horsesandlaw
Displaying items by tag: Horses and the Law

Disclaimer–This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

At first glance this seems appropriate. The buyer can determine whether the horse meets his needs and will have an opportunity to have a veterinarian inspect the horse. For the seller, it provides assurance that the sale is complete and greatly reduces buyer remorse or complaints about the behavior or performance of the horse. As long as there are no problems, this arrangement works well.

Potential problems include injury or illness to the horse, and/or injury to people and damage to property during the trial period. Who is responsible for the vet bills and any loss or damage during the trial period? What if the horse injures a third person during the trial period? What if the buyer doesn’t return the horse? What if the horse becomes injured or dies during the trial period? All of these issues can be adequately addressed in a written agreement of sale which is strongly recommended where a trial period is involved.

A written agreement of sale should be prepared, dated and signed by all parties BEFORE the horse is removed from the seller’s premises. The agreement of sale should contain a down payment of at least 25% of the sale price and clearly define under what circumstances the down payment will be forfeited and under what circumstances the down payment will be returned. I have a client who allows a trial period only if the full purchase price is paid up front, held in escrow, and if the sale is not made, then the payment is returned to the potential buyer.

The agreement of sale should limit the time period of the trial. One or two weeks should be plenty of time to evaluate the horse. In any event, a trial period should not exceed 30 days. The more time involved, the greater the risk of injury or loss. The agreement should clearly spell out whose responsibility it is to physically return the horse to the seller in the event there is no sale. The agreement should further provide that the seller have the right to enter the buyer’s premises to remove the horse, at the buyer’s expense, if the horse is not returned in violation of the parties’ agreement.

It is very important that the seller insure the horse for mortality, theft and loss of use during the trial period. Many of these policies also include a medical expense provision which should be purchased as well. It is my recommendation that the seller obtain the insurance and make sure the policy is in place before the horse is in the buyer’s possession. The agreement should also determine who is responsible for the cost of the insurance (I recently prepared an agreement where the parties split the insurance cost.)

The agreement should contain a liability release whereby the buyer agrees to be responsible for any loss if the horse injures someone or damages property. This release should contain a "hold harmless and indemnification clause" to protect against injuries or damages to people while the horse is in the trial period. To be safe, the seller can obtain a liability insurance policy to cover any loss during the trial period and the seller should have the buyer pay for the insurance. (Considering we are only dealing with a two-to-four week period, the cost of the insurance shall not be exorbitant unless we are dealing with a very expensive animal.)

A practical point is to know your buyer and where the horse will be kept during the trial period. Make sure the buyer’s property is a safe place to keep the horse and, if not, don’t go there.

A major issue to be addressed in the agreement of sale is expense responsibility during the trial period. Since the buyer will have possession of the horse, the buyer should bear the risk of loss or injury during this time. Further, the buyer should be responsible for all vet bills, farrier bills, feed, etc. during the trial period. I cannot over-emphasize the importance of adequate insurance during the trial period so that any loss is compensated without causing financial hardship to either party.

The agreement should also address the location where the horse will be kept during the trial period and not allow the horse to be removed from that location without the prior written consent of the seller. I recently had a case where a horse was shipped to Florida and the sale was not consummated. There was no written agreement between the parties and the seller had to bear the expense of locating the horse and having it returned.

A trial period before final sale can be a good thing for both buyer and seller. However, a verbal agreement is simply not enough in today’s world. A properly drafted agreement of sale can adequately address the issues discussed above and reduce disputes concerning responsibility during a trial period.

Enough legal talk–it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, Pennsylvania, where a good bit of his practice involves negligence cases. He and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for several years at most major shows in the East.

Published in Spring 2014

Disclaimer–This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

In recent years I have seen an increase in accidents involving horses and cattle that escape pastures, pens or other enclosures and wander onto a highway causing serious accidents. All who own horses have experienced the sickening feeling of knowing your livestock is "on the loose." If a horse escapes and wanders onto the highway causing a serious accident (and it seems to always happen at night) are you, the owner, automatically liable for any injury or damages, even if you make certain the gate was closed and the fence was in good repair?

Before answering this question we must understand the difference between strict liability and negligence. Strict liability is absolute liability and does not require proof of carelessness, neglect or fault. Black's Law Dictionary defines strict liability as not depending on actual negligence or intent to harm, but is based on the breach of an absolute duty to make something safe. Negligence, on the other hand, does not impose absolute liability and only establishes liability if you were careless or neglectful.

The concept of strict liability is most associated with manufacturers of products. If you purchase a product, such as a lawn mower, and you use it as intended, and become injured, the injured party must only prove that the product was used as intended and caused harm. The injured party does not have to prove negligence or carelessness on the part of the manufacturer.

However, the law of strict liability also has application for damages caused by animals. The application has been limited in that the law distinguishes between domesticated animals and wild animals. Domesticated animals are dogs, cats, horses, cattle, goats, sheep, pigs, etc. Wild animals are lions, tigers, venomous snakes, gorillas and the like.

A general statement of the law is that strict liability, that is fault without regard to wrong doing, is imposed on the owner of wild animals. Negligence, which requires proof of carelessness or wrong doing, has historically been applicable to domesticated animals (There are exceptions to all of these rules: For example, a domesticated animal that has previously shown signs of dangerous propensities, may be held to the strict liability standard, however, for purposes of our discussion, we will not discuss the exceptions).

Simply stated, if you own a lion, and it gets away, you are absolutely responsible for any and all damage it may cause. However, as the law currently stands, if your horse gets away, you are only responsible if the injured party can prove neglect or carelessness on your part. For example, if you left the pasture gate unlatched or if the fence was in a state of disrepair to the point that an animal could easily escape, you are responsible.

As you can see there is a great difference between strict liability and negligence. If you are a horse owner, you, of course, want the negligence standard to apply which would clear the owner of any responsibility in the absence of neglect or carelessness. This is the law in most states.

There has been an attempt in recent years to change the law as it pertains to domesticated animals from the negligent standard to the strict liability standard. Such an attempt was recently made in the case of Lefebvre v. Bielak, PICS No. 13-1355, 2013, Lawrence County, Pennsylvania. The Plaintiffs in Lefebvre were driving their car down the highway when a cow began to cross the road.

