Friday, September 14, 2018

                                                Notes On Equine Activity Risk Management
                                                              DOES THAT HORSE BITE?
                                                               By Gary D. Malfeld, Esquire

Dear Readers:

As most of you know, the Florida Equine Activities Liability Act limits “ the liability of Florida’s equine facilities for injuries resulting from inherent risks associated with equine activities”.  A participant in such an activity shall not have “a claim against . . . an equine activity sponsor, equine professional, or any other person for injury. . . of the participant from any of the inherent risks of equine activities.”

An equine activity is “riding, training, assisting in veterinary treatment, driving, or being a passenger upon an equine, whether mounted or unmounted, visiting or touring or utilizing an equine facility as part of an organized event or activity, or any person assisting a participant or show management.”

You are not engaging in an equine activity if you are merely a spectator at an equine activity unless you put yourself in an unauthorized area.  Being merely a spectator is the one specific exception to being a participant.

In the last couple of years  (September 7, 2016) the Third District Court of Appeal which decides appeals from Miami-Dade County trial court cases reviewed a case brought in the trial court by a retired jockey, Patrick Germer.   In the case of Germer v. Churchill Downs Management, Inc. and others.  Germer sued Churchill Downs Management and several other entities because of a incident in which Germer had visited Calder Race Course with his roommate to look at his roommate’s horse in a stable at Calder. On his way through the barn to see the roommate’s horse, a horse named Forever Happy (perhaps named inappropriately) jumped out of his stall and bit Germer in the chest.  Germer sued multiple parties for damages.  The trial court said Germer’s fact pattern was such that the Florida Equine Activities Liability Act protected the defendants from liability because Germer  was engaged in an equine activity at the time he was bitten.

The appeals court had to answer the question whether Germer was a participant engaged in an organized equine event or activity when he was bitten. 

The Calder facility management maintained an internal policy that required security passes in order to access the stable areas where Germer’s injury occurred.  Germer had to get a paper visitor’s pass issued by security to have access.

From the perspective and ruling of the appeals court, “the creation and existence of such a protocol constituted the requisite ‘organization’ so as to make Germer’s visit to the stables ‘an organized activity’ as defined in section 773.01(1) of the Florida Statutes.”

So Germer lost on appeal.  The Activities Liability Act protected the entities connected to the occurrence at the  Calder facility.

On a related matter, I assume that all of you sponsoring equine activities or who are equine professionals already post the following warning notice or an equivalent notice:

Under Florida law, an equine activity sponsor or equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.
§773.04(2), Fla. Stat. (2012).

                                           MOUNT UP, LADIES AND DUDES!

Wednesday, November 19, 2014


          My March 29, 2013, blog article captioned "Importing Horses into the United States of America" included the following text:

If you are the buyer/importer and you totally trust the exporter/seller, and you are satisfied that as to each, your word is your bond, you may some day be the proud owner of a horse imported into the United States which is euthanized by the United States Department of Agriculture because it harbored a prohibited disease. At least try to take pictures of the horse while it is vital and breathing, something to cherish. But if you are even slightly anal, do due diligence. Identify the diseases endemic to the area from which your target horse originates. Understand which of the diseases are treatable and which are not. Have thorough and complete testing done, and make sure the purchase contract does not become binding unless the horse gets a clean bill of health. Find out who will be doing the testing and certification, and decide whether you are willing to trust the results. Check out each link in the logistics chain from start to finish. Make sure there is no chance of infection or re-infection resulting from a contaminated link in the logistics chain. And then hold your breath. And when you start breathing again, mount up and ride, Ladies and Dudes.

          In September of 2014 I received documentary materials from the Animal and Plant Health Inspection Service of the United States Department of Agriculture in response to my earlier Freedom of Information Act request. I sought documentation regarding the importation of horses from abroad into the United States through the port of Miami, Florida during calendar year 2013. For those who are interested, I now share with you some of the findings.

