Laws For Paws

Civil Lawsuits Involving Animals

Just a reminder that I will be speaking for the Houston Bar Association this Friday from 1 to 2:30. The topic is civil lawsuits involving animals, but my focus will be on horses. I'll discuss a broad range of lawsuits, including personal injury lawsuits, stableman's liens,  and racing issues. 

My co-speakers will be Professor Fran Ortiz and Zandra Anderson.

Professor Ortiz is a Harvard-educated lawyer who teaches animal law at South Texas College of Law.  She also directs the animal law clinic at South Texas.

Zandra Anderson is a Houston lawyer who specializes in animal law. She is known as the Texas Dog Lawyer and has a website at: http://texasdoglawyer.com/

Please join us on May 17, 2013 from 1 p.m. to 2:30 p.m. at the Harris County Jury Plaza, 1201 Congress, Houston, Texas 77002. The program is free for members of the Houston Bar Association. Written materials are available for $15. Non-members may attend for $50, including written materials. You may obtain additional information by calling the Houston Bar Association at 713-759-1133.

Fields of Bluegrass

Envision mares and foals galloping though fields of bluegrass on a cool Kentucky morning. Flowering pink and white dogwood trees. A race horse munching hay in his stall. This week, that’s life as I know it.

I’m attending the 2013 National Equine Law Conference at the historic Keeneland Race Track in Lexington, Kentucky. http://www.keeneland.com/ It is the home of the largest thoroughbred auction in the world and is arguably the most beautiful track in the United States. This week it serves as the best legal education location ever.

Equine lawyers gather from across the nation to hear experts speak for two days on topics such as sport horse breeding, racing partnerships, the use of expert witnesses, transportation issues, and veterinary malpractice.

One topic receiving a lot of discussion among the attendees was the proposed bi-partisan immigration reform act being considered in the U.S. Senate (The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.) Puzzled? Why would people attending a conference on horse law care about immigration law?

Here’s why: Many farms and stables hire immigrants as grooms, exercise riders, stable hands, trainers, and hot walkers. Depending upon whom I asked, people estimated that illegal immigrants make up 50 to 80 percent of the workers in barns nationwide.

Just last month, United States Immigration and Customs Enforcement fined big name trainer Dale Romans $150,000.00 for using improperly documented workers. Mr. Romans is a well-known thoroughbred trainer who, among other honors, won the Eclipse Award for top trainer in 2012. Apparently, the fines related to I-9 forms, which are used by employers to verify that their employees are legally in the country.

It is possible that Mr. Romans received forged documentation from his employees. He has denied any wrongdoing and his lawyers are appealing the fine. But his case illustrates the impact which the pending immigration reform legislation could have on the horse industry. In its current form, the legislation would provide a path to citizenship or legal residency for certain immigrants, thereby making it easier to hire workers from other countries for the agricultural industry.

Here’s another important thing I learned: If you are in Kentucky and are too busy to attend the Derby at Churchill Downs Race Track in Louisville, you can place a bet on the race at Keeneland. If you are so busy that you can’t bother getting out of your car, take advantage of Keeneland’s drive through betting windows. You won’t have to miss an opportunity to pick the next Derby winner.

Horse racing is considered gambling for a reason

“Horse racing is considered gambling for a reason” is a great quote from the case of Simpson v. Baronne Veterinary Clinic, Inc., 803 F. Supp.2d 602 (S.D.Tex. 2011).

Here are the facts: “Jess for the Memories” (Jess) was a quarter horse used for racing. Jess was lame, which is quite a problem if your job is to run. In 2009, his veterinarian (Baronne) diagnosed joint problems and injected Jess with an anti-inflammatory.

A few days later, Jess could trot but his stride had shortened. He was injected with different drugs. Four days later, Baronne inspected Jess and found no signs of infection. A few days after the inspection, Jess raced at Sam Houston Race Park and won. But later he was sore in one of his hind legs. Long story short, Jess was taken to a different vet but could not be rehabilitated. His racing career was kaput.

