When a car hits a horse, the crash is often huge, and the consequences can be devastating. Many people are surprised to learn that there is no “strict liability” in Indiana for the owners of animals who escape and are hit on the roadway by a motor vehicle. Horses, especially, are smart and prone to test their fencing. Indiana has a lot of cars, but also a lot of horses. Both drivers and horse owners have a duty to try to keep these crashes from happening.

A horse (or any animal) owner has a legal duty to “reasonably confine” it. What is “reasonable” is often different from case to case. The fencing should be appropriate for the size, breed and number of horses being kept. If the stable/pasture is near a busy road, the duty to prevent escape is arguably higher. The fences, gates, hinges, latches, and posts should be sturdy and in good repair. If electric wiring is used to deter escape, the wiring system must be installed and grounded properly, and routinely inspected. Because horses are known to try to escape, there should be back-up systems. Each gate should have a double lock. A horse should have to get out of at least two barriers/gates to escape onto a road. Of course, if an owner learns that his horse has escaped he must act promptly to re-capture it.

Drivers traveling through rural areas at night, of course, need to focus on the road, and reduce speed to give ample time to avoid any obstacle. But horses present a deadly combination of size and mobility—they are literally a “moving brick wall”. Horse owners must appreciate this when designing the “confinement system”. It is when the horse owner does not have a “system”, does not thoughtfully consider the confinement for escape routes, and does not regularly maintain the system that tragedy occurs.

A person hurt by an escaped horse has a legal burden under Indiana law to prove that the horse owner either (1) failed to keep it in reasonably confined, or (2) knew it had escaped, but took no reasonable steps to recapture it. This is very fact specific, so an immediate investigation is essential. Hiring a lawyer who knows how to investigate the facts and use them is likewise essential.

Most horse owners have insurance (homeowner or farm policies) which has liability coverage to pay for claims. Such insurance also provides a defense attorney at no extra charge to the horse owner. But the insurance company, and its lawyer, will deny the claim unless the injured person has facts to support fault against the horse owner. The mere fact that the horse is on the road is not enough. The reason for the escape must be discovered, and logical reasons why the horse owner could have prevented it must be unearthed, or the claim could be dismissed. Facts that can support a claim against the horse owner include:

• All available gates were not closed;

• The fencing was not high enough for this type of horse;

• The gate was not double chained;

• The latches used to chain the gate closed was weak/old/damaged;

• The gate was not hung correctly, making it easy for the horse to unhinge it;

• The posts the gate was attached to were old, brittle, weak, or rotten;

• The horses were confined tantalizingly close to a source of feed;

• This horse (or horses from this property) had escaped before;

• The electric wiring system was not working;

• The horse was unhealthy;

• The pasture was too small

A reasonable horse owner should have fail-safes to prevent escape. This includes a combination of hotwire and multiple gates.

For want of a Nail the Shoe was lost; for want of a Shoe the Horse was lost; and for want of a Horse the Rider was lost; being overtaken and slain by the Enemy, all for want of Care about a Horse-shoe Nail. ~Benjamin Franklin, Poor Richard's Almanack, June 1758