Lefebvre struck the cow causing property damage to the car and serious injury to his wife. Lefebvre then sued Bielak, the owner of the cow and alleged strict or absolute liability on behalf of Bielak.
Bielak countersued Lefebvre claiming strict liability was not applicable and that Lefebvre was speeding and did not have his car under control. Thus, the battle lines were drawn. Lefebvre argued strict liability or absolute liability regardless of fault against Bielak. Bielak denied strict liability and claimed Lefebvre was negligent for driving too fast and not having his car under control. The Court was faced with a decision on whether or not strict liability or negligence applied to the case. Obviously, the Court's opinion could have a dramatic impact on the law in regard to domesticated animals which escape their enclosures.

The case presented an issue of first impression in Pennsylvania, that being the imposition of strict liability on the owner of livestock for injuries arising out of an automobile-livestock collision.

The Judge ruled that in an automobile-livestock collision, liability will result only where the owner lacked due care in failing to confine the animal.

The Judge, in ruling that strict liability does not apply, analyzed other Pennsylvania cases, many of which were rendered when most Americans did not own cars. The leading case on the law denying strict liability is the case of Tassoni v. LeBoutillier, 130 Pa. Super. 303, 196A 543 (1938). In Tassoni, an unattended horse dashed onto the highway shortly after midnight and collided with an automobile driven by the injured party. The Plaintiff alleged that the horse owner negligently failed to keep his horse properly confined and off the highway. The Court in Tassoni held that the horse owner would not be held responsible for injuries caused by the horse unless the horse owner was guilty of negligence in the manner of controlling or not controlling the horse.

In Tassoni the horse owner was found negligent in not controlling the horse properly, but negligence had to be proved and was not absolute.

The Court went on to cite Sections 518 of the Restatement of Torts which defines liability for harm done by a domestic animal that is not abnormally dangerous. Under the Restatement of Torts, the owner is subject to liability for harm done by the animal but only if, (1) the owner intentionally causes the animal to do the harm; or (2) the owner is negligent in failing to prevent the harm. Thus, it is clear, that the standard is that of negligence and not strict liability.

In a later case, Bender v. Welsh, 344 Pa. 392, 25A2d 182 (1942), the Pennsylvania Supreme Court affirmed the negligence standard in a situation where a horse suddenly emerged from a shadow and was struck by an automobile at 11:00 p.m. The horse, which was kept in a pasture adjacent to the road, had escaped after pushing out a portion of the fence.

The Pennsylvania Supreme Court viewed the facts in a more modern fashion and held that a jury, under certain facts, could infer negligence if the owner does not show to the jury's satisfaction that a horse was properly confined. The Supreme Court stated, "Horses which are properly confined ordinarily do not escape. Hence the presence of an unattended horse on the highway is sufficient evidence to allow the jury to infer negligence on the part of those whose duty it was to restrain him … In these days of rapid automobile transportation, the extreme hazard to drivers and passengers of animals straying unattended on the road at night cannot be over estimated. The driver is placed in a well-nigh helpless position because of the tendency of an animal to spring out of the darkness in front of a car when blinded or hypnotized by its headlights. Against this contingency, drivers should be protected, by having our roads clear of such obstructions, and every owner of livestock should make an earnest endeavor to so control their movements with due care that the lives of others may not be thereby endangered."

In conclusion, although the Courts have not yet applied strict liability to domestic animal-highway accidents, it is clear that the owner must establish that he used due care to confine his animals. It is important that the owner makes sure that all fences and stalls are properly maintained and secure and that all gates are latched and/or locked. Anything less will result in liability and exposure to the horse owner.

Enough legal talk–it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, Pennsylvania, where a good bit of his practice involves negligence cases. He and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for several years at most major shows in the East.

Published in Winter 2013-2014

Disclaimer–This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

I have written about this topic on previous occasions, but it refuses to come to a final resolution. Recent events have thrust it back to the front page. The USDA, on June 28, 2013, approved a license to process horse meat to a New Mexico company.

Valley Meat Company of Roswell, New Mexico, planned to start processing horse meat later this summer. Approximately a week later, the USDA issued a second license to process horse meat to Responsible Transportation Company of Sigourney, Iowa. Since both plants passed Federal inspection, and licenses were issued, the USDA must assign meat inspectors to the plants.

Sounds like horse meat processing plants are back in business in the U.S. Not so fast. A brief history is essential.

Horses have been eaten by humans for over 30,000 years, as depicted in cave paintings such as those found in the Chauvett Cave in France. Many countries process horses in industrial abattoirs, and currently the following countries have horse meat processing plants: Mexico, Argentina, Kazkhstan, Mongolia, Kyrgyzstan, Australia, Brazil, Canada, Poland, Italy, Romania, Chile, France, Uruguay, Senegal and Spain. However, horse slaughter has become controversial because of issues concerning safety of the meat, cruelty to the animal and concerns over eating an animal which is viewed by many as a companion animal.

This controversy has divided agricultural and horse breeding associations, with each bolstering an impressive list, both for and against horse slaughter. Some of the organizations who oppose horse slaughter are the Humane Society of the United States, the Animal Welfare Institute Coalition, Veterinarians for Equine Welfare, etc. While those lobbying for horse slaughter include the American Quarter Horse Association, the American Veterinary Medical Association, the American Association of Equine Practitioners, etc.

In 2006, there were three equine slaughter facilities operating in the United States. The meat processed from these facilities was shipped overseas to Europe and Japan for human consumption. A small percentage, approximately 10%, was sold to American zoos for carnivore feed.

As a result of protests against horse slaughter, the United States House of Representatives voted to end horse slaughter, but the bill never came to a vote before the Senate. Since the bill never passed, there was no prohibition against processing horse meat for human consumption in the United States. Later attempts were made concerning passage of the American Horse Slaughter Prevention Act, but the bills died at the end of each congressional session.

Since no action was taken by Congress on finalizing the bills outlawing horse slaughter, Congress, under pressure from anti-slaughter opponents, passed legislation in 2006 defunding USDA horse meat inspectors. This took effect in 2007, and forced the horse slaughter facilities to close. However, in 2011, the appropriation bill resumed funding for USDA horse meat inspectors; thus, eliminating the ban on horse slaughter for human consumption. In the current Agriculture Appropriations Bill for 2014, the ban on funding horse meat inspectors is once again proposed. The Obama administration has gone on record opposing horse slaughter. No final resolution has been made concerning the Agricultural Appropriations Bill for 2014.

