University of Vermont AAHS
[Note: This paper was done as an Independent Research Project for academic credit at the University of Texas School of Law. The footnotes appear at the end of the paper. Although the author retains the copyright, she grants permission for non-commercial reproduction of the article with proper credit.]

Feral Horses and Tort Law:
Is a Captured, Gentled, and Trained Mustang Considered Wild or Domestic for
Purposes of the Dangerous Propensity Doctrine?

by
Cary Grace,
J.D., University of Texas School of Law, May 1997

I. Introduction

The law is old and well established regarding a horse owner's liability whenever someone other than the owner is injured by a horse that has either bitten, kicked, knocked down, or thrown the injured person. The horse owner will only be held strictly liable for any injury caused by his animal when he knew or should have known of that horse's dangerous propensity to inflict that particular injury.[FN-1] In other words, if the horse has never before injured or attempted to injure a person (as opposed to another horse, or a cow, etc.) by kicking, for example, the owner will not be liable to the first person kicked, assuming the owner has neither been negligent in preventing the injury nor intentionally caused the horse to do the harm. This rule is the same for virtually all animals that the law recognizes as domestic. However, animals that the law considers wild are treated differently. For wild animals maintained in captivity, the owner is most often held strictly liable for substantially any injury caused by the animal, even on the first occasion that the animal bites, kicks, etc., no matter that the owner was in no way negligent.[FN-2]

The law's different treatments of animals depending upon their status as either ferae naturae (wild) or mansuetae naturae (tamed and domesticated)[FN-3] seems clear enough. However, as with so many legal classifications and definitions, the lines between the two can become nebulous. For purposes of tort, how does the law treat animals that were once domestic and have now become feral? This question is applicable to several species, but is posed here specifically as it relates to the many wild mustangs of the North American plains that have been successfully captured and placed for adoption by the Bureau of Land Management and then successfully gentled and trained by their new owners. The question is material today because, as of the end of 1996, the BLM has adopted out 148,250 horses and burros.[FN-4]

This paper will examine state statutes, the definitions of "wild animal" and "domestic animal" as those are found in The Restatement (Second) of Torts and Am Jurisprudence 2d, books written about mustangs, and case law, and will ultimately conclude that, for purposes of tort law, courts should classify mustang horses as domestic animals when faced with determining an owner's liability the first time his gentled and trained mustang horse injures another person. As a result, only an owner (or other person in control of the offending horse at the time of the injury) who knew or should have known of that particular horse's dangerous propensity to inflict the particular injury at issue will be held strictly liable to the injured person.

II. The History and Rationale for the Law's Different Treatments of Domestic and Wild Animals

Strict liability for damage done by dangerous animals is of ancient origin, but a very early modern example is found in the English case of May v. Burdett,[FN-5] where the plaintiff was bitten by the defendant's monkey. Early on, scholars and courts opined that the liability rested simply on the basis of the negligent act of keeping the dangerous animal.[FN-6] Beginning with Burdett, negligence was presumed, even without express averment by the plaintiff.[FN-7] However, that understanding does not comport with the modern analysis of negligence as conduct which is unreasonable in view of the risk, since it is rarely unreasonable to keep even a tiger in a zoo.[FN-8] Today, the prevailing view is that any liability is a result of the strict responsibility placed upon those who, even with proper care, expose the community to the risk of a very dangerous thing.[FN-9] In other words, the liability is imposed apart from any concept of negligence.

Strict liability will lie only against persons whose abnormally dangerous animals have injured another. It is the exposing of others to an abnormal risk that is regarded as justifying strict liability.[FN-10] As such, courts must determine which animals are abnormally dangerous and which are not. Following the twofold classification of animals that has been in existence from the earliest date of recorded history,[FN-11] courts have effectuated this determination by distinguishing between wild animals and domestic animals.[FN-12] The common law addressed the question of whether an animal was domestic or wild to our "knowledge of his habits, derived from fact and experience."[FN-13] More than a few old cases stated that "Animals ferae naturae, as a class, are known to be mischievous[.]"[FN-14] Domestic animals, on the other hand, are those which are naturally tame and gentle or which, by long continued association with humans, have become thoroughly domesticated and are now reduced to such a state of subjection to his will that they no longer possess the disposition or inclination to escape.[FN-15] The American Heritage Dictionary defines wild as "Occurring, growing, or living in a natural state; not domesticated, cultivated, or tamed."[FN-16] Blacks Law Dictionary defines wild animals as "Animals in a untamable disposition; animals in a state of nature." The same source defines a domestic animal as "Such as are habituated to live in or about the habitations of men, or such as contribute to the support of a family. Tamed animals; e.g., horses, sheep, dogs."[FN-17] The Restatement of Torts defines the two in this way:

(1) A wild animal as that term is used in this Restatement is an animal that is not by custom devoted to the service of mankind at the time and in the place in which it is kept.
(2) A domestic animal as that term is used in this Restatement is and animal that is by custom devoted to the service of mankind at the time and in the place in which it is kept.[FN-18]

The possessor of a wild animal is strictly liable for physical harm done to another person or another's animal if that harm results from a dangerous propensity that is characteristic of wild animals of that class.[FN-19] As such, strict liability has been imposed on keepers of lions and tigers, bears, elephants, wolves, monkeys, and other similar animals.[FN-20] No member of such a species, however domesticated, can ever be regarded as safe, and liability does no rest upon any experience with the particular animal.[FN-21]

It is interesting to note that, under the Restatement's definitions, an animal may be a wild animal in one place and a domestic animal in another. An example of this concept is the law's classification of an elephant as wild in America and England, but as domestic in Burma, since elephants there are customarily used as heavy draft animals and for other common purposes.[FN-22] In determining whether an animal is wild or domestic, the law emphasizes the abnormal nature of the animal in the particular community; therefore, the abnormal character of the risk to which the defendant exposes others is the justification for creating the strict liability.[FN-23] The characteristically dangerous types of animal that are customarily kept, domesticated, and devoted to the service of mankind are sanctioned by common usage to such an extent as to make inapplicable the doctrine of strict liability.[FN-24] In the context of horses, the writer finds no reference to a country or region in the world that classifies them as anything other than domestic, which is completely logical when one considers the fact that for thousands of years, starting first in areas where they were indigenous, horses were domesticated, and have since been devoted to the service of mankind all over the globe. America's plains mustangs, after all, descend from domestic stock introduced by the Spaniards, who began transporting seed stock to the Western Hemisphere as early as 1493.[FN-25]

As already stated in the context of horses, above, a possessor of a domestic animal is not subject to liability for harm merely because it resulted from a dangerous propensity of the domestic animal. To be strictly liable, the possessor must have known or had reason to know of a dangerous propensity or trait that was not characteristic of a domestic animal of the same kind. As to a person who possesses a domestic animal that he does not know or have reason to know to be abnormally dangerous, he will only be subject to liability for an injury inflicted by the animal if he either intentionally causes the animal to do the harm, or he is negligent in failing to prevent the harm.[FN-26] Interestingly, there are certain classes of domestic animals, including bulls, stallions, mules, rams, and even bees, in which dangerous propensities are considered normal, and as to these, the owner is not subject to strict liability the first time another person is injured by one.[FN-27] The Restatement of Torts explains the rationale behind this rule thusly:

One who keeps a domestic animal that to his knowledge is vicious, or which though not vicious possesses dangerous propensities that are abnormal thereby introduces a danger not usual to the community and which, furthermore, is not necessary to the proper functioning of the animal for the purposes that it serves. On the other hand, those who keep domestic animals such as bulls and stallions that are somewhat more dangerous than other members of their species do not introduce any unusual danger, since the somewhat dangerous characteristics of these animals are a customary incident of farming and the slightly added risk due to their dangerous character is counterbalanced by the desirability of raising livestock.[FN-28]

Further, the Restatement comments:

... Therefore, the law has not regarded bulls, stallions, and rams as being abnormally dangerous animals to be kept under the strict liability stated in this section. [ 509, titled Harm Done by Abnormally Dangerous Domestic Animals]. So too, certain kinds of livestock are less gentle than others. Thus Burma cattle are more wild and dangerous than most other breeds. However, since Burma cattle have been recognized as socially desirable animals, this addition to the normal dangerous characteristics of cattle is not enough to make them abnormally dangerous.[FN-29]

Based on the Restatement's definitions and rationale, two decisive questions arise: (1) Do gentled and trained mustangs serve a useful purpose? To use the Restatement's terms, can they be described as devoted to the service of mankind at the time and in the place in which they are kept? Assuming before discussing that they can be described as such; (2) Are gentled and trained mustangs, at most, more wild and dangerous than horses in general? In other words, could they all be classified together as domestic animals in which dangerous propensities are normal, such as bulls and stallions are classified? It is at this juncture that the gentled and trained mustang himself warrants some discussion.

