In Part 1 of this series, I offered a detailed outline and explanation of the Texas Farm Animal Liability Act (“the Act”). Today, we will review Texas appellate cases that have applied the Act to see how the statute plays out in real life. As the Act is relatively new, originally passed in 1995, there are not a huge number of opinions analyzing this statute.
Dodge v. Durdin, Johnson v. Smith, Young v. McKim
The first group of cases we will consider are those analyzing whether the Act’s limited liability protections apply to defendants when the injured plaintiff is an employee or an independent contractor.
In Dodge v. Durdin, 187 S.W.3d 523 (Tex. Ct. App. – Houston 1st Dist. 2002), a stable employee was kicked in the abdomen while providing oral medication to a horse, she filed suit against her employer. Defendants claimed limited liability under the Act. The 1st District Court of Appeals in Houston held that the Act’s limited liability did not apply when the injured person was an employee of the defendant. The court reasoned that although the language of the Act did not expressly exclude employees, it implied that they should not be covered. Further, the legislative discussion behind the Act focused on liability of operators to consumers and tourists, not employees. “We hold that the Equine Act applies to consumers and not employees.”
In both Johnson v. Smith, 88 S.W.3d 729 (Tex. Ct. App. – Corpus Christi 2002) and Young v. McKim, 373 S.W.3d 776 (Tex. Ct. App. – Houston 14th Dist. 2012), appellate courts found that the Act did apply to limit liability where the injured party was an independent contractor of the operator. In Johnson, an independent contractor in charge of breeding stallions was bitten in the face as he was leading a stallion to pasture. In Young, an independent contractor who was hired as a caretaker for a horse was kicked. The courts held that limited liability applied in both instances.
Also of note, the Johnson court held an issue of fact existed as to whether an exception to this liability applied in this case. The court determined that factual questions existed as to whether the horse owner reasonably determined the ability of the plaintiff to safely engage in the activity at issue or whether the horse owner acted willfully in failing to warn the independent contractor. The facts leading to this decision were that the stallion who injured the plaintiff was kept separately, the other employees were afraid of the horse, and threat the stallion was extremely and increasingly aggressive. Evidence showed that he lunged at people who got near him and were not handled much. Thus, this question was referred back for a jury trial.
Loftin v. Lee, 341 S.W.3d 352 (Tex. 2011)
Ms. Lee visited her friend Ms. Loftin and the two rode horses belonging to Loftin. Lee raised horses, but did not have significant riding experience. Loftin put Lee on a 12 year old horse and while the two were riding through a muddy, wooded area, a vine touched Lee’s horse’s flank, causing him to bolt. Lee fell off and fractured a vertebrae. Lee and her husband sued Loftin. Loftin claimed no liability under the Act.
The Texas Supreme Court considered two issues on appeal, eventually siding with the defendant.
First, the Court considered the definition of “inherent risk” as used in the Act. The court explained that the statute reflects an “expansive view” of inherent risk. The examples listed in the statute cover a broad range of situations and are not exclusive. The plaintiff argued that “inherent risk” includes only those risks due to innate animal behavior, not those risks involved in the riding activity. Under this theory, she argued, her injury was caused not by an inherent risk of riding a horse, but instead by Loftin’s negligence in selecting a bad trail and failing to adequately assess plaintiff’s skill level. The Supreme Court disagreed. “The Act simply cannot be fairly read to limit inherent risks to those which are unavoidably associated with equine behavior. Construed so narrowly, the Act would accomplish nothing.” Further, the fact that the risk could have been avoided by choosing another trail did not prevent the limited liability from applying to Loftin.
Second, the Court considered whether limited liability was available if a defendant filed to adequately assess a person’s ability to participate in an equine activity if that assessment did not cause the injury. Lee argued that the exception to liability in Section 87.004(2) applied in this case, namely, that Loftin did not make a reasonable effort to determine Lee’s ability to safely engage in the activity and safely manage the animal. The Supreme Court held that this exception applies only where the failure to make such effort was the cause of the injury. In this case, the horse being spooked by a vine could have happened to a novice or experienced rider, so the exception did not apply and Loftin was entitled to limited liability.