Many groups point to the problems which were created after the plant closures in 2007. The Federal government accountability office conducted a study, which concluded that since the closure of the horse meat processing plants, horse abuse and abandonment has increased. The proponents of horse slaughter point to the study and argue that it is better to allow meat processing in the states, where the horses can be killed in a more humane and federally regulated facility, than to have horses abandoned and starved or shipped to foreign countries, which have far less stringent regulations than the

United States. The statistics show that since the closure of the plants in 2007, many horses were shipped to processing plants in Mexico and Canada. Approximately 100,000 per year were shipped, with 2012 figures topping over 167,000 horses. Horses shipped to Mexico this year are currently 18% higher than over the same period in 2012.

The issue becomes, is the horse better off being left to starve to death or travel long distances in cramped quarters to foreign slaughter plants, or be slaughtered in the U.S. in plants that are federally inspected, and where more humane conditions can be imposed? It appears the outlawing of the United States slaughter houses has made the problem worse.

So where are we now? Since processing plants are beginning to be licensed, and the ban on funding Federal inspectors has been lifted, it appears horse meat processing is once again legal. However, the Obama administration's budget for the 2014 fiscal year eliminates funding for horse meat inspection, effectively reinstating the ban. The agriculture committees, both House and Senate, have endorsed the proposal, however, it is not certain that the Agriculture Appropriations Bill will pass this year.

The government's decision to pass inspection of domestic horse meat processing plants, while asking Congress to defund horse meat inspectors, is contradictory and simply makes no sense. Although licenses are being issued, and horse slaughter can be initiated, the future is uncertain as the plant owners do not know if inspectors will be funded. No inspectors means no processing–not to mention the numerous lawsuits filed by animal protection groups.

The government needs to be clear and consistent about this issue. The current illogical inconsistencies are embarrassing and leave little confidence in the decision making process.

Addendum
A federal district court has issued a temporary injunction covering both the New Mexico and Iowa plants. A hearing was held on the issue of the amount of the bond to be filed to cover plant losses if the injunction is dismissed. The Judge ordered a $500,000 bond to be filed. The plants remain closed but a hearing on the injunction must be held within 30 days to determine if the injunction should be dismissed. The animal rights position is that not enough "environmental studies" have been done. Thus the battle lines are drawn. Unless the injunction is dismissed outright at the hearing, litigation could take years.

We'll continue monitoring the situation and provide more information when it is available.

Enough legal talk–it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, Pennsylvania, where a good bit of his practice involves negligence cases. He and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for several years at most major shows in the East.

Published in Autumn 2013

Disclaimer–This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

On March 11, 2013, the United States Department of Agriculture (USDA) began enforcing new Federal Regulations (9CFR Parts 71, 77, 78 and 86, Federal Register/Volume 78, No. 6, Wednesday, January 9, 2013, effective March, 2013) concerning the interstate movement of horses. The new Federal Regulations require an up-to-date Interstate Certificate of Veterinary Inspection (ICVI). This requirement is already the law in most states, but the new regulations make it mandatory in all states. (There are a few sections which will be discussed in this article.)

These new regulations are part of the USDA's new Animal Disease Traceability Program (ADTP) and apply to the interstate movement of all livestock. You may recall the controversy surrounding the USDA's voluntary program called the National Animal Identification System (NAIS). The NAIS involved the reporting of the identity of every animal, the premises where the animal was housed and every movement of an animal in order to accomplish traceability of a disease outbreak within 48 hours. The NAIS was withdrawn by the USDA because of its complexity, cost and practical inability to comply and police.

The Animal Disease Traceability Program was implemented to replace NAIS and is much less complex and does not require the specific reporting of every individual movement or the registration of premises housing the livestock. The intent and purpose of the ADTP program is, however, the same as that of the NAIS, that is, to help federal, state and local officials effectively identify in a timely manner and deal with disease outbreaks. It is hoped that this program will minimize the effects of a disease outbreak to the livestock industry.

The new ADTP program will be administered by the states with some undefined federal support. The ADTP regulations require that any horse moving across state lines must be properly identified and must have an interstate certificate of veterinary inspection. The rules allow identification of horses by description, i.e., markings, color, breed, age, sex, brands, etc., an animal identification number or electronic identification, digital photographs, USDA backtags, which are for horses being transported for slaughter pursuant to the Commercial Transport of Horses to Slaughter regulations, or by non-ISO electronic identification injected into the horse.

It is the responsibility of the person moving the horse to obtain the ICVI. The party issuing the ICVI, usually a veterinarian, must send a copy to the State Health Official in the state of origin within seven days. The State Official in the state of origin must then send a copy to the State Official in the state of destination within seven days. In this way, the papers can be used to trace and identify horses that may be affected or come into contact with horses that may be affected.

Pursuant to the ADTP Rules, the states are responsible for record and data retention. Further, the individual issuing the ICVI is required to keep a copy of the certificate for five years.

Under certain circumstances, a Certificate of Veterinary Inspection is not needed. The following four circumstances are exempt from the Rules:
1. Horses used for transportation to another state that return directly to the state of origin;
2. Horses moved to another state for veterinary care and return to the state of origin by the same owner;
3. Horses moved from a location in one state to another state to a different location in the original state; and
4. Horses moved between shipping and receiving states accompanied by an infectious anemia test chart (EIA), as agreed to between the shipping and receiving states.

Keep in mind that these are federal regulations. Each state also has its own requirements concerning animals coming into or through the state which must also be complied with. Almost all states require a current EIA test (Coggins Test) and a Certificate of Veterinary Inspection. However, the requirements for a negative Coggins Test can vary from within six months to within 12 months depending on the state. For example, Pennsylvania requires a negative Coggins Test within 12 months, while neighboring West Virginia requires the same test within six months. Connecticut and Rhode Island require a rabies vaccine certificate and Alaska, Montana and Oregon require an individual state travel permit.

If you are planning an interstate horse hauling trip, it is wise to check with each state to determine the interstate hauling requirements.

Gone are the old days of loading the horses and going!

Enough legal talk–it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, Pennsylvania, where a good bit of his practice involves negligence cases. He and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for several years at most major shows in the East.

Published in Summer-2013

Disclaimer–This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Donald Deardorff is a well-known horseman with over 40 years of experience in training, boarding, hauling and showing horses. Deardorff and his family own a stable and provide services including boarding, transportation and care during horse shows.

