Defending Mr. Ed (A Horse Law Update)

horse 2The title is a bit of a misnomer. Mr. Ed, the talking horse of television fame, would not need a legal defense team. Mr. Ed could talk. Jasper the horse, however, can not talk.  So when Jasper (or rather his owner) was sued by a former caretaker who alleged Jasper was a dangerous horse who attacked his caretaker unprovoked, Jasper needed lawyers. Fortunately for Jasper, he lived in Texas—and in Texas, according to a recent opinion from the Houston 14th Court of Appeals, mere “horse” play (bad pun intended) is not actionable thanks to the Texas Equine Act.

Jasper, in his early life, had been malnourished and presumably abused by a previous owner before the SPCA removed Jasper and brought him back to good health. In August of 2009, Jasper was rescued by Tisa McKim and brought to her stables.

Brenda Young often cared for horses at Jasper’s stable, and upon seeing an advertising flyer posted at the stable, Tisa agreed to pay Brenda each time she fed Jasper or cleaned his stall—$2.50 for the former, $3.00 for the latter. Brenda was given wide discretion in Jasper’s care. Tisa specified feeding instructions considering Jasper’s prior malnourishment, but other decisions were left to Brenda. On January 3rd, 2010, after caring for Jasper for three months, Brenda led Jasper to the paddock to feed him.  During the walk, Brenda stopped to chat with another horse owner. Jasper grazed beside Brenda for a while—then suddenly and without warning, Jasper turned and kicked her.

Brenda sued Tisa for negligence. Tisa moved for summary judgment, arguing the Equine Act, Chapter 87 of the Texas Civil Practice and Remedies Code, shielded her from liability. The Act provides immunity for horse owners against all participants of equine activities due to the inherent risk of equine activities. The trial court agreed that Tisa was immune under the Act and granted her summary judgment motion. Brenda appealed.

On appeal, Brenda claimed the Equine Act only shielded equine sponsors of tourists and other consumers of equine activities from liability. The 14th Court of Appeals did not agree. The Court reasoned that the statute applied to all participants of equine activities, and that leading a horse to a paddock for feeding is an equine activity. Accordingly, Tisa was not liable for Brenda’s injuries resulting from her participation in an equine activity.

Brenda argued alternatively that because Tisa did not warn her that Jasper was an adopted, previously mistreated animal, Tisa willfully disregarded Brenda’s safety and the Equine Act did not offer immunity. Summary judgment evidence showed that mistreated horses may experience “flashbacks” of their mistreatment and may act unpredictable. But the Court held that the evidence was insufficient to create a fact issue because there was no explanation as to what exactly a “horse flashback” is. Nor was there an explanation why someone who held themselves out as qualified to care for horses needed warning of previous malnourishment or the danger of standing behind a horse. Finally, evidence showed Jasper to be well-behaved and “gentlemanly.” The Court held that immunity under the Equine Act still applied, even to rescue horses.

Fortunately for “Gentlemanly” Jasper, the Equine Act continues to provide horse owners with a shield from liability, ensuring that people like Tisa McKim will not be punished for rescuing and caring for abandoned and mistreated animals like Jasper. And for caretakers of horses, one would be wise to remember the immortal words of Christopher Stone: “Horses are uncomfortable in the middle and dangerous at both ends.”

The full opinion can be found at Young v. McKim, 373 S.W.3d 776 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).

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