His owners brought suit, alleging Baronne was negligent in treating Jess. Baronne filed a summary judgment to have the lawsuit thrown out of court.

Without wading through all the legal issues involved, let’s focus on one: Can the owners recover their lost potential profits?

The owners claimed that Jess’ sire and dam were high quality racing quarter horses with impressive pedigrees. They further claimed that their horse showed great potential by objective measurable characteristics. The defendant pointed out that during 2008 (the horse’s maiden year on the track) he only ran twice, finishing 6 out of 9 in one race and dead last in the other race. After the second race, his owners had him castrated (ouch!), therefore his future earnings were limited to race winnings; stud fees were not a possibility.

The judge ruled that Texas law does not allow an injured animal’s owner to recover lost potential profits. Any recovery is limited to the difference in the animal’s market value immediately before and after an injury caused by the defendant. Future race winnings are too speculative to be recovered.

The judge granted the part of the defendant’s summary judgment related to lost potential profits. Instead of proceeding to trial on their negligence claim, I’m told that the owners reached a confidential settlement with the vet.

Good case and it reminds me of a quote from W.C. Fields: “Horse sense is the thing a horse has which keeps it from betting on people.” 

 

Protecting Wildlife: The Lacey Act and the Migratory Bird Treaty Act

The Houston Bar Association Animal Law Section will have its next meeting on April 18, 2013. The speaker is Jim Stinebaugh, special agent for the United States Fish & Wildlife Service. He will speak on the Lacey Act and the Migratory Bird Treaty Act and their impact on the oil industry.

The United States Fish and Wildlife Service is a federal agency within the U.S. Department of the Interior  dedicated to the management of fish, wildlife, and natural habitats. Its mission is "to work with others to conserve, protect, and enhance fish, wildlife, and plants and their habitats for the continuing benefit of the American people." It has a fantastic website at www.fws.gov which covers a wide range of topics including invasive species, wetlands, wildlife refuges, and connecting people with nature.

The Lacey Act and the Migratory Bird Treaty Act are two fascinating federal laws enforced by the Fish & Wildlife Service.

The Lacey Act protects wildlife (and plants!) by creating civil and criminal penalties for a wide array of violations. It prohibits trade in wildlife, fish, and plants that have been illegally taken, transported or sold. One of its main purposes is to prevent the importation or spread of potentially dangerous non-native species. For example, in 2012, the Fish & Wildlife Service banned interstate transportation of four species of constrictor snakes, due to their negative impact upon the Florida Everglades. One of the banned snakes, Burmese pythons, can grow to more than 20 feet long, weigh 200 pounds, and live more than 25 years. Many snakes are released by their owners into the wild when they can no longer care for their pet, and other snakes escape from inadequate enclosures. These predators can have a significant negative impact upon native species.

The Migratory Bird Treaty Act protects migratory birds. Over 800 species are protected, including Bald Eagles, Barn Owls, and Ruby-throated Hummingbirds. The Act makes it unlawful to pursue, hunt, take, capture, kill or sell migratory birds. There are exceptions, such as one for Native American tribes to use eagle feathers in religious ceremonies.

The Animal Law Section program takes place from 12 p.m. – 1 p.m. in Room 314 at South Texas College of Law. The State Bar of Texas approved the program for 1 hour of continuing legal education credit; non-lawyers are welcome to attend as well.

The cost of the seminar is $20.00; students may attend for free. If you plan to attend, make your check payable to the HBA Animal Law Section and mail to:

Bob Inger, 5909 West Loop South, Suite 305, Bellaire, Texas 77401

If the $20.00 payment is received more than 48 hours before the event, a box lunch is included in the price of the seminar. (A student sending in a check for $8.00 more than 48 hours before the event receives a lunch also.)

Contact Bob Inger at rjinger@comcast.net for more information.