Deardorff has clients who board their horses with him so that they can show their horses in major shows across the country with Deardorff doing the transportation and care of the horses at the shows. As part of Deardorff's arrangement with his clients, a release is signed where the clients agree to take on the risk that their horse might become sick, injured or die while in Deardorff's care. Further, Deardorff recommends horse owners to obtain mortality insurance in case of injury or death.

Six clients of Deardorff signed the release of liability and purchased mortality insurance on their horses. It is important to review the relevant portion of the release which provides as follows:

"I also understand that by signing this release from liability for negligence I waive the right to bring an action or lawsuit for damage to my property, and for harm or injury to my horse or pony, whether it is on or off the property of the stables …"

The six horse owners decided to compete in a national horse show and hired Deardorff to transport the horses from his stable to the show and back. Deardorff agreed to transport the horses to the show and provide care for the horses while at the show. The horse owners paid Deardorff a fee for transporting the horses to the show and taking care of the horses while at the show.

Deardorff and his daughter transported the six horses from their stable, in Oregon, to Santa Barbara, California, where the show took place. When the show was over, Deardorff and his daughter loaded the six horses and headed back to their stable in Oregon. Before leaving, Deardorff inspected the horses, the trailer, his truck, and the tires on both the trailer and the truck.

On their way home, Deardorff noticed that there was a problem. He pulled off the highway and saw sparks coming from the trailer. Although Deardorff noticed the sparks, he did not stop, and instead continued driving because the shoulder was narrow and it was dark and he felt he could make it to a better area to pull over. While driving Deardorff pulled over as he noticed a lot of smoke coming from the trailer. When Deardorff stopped and saw the smoke, he began driving again as he was close to a truck stop. However, the sparks got worse and a fire started in the trailer.

Deardorff then exited the interstate and again noticed sparks and smoke and noticed flames coming from the trailer. However, Deardorff did not pull over and kept driving to a truck stop. Deardorff stated that he proceeded to the truck stop because the fire had gotten too large and he would need water and additional help to extinguish the flames. When Deardorff pulled into the truck stop the trailer was on fire. When they reached the truck stop they opened the doors of the trailer and attempted to save some of the horses. However, their attempts were unsuccessful and all six horses died. Deardorff himself sustained second degree burns on his face, arms and hands as a result of attempting to save the horses.

The horse owners submitted claims on the mortality insurance policies and the insurance companies paid approximately $250,000 for the entire loss.

A lawsuit was then started by the insurance companies which issued insurance to the horses' owners. The insurance companies paid the owners for the loss of the horses and then sued Deardorff to recover the amounts paid to the owners. The insurance company exercised its legal right of "subrogation" to recover their loss. Subrogation is a legal doctrine which gives the insurance company the right to recover monies paid to an insured where the loss was the fault of a third party and not the insured. Since the loss in this case was alleged to be Deardorff's fault, the insurance companies had a right of subrogation against Deardorff to recover the amounts paid to the horse owners.

The right of subrogation is not, however, absolute. The right of subrogation is derivative and derives from the right of the insured. In short, an insurance company cannot recover for a loss if its insured had no right to make the claim in the first place. Thus, the insurance company, as subrogee, "stands in the shoes" of the insured horse owner. The insurance company is bound by the actions, inactions, contracts, statements and/or admissions of the insured.

In the insurance companies subrogation lawsuit, the companies argued that the death of the horses was solely the fault of Deardorff for failing to stop, extinguish the fire and unload the horses. The insurance companies argued that Deardorff had sufficient notice and time before the fire got out of control in order to save the horses. Instead, Deardorff negligently continued on increasing the risk of harm and the death of the horses. The lawsuit alleged negligence, conversion, trespass and failure to deliver.

Deardorff opposed the lawsuit for numerous reasons, but the important one for our analysis is the fact that the release/waiver covers any and all negligence no matter where it occurs and thus bars the subrogation lawsuit.

The Court was faced with a contract interpretation of the release Deardorff had the horse owners sign (Diamond State Insurance Company, and Great American Insurance Company, v. Donald Lee Deardorff). The Court did an extensive analysis of the release and noted that since this was a subrogation case, the insurance companies stand in the shoes of its insured and are bound by the contracts they signed.

Here, the horse owners signed releases which prohibited them from bringing a lawsuit against Deardorff in case of death or injury to the horses, even if the death was caused by Deardorff's negligence. There is no question that the horse owners signed the releases and the Court found that the insurance companies are bound by the releases. The Court held that the insurance companies have no cause of action because its insureds waived and released all claims that arose from Deardorff's negligent conduct. The insurance companies are bound by the releases signed by the policy holders and the Court granted Summary Judgment in favor of Deardorff.

This was a very tragic case and there are many lessons to be learned. As I have written previously in The DHJ, it is important to obtain mortality insurance on valuable horses. This is a protection for the horse owner in the event of an accident or illness. For the hauler and caregiver of the horse, the importance of obtaining a valid well-drafted release is obvious. Deardorff's foresight to have the horse owners sign a release saved him from financial exposure. Without the release, the insurance companies would have a right of subrogation to proceed against Deardorff for the quarter of a million dollars paid out for the loss. Preparation and foresight won out in this case. The horse owners were paid the value of their loss and Deardorff was protected against any lawsuit to recover that loss.

I cannot over-emphasize the importance of obtaining mortality insurance on a valuable horse and obtaining a valid and binding contractual release when transporting and/or caring for someone else's horse.

In conclusion, in entering into matters where risk of loss and liability exposure is ever present, prepare accordingly. As Penn State's Joe Paterno said, "The will to win is important, but the will to prepare is vital."

Enough legal talk–it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, Pennsylvania, where a good bit of his practice involves negligence cases. He and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for several years at most major shows in the East.

Published in Spring 2013
Tuesday, 04 December 2012 09:57

HORSES & THE LAW – BEWARE OF FACEBOOK!

Disclaimer–This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

A horse breeder was sued for defamatory Facebook postings and lost where a jury awarded $7,500 in compensatory damages and $60,000 in punitive damages. Social media is a great way to communicate and outlets like Facebook and Twitter provide a means to communicate with a large mass of people via the Internet. This is good and bad. If a defamatory statement is posted, it is posted to a large number of people in an instant, thereby resulting in potentially damaging information about a person or business.

