May 2008

A gentleman recently told me that his stallion had gotten loose, gone onto his neighbor’s unfenced property, and "worried" the neighbor’s mares.  The neighbor shot at the stallion with a shotgun, and stated that the police told him he was justified in doing so because the stallion was "trespassing on his property."

Is the stallion owner liable for property damage or injury to persons caused by his stallion?  Generally speaking, not unless the stallion owner knowingly let the stallion roam free.

Important to this analysis is that Texas is, generally speaking, still an open range state.  That is–livestock may still roam at large in Texas with two exceptions:

  1. Public highwaysThe Texas Agriculture Code states "[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." Tex. Agric. Code § 143.102 (Vernon 2004)(emphasis added). The statute defines a "highway" as "a U.S. highway or a state highway in this state, but does not include a numbered farm-to-market road." Id. at § 143.101. Therefore, U.S. and state highways in Texas are effectively considered closed ranged. Conversely, the 40,000-plus miles of farm-to-market roads in Texas are unaffected by this statute.
  2. Stock Law Counties or Areas.  Chapter 143 of the Agriculture Code permits local elections to adopt a law (a.k.a. "stock law"), where a person may not permit any animal of the class mentioned in the proclamation to run at large in the county or area in which the election was held. A typical stock law will prohibit horses, mules, donkeys, sheep, goats, and cattle from running at large.

    As expressly provided by the Code, some counties in Texas have enacted county wide stock laws, yet others have chosen to elect stock laws only in certain precincts or areas within said county. Unfortunately, there is no statewide index that traces the counties or areas where stock laws have been passed.

Continue Reading Is a Horseowner Liable for Damages if a Horse Gets Loose?

Veterinarians may have several legal defenses to claims of malpractice. One of the most important procedural defenses is that of the statute of limitations. A statute of limitations is a state law that puts a limit on the amount of time a plaintiff has to file a lawsuit, usually from the time the injury occurred or when he or she discovered the injury. If the statute of limitations runs out before the lawsuit is filed, then no legal action may be taken.  Any attempt to do so will result in the judge dismissing the suit without hearing the merits of the claim. In order to "toll" the statute of limitations (i.e. make the limitations period stop running), the plaintiff must actually file suit.  Demand letters sent to the vet or the verbal notification of a future claim do not act to toll the statute of limitations.

With veterinary malpractice cases for injury to or death of a horse, the applicable statute of limitations may be based on claims for injury to personal property in that state, as domestic animals are considered personal property of the owner.  Those cases usually have a statute of limitations of four (4) years.

For states that include veterinarians under the list of professions covered by malpractice statutes, they may be based upon statutes that set time limits for malpractice. These statues of limitations are usually shorter, typically two (2) years.

For instance, Georgia law provides a two (2) year statute of limitations for medical malpractice actions.  However, veterinarians are not included in the definition of malpractice actions, because those involve injuries to people only.  Georgia has a four (4) year statute of limitations for injuries to personal property, which would arguably apply to a veterinary malpractice claim brought in Georgia.

Importantly, the manner in which a plaintiff pleads his or her claim (i.e., whether he or she claims common negligence or malpractice) may dictate the statute of limitations.  If a negligence claim is not barred by limitations and a malpractice action is barred, a court would allow the negligence action to go forward and dismiss the malpractice action.

For more information on vet malpractice actions and the applicable statute of limitations, see Veterinarian Malpractice by Davis S. Favre.

Several people have asked me if I thought there would be  litigation over the death of Eight Belles after her second place finish at the 2008 Kentucky Derby on May 3.  Although animal rights activists staged a protest at the office of the Kentucky Horse Racing Authority after the filly’s death, I don’t think there will be any litigation.  

The filly’s death did not seem to be caused by the negligence or wrongdoing of any person or entity.

What did cause Eight Belles to break both front ankles?  According to the Wall Street Journal, Eight Belles’ breakdown may have arisen from a variety of factors such as genetics, track surface, training methods, or medications.  Interestingly, Eight Belles and 2006 Kentucky Derby winner Barbaro were both descendants of Northern Dancer, a 1950s Thoroughbred whose racing career was cut short by leg injuries.

What is being done in the horse racing industry to prevent future breakdowns?  The Welfare and Safety of the Racehorse Summit, which first convened in 2006 after Barbaro’s breakdown in the Preakness, met again in Lexington March 17-18, 2008.  The Summit promulgated its recommendations to improve racehorse welfare, and those recommendations addressed the following issues:

  1. Track Surfaces–including research and development of synthetic (Polytrack) surfaces
  2. Catastrophic injuries
  3. Racing Medication & Drug Testing Laboratories
  4. Education–focusing on training methods
  5. Regulation–to establish uniform regulation of medication and integrity issues
  6. Solutions for unwanted Thoroughbreds
  7. Promote genetic diversity of the Thoroughbred

If the Summit’s recommendations are implemented, huge positive changes in the Thoroughbred racing industry could be realized.  However, according to Dan Metzger, the President of the Thoroughbred Owners and Breeders Association, "miracles will not happen overnight."

 

Someone recently asked me if he had a case against an equine surgery clinic that told his local vet during a telephone conversation to not send them the mare because they did not have room for her at the clinic.  The mare died 4 hours later of colic complications, and the owner stated that she would have lived if the vet clinic had admitted her and performed colic surgery.  The mare in that case was not a current patient of the clinic.  The owner would not have a valid claim against the clinic in that case.

The decision of whether to accept an animal as a patient is at the sole discretion of a veterinarian.  This rule is set forth in Article II.E. of the the Principles of Veterinary Medical Ethics of the American Veterinary Medical Association, which applies to all veterinarians in the United States.  The Texas Rules of Professional Conduct for veterinarians codifies that rule for vets practicing in Texas.  Therefore, even in emergency situations, vets do not have to take your horse if, for example, you cannot pay for the treatment or they simply do not have time to treat your horse.

For a vet to be potentially liable to a horse owner for injury or death of their horse, a veterinarian-client-patient relationship (VCPR) must first exist.  The VCPR is established when all of the following conditions are met:

Continue Reading Does a Veterinarian Have to Treat Your Horse in an Emergency?