Good morning, dear Equine Law Blog readers. The ABA Journal is compiling its annual list of the 100 best law blogs (i.e. “blawgs”), and is seeking nominations for 2012.  I was so pleased that the Equine Law Blog was included on the ABA’s 2011 list.  Thanks so much to everyone who nominated and/or voted for this blog last year!

If you find this blog interesting or informative, please nominate it for the 2012 ABA Blawg 100 list.  

You can access the on-line ABA Journal nomination form to nominate the Equine Law Blog here. 

When you fill out the nomination form, the ABA will ask for the URL for this blog, which is http://equinelaw.alisonrowe.com. The nomination form will also ask you to state in 500 words or less why you think the Equine Law Blog should be included among the ABA’s 100 Top Blawgs of 2012.  The entire nomination process should take 5 minutes or less.

The deadline for nominations is September 7, 2012.

Thanks for reading the Equine Law Blog! 

I have been working on a post outlining my personal stance on whether horse slaughter should be resumed in the United States. Last week, we discussed the legal history of horse slaughter in Texas. To provide a more complete backdrop for my upcoming post, I am providing for you this week a summary of federal laws addressing horse slaughter.  For as the old cliché goes, you can’t know where you are going until you know where you have been. 

Starting in Fiscal Year 2006, Congress included language in annual appropriations bills that prohibited the use of federal funds for inspection by the U.S. Department of Agriculture for horses in transit to slaughter and at slaughter facilities. At that time, the three remaining U.S. slaughterhouses included Dallas Crown, Inc. in Kaufman, Texas, Beltex Corporation in Fort Worth, Texas, and Cavel International, Inc. in DeKalb, Illinois. These facilities stayed open by paying for these inspections under a voluntary fee-for-service program implemented by USDA in February 2006.

Photo:  A plate of horse sashimi, as served at restaurants in Japan.

In 2007, Dallas Crown and Beltex shut down their operations in Texas due to a decision of the 5th Circuit Court of Appeals delivered in January of that year. See this post for details.

Utilizing the USDA fee-for-service program, Cavel continued its operations in Illinois for a few more months in 2007 until the following things happened: 1) in March 2007, a federal district court determined that it is illegal for slaughterhouses to pay the USDA for horsemeat inspections; 2) in September 2007, the 7th Circuit Court of Appeals upheld an Illinois law prohibiting slaughter of horses for human consumption. This essentially shut down the industry in the US, because meat cannot be sold for human consumption without being inspected.

From Fiscal Year 2008 to Fiscal Year 2011, Congress included a prohibition on the use of federal funds for implementation of the fee-for-service program in each annual Agricultural Appropriations Bill. 

In 2011, the Government Accountability Office issued this report detailing some of the negative consequences caused by the closure of the slaughter plants. Shortly thereafter, Congress removed its prohibition on the use of federal funds to inspect horses at slaughter for Fiscal Year 2012. 

Since last year, new horse slaughterhouses have been proposed in New Mexico, Missouri and Oregon, and laws that would permit them to be built more easily have been proposed in Montana, North Dakota, and Wyoming.

In June 2012, an amendment to the Fiscal Year 2013 Agricultural Appropriations Bill passed the Appropriations Committee. This amendment seeks to expressly eliminate federal funding for USDA inspections of horse slaughter facilities for Fiscal Year 2013. The bill as amended must now be approved by the full House and then go to the Senate.

Although the domestic slaughter of horses for human food has stopped for the time being, USDA’s Slaughter Horse Transport Program continues to operate. Established in 2001, the program is intended to ensure that horses travelling to slaughter are fit to travel and handled humanely en route. Among other things, the program collects and reviews shipping documents and inspects rigs used to transport these horses. Prior to 2012, because of the prohibition on using federal funds for inspecting horses transported to slaughter, the transport program was not able to inspect the condition of horses designated for slaughter during their transport. I have not yet been able to locate any data suggesting that this has changed due to the absence of the funding prohibition in the 2012 Appropriations Bill.  

Did you know that horse slaughter for human consumption has technically been illegal in the State of Texas from 1949 to the present? The laws surrounding horse slaughter in the United States are complicated, and they vary from state to state. Below is an overview of the legal history of horse slaughter in Texas, from 1949 to present.

