars and broken bones or worse.

Often, the law is pretty clear on property damage from loose animals. You will pay for the Pansy patch or broken fence or ruined crops. When things get fuzzy and expensive is when some human or other animal gets injured. Vet bills and personal injury bills get expensive. The lawyers and insurance companies will try these cases and in some ways they make the judges make the laws. Whoever loses will almost certainly appeal. So you see lots of case law in this area.

So, how to find out the law in your state? First read the code. It’s usually under animals and or livestock. Then check your local county code. They may have something to say about animals too. Next, you will have to read the recent case law in your state. Sometimes it’s sort of surprising. For example, in Georgia they use a negligence standard, but the actual case law defines negligence in ways we might not. A horse got loose by breaking the gate and fence. The judge found that was negligence because the fence posts where not set in concrete. The horse had no history of breaking out or needing special fences, but the judge felt that if the posts had been set in concrete the horse would have not been able to escape. Kind of makes you wonder what a GA judge would think or electric wire fences?

You do not need to be a lawyer to look up case law and you do not need access to a law library or a subscription data base. Use google. Use the terms you are interested in like car+horse+injury but also use Plaintiff or Defendant or appellant and court. That will narrow down your results quite a bit. Don’t try and be your own lawyer if something goes wrong, but you can’t limit your liability if you have no idea what type of system your state uses.

I know the fence requirements in some states as outlined in the code have no bearing on the reality of what we actually use. Minimum of 4ft? Must be all wood? 6 foot for stallions and colts? Is that the reality these days when you look out your door? If you do not meet the state’s code requirements you might find yourself smack dab in the middle of strict liability. Or if the code asks for X and you do Y, that might be proof of your negligence. And guess what—many insurance policies do not cover your own negligence. They will try to avoid paying out the claim at the same time you are being sued by someone else or their insurance company. Nice.

I’ll dig up some You-tube examples for you to decide if you see negligence if you were on the jury or you were the judge.

Next we will talk some about other loose animals besides large livestock. Who is responsible for a dog bite?


  1. I have people on my road whose horses run loose at least 3 to 5 times a month. Their fencing is terrible and the horses have damaged many peoples property. This has been going on for years. I have reported this to the local police, and animal control, but nothing ever happens to them. Some of the other neighbors are reluctant to complain but I am totally fed up with this and "on the warpath". In 25 years here, my horses have never been loose, yet I frequently have to clean up the messes from these horses, as they seem to like to come here. What else can I do? Can I bill them for fixing divots in the grass, cleaning up manure, etc.? I live in Massachusetts.

  2. Go to your local courthouse and find out all you can about small claims court. They might have "how to" pamphlets and lots of free info at the court house and online on your State's Bar Association website. Lawyers are expensive. You can try and file for your losses on your own and let the judge decide. Court clerks cannot give you legal advice, but they can tell you about the procedure to file.

    Its usually inexpensive and really the only way to know what your judge in your County with your facts will have to say about your losses. In my County it would cost me $35 to file and see what the judge says. The Judge has the only opinion that matters.

    I like lawyers. I am one. But its hard to justify paying one of us for such a small claim. That is why they have small claims courts. You do not need to know the entire body of law in your state--just this one small area. Google Scholar is free and your friend.

    maybe paying for your losses a few times might get your neighbors to fix that fence before someone gets badly hurt???

  3. my husband and his best friend and are two boys were riding on the side of the road this woman hit my husbands best friend and the horse he walked a way but the horse didn't it was dark they were on there way back from a grate ride but all i need to know is what is his rights she was speeding and had a child in the car not strapped in on the phone she said she saw my husband he said she didn't slow down or get over what are the rights for us please let me no

  4. The owner if the horse needs to contact a lawyer in your state. You make it sound like the only thing that was hurt was the one horse. Your friend will have to talk to a lawyer and decide if the value of the horse was worth the cost of a lawsuit.

    Sorry for your loss. Sadly, under the law, the loss of an animal is only measured by its $$$ worth.

  5. I'm having a hard time finding out what my state (Colorado) has to say about horses getting out on roads and liability if they are hit by a car. The statutes say that a landowner cannot "knowingly" let his horses out on a road, but it doesn't seem to comment if it was an accident. How do I find out more info for Colorado??

  6. Hi,
    I am another horse person from MA. I have a neighbor whose horses run loose due to neglected and broken fencing and today it happened when a friend was out on my mare, the loose horses came galloping up behind her, and terrified my little mare, and the whole situation was out of control. My mare's rider , though an excellent and experienced rider, was in serious danger- she was neither safe on the horse who was terrified and striking out at the other horses, nor did the rider want to risk dismounting right into the middle of a horse scuffle. It was dreadful. FInally the owner showed up with halters and led the horses away. The rider was very upset and my mare was anxious and difficult to ride all the way home. I went and spoke to the loose-horse owner, and offered to help her fix her fences. She admitted being overwhelmed with some personal issues, but PROMISED this would never happen again and declined my offer of help. I sincerely doubt she can keep that promise. Is there any court that can order her to fix her fences? Some unsuspecting rider is going to get seriously injured if this ever happens again. What is the protocol for lodging a complaint. If he horses get loose again, I think I need to act or I or someone else will get hurt or worse.


If the comments do not work, somebody please e-mail me and let me know. Thnx!