III. The Gentled and Trained Mustang's Utility and Disposition

J. Frank Dobie, in his book on the history of mustanging, titled The Mustangs, included a chapter titled Captive Mustangs: Ordinary and Extraordinary. In it, he recounted anecdote after anecdote, presumably all unembelished, about individual captured and broken mustangs and their owners' assessments of them. Although one or two of those late nineteenth and early twentieth century horsemen at times disparaged the captured mustang, the overall consensus was that the once-wild horses were trustworthy, intelligent, and even gentle and affectionate mounts.[FN-30] Dobie wrote:

Many small mustangs became children's horses. Most of them had peculiarities. Along in the [18]70's the Martin Dobson family in Nueces County acquired a solid black, about thirteen hands high .... He was so gentle that Mrs. Dobson rode him with sidesaddle, and he was the children's favorite horse .... He was as gentle as a dog. The hitch was in catching him. He ran with the remuda, but every time the remuda was driven towards the pen, he would break away .... Penning him was always a trial. Once in the pen, he was entirely submissive and under saddle showed no particular spirit.[FN-31]

Although Dobie did not ever state specifically that mustangs captured young make better mounts, that assumption is implicit throughout the chapter. At least two his stories involve horses that were captured as foals, and two others involve stallions captured as two years old and castrated shortly thereafter. Each of those horses Dobie described as becoming completely tame and one was even "an exceptionally good riding horse,"[FN-32] although each had its own peculiarity. Those notabilities included one horse's acceptance of only one rider, and another horse's sagacity at any chance to break away whenever an unfamiliar rider was attempting to dismount. This writer would assert that none of those peculiarities could be said to be limited only to captured mustangs.

Another source also strongly suggests that the younger the captured mustang, the better the chance of acquiring a dependable and safe riding horse. That source is the book titled Wild Horses and Sacred Cows,[FN-33] written by Richard Symanski, in which the author explains and documents that the wild mustang is not only still very much with us, but that it is also becoming a nuisance and a destructive element in the areas where they have been allowed to roam unhindered since the passage of the Wild Free-Roaming Horses and Burros Act in 1971.[FN-34] In his chapter titled I Want A Mustang, Symanski recounts some of the BLM's national Adopt-A-Horse and Burro program's successes and failures. After the passage of the Wild Horse and Burro Act, promulgated to protect the free roaming horses and burros from capture, harassment and death, the mustang herds saw a ten to fifteen percent growth rate each year.[FN-35] The Adopt-A-Horse program was instituted in 1976 in response to that population explosion.[FN-36]

Symanski traveled to BLM offices in California and Wyoming, among others, and interviewed BLM employees charged with adopting out the horses in order to get their assessments of the adoption program. Most agreed that only young horses, generally no older than four years old, should be adopted out, although there are apparently no official BLM guidelines regarding which horses are adoptable and which are not based upon the horse's age. The BLM employees, as well as various other cowboys, etc., interviewed based their opinions on their certainty that the older horses are just too dangerous for most of the inexperienced new owners to successfully gentle and train without injury. When one BLM employee stated that many people who come to adopt a mustang choose one on the basis of his or her color, regardless of the horse's temperament, another employee commented '"And it's foolish. Just plain foolish. Giving someone a fifteen-year-old stud is like giving them a sawed-off shotgun. About all you can do with those old ones is turn them loose in a big field until they die."'[FN-37] One Carson City, Nevada employee interviewed did not agree with the majority, however. Termed one of the more astute horse experts within the bureau, that employee felt that only one percent of the horses cannot be broken. He was "clearly impressed with the plasticity of their behavior."[FN-38]

Symanski also interviewed one mustang adopter from Oklahoma who had flown to the Rock Springs, Wyoming BLM district office in search of up to 500 broad mares. Two years previous, the same horseman had taken one hundred and forty-eight brood mares from the BLM.[FN-39] He had been satisfied with the results and told the author:

They're crazy as loons when you first get 'em, but they're no problem if you work 'em and you got the setup. I go in the back of my pickup with hay and they gentle down right away. We just chum 'em to gentle 'em with feed. If you got a little somethin' they like that. Then the next time you see 'em, they be lookin' for you.[FN-40]

The same horseman stated that once he has broken the horses, he finds they can do just about everything required of a good cow horse. '"They gotta do everything on my ranches, so I know they're good."'[FN-41]

In April of 1979, senators Thomas Eagleton from Missouri and Paul Laxault from Nevada conducted a congressional subcommittee hearing on the worthiness of the Adopt-A-Horse Program.[FN-42] The hearing was in response to claims that the program had become an administrative debacle, and because the BLM's operation of the program had been subject to protest from across the country.[FN-43] While cases of abuse were brought to the attention of the committee, from the multitude of letters entered into the Congressional Record it was also clear that thousands of people who had adopted mustangs had many words of praise for the program.[FN-44] One example:

I HAVE AND HAVE HAD FOR OVER TWO YEARS TWO HORSES (MUSTANG MARES) WHICH I ACQUIRED FROM BLM ADOPTION PROGRAM IN NEVADA ON MARCH 9, 1977.
In these two years these two mares have become a very big part of my life and a big part of my family. If something was to happen to either one of them I would feel a very great loss.
***
They are shoed once every sixty days, and are ridden a couple of times a week, both by my son, myself and family.
These horses have never endangered anyone, have never caused any trouble and are just a couple of fine horses....
I FEEL THAT WERE YOU TO PUT A STOP TO THE ADOPTION PROGRAM IT WOULD DENY OTHERS THE PLEASURE I HAVE HAD ALONG WITH MY FAMILY'S AND FURTHER A FATAL BLOW TO OUR COUNTRY'S FEW REMAINING HERITAGES BECAUSE THAT IS WHAT THESE MUSTANGS REPRESENT....[FN-45]

From time to time the BLM has sent out questionnaires to a sample of those who have adopted a mustang. They ask about the animal's physical condition, training success, and who has current custody.[FN-46] Symanski examined about fifty of those from the Rock Springs, Wyoming BLM district office. The excerpts include comments such as '"She has turned into a real pet .... We ride her around the farm and she spooks at things[,]"' from a Nebraska youngster.; '"My fourteen-year-old son is breaking one of them. My eleven-year-old daughter can ride the mare[,]"' from a Colorado father; and '"The only problem with him is he can jump a ten-pole corral anytime!"' from a Wyoming adopter of a stallion.[FN-47]

Although one horseman in the excerpts above makes reference to some of his mustangs as working cow horses, far fewer, no matter their provenance, are as vital to man today as they once were in order for him to get from point A to point B, or to cultivate his fields, or to get his cattle to market. Captured and trained mustangs do, however, provide the same services to mankind as do their never-wild counterparts. In the sense that both mustangs and all other breeds are trained to take a bit and a saddle and transport their owners or trainers, etc., around in circles or over jumps or down parade routes, they all are by custom devoted to the service of mankind at the time and in the place in which they are kept. Captured and trained mustangs do, then, in that sense, become domestic.

In reference to the second question posed at the end of part II above, it could potentially be answered in the affirmative, especially for older captured mustangs that are adopted out by the BLM. That assessment is an educated guess, however, because the writer has no real information on the eventual success by those who do attempt to gentle and train those older horses. It is safe to say, however, based upon some of the assessments by horsemen quoted by Symanski, that the older horses usually start out as more fractious and fearful, and dangerous as a result.[FN-48] In addition to adopting out surplus mustangs, the BLM also must deal with hard-core, unadoptable ones, and has made some controversial decisions about how to dispose of them, including providing them to the owners of a private zoo for use as food for exotic big cats, as well as to city zoos for the same use.[FN-49] In other words, fewer of the captured older horses end up being adopted, and must be destroyed by the BLM. Some brave or possibly naive souls do adopt older horses, even stallions, however, and the ultimate temperaments of those horses, say two or three years after adoption, are unknown. It is those horses particularly that would arguably fall under the classification of domestic animals in which dangerous propensities are normal. The rule emphasizes the social desirability of the animals as a counterbalance to their dangerous character. As such, that social desirability must be found, even as to the placement of older captured mustangs. A compelling place to look in order to find that social desirability is in the language of the first section of the Wild Horse and Burro Act itself, which states:

Congress finds and declares that wild free-roaming horses and burros are living symbols of the historic and pioneer spirit of the West; that they contribute to the diversity of life forms within the Nation and enrich the lives of the American people; and that these horses and burros are fast disappearing from the American scene. It is the policy of Congress that wild free-roaming horses and burros shall be protected from capture, branding, harassment, or death; and to accomplish this they are to be considered in the area where presently found, as an integral part of the natural system of the public lands.[FN-50]

Obviously, the act speaks to the preservation of free-roaming mustangs, and not to captured and trained mounts. However, the writer asserts, and section 1333 of the act bears out, that a captured and adopted mustang, even an older and potentially more dangerous one, is of a higher priority and is socially more desirable than one that has been destroyed. The relevant portions of that section state:

(b) Inventory and determinations; consultation; overpopulation; research study; submittal to Congress
***
(2) Where the Secretary determines ... that an overpopulation exists on a given area of the public lands and that action is necessary to remove excess animals .... Such action shall be taken, in the following order and priority, until all excess animals have been removed so as to restore a thriving natural ecological balance to the range ...
(A) [That] old, sick, or lame animals [] be destroyed in the most humane manner possible;
(B) [That] such number of additional excess wild free-roaming horses and burros [] be humanely captured and removed for private maintenance and care for which [it is] determine[d] an adoption demand exists by qualified individuals,...
(C) [That] additional excess wild free-roaming horses and burros for which adoption demand by qualified individuals does not exist [] be destroyed in the most humane and cost efficient manner possible.[FN-51]

