Chris Wittstruck - Is a horse or the breed vicious?

03:39 AM 03 Jun 2014 NZST
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Ever wonder what makes a gallon a gallon? A yard a yard? A bushel a bushel?  Units of measure in customary commercial use in the United States are established by government. In addition to several other enumerated powers, the U.S. Constitution grants Congress the power to “… fix the standard of weights and measures” (Article 1, Section 8). It’s government that decides how old you have to be to buy cigarettes or liquor, cast a vote or be drafted. Like it or not, government prescribes what a safe speed limit is for streets, roads and highways.

Conversely, government cannot decide the size of the moon. The moon is a sphere with a defined circumference.  While government decides the standard by which a mile is measured, the number of miles that make up the circumference of the moon is defined by the moon itself. Government reports, but it’s the moon that decides.

Can government determine whether the species of horses is inherently vicious? As the state of being vicious is descriptive of a disposition that either exists or doesn’t, it would appear at first blush that government has no say in the matter. Unlike the size of the moon, however, the determination can’t be arrived at with a tape measure. A species’ distinctive traits can only be ascertained via subjective human observation. Reasonable people will necessarily come to different conclusions; and that makes the perception adopted by government determinative on the subject for all practical purposes.

Last October, we reported on a case progressing through the appellate courts in Connecticut that dealt with this very issue. In Vendrella v Astriab, an intermediate appeals court concluded that whether a horse bite is foreseeable given the nature of all horses was a question of fact to be decided on a case by case basis. The matter was further appealed, and on April 1 Connecticut’s highest court, the Supreme Court, issued its decision.

The Supreme Court affirmed the intermediate appeals court’s ruling, agreeing that whether horses have vicious propensities and are, as a class, likely to bite or otherwise cause injury, is to be determined on a case by case basis. The court further concluded that the owner or keeper of a domestic animal has a duty to take reasonable steps to prevent injuries that are foreseeable if the animal belongs to a class of animals that is naturally inclined to cause such injuries, regardless of whether the animal had previously caused an injury and, accordingly, the owner may be held liable for negligence if he or she fails to take such reasonable steps and an injury results.

The high court decision gives absolutely no comfort to an industry that stables over 51,000 horses statewide. As we stated in October, such a ruling would have devastating ramifications for the horse industry in Connecticut, and potentially nationwide.

While the court did not determine as a matter of law that all horses are vicious, it left it up to juries to decide the issue based upon specific facts presented in each case. In any case, a jury could determine that an owner was negligent in failing to secure a horse that had never bitten before, and gave no indication that it was inclined to bite, simply by finding that all horses have the propensity to bite.

Each case would devolve into a battle of experts on the issue of whether horses are inherently prone to cause injury. If a jury determined that horses have such vicious propensities, the only real issue left would be how much the injured party should recover.

In short, the ruling would render virtually all equine operations of any sort uninsurable, due to prohibitively expense premiums. That’s ironic, considering that the state’s capital, Hartford, Connecticut, is also nicknamed the “Insurance Capital of the World,” given the proliferation of headquarters for several major nationwide insurance companies in the city.

The irony was not lost on Connecticut Governor Dannel Malloy. Immediately after the Supreme Court ruling, Malloy renewed a push to clarify once and for all the inherent nature of equines, not for scientific purposes, but as to the issue of prospective liability for owners, stable operators, riding academies and others. The result of the Governor’s thrust was the unanimous passage of a bill in both legislative houses that essentially rendered moot and unenforceable the Supreme Court’s pronouncement regarding the nature of horses.

The new Connecticut law does three things. First, the law states that in any civil action for personal injury caused by a horse, pony, donkey or mule, these animals shall not be found to belong to a species that possesses a naturally mischievous or vicious propensity.

Second, the law establishes a presumption that such horse, pony, donkey or mule does not have a propensity to engage in behavior that would foreseeably cause injury to humans. The presumption can only be rebutted by evidence that the specific animal, not its overall class, put the owner or keeper on notice that it had a propensity to engage in the behavior that allegedly caused the injury. An example would be proof that the horse in question had previously bitten someone; not that all horses allegedly have a tendency to bite.

Third, the law prohibits causes of action in lawsuits based upon a strict liability standard. In other words, in each case an injured party can only recover if he or she can prove negligence on the part of an owner or keeper. Again, all horses, ponies, mules, and donkeys are presumed to be other than vicious or mischievous. The injured party can’t recover solely on the basis that injury was caused; there has to be a showing that the owner or keeper knew or should have known that the animal could cause injury, and then failed to adequately prevent against the injury.

Do all horses have vicious propensities? While zoologists, equine behaviorists, research veterinarians, and other scientists study the inquiry at length, a group of political officeholders have already conclusively answered the question in the negative. That’s good enough for our industry, and the Connecticut legislature’s action should rightly serve as a guidepost for all states to follow.

Chris E. Wittstruck is an attorney, a director of the Standardbred Owners Association of New York and a charter member of the Albany Law School Racing and Gaming Law Network.

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