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Owner Liability – What Every Show Owner Should Know



As everyone should now know and understand, SHOW has opted out of the Operating Plan. While this has implications for the Trainers it also has implications for you as Owners. Recently a small group of owners worked with several veterinarians to set up pre-inspection vet stations. While there has been some concerns or questions about these stations for the most part they have been well received. A question however continues to come up – Why are you doing these? Although we are trying to discuss with WHOA at its upcoming meeting this and other matters we believe are more appropriate for WHOA and owners to participate in and support, we thought it would help to discuss this issue and the larger owner liability issue as well now that we are out of the Operating Plan.

The vet inspection stations are first and foremost to help educate and inform the owner. You are allowed to come with your horse and watch the inspection and discuss any issues with the vets. This is part of Dr. Gipson’s suggestion that the Owners get more involved. It also supports the VMO’s and DQP’s as hopefully a non-compliant horse or one that is unfit to show is first determined prior to any inspection by them. It should also allow the owner and trainer to avoid any ticket or penalty associated with a horse that is non-compliant.  It also helps create and demonstrate the “extra effort” that several Courts have determined is necessary for an owner to avoid criminal liability under the HPA.

Now for the more mundane. The following should in no way considered to be legal advice for purposes of determining liability under the Horse Protection Act and/or its corresponding regulations.  This article is provided strictly for informational purposes and all affected persons are strongly encouraged to seek legal advice of their choosing.

 The Horse Protection Act (“HPA”) prohibits:
 (1) The shipping, transporting, moving, delivering, or receiving of any horse which is sore with reason to believe that such horse while sore may be shown, exhibited, entered for the purpose of being shown or exhibited, sold, auctioned, or offered for sale, in any horse show, horse exhibition, or horse sale or auction . . . .
 (2) The (A) showing or exhibiting , in any horse show or horse exhibition, of any horse which is sore, (B) entering for the purpose of showing or exhibiting in any horse show or horse exhibition, any horse which is sore, (C) selling, auctioning, or offering for sale, in any horse sale or auction, any horse which is sore, and (D) allowing any activity described in clause (A), (B), or (C) respecting a horse which is sore by the owner of such horse.
. . . .
15 U.S.C. § 1842(2)(emphasis added).

 The HPA defines “sore” as follows:
 (3) The term “sore” when used to describe a horse means that –
  (A) an irritating or blistering agent has been applied, internally or externally, by a person to any limb of a horse,
  (B) any burn, cut, or laceration has been inflicted by a person on any limb of a horse,
  (C) any tack, nail screw, or chemical agent has been injected by a person into or used by a person on any limb of a horse, or
  (D) any other substance or device has been used by a person on any limb of a horse or a person has engaged in a practice involving a horse, and as a result of such application, infliction, injection, use or practice,   such horse suffers, or can reasonably be expected to suffer, physical pain or distress, inflammation, or lameness when walking, trotting, or otherwise moving, except that such term does not include such   application, infliction, injection, use, or practice in connection with the therapeutic treatment of a horse by or under the supervision of a person licensed to practice veterinary medicine in the State in which the   treatment is given.

15 U.S.C. § 1821(3).  Additionally, a horse is presumed to be sore “if it manifests abnormal sensitivity or inflammation in both of its forelimbs or both of its hind limbs.”  15 U.S.C. § 1825(d)(5). 

For purposes of Owner Liability, unless an owner has participated in the transportation, entry, exhibition, or sell of a horse, liability generally centers on the 15 U.S.C. § 1824(2)(D) – allowing  his or her horse to be transported, entered, shown, exhibited or sold while sore.

Over the years, several United States District Courts of Appeal across the country have examined the issue of Owner Liability under the HPA.   Various Courts have examined such factors as:  (1) whether the owners had knowledge that the horse was “sore”; (2) the owner’s reliance upon examinations by qualified individuals to determine compliance with the HPA; (3) explicit, reliable, non self-serving, repeated instructions to the trainer not to violate the HPA and its regulations and (4) any affirmative steps taken by the owner to “prevent” violations of the HPA and its regulations such as random inspections.

The 2007 – 2009 Operating Plan incorporated many of these factors into the “Owner Prohibited Conduct” section of the Plan found at Paragraph X.C. which states, in part, the following:

 Owner Prohibited Conduct.  Any owner whose conduct violates the HPA, including an owner who allows the violations set forth in Paragraph B, clause (2), (3), or (4) above, shall be subject to the penalties as set forth in     this Plan and may be subject to additional HIO penalties, unless the evidence shows that such owner did not engage in such conduct and the owner presents evidence that he or she did not “allow” such conduct.  Each case  will be determined on its own unique factual basis.  To avoid liability, an owner must present credible evidence that such owner (1) did not enter show, exhibit, sell, or transport a sore horse; (2) had no knowledge that his or   her horse was sore; (3) had periodically directed his or her trainer not to enter, show, exhibit, or sell a sore horse in a clear and meaningful manner, which is not designed to mask an unlawful act; and (4) had taken affirmative  steps reasonably calculated to prevent his or her horse from being entered, shown, exhibited, or sold while sore.  This provision applies to those owners who themselves did not participate in the entry, exhibition, sale, or  auction of a sore horse.

Examples of affirmative steps which may be taken by an owner to ensure his or her horse(s) are trained and cared for in compliance with the owner’s wishes and the HPA were also set out in the 2007 – 2009 Operating Plan.  Such affirmative steps include;

(1) Written instructions to the trainer that all include horses are to, at all times, be in compliance with the HPA.  The trainer should acknowledge that he has received, understands and has agreed to comply with his instructions and has read and understands the HPA and its regulations.
(2) Consideration of the trainer’s history, knowledge and experience in the TWH industry.
(3) Unannounced visits and/or inspections by the owner, or someone acting on his behalf, to ensure the trainer is complying with the owner’s instructions, the HPA and its regulations.  
(4) Consider an inspection by a rotating vet every 2-3 weeks to review for compliance with the Scar Rule and HPA
(5) Attend Owner clinics that will be scheduled to discuss current HPA issues, recommendations for continuing to show HPA compliant horses, discussion with veterinarians and others around additional practices to support compliance, etc.
(6) Utilize the pre-inspection veterinarian station to review and discuss with these vets any issues with your horse or trainer and suggestions on items to help continue to provide an HPA compliant horse.
(7) As the year progresses we will continue to identify extra efforts that owners are encouraged to attend or follow to ensure that we find and eliminate the non compliant horse from our great industry

Thanks for your consideration.



 

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