The case of the “vi­cious” horse

A re­cent court rul­ing in Con­necti­cut raises im­por­tant ques­tions for horse own­ers ev­ery­where.

EQUUS - - Contents - By Karen El­iz­a­beth Baril

A re­cent court rul­ing in Con­necti­cut raises im­por­tant ques­tions for horse own­ers ev­ery­where.

hen you hear the words “vi­cious an­i­mal,” you prob­a­bly have a pretty clear im­age of what that means. Maybe you’re think­ing of the ur­ban dog who rushes his fence to snarl and bark at ev­ery­one who passes on the side­walk. Or per­haps the griz­zly bear---a species with a well-de­served rep­u­ta­tion for fierce­ness---comes to mind. In ei­ther case, the an­i­mal would read­ily at­tack and in­jure a per­son with lit­tle or no provo­ca­tion.

But what about the cu­ri­ous horse who reaches across his fence and bites a friendly vis­i­tor? That, too, can be de­scribed as an un­pro­voked ac­tion that causes a se­ri­ous in­jury to a per­son. And, as we all know, almost any horse

“THIS HORSE” VER­SUS “ALL HORSES”

might nip a per­son un­der the right cir­cum­stances. Is a horse an in­her­ently “vi­cious an­i­mal,” too?

Your first an­swer is prob­a­bly, “Of course not!” How­ever, that ques­tion re­cently went through the courts here in my home state of Con­necti­cut, and our state’s Supreme Court an­swered it---with an un­equiv­o­cal “Yes.”

The state leg­is­la­ture quickly passed a law to pro­tect horse own­ers from un­in­tended con­se­quences of this court decision---but the case law still stands, and it could have had se­ri­ous im­pli­ca­tions for horse own­ers in Con­necti­cut. The reper­cus­sions could eas­ily be felt in other states, too.

Here’s what hap­pened. On May 18, 2006, An­thony Ven­drella brought his then-2year-old son to Glen­dale Farms in Mil­ford, Con­necti­cut. A third-gen­er­a­tion fam­ily op­er­a­tion, Glen­dale Farms sells flow­ers, herbs and other plants to the gen­eral pub­lic. In ad­di­tion to its pri­mary business, Glen­dale also has a horse-board­ing op­er­a­tion, which pro­vides stalls and turnout as well as ac­cess to a rid­ing ring and nearby trails.

Ven­drella pur­chased plants in the Glen­dale green­house, then went to the park­ing lot and placed them in his car. The park­ing lot was ad­ja­cent to a pad­dock, which housed three horses. It wasn’t un­com­mon for vis­i­tors to Glen­dale to stop and look at the horses, and Ven­drella car­ried his son over to visit a horse named Scuppy. Stand­ing within a foot of the fence, Ven­drella stroked Scuppy on the head while his son watched, but when Ven­drella turned his at­ten­tion to­ward another horse, Scuppy reached out and nipped the tod­dler on the cheek. The bite re­moved a por­tion of flesh, and the in­jury re­quired surgery and left a per­ma­nent scar.

In May 2008, Ven­drella sued Ti­mothy As­triab, owner and man­ager of Glen­dale Farms, seek­ing da­m­ages for al­leged neg­li­gence and reck­less­ness. As­triab had posted signs warn­ing peo­ple not to touch or feed the horses; how­ever, the Ven­drella team claimed, th­ese mea­sures were not ad­e­quate to pro­tect the gen­eral pub­lic from a dan­ger­ous an­i­mal.

The is­sue at the heart of the case boiled down to the na­ture of horses. The plain­tiff ar­gued that “a horse, by its very na­ture, is ca­pa­ble of bit­ing some­one with­out provo­ca­tion or pre­dis­po­si­tion and that this was known to the de­fen­dants.” In other words, the plain­tiff needed to prove that all horses are by their ba­sic na­ture dan­ger­ous--that is, “vi­cious”---an­i­mals who might be in­clined to bite and in­jure peo­ple with­out warn­ing.

The de­fense coun­tered that As­triab had no prior knowl­edge of any “vi­cious dis­po­si­tion or propen­si­ties on the part of the [in­di­vid­ual] horse” in­volved. In other words, Scuppy had never bit­ten any­one be­fore, nor had any other horse housed on Glen­dale Farms in 28 years. And so it was un­rea­son­able to ex­pect ex­tra­or­di­nary mea­sures to keep this par­tic­u­lar horse sep­a­rated from the pub­lic.

