by Gabriella Cellarosi Daniel, Esq.
What duty does a stable owner owe to a non-participant?
While it varies by state, generally, a landowner owes a third party “the duty of using ordinary care to maintain its premises in a reasonably safe condition and to warn . . . of any hidden dangers.” ii
(1) Business owners owe a duty to exercise ordinary care to keep in a reasonably safe condition the entire premises in which customers may be reasonably expected to visit.iii
(2) Owners of domesticated animals have a duty to exercise ordinary care to prevent such animals from injuring others.iv
(3) Likewise, owners of domestic animals are required to take notice of the general propensities of the class of their pet as well as any dangerous propensities of individual animals of which the owner has knowledge or is put on notice.v
There is also the “attractive nuisance doctrine” to consider. Under the attractive nuisance doctrine, one who leaves accessible to small children an instrument, machine, or appliance which he knows, or ought to know, is attractive to children and yet is dangerous to them, is guilty of negligence.viii The two necessary elements of the tort are that the appliance is known to be attractive to children and known to be dangerous to them.ix Liability may depend on whether your state considers horses in a pasture to be an attractive nuisance.
In evaluating a claim of negligence, courts often assess whether there is a legal duty of care, whether that duty was breached, and if as a result of that breach, the injury occurred. In order to find that negligence is the cause of an injury, there is an element of reasonable foreseeability – i.e. whether the injury should have been foreseen in light of the circumstances.x While subject to a fact-specific analysis, understanding that the precise injury that could happen need not be predicted, the question is rather a reasonable person could have anticipated that the injury would occur as a result of the negligent act(s). Yet, the difficulty becomes how can one prevent a horse-inflicted injury when one cannot predict what a horse will do at any given moment. For all animals, there is a component of unpredictability.
In Scuppy’s case, the owner was not aware of any problem or condition – such as a biting propensity – with Scuppy. In fact, he testified that Scuppy was a “typical” horse. The court’s branding of horses with a dangerous propensity ostensibly may satisfy the “notice” requirement of negligence. Because it was foreseeable that Scuppy would bite a two-year-old child, a jury now only needs to determine whether the farm owner took sufficient steps to prevent this type of injury from happening.
While of course there are legal defenses, such as contributory negligence, assumption of risk, and lack of notice, in light of the “Scuppy” case and potential uncertainties in the law relative to domesticated horses, consider some steps that you can take to best position your business with respect to a potential “non-participant” third-party:
(1) Conduct your business in a “reasonable” manner. Consider what a reasonable person would do given the same circumstances and remember that standard of care is objective, not subjective. Doing what you think is best may not be sufficient. Make sure that fencing is strong and sufficient and if necessary, create extra barricades on areas that are accessible to the public.
(2) Pay attention. Be mindful if a horse on your property has exhibited prior “vicious or dangerous” tendencies. This may impact whether a court finds you “on notice” of a problem or condition with a particular horse on your property. If a particular horse is a problem, consider moving that horse to a location on the property that is not accessible by third parties.
(3) In addition to state-specific warning sign requirements, consider posting signs to not feed, pet, play, or otherwise handle horses on the property, particularly in areas where persons may be attracted to engaging with the horses.
(4) Be mindful of the accessibility of your barn to children. Consider requiring permission for children to access your barn and/or feed horses on the property. If permission is granted, consider the age, as well as the child’s appreciation of the dangers associated with the handling of horses.
(5) Have all guests sign liability releases. Make sure that parents sign on behalf of minor children.
The law is still developing with respect to horse inflicted negligence claims to non-participants. The Connecticut decision is not binding in other jurisdictions, although there may be an increased willingness in some states to find that equine business owners are on notice that horses have dangerous propensities and therefore, injuries can be foreseen. In light of this uncertainty, exercise reasonable care and behavior under the circumstances.
The outcome and impact of the Vendrella case remain to be seen. The case has been remanded to the trial court level for the jury to determine whether the defendant took the appropriate measures to prevent the foreseeable harm. In the interim, in Connecticut, House Bill 5044 was rolled out – an Act concerning Domesticated Horses – creating a presumption in state law that horses, donkeys, and ponies are not wild animals, and as such, are not “inherently dangerous.”On May 28, 2014, the Governor signed it into law.