Robert O. Dawson
Professor of Law
University of Texas School of Law
Every horse owner's or caretaker's nightmare is a horse that is loose on a highway.
Unless the horse wandered onto the highway through an open or unlatched gate or through a downed fence segment, the horse that is on a highway probably panicked while in the paddock,pasture, stable or other enclosure. That is why he went over or through the fence and ended up on the highway. The panicked horse on the highway right-of-way is not quietly grazing by the side of the road; he is excited by the sights and sounds of high-speed vehicular traffic. Such a horse,panic-enhanced by highway traffic, is likely to make sudden and erratic movements, including darting out into traffic lanes in the face of on-coming cars and trucks. When a horse collides with a fast-moving vehicle or when such a vehicle leaves the highway to avoid colliding with the horse, the consequences are likely to be very serious to horse, vehicle and occupants, sometimes even including death. Twentieth Century motorists are attuned to many highway hazards, but stray horses are not among them.
Just because a horse you own or are caring for ends up on a highway and in a collision with a motor vehicle does not mean that you are legally liable for the accident. Whether you are liable depends on how and why the horse got on the highway.It may or may not have been your fault.
Among the factors that go into determining whether you are liable are (1) exactly how the horse got on the highway, (2)state and local fencing and livestock control statutes and ordinances, and (3) whether you knew of any propensities of the horse to get loose and go onto highways.
The Requirement of Negligence
The law classifies animals as wild or domestic. It imposes on a person who keeps a wild animal the highest duty of care to prevent it from injuring others. In some places, this is strict liability, which means if its your animal that did the injury, you're liable, no matter how careful you were. With respect to domestic animals, the law imposes only a duty of ordinary care, which often allows for the animal to injure another without you being held liable for the injury. In some states, the owner of a domestic animal is strictly liable for any injury done to persons or property when the animal strays onto the private land of another; this rule, however, does not including the animal straying onto public highways. Byram v. Main, 523 A.2d 1387 (Me 1987)(donkey strayed onto highway); Briscoe v. Graybeal, 622 A.2d 805 (Md.Sp.App. 1993)(no strict liability for horse on highway just because he is a thoroughbred).
Horses are domestic animals. The standard of care is due care, which means the care that a reasonable person in the same or similar circumstances would have exercised. The absence of due care is negligence. Without proving a violation of a fencing statute or ordinance or some other special statute, the injured person must prove the horse got onto the highway through your negligence (or the negligence of one of your employees) in order to hold you legally liable for the injuries.
Known and Mysterious Escapes
Sometimes, it is possible to figure out how the horse escaped from the paddock or pasture: a gate was left open or unlatched; a segment of fence was not properly maintained; the horse spooked in a thunderstorm and went over or through the fence. However, there remain cases of mysterious escapes. It is certain the horse escaped but there were no eyewitnesses and there is no physical evidence (such as broken fence boards) of how he escaped.
When neither side can determine how the horse escaped, each side claims victory. Depending upon what state the lawsuit is in, either side might win.
Most states take the position that it is the burden of the injured person to prove that the horse owner or caretaker was as fault in permitting the horse to escape. If the injured person cannot prove how the horse escaped, then he cannot prove fault and he loses the lawsuit.
If the injured person can prove generally how the horse escaped, that may itself show the negligence of the owner or caretaker. This would be true, for example, of an open or unlatched gate. Leaving the gate between a pasture and a highway open would always be negligence. The remaining question would be who left the gate open. Roderick v. Lake,778 P.2d 443 (N.M.App. 1989). Of course, gates can be opened by persons other than the owner or caretaker of the horse. If the facts tend to show that is probably what happened, then the owner or caretaker is not liable merely because it was his gate and horse. Sanford v. Ziegler, 851 S.W.2d 418 (Ark.1993).
In other states, the mere fact that the horse is on the highway is itself a showing of negligence by the persons having control of the premises where the horse was located.Those persons are permitted to attempt to show they were not negligent in permitting the horse to escape, but absent such proof they would be held liable merely because of the mysterious escape. Loeffler v. Rogers, 523 N.Y.S.2d 660(N.Y.A.D. 1988).
The days of the open range are over except for very limited segments of the United States. As stated by the Ohio Supreme Court as long ago as 1925, "When the state [Ohio] was established it was not in general unsafe to permit domestic animals to run at large in the highway outside of the confines of municipalities, and damages from so doing could not generally be reasonably anticipated. With the growth of traffic, particularly automobile traffic, the situation is changed, but the duty to observe ordinary care remains the same. This duty in modern times requires that the owner of livestock exercise ordinary care not to let his livestock stray out onto a much-traveled highway, because under our modern traffic conditions he can reasonably anticipate that,if the livestock stray onto such a highway, they are apt to damage persons or property." Drew v. Gross, 147 N.E. 757, 578(Ohio 1925).