 

Texas Bar Journal

I am honored to be the featured blogger in this month's edition of the Texas Bar Journal. The Bar Journal is the official magazine of the State Bar of Texas. It is distributed to all lawyers licensed by the State Bar. Every month, the Technology Section of the magazine spotlights one blogger and features 4 or 5 websites he or she has found useful. Here is a screenshot from the Texas Bar Journal:

 

Harris County District Attorney will begin including pets in protective orders

Great news. As of March 18, 2013, the Harris County District Attorney’s Office will include pets in domestic violence protective orders issued pursuant to the Texas Family Code.

This issue was raised during last week's Houston Bar Association Animal Law Section program featuring Judge Warne speaking about domestic violence. After the program, several members of the audience expressed concern that the Harris County District Attorney's Office was not including pets in protective orders, although the law allows it.

In 2011, the law changed to allow pets to be included in domestic violence protective orders. People wondered why the DA’s Office didn’t have forms consistent with current law. Wouldn’t someone update the forms after each legislative session? Was the DA’s Office unaware of the current state of the law?

Including animals in protective orders would not require additional funding. It would not require additional personnel. Why wasn’t it being done? No one could think of any logical reason.

Judge Warne had mentioned the main motivation of the law was not to help animals, but to allow domestic violence victims to leave bad situations without having to worry about their pets. So even if the District Attorney isn’t a big animal lover, the law was actually designed to help human victims.

Perplexed, I emailed District Attorney Mike Anderson and asked him about the situation.

I received a return email from Stephanie Armand, special assistant to Mike Anderson. She forwarded a written response from Assistant District Attorney Lisa Porter. It says:

Beginning March 18, 2013, pursuant to section 85.022(b)(7) of the Texas Family Code, all two year protective orders will include language that prohibits the person found to have committed family violence from harming, threatening, or interfering with the care, custody, or control of a pet, companion animal, or assistance animal, as defined by Section 121.002, Human Resources code, that is possessed by a person protected by an order or by a member of the family or household of a person protected by an order.  This language, which will be added to all our protective orders issued under this statute, tracks the statute verbatim.

After receiving this email, I spoke to Ms. Porter. She was very helpful in explaining the DA’s procedure, although she was unable to explain why animals have not been included in family violence protective orders in the past. But that is the past and doesn’t matter. The important thing is, beginning March 18, 2013, the District Attorney’s Office will include pets in domestic violence protective orders. And that is very good news, not only for the animals, but for the people who love them. 

 

Domestic violence, protective orders, and animals

On February 28, Judge Judy Warne spoke to the Houston Bar Association Animal Law Section about domestic violence, protective orders, and animals. Judge Warne serves as judge of the 257^th Judicial District Court in Harris County. Her court hears only family matters, such as divorces and adoptions.

Apparently, domestic violence is such a huge problem that Harris County created a separate domestic violence court which handles about 4,000 protective orders a year. The Texas Family Code allows a judge to issue a protective order to prohibit a perpetrator of family violence from certain actions, such as going near the home of his victim.

Where do animals come into this?

In 2011, the Texas Legislature passed a bill allowing a judge to include pets in protective orders. Now, the Texas Family Code allows a judge to prohibit a perpetrator of family violence from harming the family pet. Or threatening the pet. Or removing the pet from the possession of the victim.

A few interesting points:

1. Judge Warne was instrumental in passage of the 2011 legislation to include pets. However, her main motivation was not to help animals (although she is an animal lover) but to allow women to leave abusive situations without having to worry about the pets. Apparently, abusers will hurt pets, as well as people. They frequently threaten to harm the pet as a method of controlling their victims. Judge Warne believes victims should be able to escape an abusive situation without leaving behind everything they love and care about.