Also of note, the Court considered how thorough of an inquiry must be made to determine a rider’s ability to participate safely and safely manage a horse. The Court held that the Act “does not require a formal, searching injury.” Here, the fact that Loftin knew Lee raised horses for years, had no trouble mounting the horse, and seemed to be getting along fine on the ride was sufficient.
Hilz v. Riedel, 2012 WL 2135648 (Tex. Ct. App. – Ft. Worth June 14, 2012) (unreported)
Here, a 12 year old girl was injured while riding horses at a friend’s house. The injured child’s father claimed that when he dropped the girl off, he warned the horse owner that he should not let her ride out into the pasture alone. The horse owner claims these instructions were never given. The child was thrown off of the 15 year old horse she was riding and impaled by a tree limb. Her father filed suit and the horse owner claimed the Act applied.
The Ft. Worth Court of Appeals found there was a genuine issue of fact here as to whether the horse owner made a reasonable and prudent effort to determine the child’s ability to participate in the activity. The owner testified that he asked her father about her riding abilities and observed her in the round pen for 30 minutes before allowing her to leave the pen. On the other hand, however, the father said that he told the owner not to let her ride outside of the pen. Because of these factual issues, the case was remanded back for trial.
Little v. Needham, 236 S.W.3d 328 (Tex. Ct. App. – Houston 1st Dist. 2007)
The plaintiff was injured when the horse she was riding at a stable collided with a tree. She filed suit against the stable owners, who sought summary judgment arguing they were not subject to liability because of the Act. In a fairly straight-forward application of the statute, the court sided with the stable owners. Here, the injury related to the propensity of a horse to act in a way that may cause injury. The plaintiff argued that the defendants acted with wanton and willful disregard because they had never owned a horse facility before and did not conduct a safety inspection. The court found this was simply not wanton and willful actions–which are those showing a conscious indifference to the welfare of the injured person. Thus, summary judgment was granted to the defendants and the plaintiff’s claims were dismissed.
Gamble v. Peyton, 182 S.W. 1 (Tex. Ct. App. – Beaumont 2005)
A rider brought suit against a landowner when a horse she was riding was stung by fire ants, causing her to be bucked off and injured. Defendants claimed no liability pursuant to the Act. The court sided with the defendants, finding that an animal bite causing a horse to buck was an inherent risk of an equine activity. Further, the court held that the fire ants were not proof of an unreasonably dangerous condition on the land such that the exception in Section 87.004(3) would apply. Further, even if they were a latent condition, the landowner’s comment to the plaintiff that he was having trouble with a lot of ants that year was sufficient warning to her of the condition to satisfy the requirements of that exception. Finally, the court held that because the landowner was not an “equine professional” as described by the statute, he was not required to post warning signs on his property. Thus, the plaintiff’s claims were dismissed.
Take Away Points
First, this is merely common sense, but anyone owning farm animals should take care at all times, regardless of legal liability implications, to ensure the safety of the animals and all participants involved with any farm animal activity or livestock show. Extra care will often avoid an injury and abrogate the need for the intricacies of the Act to come into play.
Second, all persons owning farm animals that are covered by the Act need to be aware of the Act’s provisions and take care to comply. This includes carefully reviewing the exceptions to the Act’s coverage found in Section 87.004 and ensuring no actions taken would fit under this exception. Further, all farm animal professionals and livestock show sponsors need to ensure they have placed the required warning signage in designated areas and include such language in all contracts pursuant to Section 87.005.
Third, I recommend that farm animal owners obtain waivers from participants in farm animal activities. These waivers, while certainly not a fool-proof solution to liability, may be useful in defending against claims made if a person is injured.
Finally, it is critical that all farm animal operators carry adequate insurance, both in breadth and amount of coverage. Carefully review your insurance policy with your agent to ensure it applies to all likely claims, including injuries to persons, injury to employees or independent contractors, injury to other animals, and injury to your own animals.