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Social Security, The War Powers Act, Obamacare… each one of these laws were created after formal introduction, public and sometimes spirited debate, passage by both houses of Congress and presidential signature. Laws made by Congress, called statutes, are subject to interpretation by the judicial branch of government. Still, the courts can only say what they think Congress meant by the language contained in statutes; they can’t make up language that isn’t there. Some laws, however, are made by the courts, on the theory that the U.S. Constitution requires some type of action or protection that Congress hasn’t passed. Unlike statutes, these laws can be announced without much warning and yet have vast and profound far reaching effects. Consider a burglary that occurred in a Florida poolroom several decades ago. Based upon the word of a single eyewitness who indicated he saw him coming out of the establishment, Clarence Earl Gideon was arrested and charged with breaking and entering. Gideon had no money for a lawyer and was told by the Florida court that, inasmuch as he wasn’t charged with a “capital offense” (murder), the state had no obligation to provide him one. Despite representing himself as best as he could, Gideon was convicted. While serving a 5 year prison stretch, Gideon sued Florida, claiming his constitution rights were violated. He made it all the way to the U.S. Supreme Court, which ruled in 1963 in Gideon v. Wainwright that the 14th Amendment due process clause of the U.S. Constitution requires all states to provide all indigent criminal defendants with a lawyer. This pronouncement, never mandated by Congress, extraordinarily changed the criminal justice system in this country forever. Against this backdrop, consider a court ruling that implies, in the absence of a state statute on the subject, that all horses of all breeds may possess vicious propensities. If such a determination is finally made by the courts, the effects would be devastating for the entire equine industry. The facts of the underlying case, Vendrella v Astriab, are simple. Astriab operates a combined retail plant business and horse boarding stable in Milford, Connecticut. It was admitted that the plant customers, especially those with small children, constantly asked to see the horses. Astriab could have erected a barrier between the two businesses, but didn’t because, as was indicated, customers expected to see the horses. One day after buying plants, a father escorted his two-year-old son to view the horses. Standing close to the fence, the father proceeded to pet a horse named Scuppy. When the father turned away, Scuppy lowered his head and bit the child, taking a chunk out of his cheek. The injury required corrective surgery, resulting in permanent scarring. An action against Astriab for negligence soon followed. Before the case ever got to trial, Astriab’s lawyer made a motion before the court seeking “summary judgment.” The application stated that there was no reason for a trial, because there was no proof that Scuppy had previously misbehaved in any way, much less having ever bitten anybody. Based upon century-old Connecticut law, the Court granted the application. In dismissing that case, the judge indicated that inasmuch as pre-trial discovery proceedings had failed to uncover any evidence that Astriab knew or should have known that Scuppy could be vicious, he owed no duty to the child to protect him in any way beyond fencing the paddock. The finding of the lower court is consistent with established law in most jurisdictions involving liability for injury caused by domestic animals. In New York, for example, dog bites are not actionable unless there is either actual knowledge of a previous bite or evidence that it had been known to growl, snap or bare its teeth. Also, severely restraining the dog or keeping the dog as a guard dog may give rise to an inference that an owner had knowledge of the dog’s vicious propensities. In sum, a previous bite would render the dog as having vicious propensities, but the first bite is not “free” if the owner had other reason to know that the dog could injure someone, despite absence of a previous bite. The plaintiff in the Astriab matter appealed the judge’s decision on the theory that horses are of the class of animals that, by their very nature, have vicious propensities. In other words,  the plaintiff argued that it was not necessary to prove Scuppy was vicious, since he belongs to a species naturally inclined to do mischief or be vicious, thus rendering future injuries foreseeable, even if Scuppy never exhibited vicious tendencies. In February 2012, the appeals court determined that the trial court judge was wrong, and that the case should be sent back to the lower court. Although incorrectly reported by many mainstream media outlets, the appeals court did not determine whether all horses are vicious. Rather, it ruled that the question was one of fact, not law, which had to be resolved at trial. In reversing the lower court, the appeals judges based their decision upon a number of different grounds. First, the appeals court noted that during discovery proceedings a doctor of veterinary medicine provided a detailed description of "the propensities of horses to bite." A lifelong horseman similarly testified in his deposition that a horse can bite at any time, explaining that "[t]hey have been doing it . . . since the beginning of time, biting and kicking." For that reason, he explained that he always fed a horse either with a bucket or "palm up—I never put my fingers anywhere near the mouth of a horse." He further testified that a horse's propensity to bite is part of its nature. Second, the appeals court used Astriab’s own deposition testimony against him.  He acknowledged that horses, by their very nature, could harm a person who attempted to pet or feed them, stating that "a horse could bite you and cause great physical damage." He also testified that although he had no knowledge of Scuppy biting a person prior to the bite in question, Scuppy was no different from other horses that would bite if a finger was put in front of him. He admitted that if someone made contact with Scuppy, whether to pet or feed him, they could get bit. The appeals judges also took note of the fact that although Astriab was cognizant of the fact all horses bite, he chose not to erect a barrier between the customers and the horses. Finally, in reviewing Connecticut case law, the appeals court rejected the trial court’s interpretation of the century-old precedent relied upon by that judge.  They pointed out that the 1914 decision involved a cat, and that the court in its opinion stated, “The cat is not of a species of domestic animals naturally inclined to mischief, such as, for example, cattle, whose instinct is to rove, and whose practice is to eat and trample growing crops. The cat's disposition is kindly and docile, and by nature it is one of the most tame and harmless of all domestic animals." The appeals court reasoned that in making the cat/cattle comparison, the 1914 court implicitly acknowledged that in determining the care that an owner must exercise to keep an animal under control, the characteristics that are normal to its class are decisive. Needless to say, Astriab appealed the ruling before the trial court had an opportunity to take up the matter On Tuesday, September 24, 2013, Connecticut’s highest court, the Supreme Court, heard oral argument from both sides regarding the propriety of the appeals judges’ decision. In addition to legal briefs filed by the parties, “Friend of the Court” briefs were filed by Connecticut’s Farm Bureau and Horse Council. Both urged the high court to reverse the appeals court and reinstate the ruling of the trial level judge which dismissed the negligence action. A decision in the matter is not expected for several months. If the appeals court decision is affirmed, the case will be sent back to the trial court. If that court finds all horses to be inherently vicious and dangerous by nature, Connecticut would be the first state in the nation to do so. While not binding on other states, it would be a persuasive decision which courts in other jurisdictions might adopt. How much is riding on the Connecticut courts’ treatment of the matter? For the equine industry, including the racing and breeding industries, virtually everything. If horses are deemed to have inherent vicious propensities by nature, equine farms; training centers; riding academies; summer camps, virtually anywhere guests, customers, vendors or other third parties come in regular contact with horses, would be rendered uninsurable. It would more than likely spell the end of youth contact with horses. While waivers of liability could be required for participants, such relinquishments of rights by parties are vigilantly scrutinized by courts in order to protect victim’s rights. Insurance companies know this well, and will more than likely walk away from the industry. At best, liability insurance for equine operations would become prohibitively expensive, akin to an assigned risk pool for auto drivers with multiple accident histories. As this case exhibits, judges making wide-ranging law within limited factual settings can be downright dangerous. Based upon admissions made at a deposition by an unwitting businessman conducted by a sharp lawyer, horses may forever be lumped into a category shared by lions and tigers. All of us have known an ornery horse. Yet, for every one of them, we’ve known horses that could qualify as house pets. Yes, horses have teeth; so do dogs, and the potential for biting in a given circumstance is ever present. There is, however, a difference between potential and propensity. The thought that horses have a built-in predilection to do harm, while dogs and cats are by nature not so inclined, is asinine reasoning. Moreover, the analogy made of horses to cattle trampling crops is equally alarming. Any animal, and most humans, will act with physical force in a given circumstance, be it defensive, out of fear or illness, or by accident. Thus, isn’t every animal geared for provocative conduct in an appropriate situation? Does it render them all as possessing vicious propensities? Hopefully, the high court will do the right thing and uphold dismissal of the lawsuit. If not, it could ultimately be up to Connecticut’s legislature to develop a statute which categorizes horses as generally tame and docile. That, of course, would require the industry to navigate the political thickets, with an outcome far from certain and, in any event, subject to scrutiny by the same Connecticut court system. This is a mess that could get much worse, and for now, all we can do is wait and hope.  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. Reprinted with permission by www.ustrotting.com