Thus, Congress' priorities (not to mention the many animal protection organizations mentioned by Symanski in his book and all horse lovers everywhere, undoubtedly) are to adopt first, destroy second. Of course, those who choose to adopt older and potentially more dangerous mustangs, while not subject to strict liability, must exercise care commensurate with their horse's normal dangerous characteristics.[FN-52] Finally, although a certain amount of danger is inseparable from these horses, there is no social value in keeping any horse that is vicious or has other dangerous propensities that are in excess of those necessary for their utility and are abnormal to their class.[FN-53]

IV. Applicable Case Law

A federal district judge sitting in Pennsylvania and applying Pennsylvania law, held that for purposes of tort, a wild animal is any animal that is not classified by statute as a domestic animal.[FN-54] Needless to say, all state statutes examined classify horses as domestic animals.[FN-55] Although that Pennsylvania case has not been cited as authority in any other case, it is some authority for the proposition that, because equines are always statutorily classified as domestic animals, those statutes should create a presumption that captured and trained mustangs be viewed as domestic animals for purposes of dangerous propensity law and tort.

There has been a good bit of litigation involving the Wild and Free-Roaming Horses and Burros Act and the horses it protects and manages, but they all address issues related to the impact and/or administration of the Act itself.[FN-56] None speaks to the question posed in this paper. A few cases do exist, however, which articulate that the traditional horse is a domestic animal.[FN-57] It is safe to assume that more cases articulating the same tenet do not exist because the law is so well established on the subject. The only case located that arguably impliedly suggests that feral horses are domestic animals for purposes of tort is Page v. Arnold,[FN-58] decided by the Supreme Court of Virginia in 1984. In that case, an injured passenger brought action against the owner of a Chincoteague pony after the car in which she was riding collided with the pony when it was loose on a public highway. Although there is no discussion at all about whether the pony had been born in captivity or captured on Chincoteague Island, the court assumed without discussion that it was indeed a domestic animal.[FN-59]

Finally, In the case Spring Co. v. Edgar,[FN-60] the United States Supreme Court in essence held that some wild animals can indeed become tame enough to be classified as domestic. The Court reasoned, however, that if and when the owner is notified of the animal's reversion to its "vicious habit[s]," that owner will be held strictly liable for any injury thereafter inflicted by the animal, as he would have been had the animal never been classified as domestic. In other words, the owners of the buck deer in Edgar were held as much to the standards of the owner of a domestic animal as that of a wild animal owner. Although the deer had never actually gored or in any other way injured a visitor to the defendant's park, the defendant was found by the jury to have had prior notice of the deer's dangerous propensities, based upon, inter alia, a posted sign which read "Beware of the buck." The plaintiff was to some degree charged with the burden of proving that the defendant had knowledge of the buck's vicious propensities.[FN-61] She did so allege that knowledge by the defendant.[FN-62] The Court opined:

Certain animals ferae naturae may doubtless be domesticated to such as extent as to be classed, in respect to the liability of the owner for injuries they commit, with the class known as tame or domestic animals; but insomuch as they are liable to relapse into their wild habits and to become mischievous, the rule is that if they do so, the owner becomes notified of their vicious habit, they are included in the same rule as if they had never been domesticated, the gist of the action in such a case, as in the case of untamed wild animals, being not merely the negligent keeping of the animal, but the keeping of the same with knowledge of the vicious and mischievous propensity of the animal.[FN-63]

It is arguable that the burden of proving the defendant's knowledge in this case was an easier one for the plaintiff than would be the burden in any case involving a traditional domestic animal. In any event, because this case opines that certain truly wild animals can be domesticated to such a degree so as to be classified as domestic for purposes of tort law, it offers strong support for the notion that feral animals of a species long considered domestic could certainly be domesticated enough to also fall in the domestic classification. The Texas case Pate v. Yeager[FN-64] closely follows the analysis of Edgar, although it does not cite it. In that case, the defendant owners of a small monkey were held not liable for injuries incurred by a four and one-half-year-old girl absent any evidence that the defendants knew that monkey had any dangerous propensities or that they committed acts of negligence which proximately caused the injury. The court in Yeager stated that, in most jurisdictions, wild animals are classified into two classes: (1) those which, because of habit, mode of life, or natural instinct are of a savage and vicious nature and are incapable of being domesticated, and (2) those which may be domesticated to the point that they lost their native ferocity. For those in the latter category, where the animal in its natural state is a wild animal, but where it is capable of being domesticated and tamed, the general rule is that the owner is not liable for injuries caused by the domesticated (wild) animal unless negligence in the manner of keeping it is shown, or unless its propensity to attack was known to the owner or should have been known to him.[FN-65] Again, strong support for the notion that feral animals of a species long considered domestic could certainly be domesticated enough to also fall in the domestic classification.