The ini­tial case was dis­missed, with a sum­mary judg­ment in fa­vor of As­triab, with the state­ment that, “the plain­tiffs have failed to show, as they must, that the de­fen­dants were on no­tice that Scuppy specif­i­cally, and not horses gen­er­ally, had a ten­dency to bite peo­ple or other horses. There­fore, the de­fen­dants

owed no duty to the plain­tiffs.”

Ven­drella ap­pealed and won, and the case made it to the Con­necti­cut Supreme Court in 2013, which up­held the ap­peals court’s decision in Ven­drella’s fa­vor, stat­ing that horses do in­deed be­long to a “species nat­u­rally in­clined to do mis­chief or be vi­cious.”

Some state­ments made dur­ing the case, cited in the court’s of­fi­cial opin­ion re­leased April 1, 2014, are quite chill­ing if you imag­ine them be­ing used one day to prove that your own horse is “nat­u­rally vi­cious.” To support their claim, Ven­drella’s team of­fered ev­i­dence from sev­eral ex­perts, in­clud­ing an equine vet­eri­nar­ian, an an­i­mal con­trol of­fi­cer--and As­triab him­self:

• Bradley W. Amery, DVM, sub­mit­ted an af­fi­davit that “‘[b]it­ing is a nat­u­ral part of horses’ lives and horses can bite for many rea­sons.’ Be­cause of the anatomy of the horse’s head, a horse can­not see what is di­rectly in front of its nose and ‘is re­liant on the sen­sory in­put from his mouth.’” He also said that “‘[b]it­ing is … a common form of mu­tual groom­ing’ by horses. When hu­mans repli­cate this nat­u­ral groom­ing be­hav­ior, a bite can re­sult…. Other con­duct, such as scratch­ing the horse’s muz­zle or head, pet­ting its neck or giv­ing ver­bal re­wards can also re­sult in nip­ping be­hav­ior that can es­ca­late to a full bite if the per­son is not pay­ing com­plete at­ten­tion to the horse.”

• Richard George, the an­i­mal con­trol of­fi­cer who had in­ves­ti­gated the orig­i­nal in­ci­dent, tes­ti­fied that, “a horse doesn’t have to have a ten­dency to bite in or­der to bite.” He stated that he him­self in the past had been bit­ten hard enough to break the skin by a horse who “had not been known to bite.”

• As­triab, in his own tes­ti­mony, had de­scribed Scuppy as “a typ­i­cal horse.” He also ac­knowl­edged, how­ever, that “a horse, by its very na­ture, could harm a per­son who at­tempts to pet or feed [it], stat­ing that ‘a horse could bite you and cause great phys­i­cal dam­age.’” And, “When asked if Scuppy was dif­fer­ent from other horses that would bite if a fin­ger was put in front of him, As­triab an­swered, ‘[n]o.’… When asked whether ‘a per­son who doesn’t know Scuppy … can go up to Scuppy, put [his] hand out and the horse, be­ing a horse, could bite that per­son,’ As­triab an­swered, ‘[y]es.’” The fact that As­triab had posted warn­ing signs, ask­ing peo­ple not to pet or feed the horses, was cited as ev­i­dence that he knew of the dan­ger prior to the in­ci­dent.

The lan­guage the court used--“mis­chievous or vi­cious”---was based on le­gal prece­dents, es­pe­cially a 1914 case in­volv­ing an in­jury from a do­mes­tic an­i­mal, Bischoff v. Cheney, in which an An­gora cat bit a neigh­bor, and the care­taker was sued for “fail­ing to re­strain a cat known to be vi­cious.” In that case, the court con­cluded that, as a species, “the cat’s dis­po­si­tion is kindly and docile, and by na­ture it is one of the most tame and harm­less of all do­mes­tic an­i­mals” and also that “the cat is not … nat­u­rally in­clined to mis­chief, such as, for ex­am­ple, cat­tle, whose in­stinct is to rove, and whose prac­tice is to eat and tram­ple grow­ing crops.” Be­cause the plain­tiff in that case could not prove the de­fen­dant had prior knowl­edge of the An­gora’s vi­cious na­ture, the court ruled in fa­vor of the de­fen­dant.

In con­sid­er­ing the cur­rent case, the court cited Bischoff v. Cheney when it stated that, “this court rec­og­nized that do­mes­tic an­i­mals fall into three gen­eral cat­e­gories: (1) an­i­mals that ‘have ei­ther mis­chievous or vi­cious propen­si­ties which are known by [the owner]’; (2) those that be­long ‘to a species nat­u­rally

in­clined to do mis­chief or be vi­cious,’ but that have no known mis­chievous propen­si­ties; and (3) those that nei­ther have known mis­chievous propen­si­ties nor be­long to a species with nat­u­rally mis­chievous propen­si­ties.”

