How to Avoid Liability in a Heat Wave

Nearly half of the United States is battling extreme temperatures. Surprisingly, the occurrence of a simple heat wave can expose boarding facilities and trainers to complaints and even lawsuits should a customer’s horse become ill due to extreme heat.

The Horse.com has published some good advice from veterinarians on caring for horses in extreme heat. The full articles can be found here and here, and a bullet point summary is below.

Those of you in Texas and elsewhere in the South already know this information. I am reposting it here because if a complaint or allegation ever arises over a horse that got sick due to heat at your barn, you should be able to ward off any potential liability if you have followed the guidelines generally accepted by veterinarians. 

Summary of guidelines from equine veterinarian Nancy Loving, DVM, via The Horse:

  • (Obviously) the most important thing to do is provide access to plenty of clean water
  • Add an electrolyte supplement to horses’ diets or put out salt blocks to promote drinking and restore the electrolyte balances disrupted by sweating
  • If a horse doesn’t drink well, provide a watery gruel of feed pellets vs. feeding them dry
  • Take measures to repel insects (fly sheets, fly spray, stall fans, fly strips, etc.) or encourage customers to do so if this is not a service you provide
  • If possible, keep horses in the pasture / turn out area vs. the barn during the hottest part of the day as long as there is access to shade and plenty of fresh water in the pasture / turn out
  • To avoid heat stress in horses being worked vigorously in hot weather, walk the horse periodically for 5 to 10 minutes during workouts
  • If you work a horse in the heat and think he might be susceptible to heat stress, cool him down gradually by hosing him down with cool water and scraping it away continuously until his chest feels cool to the touch and/or his temperature drops below 103.5 degrees

Horse operations that employ workers should also check out Russell Cawyer’s post on recommendations for employers who have employees working in extreme heat conditions.

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Do Horse Trainers Have a Lien on Horses they Train for Unpaid Training Fees?

In most states, trainers do not have an express statutory lien for unpaid training fees and training-related expenses unrelated to the care of horses such as show entry fees and hauling.  This means, unless a trainer has a written security agreement signed by the owner providing a lien on the horses in the event of nonpayment of training fees, the law is unclear as to whether a trainer can hold or sell the owner's horse when training fees remain unpaid.  You need to check your state's statutes, however, as some states' stableman's liens do expressly provide a lien for training services. Oklahoma's stableman's lien statute, for example, expressly includes a lien for training services.  You can find your state's lien statutes on Equine Law and Horsemanship Safety.

What if My State Has a Stableman's or Agister's Lien Statute but No Trainer's Lien?  Currently, every state except Rhode Island has a stableman's or agister's lien statute.  These statutes provide those who care for, board, pasture, or stable the horses of another with a lien on the horse if charges related to the care of the horse are not paid.  Charges related to the "care" typically include the monhtly board rate, supplements, wormer, vaccinations, farrier, and veterinary services paid or advanced by the caregiver on behalf of the owner, and other services related to the care, health, and maintenance of the horses.  See Carney v. Wallen, 665 N.W.2d 439 (Iowa Ct. App. 2003)(holding that a trainer who provided only training and did not also provide board or other services related to the "care" of the horses could not obtain a stableman’s lien because training services do not pertain to actions or services performed in the course of acting as a stable keeper).

What if a Trainer Both Boards and Trains a Horse?  In most states, a trainer who both boards and trains a horse has a lien on the horse for unpaid charges related to the careSee Davis v. Sewell, 696 S.W.2d 247, 248 (Tex. App.—Texarkana 1985, no writ)(holding that a person hired to both train and board horses had a lien arising from unpaid charges for the care).  While the law is unclear in most states, an argument might be asserted that if an owner is current on his board and all charges related to the care and maintenance of the horses, a trainer must allow an owner to pick up his horse and cannot sell the horse to satisfy the unpaid training fees unrelated to the care and maintenance of the horses.  If an owner is delinquent in both board and training, the trainer can hold the horse until fees for board and care are paid, and sell the horse to satisfy the board and care charges but not the training bill.  There are no cases in Texas to-date that currently address the issue of whether training fees are included in the Texas stable keeper's lien.