V. Conclusion

Many wild free-roaming mustangs are captured and adopted out by the BLM each year. The program is designed to prevent the overpopulation of wild mustangs in their native ranges and to also prevent the destruction of as many mustangs as is practicable. Congress and many members of the general public consider the mustangs "living symbols of the historic and pioneer spirit of the West," and believe that they "enrich the lives of the American people." As such, captured and trained mustangs bring both pleasure and a sense of pride to their owners and to the nation as a whole. The customs of every community in which they can be found and the social utility of keeping them in those communities must be considered when the law is faced with determining an owner's liability the first time his trained mustang injures another person. Whether one is considering a community in which trained mustangs are still utilized as working cow horses, or one in which they are ridden by youths in local riding club play days or Fourth of July parades, those factors weigh heavily in favor of classifying those horses as domestic animals. So, too, do the definitions and comments found in The Restatement (Second) of Torts and Am Jurisprudence 2d, as well as the descriptions of mustangs' temperament and behavior found in meaningful books written about mustangs. Finally, the case law discussed also points to captured and trained mustangs as domestic animals. As a result, an owner or possessor of a once free-roaming mustang, since gentled and trained, who has no knowledge or reason to know that the horse is abnormally dangerous, should not be subject to liability for any injury or harm done by the horse unless that owner or possessor intentionally causes the horse to do the harm or he is negligent in failing to prevent it.

FOOTNOTES

1. Baker v. Borello, 136 Cal. 160, 68 P 591 (Ca. 1902)(defendants' liability upheld for injuries caused to plaintiff when he was kicked and trampled by defendants' vicious horse where there was no sufficient ground for court to disturb the finding of the jury that defendants had knowledge of the dangerous character of the horse); Hamilton v. Hopkins, 247 Pa. 499, 93 A. 615 (Pa. 1915)(defendant's liability upheld for damages suffered by plaintiff when he was bitten by defendant's horse, where the animal was left standing in a public highway, unattended, and attacked plaintiff when he passed by it. Defendant had been warned previously by others of horse's dangerous propensities of biting and kicking people, and those propensities were within defendant's knowledge); Pearson v. Jones Co., LTD, 898 S.W.2d 329 (Tex.Ct.App.--Eastland 1995, reh'g overruled)(horse owner could not be held liable to rider who was injured when he was thrown from horse while judging hunting dog competition, absent evidence that owner had any knowledge of horse's alleged propensity to buck at time of accident or that owner's employees were negligent in handling horse); RESTATEMENT (SECOND) OF TORTS, 509, 518 (1976).

2. Spring Co. v. Edgar, 99 U.S. 645 (1878)(defendant owner of a buck deer held liable to plaintiff for injuries she sustained when she was attacked by buck and it gored, bit, and struck her with its front feet); Bottcher v. Buck, 265 Mass. 4, 163 N.E. 182 (Mass. 1928)(liability of keeper of bear for injuries inflicted by it held not dependent on proof of knowledge of vicious disposition); Mills v. Smith, 9 Kan.App.2d 80, 673 P.2d 117 (Kan.App. 1983)(owner of 9 month old African lion cub held strictly liable for injuries suffered by 21 month old child when lion cub bit her on the head); 4 Am.Jur.2d. Animals 80; RESTATEMENT (SECOND) OF TORTS 507 (1976).
A small number of jurisdictions do not hold the wild animal owner strictly liable unless some negligence is found in keeping the animal. See e.g., Blanchard v. Bridgeport, 463 A.2d 553 (Conn. 1983)(zoo director and employee liable to two year-old child and his mother for child's injuries suffered when he was mauled by a leopard. Either zoo director or employee or both were negligent in not fulfilling their duty to make all reasonable inspections to discover possible defective or dangerous conditions as to assure safety of zoo visitors, especially to that part of zoo housing wild and ferocious animals, which required their taking precautions equal to "coiled spring danger" that lurked within cage, and that negligence was proximate cause of boy's injuries.); Hanson v. Brogan, 400 P.2d 265 (Mont. 1965)(where plaintiff who had been gored by a buffalo which the defendant exhibited in a public resort won a judgment against the defendant, the Montana supreme court reversed and remanded for a new trial for the admission of evidence on the question of the defendant's negligence in allowing the injury to occur. Supreme Court stated that the rule making negligence the basis of liability for injury inflicted by a animal is preferable to the doctrine of absolute liability. Court also determined that the proper rule regarding wild animals is that scienter, or notice of the character of a wild animal may be imputed to the owner sufficient to make out a prima facie case).

