University of Vermont AAHS

Dangerous Propensities and Your Legal Liability

by Robert O. Dawson
Professor of Law
University of Texas School of Law

Is a dog entitled to one bite and a horse to one kick?

In a sense, that is true! There is a legal rule stating that the owner or caretaker of a domestic animal is strictly liable for injuries inflicted by that animal if that person knew or should have known that the animal possessed vicious or dangerous propensities to engage in the behavior that caused the injury.

Domestic Animals. This rule applies only to domestic animals. As to wild animals maintained in captivity, the owner is strictly liable for virtually any injury caused by the animal. Horses, like cats, dogs, cattle, mules and donkeys, are categorized by the courts as domestic animals. In effect, the courts assume that as a general rule all wild animals are dangerous to humans while all domestic animals are not dangerous.

The BLM Mustangs being placed for adoption present an interesting question. Are they wild or domestic? Once domestic, they became wild or feral many generations ago. If they are wild animals when captured, do they become domesticated when broke and trained? The answers to those questions will determine the legal liability position of the people who adopt those horses.

Strict Liability. What does it mean to say that the owner is "strictly liable" for an injury inflicted by his or her domestic animal? Strict liability means liability without a showing of fault on the part of the owner. Once the owner learns or should have learned of the dangerous propensity of the animal, he or she is from that point forward liable for injuries inflicted by the animal unless certain corrective steps are taken.

Strict liability means there is no requirement that the injured person show that at the time and place of the injury the owner failed to exercise due care and that the failure caused the accident. Of course, the injured person may, and probably will, attempt to show that in addition to the known dangerous propensities, the owner (or employee of the owner) was negligent on the specific occasion of the injury, so that he wins if he can prove either scenario.

Knew or Should Have Known. It is not sufficient merely that the horse engaged in similar behavior in the past. In addition, the owner must have witnessed or been informed of that dangerous behavior before the injury occurred that is the subject of the lawsuit.

But, even if the injured person cannot prove that the owner knew of the past incident or incidents, it is sufficient that he or she should have known of it. It is even possible to show that the owner was likely aware of the dangerous propensity because the horse had a reputation among those who knew him (grooms, farriers, stable hands) as possessing the dangerous propensities. The owner should have been aware of that reputation, which should have placed him or her on notice of the propensity or at least that he or she should investigate to determine whether the reputation is grounded in facts.

The reason the law does not require strict proof that the owner had actual knowledge of the propensity is because to do so would encourage the owner to shut his or her eyes to such matters in order to avoid liability. That would also tend to eliminate or at least minimize the motive of the owner to take corrective measures. Thus, the law says you are liable if a reasonable owner in your position would have known of the propensity, even if you actually had no knowledge of it.

What Is a Propensity? "Propensity" means a tendency to engage in specified behavior. To qualify under the dangerous propensity rule, the behavior must be unusual for the animal in question. Thus, it would not be a dangerous propensity for a horse to spook if the rider waved a hat or shirt over his or her head while mounted. That would be regarded as normal horse behavior, not an abnormal tendency toward dangerous behavior. Usually, cases in which dangerous propensity is important involve kicks by the horse or sometimes bites. Of course the truth is that every horse will kick or bite under some circumstances, but what we are talking about here is an abnormal tendency to engage in that behavior.

Propensity and the Accident. Of course, the dangerous propensity must be related to the accident and the injury. Thus, if a horse has a known dangerous propensity to bite its handler but on the occasion being litigated the horse kicked instead, then the known dangerous propensity would not be relevant to the injury. It would not affect the lawsuit.

Corrective Measures. Once a dangerous propensity of a horse becomes known to the owner, what are his or her options? First, he or she can sell the horse. Probably, the only way to do that legally and ethically is at a public auction sale "as is." Selling by private treaty would involve the issue of your duty to inform the buyer of the dangerous propensities. People who purchase horses at sales understand they run a risk of getting some horses with bad behaviors. Just be careful not to make any statements that are contrary to the dangerous behavior you know about, because that is fraud.

Second, he or she can warn those around the horse, including future handlers and riders, of the dangerous behavior. That might involve posting special signs on the horse's stall to warn of the behavior. It would certainly involve explaining to a rider before he or she comes near the horse of the beast's unfortunate habits. Warnings do discharge your legal duty, but they are not foolproof unless you and your staff never make mistakes and never forget to warn customers, campers or students of such matters.

Third, he or she can attempt to have the horse re-trained to eliminate the dangerous behavior. Should that course of action be taken, it would be wise to have the trainer state (preferably, in writing) that the trainer believes the behavior has been eliminated before the owner places the horse back into general use. Such a statement from a professional trainer should be the antidote to your previous knowledge of behavior because you now have good reason to believe that the behavior has been corrected.

Finally. Each horse, like each dog, is entitled to one bite, but only one. If the owner or caretaker of a horse knows or, as owner or caretaker, should have known of dangerous behavior abnormal for a horse, then the law imposes the highest standard of care. It literally says that from that point on there is no excuse should the horse repeat that behavior and injure someone.

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