You wish.Back to the legal issue...
Are horses an attractive nuisance? Well, it's kind of fuzzy. It depends...
- States vary in how (or whether) the attractive nuisance doctrine has been codified into law. Most states have adopted this doctrine in some way, shape, or form -- one exception is Ohio.
- Past court interpretations of state law will inform decisions about a case before the court. In Kentucky and Louisiana, for example, horses in a pasture are not considered an attractive nuisance.
- Why the injured party was on the property in the first place? It matters. Property owners have the highest duty to protect invitees (people invited on to the property), especially someone on the property for business. Owners must show active vigilance to protect them.The property owner must show reasonable care to protect licensees -- people allowed on the property, such as hunters or trail riders. For trespassers, the owner need only refrain from wanton maliciousness (note: this doesn't apply to children because of the attractive nuisance doctrine).
- The nature of the horse in question is fairly important in determining owner liability. Horses known to be gentle, who no one could forsee to be a danger to others, would not likely qualify as an attractive nuisance.
In many states, there is a sort of "legal liability checklist" that is used to evaluate attractive nuisance cases. I'm frankly a little fuzzy on why all the states would have more or less the same list, but they do. At any rate, in Kentucky law the things that make an owner liable are shown below. Specifically, the property owner is liable if...
- He or she has reason to know that children trespass on the property
- He or she knows there is something (e.g., a horse) on the property that poses a risk to children
- He or she knows that children will not perceive the danger of the situation
- He or she fails to exercise reasonable care to protect the children
- The dangerous situation is easily corrected
RESOURCES
Making the attractive nuisance less inviting from the American Quarter Horse Association
Is a horse ever considered an attractive nuisance? from Complete Guide for the Horse Business by Janet English
Liability issues from The Horse Magazine
The complete equine legal and business Handbook section on horses as an attractive nuisance
Are horses an attractive nuisance? from the Equine Legal Edge
Equine attractive nuisance NSBA August 2008
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Hey, the last link isn't working.
ReplyDeleteThe whole attractive nuisance thing is enough to give me nightmares. I've never actually had kids trespass alone, but once a father took his toddler into my barn, opened the door of my senior stallion's stall, and held the kid up to pet the horsie on the nose, at which point in time I managed to huff and puff my way into the barn from a paddock about 500 feet away and interrupt things. Another time I caught a woman trying to boost her kid, about 4 or 5 years old, over the 6 foot high no-climb fence and into a paddock containing mares with very young foals - a paddock I entered myself cautiously. When I asked her how on earth she expected the kid to get back out, she had no idea. GEEZ! Some folks just aren't good breeding material!
Fixed the link - thanks!
ReplyDeleteI worry, Harv's head is a lethal weapon. He likes to swing it about, esp. when startled. He'll never be a kids horse...
My guys would probably just cuddle the kid to death...but you never know. As far as I am concerned, no horse is actually safe. Even the "bombproof" ones are still horses.
ReplyDeleteThis is a HUGE problem that I have to deal with almost every weekend. I have a county-funded walking trail that cuts through the back of my property (when the house was purchased the walking trail was a abandoned rail road line- and perfect for horseback riding)Both of my horses are young, 5 months and almost 3, and nippng-kicking-acting like fools is what they are all about.
ReplyDelete4 "No Trespassing" signs, placing the horse fence over 20 feet from the property line and keeping all their hay right next to the house has not been successful. People place sit toddlers on the top fence rail with my 3 year old Thoroughbred running past them bucking. People cut across over a acre (and almost to my back door) to try and pet the horses while they eat. Trying to educate people that the horses are not trained has been pointless. Everyone sees a horse and assumes it it fine to trespass. It is crazy.
I finally gave up and strung a fake hot wire (that I signed "caution electric fence" across the back of the property. The plan now is to run a stockade fence across the back of the property this spring.
I'm really glad you posted this issue. I just finished telling DH that we were going to have to put a gate across the drive before we start having visitors out (we're still in the fund raising stages right now). I'll never understand why so many people bypass the ask first rule and help themselves. We've had problems with neighbors (on the other side of the pasture) tossing food over the fence "for" the horses (Captain D's fried fish, among other things; and helloooo are you kidding??).
ReplyDeleteGot that issue resolved, then about a year later had a new one crop up with someone tossing peanut hay (not perennial, but the stuff for cows) over the fence. Shadow had colic about 5 times over a one week period and we could not figure out what on earth he was getting into (of course he was eating the evidence). I ended up going door to door in desperation and asking everyone if they were feeding the horses anything. I finally found the culprit who thought he was being nice *sigh*. I'm just glad we figured it out before it killed Shadow (thankfully we keep Banamine on hand for him, as he has chronic colic).
I'm with Jean, I don't understand why people assume that horses function under a separate code than other animals; maybe it's because they're so pretty...
P.S. The Equine Legal Edge link gives an error code.
Fixed the legal equine edge!
ReplyDeleteI call it the petting zoo mentality. Country property can be an "attractive nuisance", not just the livestock. One day while gardening, I looked up and saw some college age kids walking across the field. There is a trail to the beach alongside the fence line, but somehow they missed it. I ran out yelling at them. I was sweaty and disheveled, which added to the impact They were very apologetic, but puzzled. I delivered the "never climb a fence or pass through a gate without permission" lecture. They kept apologizing, I said "Thank you, but think about this next time." I turned to walk away and I heard them say, "What a bitch!" The other problem we have is people who think they have a right to walk up our creek from the ocean. (A popular misconception: it must be a navigable waterway. )
ReplyDeleteAnother time a man was changing a tire and sent his two little girls to play in the field. They were playing in th poison oak. I told the girls to get out of the poison oak, they kmew better and claimed it wasn't poison oak. I told the father to get his girls out of the poison oak. He said, "It'll be OK!" I said, "It won't be OK when your wife has to take care of that rash they'll come down with." I walked away. Let 'em itch.
Another time, a relative came to the house with a very large unruly german shepherd who ran after the cats and horses, not mean just excited. We said "get your dog on a leash". "Oh, he's having a good time - he never gets out in the country." "But my animals are NOT having a good time, so tie him up or I'll pop him with the BB gun. I can't believe you came here without a leash and let the dog loose without asking permission!" They gave me that "What'd I do?" look.
Now I have a rooster who attacks. :-)
Anon the 1st again ~ Anon the 7th, petting zoo mentality is the perfect term!
ReplyDeleteJen, we have No Feeding signs posted as well as No Trespassing and No Hunting, and they don't do a bit of good. We've had horses pass plastic carrot and apple bags. We also lost 2 horses to yew poisoning, trimmings tossed over the fence by the same a-hole that had his tot petting my stallion on the nose.