If you decide to drop a claim slip in with the judges, it's fair to say that you've done all your homework first. You've looked at pedigree; studied past performances; watched how the horse makes it around the oval for several weeks and generally have the feel that you can get him to be competitive in a higher class in rapid fashion.

If you think that it's laudable to employ an undocumented alien because you're helping out someone who desperately needs a job so he can eat, you're arguably correct. While the immigration debate rages on in Washington, folks already here aren't always treated with human kindness or afforded human dignity.

What has been described in some quarters as the biggest doping scandal in racing history occurred in England last month. The magnitude of the incident aside, there is a lesson to be learned from this notorious event that has little to do with doping. The message developed is this: Advocate for others only that which you truly practice yourself.

As April 15 rapidly approaches, our thoughts turn to the annual tradition of paying the taxing authorities their due. In addition to being assessed for money earned through work, labor and services (for many called salary), those harness racing owners privileged enough to have realized purse earnings in excess of training and related expenses for the tax year are required to pay what the government is owed on such profit.

Human nature being such as it is, there is a strong tendency to blame others for our troubles. In the harness racing industry, a popular target of our rants is government. In fairness, our rage is not always completely misplaced.

The cry is heard constantly; 'Why is that guy still training? He was suspended over a year ago!' The answer is really quite simple. Those charged with a violation have a fundamental right to exhibit that they have been wrongfully accused and should be exonerated, and deserve a stay of enforcement of penalties until that right has been fully exhausted.

We've discussed the New Jersey sports betting issue before, but recent developments warrant that harness racing address the topic again. While the legal controversy over sports betting presently rages only in the Garden State, the ultimate outcome will affect every state in the union. In sum, and as we suggested last summer, proponents, including the state's Governor, shouldn't hold their breath awaiting sports betting's arrival.

The Standardbred Owners Association of New York was proud to yet again honor one of its journeyman reinsmen for achieving a haness racing career plateau. On Friday evening, December 21, the SOA feted Cleveland, Ohio native Jim Pantaleano in the Yonkers Raceway winner's circle and recognized him for capturing his 6,000 lifetime victory.

What happens in Vegas... doesn't necessarily stay in Vegas!

At every racetrack, on every harness racing date, there are multiple tips about virtually every horse in every race.

The annual general membership meeting of the Standardbred Owners Association of New York was held on Saturday, December 1 at the organization's office in Yonkers, New York.

How has man historically employed the horse? Up until the late 1800s, the irrefutable answer was that horses were primarily used as beasts of both burden and transportation.

A thriving equine industry, which includes harness racing, is vital to the health of the New York State economy, according to the results of a study released today (Tuesday October 16).

Responsibility is a word that possesses both ethical and legal connotations. I'm not legally responsible to help a stranded motorist on a cold and rainy winter night, but pangs of conscience might persuade me that pulling over to help is the right thing to do.

Given recent attendance declines and the fact that only 550 broodmares remain in the country, you'd never think that German harness racing could survive; but enter the PMU (French Tote).

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