Photo:  Silhouette of a horse before a North Texas sunset

1949: 51st Texas Legislature passes a law that makes it a criminal offense for a person to 1) sell horsemeat as food for human consumption; 2) possess horsemeat intending to sell it as food for human consumption; and 3) transfer horsemeat to a person who intends to sell it as food for human consumption or who knows or reasonably should know that the person receiving the horsemeat intends to sell it as food for human consumption. See Article 719e of Vernon’s Texas Penal Code (now repealed). The 51st Legislature placed jurisdiction to investigate within the Board of Health’s powers as a matter related to the public health. However, Article 719e did not expressly authorize any particular entity to enforce the law.

1950: A news article quotes the “state health officer,” Dr. George W. Cox, as stating that the Department of Health was prosecuting “every violator we could find.” Health Officer Tells How to Stop Horse Meat Sales, Dallas Morning News, Mar. 17, 1950.

1952: Another news article quotes the same Dr. Cox, “state health officer”, as saying that sausage containing horsemeat “can’t be sold in Texas”. Neigh? Nay! Texans Can’t Horse Around with Sausage, Dallas Morning News, May 23, 1952.

1973: The substance of Article 719e was transferred to Texas Revised Civil Statutes and again placed with statutes related to public health. It was not substantively changed.

Mid 1970’s: Horse slaughter companies Beltex (Fort Worth, Texas) and Dallas Crown (Kaufman, Texas) began marketing and processing horse-meat intended for human consumption in foreign countries. 

1991: The statute prohibiting horse slaughter was codified as Chapter 149 of the Texas Agriculture Code (where it resides today). It was not substantively changed. Nothing in the current statute expressly authorizes any entity or agency to enforce the law.

2002: Texas State Representative Tony Goolsby requested that the Texas Attorney General clarify the enforceability of Chapter 149, which on its face prohibits the processing, sale or transfer of horsemeat for human consumption. AG John Cornyn issued this opinion, stating that Chapter 149 is applicable to the slaughterhouses in Texas and was not preempted by federal law. According to the opinion, Texas Department of Agriculture has no authority to investigate or assist in prosecuting violations of Chapter 149, but local prosecutors may investigate and prosecute alleged violations of Chapter 149.

2007: When the slaughterhouses learned of the 2002 AG opinion, and that Beltex and Dallas Crown were facing imminent prosecution, they brought a case in the United States District Court for the Northern District of Texas, seeking a declaration of legal rights and responsibilities and to enjoin any potential prosecution of them under Chapter 149. The slaughterhouses generally asserted that Chapter 149 had been implicitly repealed and/or it was preempted by federal law. The trial court permanently enjoined the state from prosecuting the slaughterhouses under Chapter 149. On appeal, the 5th Circuit Court of Appeals vacated the trial court’s judgment and injunction in favor of the slaughterhouses, finding that Chapter 149 had not been repealed, was not preempted by federal law, and that it did apply to the slaughterhouses. See Empacadora de Carnes de Fresnillo, S.A. de C.V. v. Curry, 476 F.3d 326 (5th Cir. 2007). As a result of this decision, Beltex and Dallas Crown shut down their operations in Texas.

2008: Attorney General Greg Abbott issued this opinion, stating that it is illegal under Chapter 149 for a foreign corporation to transport horsemeat for human consumption in-bond through Texas for immediate export to foreign destinations. Abbott made clear that neither federal law nor the U.S. Constitution invalidated this application of Chapter 149.

July 2012:  As discussed in this prior post, the Texas Senate Committee on Agricultural and Rural Affairs met to hear testimony on the economic impact of the closure of Texas’s slaughterhouses.  According to this news story, some believe that a repeal of Chapter 149 could be on the table next legislative session.

Unless Chapter 149 is repealed or revised, horse slaughter remains illegal in Texas—though it can ostensibly be carried out in other U.S. jurisdictions barring the passage of any federal law that directly or indirectly prohibits it. Whether U.S. horse slaughter, in my opinion, remains a viable option from a legal prospective will be the topic of an upcoming post.

Yesterday, counsel for Brenda Young filed a petition for review of the 14th Court of Appeals’ decision discussed in this prior post.  This will be the first time the high court has ever been given the opportunity to decide whether or not Chapter 87 immunity applies to claims brought by workers.

A copy of Young’s petition can be downloaded here.

In her petition, Young contends that the 14th Court of Appeals committed error in holding that:

1.  non-consumers of equine activities (i.e. people who are paid to work around horses) qualify as participants under Chapter 87; and

2.  the posting of warning signs under Chapter 87 was a defense and not an element of proof (i.e. Young asserts that the McKims had the burden of proving that they had posted the Chapter 87 warning signs in order to be afforded immunity under Chapter 87, and that they did not meet that burden).