3. Domestic animals are also classified as domitae naturae, which is also defined as a tame or domesticated animal. The second term's emphasis appears to be on man's absolute property right in this type of animal, as opposed to only a qualified property right in captured wild animals. BLACK'S LAW DICTIONARY 487, 964 (6th ed. 1990).

4. 9 Q.B. 101, 115 Eng.Rep. 1213 (1846) as cited in W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 76 (5th ed. 1984); FRANCIS WHARTON, A TREATISE ON THE LAW OF NEGLIGENCE (1874).

5. PROSSER, supra note 4, 76.

6. See Spring Co. v. Edgar, 99 U.S. at 651.

7. PROSSER, supra note 4, 76.

8. Id.

9. Id.

10. 4 Am.Jur.2d. Animals 80

11. Id.

12. 4 Am.Jur.2d Animals 80 (citing Thurston v. Carter, 112 Me 361, 92 A. 295); also see 2 KENT, COMMENTARIES, 348 and 349 (11th ed. 1867).13. Spring Co. v. Edgar, 99 U.S. at 651; WHARTON, supra note 4, (citing cases).

14. Motion Industries, Inc. v. Le Blanc, 532 So.2d 498 (La. Ct. App. [1st Cir.] 1988)(holding that a horse is considered a domesticated animal, having through long association with man become subject to a man's use and control.); 4 Am.Jur.2d Animals 80.

15. THE AMERICAN HERITAGE DICTIONARY 1464 (1976).

16. BLACKS LAW DICTIONARY 1598 and 484 (6TH ED. 1990).

17. RESTATEMENT (SECOND) OF TORTS 506 (1976).

18. PROSSER, supra note 4, 76

19. PROSSER, supra note 4, 76 (citing numerous cases for each animal).

20. PROSSER, supra note 4, 76 (citing several cases). Cf. City of Rolling Meadows v. Kyle, 494 N.E.2d 766 (Ill.App 1st Dist. 1986)(Monkey registered as endangered species, born in captivity in Kenya, Africa and raised by city resident since age two days, which was highly sociable animal and interacted equally well with people and animals was domesticated house pet, for purpose of ordinance prohibiting keeping of animals other than domesticated house pets, particularly where there was no evidence that monkey posed danger to community). It is worth noting that the court in Kyle was not asked, nor did it venture to address any potential liability that the owner might incur were the monkey to ever bite or in any other way injure another person or animal; Also see Pate v. Yeager, 552 S.W.2d 513 (Tex. Civ. App.--Corpus Christi 1977, writ ref'd n.r.e.)(Defendant's monkey in cage in yard was properly classified as wild animal capable of being domesticated or tamed and, in view of evidence disclosing that monkey was domesticated, in order to hold defendants liable for injury allegedly caused by bite to finger of four and a half-year-old girl proof was required that defendants knew that monkey was accustomed to doing mischief of that defendants committed acts of negligence which proximately caused the injury).

21. RESTATEMENT (SECOND) OF TORTS 506, cmt. b.

22. PROSSER, supra note 4, 76

23. Id.

24. J. FRANK DOBIE, THE MUSTANGS, 3-4 (University of Texas Press 1984) (1952).

25. RESTATEMENT (SECOND) OF TORTS 518 (1976).

26. PROSSER, supra note 4, 76 (citing cases for each animal).

27. RESTATEMENT (SECOND) OF TORTS 509, cmt. d (1976).

28. RESTATEMENT (SECOND) OF TORTS 509, cmt. e.

29. DOBIE, supra note 24, 192-213.

30. Id., 201-02.

31. Id., 206.

32. RICHARD SYMANSKI, WILD HORSES AND SACRED COWS (1985).

33. 16 U.S.C.A. 1331 et seq, (1971). Because overpopulation of wild horses and burros resulted from passage of the 1971 Act, Congress in 1978 amended the Act through the Public Rangelands Improvement Act of 1978. These amendments seemed to strike a new balance between 'protecting wild horses and competing interests in the resources of the public range. The amendments made clear the importance of management of the public range for multiple uses, rather than emphasizing wild horse needs. The legislative history makes clear that one of Congress' goals was to deal with range deterioration in areas where excess numbers of wild-free roaming horses and burros exist. The House Report indicated that the Wild Horse Act had been so successful that the numbers of wild horses and burros '"now exceed the carrying capacity of the range. Excess numbers of horses and burros pose a threat to wildlife, livestock, the improvement of range conditions, and ultimately their own survival."' Blake v. Babbitt, 837 F.Supp. 458 (D.D.C. 1993).