          One thousand nine hundred forty horses entered into the United States through Miami in 2013. The dominant geographic area of origin was Western Europe. The dominant breed classification was "warmblood". No horses coming through Miami were identified as originating in Africa, the Middle East, Asia, Russia or Australia. Almost none of the horses were identified as originating in Eastern Europe. I am seeking from APHIS documentation as to foreign horses entering through Los Angeles in 2013.

          With the exception of Argentina, almost no horses were identified as originating in Latin America or the Caribbean. There is some indication that Argentina successfully exports into the United States polo ponies.

          My conclusion from the data is that the horses which came into Miami were of sufficient value to justify the underlying transactions and represent considerable dollar value in the aggregate. I expect that the results from the data on entries in 2013 through Los Angeles likewise will show scarce representation of horses from Africa, the Middle East, Asia, Russia or Australia. And I suspect that the overriding explanation for the lack of imports from those regions of the world is directly related to the presence of endemic equine disease which would result in positive testing at APHIS facilities for diseases which would bar the entry of horses from many of those regions upon their arrival in the Unitted States.

          As a consequence of inhibitions to commerce arising from probable positive test results upon arrival in the United States, some of the most beautiful and desirable horses living on this planet can be found in only symbolic numbers in the United States, horses such as the Marwari from India, the Akhal-Teke from Turkemenistan, the Criollo from Chile and Brazil, and even different categories of Paso Fino, in general well represented in the U.S., from some countries in the Western Hemisphere.

          Beyond those more or less exotic breeds, it seems likely that some of the finest Arabian and Thoroughbred bloodstock will never achieve entry into the United States because of the presence of equine disease in their countries of origin.

          In the year 2013 eight horses were denied entry into the USDA/APHIS facility in Miami having tested positive for equine piroplasmosis. One international equine transportation company is identified as the importer. One of the horses was a warmblood gelding from Germany, five are identified as mares from the Netherlands, one is listed as a mare from the UK, and one is listed as a mare from Ecuador.

          Eight horses rejected vs. one thousand nine hundred forty arrivals. Not bad, right? Unless you had skin in the game and the horse associated with your transaction was returned to its country of origin at considerable expense or euthanized and plans and dreams died at the port of Miami.

          I hope to clarify whether or which of the eight horses were shipped back or euthanized. But what concerns me is, how could this happen? Who dropped the ball? Who was responsible? How were any of these horses able to get on a plane in a foreign country and arrive in the United States with failure awaiting?

          The answers to those questions are not necessarily available through a Freedom of Information Act request and I do not expect identifiable involved parties to voluntarily provide the answers. So trust, but verify. And go back and read my March 29, 2013, blog article captioned "Importing Horses into the United States of America".

Until next time: Mount up, Ladies and Dudes!


Tuesday, March 25, 2014


My last blog was a hypothetical scenario involving thoroughbred horses actively racing, a trainer, an owner, and liens. As we wait with baited breath on the analysis of legal solutions for the trainer’s concerns, this brief note is intended to provide some immediate sound legal advice to those already involved in the equine industry and to those who wish to enter the business.


Due diligence: be familiar with all of the physical characteristics of the male horse you think might be a good boyfriend for your mare whose clock is ticking.

Follow up:

Look up the word "gelding" in the dictionary.

Never BUY breeding rights to a gelding. This can lead to heartbreak. And even if the male horse can sing all of the tenor parts, he will produce no offspring that can sing in the choir.

Never SELL breeding rights to a gelding. This can lead to very bad food and having to share an exercise yard (and less ample facilities) with people not known previously to you.

It’s the law.

Mount up, Ladies and Dudes

                                                           Gary D. Malfeld

Wednesday, January 29, 2014

Equine Law Hypothetical

    Studds Croe Bateman is an established thoroughbred race horse trainer.  Colts, fillies and mature horses trained by Studds have won major stakes races at major tracks from Saratoga down through the East Coast tracks; Kentucky, Southern California and South Florida.  Studds has a team of assistant trainers, exercise and stable personnel that deal with every physical and emotional need of horses under his care and tutelage.