This is what happened in the recent case of Ebersole v. Kline-Perry, No. 1:12 CV26 (JCC/TRJ), United States District Court for the Eastern District of Virginia. Bridget Kline-Perry, a Virginia horse breeder, accused Russell Ebersole, a dog kennel owner and trainer, of abusive training tactics and being unlicensed to train service dogs despite advertising otherwise. Kline-Perry made numerous Facebook postings concerning these matters.

Kline-Perry made allegations that included:
“dogs being drop-kicked across a room;
“dogs being shocked on the highest shock until they passed out with blood running out of their mouths and eyes;
“employees getting their cell phones taken from them and smashed when they tried to take pictures of Russ beating the dogs;
“dogs being choked and swung over his head like a helicopter.”

Kline-Perry also e-mailed PETA (People for the Ethical Treatment of Animals) and stated:
“He has choked dogs to the point they pass out with blood running out of their mouths and eyes … documented by vets and the staff has tried for years to report it, but he would intimidate them and/or destroy their cell phones;
“The man is still running the kennel and he should be arrested and in jail for the numerous dogs that have died at his hands just this summer alone and they are doing nothing about it;
“He is also training dogs for the handicapped of which it is illegal and a felony for handicapped people and he is not certified to train a gnat;
“Training a service dog by an uncertified trainer could be another scam, a felony. How many people have believed in him and paid much money for a service dog for a child that can’t perform?;
“Now, he is allegedly getting away with abusing people’s beloved pets and most likely defrauding the public with his service dog operation.”

Some of the Facebook postings asked readers to “like” the postings and requested readers to e-mail government officials, media outlets and animal rights groups. Ebersole denied the allegations and sued Kline-Perry for libel and for violation of Virginia business conspiracy laws which included treble damages for anyone injured in their business and business pursuits. Ebersole claimed the postings were false and malicious and were designed to ruin his business and professional reputation.

A trial took place in July of this year and on July 25, 2012, a Federal Jury in Alexandria, Virginia, found that Kline-Perry’s Facebook postings were false and had defamed Ebersole and damaged his reputation and business. Ebersole was able to have the Jury read all of the postings which obviously had quite an impact. The Jury entered a verdict in favor of Ebersole in the amount of $7,500 compensatory damages, which was trebled under Virginia Law to $22,500 and also awarded $60,000 in punitive damages for a total award of $82,500.

However, the story doesn’t end here. Kline-Perry filed an Appeal arguing that the punitive damages were excessive and inappropriate and should be denied or diminished. The Judge found that the ratio of punitive damages to compensatory damages was constitutionally suspect noting that the criminal penalty for libel was a maximum fine of $500.

The Judge found that the Jury’s award of punitive damages was 24 times greater than the maximum criminal penalty Kline-Perry would face and thus, the Judge found that the award was excessive. The Judge found that a 75% reduction of the Jury’s punitive damages award was appropriate and entered a punitive award of $15,000 and held that such an award is consistent with the Defendant’s conduct in the case and will act as a deterrent to others.

Thus, the final award amounted to $37,500. The issue of whether Kline-Perry must pay Ebersole’s attorney’s fees has not yet been decided, but could add more to the award.

It appears Kline-Perry’s Facebook chatter has cost her dearly. I read a lot of postings on the Internet about draft horses, including Facebook postings. Fortunately, most of it is very positive. One must remember what is stated in the social media is read by many people and the consequences of any such statements can be extremely serious. It is a simple matter to gather Internet evidence making a case much easier to prove. Defamatory statements, posted on social media, are spread quickly to many people making a damage claim a very real possibility. A quick review of current legal cases shows an increase in Facebook defamatory lawsuits–which will only continue with the passage of time.

In conclusion I can only say if you are going to post inaccurate damaging statements in the social media, you should think again!
Enough legal talk–it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, Pennsylvania, where a good bit of his practice involves negligence cases. He and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for several years at most major shows in the East.

Published in Winter 2012-2013
Friday, 31 August 2012 10:12

Horses & the Law – LEASE AGREEMENTS

LEASE AGREEMENTS – WHAT SHOULD BE COVERED?

Disclaimer–This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

First and foremost, a lease should always be IN WRITING! Verbal leases are much more difficult to prove and enforce. A written lease will solve the “he said-she said” dispute and remove doubt about the parties’ intent.

There are many kinds of equine leases: a Stallion Lease, Mare Lease, Gelding Lease, General Lease, Show Lease, Breeding Lease and so forth. However, every lease should contain certain clauses and you want to make sure the following are included.

The horse subject to the lease must be identified by breed, gender, age and registration number, if available. The term of the lease must also be set forth. The term can be an annual lease, month-to-month, show season, breeding season–whatever the parties can agree upon. Be sure to specifically define the start date and end date of the lease. If there is to be an option to renew the lease, that should also be set forth including a specific time to notify all parties when the option is to be exercised.

Every lease should also set forth the consideration or payment generally expressed as a dollar amount per month or whatever time period is agreeable to the parties. Many leases are for a dollar, which is fine, just be sure to specifically set forth the amount in writing.

The lessor of the horse should set forth the horse’s condition including soundness and health and any other known characteristics which would be important for the lessee to know. The lease should also set forth the lessee’s responsibility relating to care for the horse and should specifically cover such things as feed, water, stalling, pasture, use, farrier expenses and veterinary expenses. The lease should also define any restrictions or activities which are not to be performed by the lessee. For example, if a horse is leased for show or work purposes and not for commercial or carriage purposes, this should be specifically set forth in the lease. The owner or lessor should always have the right to examine the horse during the lease period and terminate the lease if the horse is not properly cared for.

The lessor, or horse owner must decide how much protection he should have. The lessor may require the lessee to carry mortality insurance (life insurance), major medical insurance, loss of use insurance, liability insurance, including custody care and control coverage. For example, if the horse is injured while under the care of the lessee and requires veterinary care and will no longer be able to be used for its intended purpose, insurance would compensate the owner for loss of use and pay all medical bills up to the policy limit less any stated deductible.

The lessor or horse owner will also need liability protection while the horse is in the lessee’s care. For example, the lessee is giving a hayride and an accident occurs and some of the wagon riders are injured. The injured parties could sue the lessee and lessor (new Equine Liability laws would come into play but may not be 100% protective). The lessor, in order to feel secure in the above situation, can require the lessee to obtain liability insurance with a $1,000,000 liability policy.