2. In the current Texas Legislative session, Senate Bill 555 has been introduced to amend the Texas Family Code to protect victim’s pets when they are cared for by someone else. For example, an abused woman flees and goes to a woman’s shelter. The shelter won’t take dogs so she leaves her Cocker Spaniel with her mother. Under the proposed bill, a judge could enter a protective order which would include the Cocker Spaniel while it lives at the mother’s house.

3. Victims can obtain a protective order by hiring a private lawyer or by seeking help through the District Attorney’s Office. Poor people almost always use the District Attorney’s Office because they can’t afford to hire a private lawyer. During the February 28 program, numerous people expressed concern that the Harris County District Attorney’s Office wasn’t including pets in domestic violence orders, although the law clearly allows it. I didn't even realize this was a problem. Elizabeth Asher, Houston family law attorney said:

"There are likely cases where a spouse has not left the home because they were not informed that their pet could be protected. Remaining in the home, to protect a pet, could be life threatening. The law changed in 2011 and victims have the right to know that, just like any other change in the law."

I plan on contacting the Harris County District Attorney’s Office and asking that pets be routinely included in domestic violence orders. It’s the right thing to do for the victims of domestic violence and for their animals. If you would like to contact District Attorney Mike Anderson to express your opinion, his email address is Anderson_mike@dao.hctx.net and his phone number is 713-755-5800.

Woman leaps through air to avoid neighbor’s dog and smashes herself on door. Who pays for her injuries?

Cherie Absher was in her garage, presumably minding her own business, when her neighbor’s dog, Bruiser, appears. Cherie claims Bruiser growled and bared his teeth at her. Afraid, Cherie jumps onto the top of her car. In a Spiderman-like attempt, she then LEAPS from her car toward the garage entry to her house. Lacking Spiderman’s super-powers, she crashes into the door frame and smashes her face, neck, and back. Kids, never try this at home.

Cherie sues Bruiser’s owners, the Zimmers, seeking compensation for the personal injuries she sustained. I'm told that none of her injuries were dog bites or scratches - all related to crashing into the door frame. (On a sad note, Bruiser did kill Cherie's tabby cat. Since an ordinary house cat wouldn’t have much in the way of value, I’m guessing that Cherie wasn’t able to prove damages for the cat.)

The Zimmers filed a traditional motion for summary judgment and a no-evidence summary judgment motion on all of Cherie’s claims. Without stating the basis for its order, the trial court rendered summary judgment for the Zimmers. Cherie appealed on one issue: that the Zimmers were negligent per se because the local animal control ordinance makes it unlawful for a custodian to allow a dog to run at large. (Non-lawyers: a summary judgment is an expedited way for a case to be decided without going to trial and negligence per se is basically a rule that allows a judge to rely upon a statute to declare someone’s conduct negligent without any evidence about the surrounding circumstances.)

The Zimmers said that they did not violate the leash law because they did not “let” Bruiser off their property. They produced evidence that their dog was kept in their fenced backyard with the gate locked, Bruiser had never escaped before, and on the day of the accident, someone set off fireworks which scared Bruiser and caused him to escape.

Cherie’s theory was that the animal control ordinance was violated because of the fact that Bruiser was on her property and not restrained by a leash; therefore, the Zimmers were per se negligent. She did not have any proof that the Zimmers permitted their dog to run at large.

Who wins? The Zimmers. The San Antonio Court of Appeals said that the Zimmers were entitled to a no-evidence summary judgment in their favor because Cherie had failed to produce more than a scintilla of evidence to meet her burden that Bruiser ran at large with the Zimmers’ consent or because of their negligence. Her per se negligence argument didn’t fly. You can read the case for yourself at 2012 WL 6029857. (Special thanks to attorney David L. Treat for taking the time to discuss this case with me. He represented the Zimmers.)