While I agree with the 14th Court of Appeals’ decision and do not wish to see it reversed, I am pleased that the Supreme Court now has an opportunity to review whether or not Chapter 87 applies to claims brought by employees or other workers.  This issue is currently somewhat “murky” under Texas law.  Clarification is needed because there seems to be a conflict of authority on this issue among the intermediate courts of appeals.  In that respect, I am pleased that Young requested review of the first issue discussed above.

Related posts:

Update on Young v. McKim

Another Appellate Court Holds Chapter 87 Immunity Act Applies to Suits Brought by Independent Contractors

Texas Supreme Court May Be Inclined to Grant Chapter 87 Immunity to Employers

The Texas Senate Committee on Agriculture and Rural Affairs met this Tuesday to discuss, among other things, the impact of to the closure of horse slaughter facilities on the agricultural sector of the Texas economy. A copy of the meeting notice can be downloaded here.

The Committee heard both invited and public testimony on the issue of whether or not horse slaughter should be resumed in Texas. 

Texas Capitol Building at Austin, Texas

Included among those who gave testimony were:

  • A representative of the Humane Society of the United States;

I viewed part of the meeting from my office via the live streaming video recording (an archive of which can be viewed on this page). There was a full house in attendance. Many attendees showed up to state their opposition to horse slaughter due to their belief that the process is inherently inhumane. Their general response to the economic issues was that people should be breeding fewer horses, and that irresponsible breeders and owners are at fault for the unwanted horse problem. 

The horse industry groups generally presented evidence indicating the negative economic impact that the closure of the slaughter plants has had on the industry. The horse industry groups also presented studies evidencing the increased suffering of horses caused by the closure of the slaughter plants due to neglect and transport to Mexico for slaughter.

The veterinary associations’ general stance on this issue is as follows:  Horse processing is not the ideal solution for addressing the large number of unwanted horses in the U.S.  However, if a horse owner is unable or unwilling to provide humane care and no one is able to assume the responsibility, euthanasia at a processing facility in a manner designated as humane by the American Veterinary Medical Association is an acceptable alternative to a life of suffering, inadequate care or abandonment.

I think it is a good sign that our Senate was interested in hearing testimony from knowledgeable individuals and groups on this very important issue. 

If the Texas Workers’ Compensation Act and the Texas Farm Animal Limitation of Liability Act got into a fight, who would win?  The Supreme Court of Texas might have just metaphorically placed its money on the farm animals.

The Court held last week in Texas West Oaks Hosp. v. Williams, that an employee of a nonsubscriber hospital employer must comply with the procedures set forth in the Texas Medical Liability Act (i.e. the progeny of the 2003 tort reform movement), and barred the employee’s claims against his employer.

If I haven’t already lost you, you are probably thinking,

Wait a minute, what is a “nonsubscriber”, and what does a case about a hospital employee have to do with the horse industry? 

Bear with me, this material is sort of complicated, but I hope the point of this post will be clear to you by the time you get to the end (if you in fact make it that far!)

Nonsubscriber Status. Are you a nonsubscriber?  Most Texas horse industry employers are “nonsubscribers”, at least for some of their employees.  If you have employees or so-called “independent contractors” who might really be employees under the true legal definition, you should be aware if you are or are not a nonsubscriber. 

Why does it matter? The Texas Workers’ Compensation Act allows employers to elect whether or not they will subscribe to worker’s compensation insurance.  If an employer does subscribe and an employee is hurt during the scope of their employment, the employee is generally precluded from filing suit, and must instead pursue administrative remedies for benefits under the Workers’ Compensation Act. 

But if an employer elects to forego workers’ compensation coverage, it is subject to suits at common law for injuries suffered by employees on the job. Not only that, nonsubscribers are generally not able to avail themselves of many common-law defenses to negligence claims in suits brought by employees. See this prior post for more details. 

That said, I should note as an aside that some “farm or ranch employees” are excluded from the provisions of the Workers’ Compensation Act altogether (did I mention before that this is complex stuff?).

So here’s the question that remains unsettled: What if a nonsubscriber employer is sued by an employee, and the employee’s injuries arose from dangers inherent in an equine activity? Can the employer invoke the immunity from liability granted to virtually all people in the Farm Animal (formerly Equine) Limitation of Liability Act (um…we’ll just call it Chapter 87)? 

As we have discussed at length, the Supreme Court has not yet decided this issue. Two appellate courts have indicated a willingness to apply Chapter 87 to bar suits brought by horse industry independent contractors, but one court of appeals refused to apply Chapter 87 to bar a suit brought by a horse industry employee. 