In addition, the lessor should require that the lessee indemnify and hold harmless the lessor from all claims, lawsuits, demands for payment and the like. An indemnification
and hold harmless clause is legal terminology where the lessee agrees to be responsible for injury, death and property damage suffered by third parties as a result of damage inflicted by the leased horse. Every lease should also contain a release of liability by the lessee for any injury, death or property damage suffered by the lessee from the horse subject to the lease.

The purpose or use of the horse subject to the lease is also important and should be specifically defined. Leases can be general use or pleasure leases, work leases, carriage and commercial leases, show leases, etc. The purpose is important so the right kind of insurance can be purchased to cover the purpose set forth in the lease. Further, a lessee should not be able to move the location of the horse or sub-lease the horse without the lessor’s consent.

Many owners will lease a mare for breeding purposes. The mare can be kept at the lessor’s barn, lessee’s barn or a boarding facility. It is important to know the mare’s vaccination and breeding record. Further, ownership of the foal, breeding fees and provisions for registering the foal must be set forth in writing. The right to examine the mare during the lease and end the lease if the mare is not properly cared for should also be included.

The lease should also provide that the horse is current on vaccinations and deworming and that the lessee will continue to make sure the horse’s vaccinations and deworming continues in an appropriate fashion.

Many of the breed associations have lease forms on their web sites. The purpose of many of these forms is to authorize the lessee to sign applications for registration and breeding reports. Most breed organizations allow a lessee to sign applications for registration and breeding reports, as well as transfers so long as they are countersigned by the owner or lessor. Further, many of the breed associations require a lease form in order to recognize the lessee as owner solely for the purpose of showing horses and publishing show results.

It is important to remember that leases are controlled by state law. Each state is different and may contain a peculiar obligation or requirement. Thus, you should have the lease checked by an attorney to be certain all provisions are in compliance with state law. In that same thought, the lease should define which state law controls the interpretation of the lease.

As one can see, there are many considerations which go into a lease agreement. As such, standard or “canned” lease agreements may be adequate, but there are a number of cases where one size does not fit all. A form lease only goes so far. To be sure your lease covers all the bases and everything you want included, you should have it drafted and specifically tailored to your case.

Enough legal talk–it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, PA, where a good bit of his practice involves negligence cases. He and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for the past few years at most major shows in the East.

Published in Autumn 2012

HORSES AND THE MEDIA

Disclaimer–This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Horse cases have been in the spotlight recently, even making it to the “Judge Judy” television show aired before a national audience. On February 3, 2012, CBS aired a dispute between horse owner, Deborah Dobbs, and horse trainer, Sharon Jeffco. The lawsuit was for injuries caused to the horse allegedly at the hands of the trainer. Damages were sought in the amount of $5,000. The case was highly visible with internet pictures of the horse’s injuries, which consisted of severe lacerations to the horse’s tongue allegedly caused by the trainer using an improper bit and improper training methods.

The evidence produced at trial showed that Dobbs, the owner of the 5-year-old mare in question, was present during the training session. Jeffco, the trainer, argued that the lacerations on the horse’s tongue were present before the training session and that the wounds were reopened during the training session. Jeffco further argued that she was unaware of the wounds before the training session began.

Dobbs was so upset about the condition of the horse’s tongue that she sued Jeffco. Jeffco was so upset about the lawsuit and the fact that it was publicized that she countersued Dobbs for defamation and loss of business income. The stage was set for “Judge Judy” to sort out the mess.

It should be noted that both parties argued their position on the web and a great deal of information was included on their web sites. It was clear during the “trial” that both parties disliked one another and bad blood existed. A modern day “Hatfield and McCoy” situation existed for Judge Judy.

The key piece of evidence, the bit used by the trainer, was strangely not produced at trial. However, the trainer did post a statement by a veterinarian, who supposedly examined the bit, that it was a solid shank bit. The trial itself was rather nasty, even amusing at times, as the litigants continued to chide and argue with one another. This is inappropriate in a courtroom. Neither party used an attorney.

The trial itself, from a legal standpoint, was interesting, in that neither party brought a veterinarian with them to testify in support of their position. Although both parties brought in “reports” from veterinarians, many of the veterinary conclusions were based on photographs, etc. Clearly, a live veterinarian who had personally examined the horse would have been the best evidence to present in such a hotly contested matter.

The parties were constantly fighting between themselves during the trial, which clearly irritated Judge Judy and did the litigants little favor. An attorney could have nipped that behavior in the bud, thereby presenting a far more credible and dignified case. Judges like that sort of thing. Credibility is hard to judge when the parties are constantly fighting among themselves, allowing a judge to conclude that they both may be exaggerating to some degree in order to “prove their point.”

The biggest piece of evidence which hurt the horse owner was the fact that she witnessed the training session, but said nothing and allowed the horse to remain on the premises after the session. The Judge found it unusual that if such an abusive training session and methods were used, that the owner didn’t stop the session and remove the horse immediately, especially since the owner testified that the trainer tied the horse’s head down and used a whip on the horse.

On the other hand, the biggest piece of evidence which hurt the trainer was the fact that she paid the owner $953.50 in restitution in the related criminal animal cruelty case. The Judge further found that the payment was payment-in-full for any damages which may have been suffered by the owner.

Considering all of the evidence, Judge Judy awarded zero to both parties. It simply wasn’t clear who caused the initial injuries to the horse, the owner didn’t complain about the training methods or remove the horse immediately after the session, the trainer paid the owner restitution damages of over $900 in the animal cruelty proceeding and the owner was apparently paid-in-full as a result thereof. The trainer did not sufficiently prove defamation or loss of business income so Judge Judy found against both of them and basically told them to chill out and move on.

The dispute clearly became more personal as time went on. It is difficult to prevent this type of case from occurring, but the use of a written training agreement, addressing the training methods, etc., with a general release included therein, may have prevented the lawsuit.