    Studds has been accused of doping, of using prohibited chemicals to enhance the performances of his charges, but has avoided suspension by various racing commissions through intervention and dazzling representation by Charles Haas, considered by many to be the top lawyer in legal aspects of the racing industry.

    Two years ago Studds signed a trainer deal with oil billionaire Sheikh Ben Abu Ben Ben to care for, train and campaign seven of the Sheikh’s most promising two and three year olds (not always the same seven horses at any given time).  The Sheikh is a national of Saudi Arabia but lives most of the time in Dubai. The agreement between Studds and Sheikh Ben Abu Ben Ben requires the Sheikh to pay Studds top dollar for feed, care, stable, grooms, transportation and all other aspects of Studd’s duties with the exception of training fees for which Studds is to receive 15% of all winnings.   It is a three year agreement with earlier termination provisions agreed upon.   Most of the understanding between owner and trainer originally was oral, but there are email exchanges which confirm many key aspects of the commitments of each to the other. 

    Three weeks  ago, in a surprise move, the Sheikh removed physical custody and control of his horses from Studds and turned them over to another trainer.  At the time of the surprise move there were roughly $279,000,00 in invoices submitted by Studds to the Sheikh which remain unpaid independent of any share of winnings to which Studds may be entitled.  There is a dispute between the Sheikh and Studds regarding accounting procedures to be followed in determining Studds’share of winnings.   During the first few months of their joint activities the Sheikh paid Studds $27,375.00 as his share of winnings, which Studds accepted while reserving the right to confirm actual amount to which he is or may be entitled after computation issues are resolved.  The Sheikh has made no further payment of winnings to Studds although the horses being trained by Studds have enjoyed varying degrees of success over time.

    The horses which were under Studds’ care and tutelage are stabled at Gulfstream Park located in Hallandale Beach, Broward County, Florida.  Sheikh Ben Abu Ben Ben will be visiting in Broward County, Florida for the next three weeks.

    Bateman has decided to proceed with a lawsuit against the Sheikh to recover $279,000,00 in invoices plus interest, and to seek from the Court an accounting as to how much Bateman is entitled to as his share of purses won and any other damages of any kind a skilled lawyer might recover for him.

    The fact pattern may be of interest to  a lawyer or lawyers and business people in the racing industry.  There are layers of questions for which there must be layers of answers.  Here are some of the considerations, the relevance of which are of greater or lesser significance:

    Bateman has a series of practical problems.  First, the person who owes the money to Bateman is a citizen and resident of another country.  Bateman does not know where the Sheikh keeps his major assets.  Even if Bateman wins a judgment against the Sheikh, Bateman has to find wealth that a court judgment can reach and be acted upon in a way that puts money in Bateman’s pocket.  Otherwise, Bateman will end up eating the Big Enchilada and the Big Enchilada will be purely symbolic with no nutritional benefit to Bateman.  So where are the assets?

    Well, there are seven horses owned by the Sheikh living in stables in Gulfstream Park.  The horses have value.  Seeking to execute a judgment upon them is a good place to start.  But in a few days the horses will be shipped to another location outside of Florida.  Then what?  The Empty Enchilada.  So the horses have to be kept in Florida.

    The Sheikh will be leaving.  It would be most convenient and reassuring to sue the Sheikh while he is in Florida and serve the lawsuit upon him while he is in Florida.  Then Bateman will have some leverage.

    What law, whose law, applies?  There are laws sometimes known as Agisters’ Liens which provide that those who care for livestock can impose liens on the livestock so that sale of the livestock can be a source of some recovery for the lienholder.  Bateman has cared for the seven horses through several states, and the lien laws of not only Florida, but New York, Maryland, Kentucky, California, and perhaps elsewhere may apply to different time periods corresponding to the care and maintenance of the horses as to each separate state.  So Bateman is faced with proving that he is entitled to enforce liens from distinct laws which may be similar but not identical among them..  And the court where the lawsuit is filed has to be able to follow those laws.