The Court con­cluded that, “as a mat­ter of law, the owner or keeper of a do­mes­tic an­i­mal has a duty to take rea­son­able steps to pre­vent the an­i­mal from caus­ing in­juries that are fore­see­able be­cause the an­i­mal be­longs to a class of an­i­mals that is nat­u­rally in­clined to cause such in­juries.” The rul­ing also stated that, “it was fore­see­able that Scuppy would bite the mi­nor plain­tiff caus­ing his in­jury be­cause horses, as a species, have a nat­u­ral in­cli­na­tion to bite.”

In other words, horses be­long in cat­e­gory two: “a species nat­u­rally in­clined to do mis­chief or be vi­cious.”

THE FALL­OUT

Words are pow­er­ful. “In­clined to do mis­chief” might have been a more apt de­scrip­tion, but it was the term “vi­cious horse” that ap­peared in head­lines around the world. Most Con­necti­cut cit­i­zens seemed to think that la­bel­ing horses “vi­cious” was some­what ridicu­lous. In short, it was widely be­lieved, the rul­ing was mak­ing Con­necti­cut look bad.

Still, I was sur­prised that some Con­necti­cut res­i­dents, horse own­ers in­cluded, be­lieved the rul­ing didn’t have much to do with them. I heard one back­yard owner scoff, “Who cares? It doesn’t af­fect us.” Her rea­son­ing? The court had stopped short of say­ing that horse own­ers had any more li­a­bil­ity than they’d had in the past. Law­suits would still be de­cided on a case-by-case ba­sis.

What had changed was this: A plain­tiff or in­jured party would no longer have to prove that an owner knew a horse had a prior his­tory of bad be­hav­ior in or­der to plead a case. In­stead, it would be con­sid­ered common knowl­edge that horses were nat­u­rally in­clined to bite, given the na­ture of their species.

But while some dis­missed the im­pact of the case, many of us in the horse com­mu­nity were wor­ried that pair­ing the words “vi­cious” and “horses” in the same sen­tence could only spell bad news for Con­necti­cut horse own­ers.

“Please un­der­stand that if horses are de­ter­mined to be ‘vi­cious an­i­mals,’ they would be unin­sur­able, and any and all uses would be af­fected,” wrote Fred­er­ick J. Mastele, act­ing pres­i­dent of the Con­necti­cut Horse Coun­cil, in an open let­ter to the horse com­mu­nity. “Train­ing and board­ing sta­bles, ther­a­peu­tic rid­ing, horse camps, pet­ting zoos, trail rid­ing, and other horse-re­lated uses and ac­tiv­i­ties would be im­pacted.”

In Fe­bru­ary 2014, Con­necti­cut’s Gov­er­nor Dan­nel P. Mal­loy took ac­tion to pro­tect horse own­ers by in­tro­duc­ing leg­is­la­tion to spec­ify that horses, ponies, don­keys and mules are not “in­her­ently dan­ger­ous.” The law states that, “In any civil ac­tion brought against the owner or keeper …, such horse, pony, don­key or mule shall not be found to be­long to a species that pos­sesses a nat­u­rally mis­chievous or vi­cious propen­sity.”

By most es­ti­mates, Con­necti­cut is home to more than 50,000 horses. In a pub­lic state­ment, Mal­loy said, “Con­necti­cut’s agri­cul­ture sec­tor con­trib­utes $3.5 bil­lion to our econ­omy and ac­counts for about 28,000 jobs in our state. Pro­tect­ing own­ers and han­dlers of do­mes­ti­cated horses is im­por­tant to sup­port­ing this por­tion of our econ­omy.”

Mal­loy’s law (Pub­lic Act No. 1454: An Act Con­cern­ing the Li­a­bil­ity of Own­ers and Keep­ers of Do­mes­ti­cated Horses, Ponies, Don­keys and Mules) was passed unan­i­mously by the Con­necti­cut State Se­nate (by a vote of 35 to 0) and House of Rep­re­sen­ta­tives (138 to 0) and signed into law in July 2014.

HOW THIS RUL­ING MAY AF­FECT YOU AND ME

What can horse own­ers across the na­tion learn from Con­necti­cut’s “vi­cious horse” case?