Another horse case which made national headlines was the filing of charges against a Pennsylvania woman for selling rescue horses to slaughter buyers. Kelsey Lefever, Honeybrook, Pennsylvania, was charged with four counts of theft by deception. In the charges filed against Lefever, the Pennsylvania State Police allege that Lefever sold over 120 rescue horses for slaughter after she told the owners she would find good homes for them.
Specifically, Lefever was charged with selling four retired racehorses to a slaughter buyer representing a slaughter plant in Quebec, Canada. She promised the previous owners that she would retrain the horses, rehabilitate them and find them new adoptive homes. One of the owners, Kevin Patterson, stated that he gave his racehorse, a 5-year-old Thoroughbred, which suffered a career-ending injury, to Lefever, with the specific understanding that the horse would be rehabilitated and placed for adoption. Patterson also gave Lefever $200 toward expenses until the horse could be adopted.

The allegations against Lefever further stated that she went to racetracks and represented herself as a horse rescuer and told donors, including Patterson, that she never sent horses to slaughter. The case came to light when the person who was supposed to adopt Patterson’s horse could not locate him. When Lefever was informed that Patterson was looking for the horse, Lefever allegedly commented he can stop looking as the horse is in the freezer. Lefever also allegedly told a horse dealer that she got rid of everyone of “those horses,” over 120, and there is nothing anyone can do since the horses were given to me. The horses were sold to a slaughter buyer at the New Holland auction located in Lancaster County, Pennsylvania.

The District Attorney’s Office of Dauphin County, Pennsylvania, where the charges were filed, readily admitted that there is no law against the sale of horses to slaughter facilities in Canada and Mexico. First Assistant District Attorney, Francis Chardo, stated “this is lawful activity.” Chardo went on to explain the problem with Lefever’s action was the false pretense on how the horses were obtained. Lefever had misrepresented to donors that she would rehabilitate, re-train and find the horses a new adoptive home. Instead, she sold the horses for slaughter.

The District Attorney’s Office and Lefever worked out a plea bargain where Lefever would avoid jail and be placed in a first-time offender’s program. Lefever will also be banned for life from obtaining a Pennsylvania Thoroughbred Racing License thereby barring her from Pennsylvania racetrack employment including racehorse training. She will also not be allowed to obtain any additional horses for the two-year period she will be on probation.

These cases, unfortunately, do not cast horse people in a positive light. Of course, news media always reports the bad news as it sells better. We horse people know better. The above referenced cases are the exception and not the rule. I will continue to review horse news and hopefully find some positive stories to report.
Enough legal talk–it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, PA, where a good bit of his practice involves negligence cases. He and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for the past few years at most major shows in the East.

Published in Summer 2012

Disclaimer–This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Congress recently removed a 5-year ban on funding horse meat inspections thereby opening the door for the resumption of horse slaughter in the United States. This change of heart was due partly to the struggling economy and to a report from the Government Accountability Office (GAO) entitled “Horse Welfare: Action Needed To Address Unintended Consequences Of Domestic Slaughter Cessation.” This report documented the negative impact to the United States horse economy as a direct result of the lack of slaughter of unwanted horses. The action to stop the slaughter of horses, done mostly for humane and nostalgic reasons, ended up backfiring according to the study. Instead of saving horses, horse abandonment, starvation and abuse increased dramatically. Colorado, for example, reported a 60% increase in horse abandonment and abuse since horse slaughter was stopped. The GAO report stated Colorado horse abandonment increased from 975 in 2005 to 1,588 in 2009. Horse rescue organizations are overwhelmed and cannot handle the alarming rise of abandoned and neglected horses.

The ultimate affect of the slaughter ban was to make conditions for unwanted horses worse. Instead of being slaughtered under U.S. Rules, Regulations and Inspections, many unwanted horses were transported to Mexico and Canada where U.S. Regulations have no effect. Many of the foreign facilities, especially Mexico, do not compare to the U.S. facilities where the horses are treated more humanely. Sale barns report abandoned horses being dropped off in the middle of the night because many sale barns will not take old horses since they cannot be sold for slaughter.

Many states have reported vast increases in abandoned horses. A recent report from Philadelphia, Pennsylvania, reported two abandoned horses were roaming the streets in Center City. The New York Times reported that slaughter cessation forced many breeders and horse owners to go out of business because the inability to sell unwanted horses removed the floor for prices while placing the burden on owners to cover costs of euthanasia and disposing of unwanted horses. The Times reported that the U.S. horse slaughter business generated over $65 million a year before the ban. That loss was insurmountable to a number of horse businesses and owners.

Further, the Equine Welfare Alliance determined the cause of many abandoned horses in states close to Mexico. In its investigation it determined that more than 5,000 horses a year are being rejected for slaughter at the Mexican border and are simply abandoned in isolated areas north of the border. This information came from a European Union Report from a 2010 audit of its horse slaughter plants in Mexico. The report states that Mexico rejected 5,336 slaughter horses out of 62,560 between January and October of 2010.

Even PETA (People for the Ethical Treatment of Animals) in an interview with the Christian Science Monitor by its founder, Ingrid Newkirk, said the United States should have never stopped horse slaughter. Newkirk said “the reason we didn’t support it … is the amount of suffering that is created exceeded the amount of suffering it is designed to stop.” Newkirk went on to say that domestic horse slaughter facilities are preferable to shipping horses to Mexico or Canada for slaughter.

The last horse slaughter facility closed in Illinois in 2007. However, a Department of Agriculture Bill, signed into law on November 18, 2011, allows Federal inspection of horses intended for human consumption. Meat processors are working on opening facilities in numerous states including Georgia, North Dakota, South Dakota, Nebraska, Oregon, Wyoming, Montana, Missouri and Idaho. It is anticipated that many of these facilities will be operational in early 2012. It is estimated that as many as 200,000 horses will be processed for human consumption with most of the meat going to Europe and Asia with France and Japan being the top importers. The opening of these facilities should all but eliminate the transportation of horses out of the country for slaughter. The GAO determined that 138,000 horses were transported to Mexico and Canada in 2010.

Even politicians are getting into the act and it’s not along party lines. Senator Max Baucus, Democrat from Montana, said the poor economy has resulted in increased horse abandonment and neglect and lifting the ban on slaughter will create jobs and make sure horses aren’t abandoned or neglected. However, Representative Jim Moran, Democrat from Virginia, wants to permanently ban horse slaughter because he finds the process inhumane. Republican Congressman Adrian Smith of Nebraska said, “While we have a long way to go, responsible processing represents a vital first step in reversing the unintended consequences to blame for the dismal state of neglected horses and their frustrated caregivers across our country. Reinstating a humane, accountable and legal management tool is good for horses, good for owners and is good policy.” Republican Dan Burton of Indiana, on the other hand, sponsored the Horse Slaughter Prevention Act of 2011. The Bill bans all horse meat export to packing houses and permanently bans horse slaughter in the United States. Thus, it is clear even our politicians are confused on this issue.