    Within Florida itself there are two lien laws with possible applicability to Bateman’s situation.  Florida Statue 713.65 provides for liens for care and maintenance of animals, in favor of all persons feeding or caring for the horse or other animal of another, including all keepers of livery, sale or feed or feed stables, for feeding or taking care of any horse or other animal put in their charge; upon such horse or other animal. 

    Florida Statute 713.66 provides for liens for feed, etc., for racehorses [and] polo ponies . . . . in favor of any person who shall furnish corn, oats, hay, grain or other feed or feedstuffs or straw or bedding material to or upon the order of the owner, or the agent, bailee, lessee, or custodian of the owner, of any racehorse [or] polo pony. . . for the unpaid portion of the price of such supplies upon every racehorse [or] polo pony . . . which consumes any part of such supplies. All racehorses . . . of such owner which are accustomed to consume supplies of the character delivered, which are at the time of the delivery of such supplies upon the premises to which delivery is made, shall be deemed prima facie to have consumed such supplies. Such lien shall remain valid and enforceable for a period of 1 year from the dates of the respective deliveries of  such corn, oats, hay, grain, feed or feedstuffs, or straw; and such liens are to be enforced in the manner provided for the enforcement of other liens on personal property in this state. Said liens shall be superior to any and all claims, liens and mortgages, whether recorded or unrecorded, including, but not limited to, any lessor’s or vendor’s lien, and any chattel mortgage, which theretofore may have been or thereafter may be created against such racehorse [or] polo pony or race dog, and to the claims of any and all purchases thereof.

    Statute 713.65 requires that the animal be put in the charge of the lienor, which in this instance would be Bateman.  But Bateman’s  care and charge of the horses was terminated by the Sheikh, and Bateman did not take timely action to enforce his lien as a possessory lien, placing in doubt his ability to enforce an essentially possessory lien. 

    With regard to any indebtedness by the Sheikh to Bateman arising from the presence of the race horses in Florida, Florida Statute 713.66 would appear to have usefulness to Bateman in seeking recovery of the amounts owed to him by the Sheikh.

    And then there are the lien provisions of several other states which must be confronted and understood by Bateman if he is to have some level of dominion over all of the legal issues which he confronts.

    Bateman has a major concern in securing in Florida economic resources owned by the Sheikh which will be available to Bateman should he be successful in winning the lawsuit.  The horses most likely will be moved to another location far from the reach of Florida courts, either State or Federal, and might even be exported outside the United States.

    Bateman might be advised to seek an Ex Parte Temporary Restraining Order With Asset Freeze which will keep the Sheik’s race horses in Florida until such time as the litigation is resolved through settlement or a final judgment.  Achieving that order on race horses is not quite the same as getting an asset freeze on a bank account.  Horses need to be stabled, fed; cared for. And there may be issues as to their participation in races to which binding commitments already have been made.  Who foots the feed and care bill while the horses are detained?

    Will the Court require Bateman to post a bond to protect the Sheikh against loss and damage as a consequence of the horses being treated as frozen assets?  Can the Sheikh post a bond with the Court which would allow the Court to terminate the restraining order while protecting Bateman?

    What Should Bateman’s lawyer, Charley Haas do?  What possible costs, benefits, and potential complications should Haas explain to Bateman?  Which laws should Haas rely upon to make his case and to provide guidelines for his legal initiatives.?

    Tune in next time.