Animal Law Institute

The State Bar of Texas Animal Law Institute will take place in Houston this year. It features a wide range of topics, including:

• Updates on recent cases and legislation that may impact the practice of animal law
• An overview and update on licensing and enforcement under the Dog or Cat Breeders Act (the commercial breeder law)
• A review of standards for the care and welfare of research animals
• A discussion of the conflicts that can arise when environmental projects affect wildlife in the context of animal law protection
• A panel discussion on the impact of natural disasters on animals in Texas and the state and local response
• A review of the Texas Dangerous Wild Animal Act
• An exploration of the ways that alternative dispute resolution can be used to resolve common animal-related disputes between owners, rescues and shelters, and law enforcement
• A review of ethical issues that can arise in the practice of animal law.

The Institute will be held on March 22, 2013 at South Texas College of Law. It includes 7.25 hours of CLE credit (including 1 hour of ethics) at the bargain price of $110 for lawyers if they register before March 1. Government lawyers and academics pay a discounted price of $75.00 and non-lawyers pay $50.00. Students are free but must register.

To register, or for additional information, go to www.animallawsection.org/institute

For questions, contact Fran Ortiz at fortiz@stcl.edu (subject line "Animal Law Institute"). 

 

 

Is an owner liable if her horse kicks its caretaker?

Let’s assume that a horse owner can’t always be at the stable. She occasionally hires someone to feed and care for her gelding. One day, the horse kicks and injures the caretaker. Is the owner legally responsible for the injuries?

Those are the basic facts of the case of Young v. McKim. Here are some additional facts for you to contemplate: The horse (named Jasper) had been starved, rescued by the Houston SPCA, and adopted by McKim. Little was known about his past life but during his time at the SPCA, he behaved in a “gentlemanly” fashion. Jasper was gelded before leaving the SPCA and his new owner boarded him at Ravensway Stables, where Young advertised her availability to help people care for their horses (for a fee). When McKim hired Young to care for Jasper, Young had worked with 12 or 13 horses over the previous five years.

Jasper never did anything to cause Young any concern. (Well, not until the day he kicked her anyway.) On the day of the accident, Young went to Ravensway to feed Jasper. The horse appeared normal and there was nothing unusual about his behavior. She led Jasper to the paddock and then stopped to speak to another boarder at the stable. While they spoke, Jasper grazed. At some point, Jasper kicked Young, injuring her.

Now that you know the basic facts, do you think the owner is legally responsible for the caretaker’s injuries?

I previously discussed the Texas Supreme Court case of Loftin v. Lee which interpreted the Texas Equine Limitation of Liability Act (Equine Act). Basically, the Equine Act limits the circumstances under which someone injured by an equine may recover for his injuries. In Loftin v. Lee, two friends were riding when one fell off her horse and was hurt. She sued her friend but was unable to recover damages for her injuries because of the Act.

The situation in Young v. McKim was different. It did not involve recreational use of a horse. The person injured was a hired hand, not a friend. The kicker had been rescued from a bad situation. And the Equine Act does contain various exceptions to the limitation on liability, including a willful or wanton disregard for safety or failure to make a reasonable effort to determine the ability of someone to participate in the equine activity. Does any of this make a difference?

The trial court in Young v. McKim did not think so. The judge granted a summary judgment in favor of the owner. (For you non-lawyers: a summary judgment is an expedited way to win a case without going to trial.) Young, not being happy with being poured out of court, appealed. In 2012, the Court of Appeals ruled in favor of the owner.

The Court said that the Equine Act is not limited only to “consumers” of equine activities. It said that the owner’s failure to inform the caretaker that Jasper was a rescue horse or that he had recently been gelded did not constitute a willful or wanton disregard for the caretaker’s safety. The Court deemed the hired hand to be an independent contractor and not an employee (who might have been covered by the Workers’ Compensation Act).

So there you have it: the owner was not liable when the caretaker was injured.

Obviously, this is just a summary of a complex case and there is much more to it. You can read the appellate case at 373 S.W.3d 776 or view the trial court documents (and see a photo of handsome Jasper himself) on the Harris County District Clerk’s website under cause no 2010-24816. As always, stay safe around horses and carry plenty of insurance.