Plaintiffs’ lawyers who represent injured employees generally assert the argument that Chapter 87 was intended to apply to tourists or consumers, and not workers. They further assert that Chapter 87 cannot bar employees’ suits because it would abrogate employer duties under the Workers’ Compensation Act.  The employee’s lawyers in Williams made similar arguments about the Medical Liability Act.

The Williams Decision. Williams is significant to the equine industry, at least in my mind, because it shows a willingness on the part of the Supreme Court to allow “tort reform” type statutes to bar an employee’s claim against a nonsubscriber. Not unlike the Medical Liability Act, Chapter 87 is another law that was passed to limit liability for certain types of claims. Furthermore, the plain language of Chapter 87 itself does not exclude suits brought against nonsubscriber employers (though it does expressly carve out other stuff, such as activities regulated by the Texas Racing Commission).  As such, I predict that if the Supreme Court of Texas ultimately takes up the issue, it is inclined to rule that Chapter 87’s immunity provisions apply to employees and other workers (subject to its exceptions, of course) .

Related posts:

Are Employers Immune from Liability for Employees’ Horse-Related Injuries in Texas?

Another Appellate Court Holds Chapter 87 Immunity Act Applies to Suits Brought by Independent Contractors

Update on Young v. McKim

As of this week, a New Jersey bill prohibiting the slaughter of horses for human consumption has passed both houses of the New Jersey Legislature. If Governor Chris Christie signs the bill, New Jersey will become the fifth state to proscribe horse processing within its borders. California, Texas, Oklahoma, and Illinois have enacted legislation prohibiting horse processing in those states.

As discussed this prior post, there is no longer any federal law prohibiting the funding of USDA inspections for horse slaughter plants. This, in essence, created the opportunity for horse slaughter plants to re-open in states that have not passed laws prohibiting the practice.  However, that could change next year. 

An amendment to the Fiscal Year 2013 Agricultural Appropriations Bill passed the full Appropriations Committee this week. The amendment—introduced this month by Congressman Jim Moran (D-VA)—seeks to expressly eliminate federal funding for USDA inspections of horse slaughter facilities. The bill must now be approved by the full House and then go to the Senate.

Moran had introduced similar language during the debate over the 2012 Agricultural Appropriations Bill. Though the version of the bill including the language was adopted in the House, it was later removed shortly before the 2012 bill became law.

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Yesterday, the Fort Worth Court of Appeals handed down an opinion in a case styled Hilz v. Riedel, reversing the trail court’s summary judgment granted in favor of a defendant based on Chapter 87 of the Texas Civil Practice & Remedies Code (the “Act”).

Case Background: Thirteen-year-old Ciarra Hilz was injured at her friend Steven’s house while riding a “five-year-old male quarter horse” by the name of “Logan.” Logan belonged to Steven’s dad, Richard Riedel. 

Ciarra’s father, Greg, claimed that he told Richard not to allow Ciarra to ride outside of the round-pen located on Richard’s property. Richard claimed that Greg never said anything about where he wanted Ciarra to ride horses.

Ciarra started her ride in the round pen, but then rode out into the pasture afterwards. While Ciarra was riding in the pasture, Logan “bolted” and ran Ciarra into a tree, causing a tree limb to impale Ciarra’s side. Ciarra was hospitalized for a week and had multiple surgeries.

Greg sued Richard Hilz on his own behalf and on behalf of Ciarra. Richard filed a motion for summary judgment under Section 87.003 of the Act, which, prior to its amendment in 2011 stated,

 

[e]xcept as provided by Section 87.004, any person…is not liable for…damages arising from the personal injury or death of a participant in an equine activity…if the…injury results from the dangers or conditions that are an inherent risk of an equine activity.

Richard’s motion further addressed the reasons why he was not liable under the exceptions to the Act provided in Section 87.004(2) [failure to make a reasonable and prudent effort to determine the ability of the participant to engage safely in the equine activity] and 87.004(3) [dangerous latent condition of the land].

However, Greg had amended his petition to add an allegation that the exception provided in Section 87.004(4) [commission of an act or omission with willful or wanton disregard for the safety of the participant] before filing his summary judgment response.

The Appeal: The Fort Worth Court of Appeals reversed the trial court’s summary judgment in favor of Richard, holding that:

1) a fact issue precluding summary judgment existed as to the exception found in Section 87.004(2) because Greg claimed that he told Richard not to let Ciarra ride outside the round pen; and

2) Because Richard did not amend his motion for summary judgment to include the exception found in Section 87.004(4), summary judgment was improper on that claim.

