© Elmo Shagnasty
published in ANVIL Magazine, October, 1997
A couple of years ago, a friend of mine got hurt shoeing a horse. For most, it would have been either a career-threatening - or, in some cases - a career-ending injury. For him, however, after major knee and ankle surgery, assorted pins, needles, plates, and pain medication, he was back on his feet five days later, working (with the aid of a helper) once again because he had bills to pay, a family to feed and clients who needed him.
It got me to thinking: what protections and legal rights does the law afford us as we ply our unique trade? In some respects we're fortunate, because the traditional law of this country was the common law of England (its origins found, among other places, in the Magna Carta of 1215, considered the fundamental guarantee of rights and privileges under English law) which the Pilgrims brought with them when they "colonized" the New World. In cases heard today, origins of legal concepts can be found throughout early law which had to deal with the blacksmiths, carriage makers and drivers of yesteryear.
As we struggled with his situation -- the astronomical medical expenses and loss of income -- we discovered that the animal in question had a reputation of possessing a vicious nature. No doubt this was known to the horse's owner, but the owner had failed to inform the trainer for whom my friend was working.
In order to understand concepts, we must examine commonly used terms. Tort law as it exists today can track its development from several things that happened during the 1820s. As the population of urban areas increased, carriage accidents among private citizens rose dramatically, as did accidents from injuries as a result of employment as the Industrial Revolution got underway. These developments in the 1820s led the courts to accept the action of negligence as a basis for liability. It applied to all persons, including parties not previously included by contract or law, in disputes over injuries received as the result of a failure to act carefully in the interest of others.
Negligence is the basis for legal action between parties who claim that a legal duty was owed by another and that by failing to exhibit "reasonable" conduct, that duty was violated or "breached." Throughout the law, conduct of the alleged wrongdoer is measured against a standard of reasonableness. The act, or omission to act, of a party accused of negligence is measured against what the conduct of a reasonable person would have been, and such conduct varies with the circumstances of each case.
In a negligence action, what must first be proven is duty. The injured party must show that the actor (defendant) owed a duty of acting with due care for the safety and well-being of the injured party and that he violated that duty. The actor is responsible for injuries and risks that could be reasonably foreseen.
The test which courts apply to show the standard of care, and whether the actor violated his duty is: Did he exercise ordinary (reasonable) care? That conduct is determined by measuring what his or her conduct was, against what the reasonable person would have done in a similar situation. It is important to note that the reasonable person is presumed to have the same characteristics of age, intelligence, experience and physical ability. For the courts, it's laying a template over the facts, helping them to see clearly how the case in question relates with current law for a fair and just adjudication.
However, in regard to my friend's situation, we still hadn't identified "good" law that covered the situation in which he found himself. The owner knew he had a dangerous animal and hadn't told anyone. This animal had hurt someone and was capable of hurting others. However, there was another area of tort law which we hadn't explored and when we looked there, it seemed to be tailored to our needs.
Traditionally, strict liability (or absolute liability, as it is otherwise known) was applied in cases of extremely dangerous activities. Specifically, it was used in cases of persons who dealt with dangerous animals or other activities that could greatly injure members of the public who were in no position to protect themselves. The law is pretty clear on this point. There is strict liability for harm done by "dangerous animals" kept by the defendant when the owner knows or has reason to know of the animal's dangerous characteristics.
This does not mean that "every dog is entitled to one free bite," an oft-repeated, incorrect statement. An owner may have reason to know of his animal's dangerous tendencies because it has unsuccessfully attempted to hurt someone in the past, or seems to have a generally vicious temperament.
In strict liability, fault or carelessness is not an issue. This is because no matter how carefully the animal or activity might be monitored, it is a near certainty that if the danger escapes into a public area, innocent bystanders will be harmed. And it is further reasoned that the persons in control of the animal benefit from it and that they should bear the costs of harm as well.
In California, as in the majority of other states, recovery is measured by "comparative" negligence, where degree of fault is measured in percentages (20% at fault, recovery - 80% of damages), rather than the more severe "contributory" negligence standard of no recovery at all. In California, if the injured contributed to his injuries by not paying attention or by going ahead when he knew that he had a dangerous animal, recovery for injuries will be proportional to the degree of fault (determined by percentages) that the court feels is fair and just under all the circumstances.
Usually courts make a policy decision to place the full responsibility for preventing the harm resulting from abnormally dangerous activities upon the person who has subjected others to the abnormal risk.
It should be noted that if the injured knowingly, voluntarily and unreasonably subjects himself to the danger, this will be a defense even to strict liability and in the minority of states that continue to follow the contributory negligence doctrine, that conduct is known as "assumption of the risk." But in those states that follow the comparative negligence doctrine (i.e., California), assumption of the risk does not apply. It is only applicable where contributory negligence is the standard.
From the facts known, it would appear that my friend has rights which need to be addressed and he should be compensated accordingly for the pain and suffering that he has been subjected to. A duty of care was owed to him. The owner failed to inform him of the dangerous tendencies of a vicious animal. A standard more severe than negligence should be applied, and that is strict liability.
It took a long time to write this, because we've been watching his case as it winds its way through the interminable appeals process to a hopefully favorable conclusion. Being an observer, I can tell you the pain doesn't stop after the injury is gone. The whole process has been a long, slow and maddening experience. The best advice I can give (for whatever it is worth) is never, ever go to court. If you do, have medical and disability insurance, and maybe because of the temper of our times, a little liability insurance (for peace of mind and self-preservation) thrown in for good measure.
One would assume that the court will find the owner strictly liable, regardless of how negligent or reckless he was in not telling anyone how dangerous his animal could be. Hopefully, my friend will be compensated for the suffering he has gone through. But often, although meant to be fair, the law is interpreted by those who have their own ideas of what the law should be. At best it's an uncertain process, especially when a jury is involved.
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