Recent Developments in Animal Tort and Insurance Law

• Pages: 251-277
• Date: 01 April 2021
• Published date: 01 April 2021
• Author: Margrit Lent Parker,Fran Ortiz
• Subject Matter: Administrative & Public Law

251

* Margrit Lent Parker of Lent Parker Law LLC represents businesses and professionals,

including those in the equine industry, from her offices in Firestone and Denver, Colorado.

She is a member of the Equine Law Subcommittee of the TIPS Animal Law Committee.

Margrit can be reached at margrit@lentparkerlaw.com and on LinkedIn. Fran Ortiz is a

Professor of Law at South Texas College of Law Houston and the immediate past chair of

the TIPS Animal Law Committee. She can be reached at fortiz@stcl.edu and on LinkedIn.

RECENT DEV ELOPMENTS IN A NIM AL TORT

ANDINSURANCE LAW

Margrit Lent Parker and Fran Ortiz*

I. Introduction .................................................................................252

II. Animal Tort Law .......................................................................... 253

A. Dog Bites ...............................................................................253

1. Owner Liability ................................................................253

2. Landlord Liability ............................................................255

3. Duty Owed .......................................................................258

4. Statutory Presumptions ....................................................260

B. Ownership .............................................................................261

C. Products Liability ..................................................................263

D. Equine-Related Personal Injury ...........................................266

1. Claims Limited (or Not) by Equine Activity

Liability Acts .....................................................................266

2. Assumption of Risk / Sports Injury Liability ...................269

3. Liability Waivers ..............................................................272

E. Large Animal Escape and Trespass .......................................273

III. Animal Insurance Law ................................................................. 274

A. Coverage for Injury to Property ...........................................274

B. Equine Mortality Insurance ..................................................275

Tort Trial & Insurance Practice Law Journal, Spring 2021 (56:2)252

I. INT RODUCTIO N

This survey covers several issues relating to dog bites, including whether

owners can be held liable when a dog bites while under the care of a dog

sitter, whether landlords can be liable to third parties based on contractual

provisions in their leases or pet policies, and whether there are duties owed

to third parties to keep a foster dog within a home to prevent injury or

to vaccinate a dog for rabies. This survey also reviews two issues of first

impression, including whether a statute for unclaimed personal property

abrogates the common law theory of abandonment and whether a rat that

carries bacteria that can harm a human is a product for purposes of prod-

ucts liability.

Three cases surveyed involved Equine Activity Liability Acts (EALAs).

They addressed questions about whether an EALA applied to limit liabil-

ity for work injuries while on the job (no), whether even with an EALA a

racetrack still had a duty not to increase the risk associated with inherent

risks of equine activities (yes), and whether knowingly allowing a child to

wander around horses with a noisy toy gun warranted application of an

EALA exception to immunity for willful and wanton conduct (yes). Two

horse cases surveyed addressed considerations of assumption of risk and

affirmed the application of the heightened burden of proof in sports injury

cases that the plaintiff must show reckless conduct by the defendant, not

just ordinary negligence. In one case, a rider was injured by another’s horse

while riding in an indoor arena, while in the other, the injured plaintiff was

a spectator in the middle of the arena of a horse pulling competition. In

the equine liability waiver case surveyed, a trail ride operator managed to

enforce her liability waiver notwithstanding that, confusingly, the injured

plaintiff signed two different waivers inconsistently naming multiple busi-

ness as a released party.

Livestock fence laws figured into two cases with differing results based

on divergent state law and policy in Hawaii, a ‘fence-in’ state, and Texas,

a ‘fence-out’ state. Rounding out the survey are two insurance coverage

cases, one concluding there was no coverage under a homeowner’s policy

for an infestation of brown recluse spiders. In the other involving an equine

mortality insurance policy, the horse owner unsuccessfully argued that the

insurer breached its contract or acted in bad faith by assuming control over

the veterinary care of the insured horse instead of consenting to euthanasia

and paying out on the policy.