Take Aways: Defendants relying upon the Act in a motion for summary judgment should 1) include arguments as to why each and every pleaded exception to the Act does not apply; and 2) have parents and minors sign carefully-drafted liability waivers prior to allowing guests to ride; and 3) have parents put all specific instructions regarding their child’s participation in equine activities in writing.

Case Information: Hilz v. Riedel, No. 02-11-00288-CV, 2012 WL 2135648 (Tex. App.—Fort Worth Jun. 14, 2012, no pet h.)

Photo:  In celebration of Father’s Day this Sunday, today’s photo is of my dad, Chuck McCormack, and me riding at Bardwell Lake.  Have a great Father’s Day everyone!

Last week, we discussed Young v. McKim, a case dealing with whether or not Chapter 87 of the Texas Civil Practice & Remedies Code applies to workers.  Here’s a link to the post.

Young has filed a Motion for Reconsideration with the Fourteeth Court of Appeals in Houston.  A link to the motion can be found here. 

It is my understanding that Young intends to appeal her case to the Supreme Court of Texas.

I will post updates as they become available.  

 

 

As we discussed in this prior post, the Supreme Court of Texas has not yet addressed the issue of whether Chapter 87 of the Texas Civil Practice & Remedies Code (the “Act”) shields defendants from liability in suits where employees or independent contractors are injured while engaging in an equine activities. Up until last week, we only had two opinions—both from intermediate appellate courts—addressing this issue. 

In the first case—Johnson v. Smith (Corpus Christi 2002)—the court held that independent contractors were participants under the Act, and therefore the Act shielded defendants in suits brought by independent contractors from liability. In the second case—Dodge v. Durdin (Houston [1st] 2005)—the court held that employees are not participants under the Act, and therefore defendants in suits brought by employees are not immune from liability.

As of last Thursday, we now have a third appellate case that sheds light on this issue. The Fourteenth Court of Appeals in Houston recently held that the Act immunizes defendants from liability for claims brought by independent contractors.

The case, styled Young v. McKim, represents the first equine employee negligence suit addressed by a Texas court of appeals since Loftin v. Lee was handed down by the Texas Supreme Court in April of 2011. 

Case Background: Brenda Young had posted a flyer at Ravensway Stables advertising her ability to assist owners in the care of their horses. Tisa McKim and her daughter, Jackie, hired Young to care for their horses—Jasper and Butch—at Ravensway. 

About two months after Young started caring for Jasper (a rescue horse), Jasper kicked Young and injured her. The injury occurred while Young was talking to another boarder at Ravensway while Jasper grazed beside her.

Young sued the McKims for negligence, and the McKims moved for summary judgment under the version of the Act in existence in 2010 (i.e. before the Act was amended in 2011). The trial court granted the McKims’ motion for summary judgment. 

The Appeal: The Fourteenth Court of Appeals affirmed the trial court’s summary judgment in favor of the McKims. On appeal, Young alleged that the Act did not shield the McKims from liability.  Among the reasons Young gave were 1) only “tourists and other consumers of equine activities” qualify as participants under the Act; and 2) Young was an employee of the McKims, not an independent contractor.  Young relied heavily on the First Court of Appeals’ opinion in Dodge on appeal.

The Fourteenth Court of Appeals determined that Young was an independent contractor, not an employee.  The court did not reach the issue of whether the Act would have applied had Young been an employee. The Fourteenth Court disagreed with the discussion in Dodge suggesting that the Act only applied to “tourists and other consumers of equine activities.”

Citing Loftin, the Fourteenth Court held,

“The Equine Act is a comprehensive limitation of liability for equine activities of all kinds…The Equine Act applies to all ‘participants’”. [Emphasis supplied].

It remains to be seen whether Young will be appealed to the Supreme Court of Texas. Given the Supreme Court’s expansive view of the Act set forth in Loftin, the Supreme Court might disagree with Dodge’s holding that the Act does not apply to employees.

Case Information:  Young v. McKim, No. 14-11-00376-CV, 2012 WL 1951099 (Tex. App.—Houston [14th] May 31, 2012, no pet h.).

Related Posts:

Are Employers Immune from Liability for Employees’ Horse-Related Injuries in Texas?

Victory for Horse Industry in Texas Supreme Court

Does Your Farm Need to Purchase Worker’s Compensation Insurance?

Time to Get New Warning Signs: Equine Activity Act Amended in 2011