It appears those who oppose horse slaughter see horses as companions or pet animals. Those who are in favor of horse slaughter see horses in a broader sense, including income producing and commodity animals. It really boils down to an issue of choice to the horse owner. Do you want to treat your horse as a pet or as an agricultural product? That choice belongs to the horse owner–not some government agency or bureaucrat who doesn’t know the north end of a southbound horse. The horse is the sole property of the owner. The government does not care for the horse, does not pay for the horse and is not involved with the horse in any manner, whatsoever. To eliminate the choice for purely nostalgic or romantic reasons is troublesome. The last thing an animal owner needs is the government reducing choices to make animal ownership economically feasible. If you don’t want your horse slaughtered–don’t take it to an auction. I do not believe you have the right to tell your neighbor what to do with his horse.

Where do you draw the line? What is next? Veal, beef, chicken, etc. This is supposed to be a free country. I say stop government intrusion into our daily lives. The choice belongs to you. Until the government signs the check for the expense of our horses, it should keep its nose out of our business!

Enough legal talk–it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, PA, where a good bit of his practice involves negligence cases. He and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for the past few years at most major shows in the East.

Published in Spring 2012

Disclaimer – This article is intended as general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should contact an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

T he rise in the number of divorces is alarming. It is also interesting to note the number of animals, including pets, which are owned or cared for by families. There is nearly one pet for every five Americans. So what happens to your favorite horse–or the herd, for that matter–in a divorce?

The starting point is what is known as the traditional view among the majority of states. This view classifies animals as personal property. Thus, an animal is viewed no differently than a piece of furniture or other personal property in a divorce proceeding.

Most states have laws which define animals as property. For example, in Pennsylvania, Title III, of the Agricultural Law, defines domestic animal as:

“Any equine animal or bovine animal, sheep, goat, pig, poultry, bird, fowl, confined hares, rabbits and mink, or any wild or semi-wild animal maintained in captivity.” (3 PA. CONS. STAT. §459-102)

If the divorced parties cannot agree on the disposition of the animals, how does a Court decide which spouse should be awarded ownership? For example, if the horse was acquired prior to the parties’ marriage can that horse be considered non-marital property not subject to claim by the other spouse? What is the horse’s value? Should the expense to keep the animal be considered by a judge in determining who should have ownership? Can the animal be shared between the parties such as many custody agreements concerning children?

The Pennsylvania Superior Court recently addressed some of these issues in the case of DeSanctis v. Pritchard, 802 A.2d 230 (PA Super. 2002), Appeal Denied by 2003 Pa. LEXIS 313 (PA March 12, 2003). In this case, the parties reached an agreement which would share their dog, Barney.

However, after the divorce agreement was signed by the parties, one of the spouses backed out and refused to share Barney with the other spouse. That spouse sued to enforce the sharing agreement and the Superior Court was left with the issue of enforcing the agreement. The Superior Court held that pet owners do have a special status with their animals but the Court ruled, relying upon the traditional view, that the sharing agreement was “analogous in law, to a visitation schedule for a table or lamp.” Thus, the Court refused to enforce the agreement between the parties.

It is true that some states have recognized the special relationship with pets, animals and their handlers and have gone so far as to afford special status to certain family members concerning the animal in question. For example, in Buechner v. Hamel, 886 S.W.2d, 368 (Texas Appellate Court, 1994), the Court stated as follows:

“Courts should not hesitate to acknowledge that a great number of people in this country today treat their pets as family members. Indeed, for many people, pets are the only family members they have.”

In another case, Hodo v. Hodo, 2004, VA. APP. LEXIS 39 (2004), a Virginia Appellate Court awarded custody of a dog, Grunt, to the wife since the Court considered Grunt a family pet and the parties’ child was living with the mother. The father argued strenuously that he should be awarded the dog because the dog was his separate property. The Court rejected his argument.

In Green v. Schall, 2004 OHIO 1653; 2004 OHIO APP. LEXIS (2004), the Judge awarded the parties’ dog to the husband since the husband had trained the dog and been primarily responsible for his care and expenses.

Another line of thought looks to the animal’s “best interest” in determining who should be awarded possession. In Raymond v. Lachmann, 264 A.2d 340 (NY APP. DIV. 1990), the Court awarded the parties’ cat to the wife. The Court noted that strong emotions were developed between the wife and the animal and that the animal should remain with the wife where it had “lived, prospered, loved and been loved for the past four years.”

Florida, on the other hand, treats pets in divorce as tangible personal property, the traditional view, and refuses to enforce any analysis concerning the pet’s best interest or sharing of a pet. The Court stated in Bennett v. Bennett, 655 SO.2d 109 (FL DIST. CT. APP. 1995):
“Courts are overwhelmed with the supervision of custody, visitation and support matters related to the protection of children … it would not undertake the same responsibility with animals.”

There has even been an interest in protecting pets from abuse by one of the spouses. There is a recent article in the New York Times, National Report, April 1, 2006, titled “Battered Wives’ Pets Suffer Abuse Too.” The article refers to a case in Wisconsin where a spouse killed the other spouse’s pets to punish her. (State v. Knitz, No. 99 C.F. 00 0152 (WI CIR. CT. Washington County). In the state of Maine, a bill was recently signed by the Governor that allows animals to be included in protection orders in domestic violence cases.

In review, it is clear that case law concerning animals in divorce cases is evolving through the states. Many states continue to view animals as personal property while others view them as something special and consider factors similar to child custody cases. What we know as of this time, if the parties cannot agree on ownership or disposition of the animal, they should be fully prepared to present evidence concerning not only the appraised value of the animal and expense to keep the animal, but also the parties’ attachment to the animal including personal training and care. It appears all of these factors are fair game for a judge to consider in making an award.   

Enough legal talk–it’s time to hitch horses!

Ken is a practicing attorney in Myerstown, PA, where a good bit of his practice involves negligence cases. Ken and his wife, Karen, own Sunny Hill Farm Belgians, and they have been exhibiting their six-horse hitch for the past few years at most major shows in the East.

Published in Winter 2011-2012
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