While a horse could be kept off the highway in an number of ways--confinement in a barn or even tethering--as a practical matter the duty to keep horses off public roadways requires adequate fencing.
Even in the absence of a fencing statute, the owner or user of land upon which domestic animals, such as horses and cattle, are permitted to roam has an obligation to fence the land in such a way as to prevent the animals from trespassing onto neighboring lands or getting onto highways. Once an adequate fence is installed, the land owner or user has the obligation to maintain it.
What is required to make a fence adequate?
There are many kinds of fences that might be used for horses: board, smooth wire, electric, woven wire, etc. Fences also come indifferent heights, beginning at about four feet high and going to over six feet in some instances. What is required to make the fence adequate depends upon the horses confined behind it,the proximity of the paddock or pasture to the highway, and the nature of the highway. Dawson v. Woodson, 376 S.E.2d 321(W.Va.App. 1988)(horse jumped fence and ran 1/2 mile to heavily traveled state highway, where he collided with automobile; although the fence met state height requirements,owner may have been negligent in not building a higher fence for this particular horse).
Statutes sometime specify fence heights. Four feet to four and one-half feet are typical minimum fence heights for horses. Failure to construct and maintain a fence that meets state height requirements may mean that the owner or caretaker of a horse is automatically negligent if a horse jumps the fence and collides with a motor vehicle. There is also a duty to maintain the fence by replacing broken or missing boards or wires. In addition, there must be regular inspection offences to determine whether they need repair. If the fence is electric, the charge and the integrity of the wires must be checked regularly.
If the fence is next to a highway, extra care must betaken. Perhaps that fence should be somewhat higher than ordinary paddock fences. Perhaps it should be inspected more frequently. Perhaps a physical containment fence should be supplemented by an electrical wire at the top as additional protection.
Not having a gate between a public area, to which horses might have access if they escape from a barn or paddock, and a highway is always negligent. The only question then would be whether you were negligent in permitting the horse to escape from the barn or paddock into the public area.
It is also always negligent to leave a gate open. The only question in the event of a collision with a motor vehicle is who left the gate open. In some states, if its your gate, its your fault unless you can show that someone not under your control left the gate open. An electrically-operated,automatically-closing gate at the entrance to the property is the best protection against a customer or visitor not securely closing a gate.
If your property is within the city limits, there may be an additional fencing requirement imposed by municipal ordinance.If your property is not within, but near an incorporated city,a fencing ordinance of that city may nevertheless apply to your property because in many states incorporated cities have extra-territorial jurisdiction over areas outside the city limits. Wilkins v. Johnson, 595 S.2d 466 (Ala. 1992). In some states, a city's extraterritorial jurisdiction may extend for up to five miles from the city limits.
The personality and character of the particular horse who escaped to a highway are also important in assessing whether the escape was the fault of the owner or caretaker. The law refers to these characteristics as "propensities." There are two questions involved : Does the horse have a relevant propensity and did the owner or caretaker know of that propensity. For example, if the horse has escaped the paddock or pasture in the past, even without a collision with a motor vehicle, that imposes a particularly high duty on the owner or caretaker to prevent future escapes. The horse has demonstrated that he is willing and able to escape if given the chance--a propensity that not all horses have. Therefore,the owner or caretaker, armed with this knowledge, has a special obligation to prevent future escapes.
In most instances in which horses get onto highways and collide with motor vehicles, if a lawsuit is filed, it is brought by the injured party as a civil lawsuit seeking money to compensate for personal injuries and property damage.There are rare instances, however, in which extremely negligent conduct can result in criminal liability.
In the case of Sea Horse Ranch, Inc. v. San Mateo County Superior Court, ___ Cal.Rptr.2d ___ (Cal.App. 1994), a California Court of Appeal said that enough evidence existed to bring the Ranch and its owner to trial on a charge of involuntary manslaughter. The facts were that at night eight horses belonging to the ranch escaped to a highway. One collided with a car killing the 76 year-old passenger. There was no fence separating the Ranch from the highway. The hroses had escaped from a corral that was in terrible condition, "The fenceposts were old, weather-worn, bug-infested and rotting. Several cross boards had been knocked off the posts where the wood was rotten, leaving a hole in the corral fence. The nails which had attached the cross boards were not in good condition. The boards were broken out from the inside, with no sign of vandalism. The fence was so dilapidated that when the officer leaned on a cross board, it fell off. The cross boards were mounted improperly on the outside of the fenceposts, making them more easily pushed out from animals on the inside. Contrary to common practice,there was no wire strung along the inside of the fence to keep horses away from the cross boards. Neither was there any electrical wire around the inside of the corral."
In addition, there was evidence that horses had escaped from the Ranch and gotten on the highway several times in the past. If proven at trial, involuntary manslaughter, which is a felony, could result in substantial imprisonment (up to four years) for the owner and a substantial fine for the corporation. It should be emphasized that criminal liability is a real risk only in extreme cases of negligence, such as may have existed in this case.
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