What if a Trainer Has Been Boarding and Training a Horse, but There is No Boarding Agreement?  Absent a contractual provision concerning remuneration, a stableman is entitled to the reasonable value of his services. O’Neal v. Knippa, 19 S.W. 1020 (Tex. 1892); Crenshaw v. Bishop, 143 S.W. 284 (Tex. Civ. App.—Fort Worth 1911). Thus, the amount of the lien in such circumstances would be the reasonable value of the boarding and care services in the area or county where they were provided.  This will also depend on whether the service provided was stall board, pasture board, full care, etc.

What if Potential Buyer Does Not Return Horse After Trial Period?

An attorney called me last week to ask what her client, a trainer, should do about a prospective buyer who had picked up a horse from the trainer to "try out" but failed to bring the horse back after the trial period.  The trainer had been hired by the horse's owner to find a buyer for the horse.  After months of trying to make contact with the prospective buyer, the trainer finally made contact to learn that the horse had allegedly died of colic while in the prospective buyer's care.  There were no written agreements between the owner and trainer or owner/trainer and prospective buyer.

The first thing I asked was whether they called the police or sheriff when the horse was not returned.  In potential theft situations, it is always advisable to call law enforcement and get a copy of their report.  I also suggested a bit of investigative work to determine if the horse was, in fact, dead.  They had called the vet the prospective buyer usually uses, but the vet had no record of seeing the horse.  I suggested that they send a letter to the prospective buyer asking for proof that the animal was euthanized and asking him to pay the asking price for the horse.  The next step was to file suit if he did not pay (I suggested that she make the trainer and owner joint plaintiffs).

Under Texas law, the trainer and owner in this situation have a colorable claim for conversion and theft under the Texas Theft Liability Act (the "TTLA") against the potential buyer.  People with ownership or possessory rights have standing on both claims. And assuming the trainer spent money to take care of the horse while in her care and was going to get a commission on the sale, the damages element is also satisfied as to the trainer.  Attorneys’ fees and costs are recoverable by the prevailing party under the TTLA.

Is the trainer liable to the owner in this situation?  The trainer would only be liable to the owner under the “principal-agent” theory if the trainer acted without actual authority when she gave the horse to the prospective buyer to try out.

What's the lesson here?  The trainer and owner would have been in a better position if they had obtained a written agreement with the prospective buyer containing a "risk of loss" provision, whereby the prospective buyer would agree to pay the owner if the horse died or was injured in the prospective buyer's care.  The trainer could have also required the prospective buyers to make payment in escrow for the horse, and agreed to return the money if and when the horse was returned.

Race Horse Trainers "Guilty Until Proven Innocent"

"Absolute insurer rules" and "trainer liability rules," common in horse racing and other equine sports, presume that trainers are responsible when their horses test positive for illegal substances.  In effect, the rules make trainers guilty unless proven innocent.

The effect of this presumption is to shift the burden of proof from the governing body to the trainer, who must prove innocence by showing  that he or she did not negligently administer a prohibited substance to the horse or did not negligently allow someone else to interfere with the horse.  These rules can result in the imposition of a penalty against the trainer and/or the horse's owner without actual proof of guilt.

Courts have uniformly upheld the absolute insurer rules, despite the fact that they appear to violate the due process of law.

The New York Court of Appeals (the court of last resort in New York), held that "...the trainer responsibility rule is a practical and effective means of promoting these State interests--both in deterring violations and in exercising sanctions.  The imposition of strict responsibility compels trainers to exercise a high degree of vigilance in guarding their horses and to report any illicit use of drugs, medications or other restricted substances by other individuals having access to their horses.  Additionally, the rebuttable presumption of responsibility facilitates the very difficult enforcement of the restrictions on the use of drugs and other substances in horse racing.  Indeed, it would be virtually impossible to regulate the administering of drugs to race horses if the trainers, the individuals primarily responsible for the care and condition of their horses, could not be held accountable for the illicit drugging of their horses or for the failure either to safeguard their horses against such drugging or to identify the person actually at fault.  It is not surprising, therefore, that trainer responsibility rules have been upheld almost without exception, in other jurisdictions."  Casse v. New York State Racing and Wagering Authority, 517 N.E.2d 1309, 1312 (N.Y. 1987).  See also Allen v. Kentucky Horse Racing Authority, 136 S.W.3d 54 (KY App 2004); Fogt v. Ohio State Racing Commission, 210 N.E.2d 730 (Ohio Ct. App. 1965); Sandstrom v. California Horse Racing Board, 189 P. 2d 17 (Cal. 1948).

For detailed discussion of the application of agencies and organizations in the horse industry, see The Complete Equine Legal & Business Handbook by Milton C. Toby.