34. SYMANSKI, supra note 32 at 87.

35. Id.

36. Id. at 88.

37. Id. at 103.

38. Id. at 93. Because the BLM only allows each individual to adopt up to four horses a year, this horseman, like others who have seen the potential for mustangs as breeding stock, formed a cooperative. When he arrived at Rock Springs, he had a hundred-odd affidavits in hand that would give him the power to pick up several hundred horses. Id. at 95.

39. Id. at 93.

40. Id.

41. Id. at 95.

42. Id.

43. Id.

44. Id. at 96-7.

45. Id.

46. Id.

47. Life-long experience with horses allows the writer to assert that many horse-related injuries to people are more often than not a result of horses' natural responses to fear or surprise. Although there certainly are some number of traditional domestic horses that are just downright hateful, and who would attempt to bite or kick, especially, their human caretakers or innocent bystanders as a result, that number is fairly small. The horsemen quoted do not attempt to differentiate between dangerous older horses who are dangerous as a result of fear and those that are dangerous as a result of a nasty disposition. The writer would speculate that the majority are more fearful than hateful towards their captors, and that fear is harder for those older horses to conquer than for the younger ones.

48. SYMANSKI, supra note 32 at 90.

49. 16 U.S.C.A. 1331.

50. 16 U.S.C.A. 1333 (emphasis added).

51. RESTATEMENT (SECOND) OF TORTS 509, cmt. e.

52. Id.

53. Gallick v. Barto, 828 F.Supp. 1168 (M.D.Pa. 1993)(Ferret is a wild animal for purposes of Pennsylvania laws which apply to owners of wild animals; ferrets have a propensity to bite, have traditionally been kept for hunting rabbits and rats, and have savagely attacked small children).

54. Most statutes discovered by the writer involve classification for purposes of livestock and animal disease control. See e.g., IND. CODE 15-2.1-2-15 (1983); VT. STAT. ANN. tit. 6, 1151 (1988 & Supp. 1995); TENN. CODE ANN. 44-2-1301 (1993). All of these type statutes broadly define domestic animals to include animals that the law does not always consider domestic for purposes of tort. The Vermont statute includes fallow deer, red deer, American Bison, ferrets and ratites (ostriches, rheas, and emus) in its "domestic livestock" definition. It makes good sense, however, to include as many species as possible when legislating in order to control contagious livestock diseases.
Additionally, some states have estray laws which also all include equines in their definitions of domestic animals. See e.g., 5 GUAM CODE ANN. 61501 (1995); OKLA. STAT. ANN. tit. 85.1 (West 1993).
Finally, states which have enacted statutes to deal with cruelty to animals also include equines in their definitions of domestic livestock. See e.g., N.J. STAT. ANN. 4:22-16.1 (West 1996).

55. See e.g., Blake v. Babbitt, 837 F.Supp. 458 (D.D.C. 1993)(BLM regulation eliminating automatic stay of removals of excess horses and burros from public lands pending any appeals, and allowing delegated field officer of BLM to make and place in full force and effect a decision to remove wild horses and burros, was reasonable interpretation of immediate removal requirement of Public Rangelands Improvement Act of 1978); Animal Protection Institute of America v. Hodel, 860 F.2d 920 (9th Cir. 1988)(Secretary of Interior enjoined from transferring titles of wild horses and burros to persons who the Secretary knew intended to use the animals for commercial purposes upon receiving title. A "qualified individual" who may adopt wild horse or burro under Wild Horses and Burros Act does not include person who has expressed intent to commercially exploit the animals); Fallini v. United States, 56 F.3d 1378 (Fed. Cir. 1995) cert. denied 116 S.Ct. 2496 (1996)(Cattle ranchers' claim that United States affected a "taking" by requiring them to provide water to wild horses living in area in which they conducted their ranching activities accrued, for purposes of their Tucker Act claim, no later than date ranchers sent bill to BLM seeking compensation for water drunk by the wild horses; formation of Herd Management Area (HMA) in settlement of ranchers' prior suit against government served only to reduce damages ranchers were suffering because of the alleged taking and did nothing to establish that horses' drinking constituted a taking for which United States was liable).

56. Tamburello v. Jaeger, 184 So.2d 544 (La. 1966)(A wild animal is "ferae naturae" and a domesticated animal is "mansuetae naturae"; a horse is in the latter classification); Forrest v. Gilley, 570 N.E.2d 934 (Ind. Ct. App. 1991)(Horses are domestic animals)(citing an 1890 case).

57. 314 S.E.2d 57 (Va. 1984).

58. Id. at 61.

59. 99 U.S. 645.

60. Id. at 656.

61. Id. at 653.

62. Id. at 653.

63. 552 S.W.2d 513 (see footnote 20).

64. Id. at 515 (citing 3A C.J.S. Animals 3, 170, 176).


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