The word “vi­cious” im­plies in­tent to do harm and puts horses in the same cat­e­gory with griz­zlies---although even bears are short­changed by the word. A preda­tor’s nat­u­ral instincts to kill are about sur­vival, not mal­ice. Vi­cious? Horses? No one who snif­fles through­out Steven Spiel­berg’s War Horse can take that se­ri­ously.

Yet the other half of the phrase, “in­clined to do mis­chief,” made me think of my two Haflingers. It would be tough to ar­gue their case in court, should they ever find them­selves on the wrong side of the law. Truth is, they are in­clined to mis­chief, even if their in­tent is never ma­li­cious. Still, I can’t prom­ise you that they won’t play­fully nip if they thought you were hav­ing a game of face tag with them. They play with each other that way all day long. Why not you?

As a re­spon­si­ble horse owner I try to teach my horses that play­ing with peo­ple and play­ing with horses are two dif­fer­ent things. I feel like I’m get­ting through be­cause in the mu­tual groom­ing ses­sions I share with my geld­ing he rubs me very gen­tly with his lips, not his teeth. But that in­ter­ac­tion re­quires an aware­ness on my part that some­one who doesn’t know horses might not pos­sess.

And that is the point I think we all do need to take se­ri­ously: So many peo­ple in the world to­day do not un­der­stand horses or how to ap­proach them safely. Con­sider how many times in your horse’s life he could en­counter strangers with­out your su­per­vi­sion: The child who runs up to him while he’s teth­ered at a trail­head. The fam­ily who stops their car by the side of the road to pet the horses over the fence. The con­trac­tors you hired who wan­der up to your pad­dock on their lunch break. The teenagers who take a short­cut through the back of your pas­ture.

As horse own­ers, we tend to fo­cus on the mis­takes An­thony Ven­drella made that ex­posed his son to dan­ger, but how eas­ily could you have been the one in Ti­mothy As­triab’s shoes? How eas­ily could an in­ci­dent like this hap­pen again? Gov­er­nor Mal­loy’s law helped us dodge a bul­let here in Con­necti­cut, but with the next court case that hap­pens here or any­where else, we may not be so lucky.

What can we do about it? At a bare min­i­mum, I be­lieve, horse own­ers need to ed­u­cate them­selves on the li­a­bil­ity laws in their own state, and then they need to take steps to en­sure they’ve se­cured their fences and barns and posted ap­pro­pri­ate warn­ing signs. Train­ing our horses to be­have well around peo­ple is another given, along with tak­ing rea­son­able pre­cau­tions to keep ev­ery­one safe. And, of course, we must be vig­i­lant.

Another thing we can do is help peo­ple learn about horses. When­ever I’m at par­ties or so­cial events, I’m almost al­ways in­tro­duced not as a writer but as some­one who “owns horses.” In the mostly ur­ban­ized land­scape of my home state, own­ing horses is a lot more fas­ci­nat­ing. Any­one can write. But, keep­ing horses at home? Now that’s some­thing.

“This is my friend Karen,” the host will say. “She keeps horses.”

This al­ways sparks a lot of ques­tions: “How many do you have? Do you ride? Are they friendly?” This last ques­tion in­evitably leads to, “I love horses, but I’m a lit­tle afraid of them. I like them more when they’re on the other side of the fence.”

I un­der­stand that fear, I tell them. Horses are big and can be in­tim­i­dat­ing. Some­times they give you a bump with their nose and you don’t know what to do about it. So, I ex­plain things from the horse’s point of view. Why a horse might nudge you. I make an ef­fort to teach oth­ers what it’s like to spend your life as a prey an­i­mal. I fig­ure the more they know, the safer we’ll all be.

Which brings me to my last point. Most of all, we need to have some com­pas­sion for the vic­tims. As a horse owner, it’s easy to get on the de­fen­sive and rally be­hind Scuppy. But as a par­ent, my heart aches for Ven­drella and what hap­pened on that day in 2006. He had no rea­son to think that th­ese placid, thor­oughly do­mes­ti­cated an­i­mals could be dan­ger­ous. He sim­ply saw some beau­ti­ful horses grazing be­hind a fence and wanted his young son to see them. Think of how quickly his day fell apart. Think of how you’d re­spond if a strange an­i­mal in­jured your child.

In light of the “big story,” it’s easy to lose sight of that dad and his lit­tle boy. He suf­fered a ter­ri­ble in­jury, and I can’t help but won­der how we can move beyond find­ing some­one to blame. I want to know how we can pre­vent it from ever hap­pen­ing again.

The word “vi­cious” im­plies in­tent to do harm and puts horses in the same cat­e­gory with griz­zlies---although even bears are short­changed by the word.

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