Can A Horse Be Considered “Vicious?”
NEW YORK EXPANDS LIABILITY OF HORSE
OWNERS WHEN HORSES INJURE OTHERS
As a general rule, an owner of a horse or other domestic animal can be held strictly liable (that is, without any fault on the part of the owner) for harm caused by such animal only if he or she "knows or should have known of that animal's vicious propensities." What is a vicious propensity? The courts have defined it as “the propensity to do any act that might endanger the safety of the persons and property of others in a given situation.” In other words, a natural tendency to act in a way that might harm people or property. The behavior itself does not have to be considered dangerous or ferocious, so long as it reflects a proclivity to act in a way that puts others at risk of harm.
For decades, horses as a group have not been deemed to fall within this definition. As a result, injuries caused by horses who are merely “acting like horses,” have not been actionable. However, in a recent case out of Saratoga County, a New York appellate court issued a ruling allowing an injured person to pursue a common law negligence claim, which, if successful, would expose horse owners to more lawsuits and more verdicts.
In Robert Carey v. Burton Schwab, defendant Schwab, along with two women, rode their horses Whiskey, Sally and Cowboy to a local tavern. While the riders were in the tavern, Whiskey and Sally got loose and took off down the road. Plaintiff Robert Carey was inside his nearby home when he saw the horses running down the road, being chased by one of the riders, Jan Wilson. Mr. Carey got in his car and ultimately helped corral the horses by pulling his car in front of them.
With the horses stopped, Ms. Wilson grabbed Whiskey’s reins, but the horses got loose again and continued down the road. When the horses stopped in a pasture, Ms. Wilson again collected Whiskey’s reins. Ms. Wilson then asked plaintiff Carey to hold Whiskey’s reins so she could retrieve Cowboy. Unfortunately, while Carey was holding Whiskey’s reins, the horse got spooked and head-swatted him. Carey was knocked unconscious, fell to the ground and, while still holding Whiskey’s reins, was dragged and stepped on.
Carey sued defendant Schwab, Whiskey’s owner. Under traditional standards, in order to prevail, plaintiff Carey would have to establish that Whiskey had vicious propensities and that defendant Schwab knew about them.
Schwab promptly asked the Court to dismiss the case, claiming that he did not have any prior notice that Whiskey had any vicious propensities or a history of dangerous behavior. In support of his position, Schwab offered substantial testimony, corroborated by others, that Whiskey was a calm, docile horse. However, plaintiff Carey offered the testimony of Thomas Merrills (who actually was a friend of Schwab’s and had been to Schwab’s barn many times), who told the court that he had seen the horse rear up and stand on two legs and that the horse was always throwing his head up in the air.
Ultimately, the court denied Schwab’s motion to have the case thrown out. The court concluded that the conflicting testimony about the horse’s prior behavior precluded it from ruling one way or the other as a matter of law and that it would be for a jury to decide. The court noted that at trial, the burden would be on plaintiff Carey to establish that defendant Schwab had notice of a vicious propensity attributable to Whiskey.
Then, in 2013, before the case got to trial, New York’s highest court issued an opinion in Hastings v. Suave, 21 NY3d 122 (2013), in which it allowed a plaintiff to pursue a claim for negligence. In Hastings, the plaintiff was injured when her vehicle struck defendant’s cow, who had wandered onto a public road after escaping through a fence that defendant had not properly maintained. The court recognized that to limit lawsuits to claims of strict liability where an injury was solely the result of the negligence of the owner – and had nothing to do with the animal’s vicious or dangerous propensity – would “immunize defendants who take little or no care to keep their livestock out of the roadway of off of others people’s property.” Hastings, 21 NY3d at 125.
Based on the Hastings opinion, plaintiff Carey sought to add a claim for common law negligence. This likely would make it easier for Carey to prevail at trial because he would have to show only that Schwab was negligent in caring for Whiskey (i.e., that he did not sufficiently tie the horse up at the tavern) as opposed to trying to demonstrate that Whiskey had vicious propensities and Schwab knew it.
On November 20, 2014, the court allowed Carey to amend his Complaint to add a claim for common law negligence. No trial date has been set, but at this point, Carey will be armed with two different theories to advance to the jury.