Mount up, Ladies and Dudes

Gary D. Malfeld

Equine Law Hypothetical

Tuesday, November 5, 2013


In response to a a lawsuit filed by The Humane Society of the United States and a subsequent appeal by the Humane Society to the 10th U.S. Circuit Court of Appeals in Denver, on Monday November 4, 2013, the 10th Circuit granted a temporary injunction barring companies in New Mexico and Missouri from beginning to slaughter horses with the objective of shipping horse meat to countries where it is consumed by humans or used as animal feed. This by no means ends the story.

My blog captioned "Horsement" which was published on February 11, 2013, and my blog captioned "Too Many Horses?" which was published on March 19, 2013, each dealt with the issue of horse slaughter and slaughter facilities. This publication is captioned "Nobody Gets a Free Pass". Hopefully you will understand the choice of the caption upon reaching the last word of the last sentence of the last paragraph of this writing.

My understanding is that the Humane Society takes the position that a horse is, at least in the U.S., a companion animal and therefore shall not be treated in the same way as cows or pigs or sheep or goats or chickens or whatever. And from my childhood memories of growing up on a farm in Iowa I remember one or more of all of those animal species filling the role of "companion animal" or otherwise having a bond of affection between farmer and animal.

We maintained on our farm a few cows which produced milk, some of which we consumed either as milk, or cream, or for making butter, and the rest of which was sold to dairies for processing and sale to consumers. Elsie was a Brown Swiss. Brown Swiss were utility cows. They filled more than one niche. They produced calves for the processing of beef. They produced milk and milk products for human consumption.

Twice a day for many years my father hand-milked Elsie. They had a bond. She was not identified as a pet. She could have been. At the age of 14 she no longer produced enough milk to pay for her overhead.

Most family farmers in those days did not have the economic luxury of sustaining and keeping farm animals after they stopped producing. Imagine if you will farm animals being fed to keep them alive until they died and then being hauled out to the back 40, dropped into a deep pit, and covered with dirt. Imagine that with one animal. And then imagine that with scores of animals, or for some, hundreds of animals. And then decide whether that would be a viable economic model.

When the cattle truck arrived to haul Elsie off to slaughter, she did not want to leave the barn. So she had to be pushed up the ramp and onto the truck. Dad was in tears. But there was no Humane Society to protect her from the impending "cruelty". So the cow that was not a companion was gone.

I question the nomenclature, the designation, "companion animal". By whose standards? By what subjective criteria? Pursuant to whose value system?"

For those of you individuals reading this blog as you munch on some cheddar and crackers, I have one simple question: got milk?

The words "humane" and "cruel" are human inventions and certainly have a place and meaning within the context of two or more persons and their relationship to each other and among them, and to a lesser extent to their relationship with other living creatures. But it is not a word that is applicable to nature on a broader scale. Is the wolf that relentlessly attacks and kills an elk calf with repeated flesh-tearing bites cruel? Is it cruel for being impelled by impulses with which it is born to feed its own young while inflicting fear and pain upon its prey? By definition it is acting inhumanely. It is not a human being. It is a wolf.

Cruelty as a human trait is, when applied to Nature, simply the way things work as different animals fill distinct and different niches as part of life on the planet. Wolves are not cruel. Lions on the Serengetti Plain are not cruel. They are part of Nature and acting naturally.

Whether we like it or not, we human beings are animals. We are part of Nature and perhaps our resistance to accepting that imperils as much as anything our ability to sustain life on Planet Earth. Or, to put it another way, perhaps our vision of ourselves as superior beings separate from nature allows us to do things to nature that may destroy nature and us with it. No other animal would have the hubris and arrogance nor, clearly, the ability, to accomplish such an end.

I have written about this previously. During the Great Recession many horse owners found themselves no longer able to care for their horses. They did not have the economic ability to feed their horses. They did not have the economic ability to euthanize them and haul them away.

In April of 2013 I visited Central Iowa where I had lived as a child and young adult. In discussions with a local farmer I learned that during the Great Recession some horse owners, lacking the resources to maintain their horses, simply turned them out onto the roads to fend for themselves. Which leads us back to the question of economic sustainability from one geographic area to another. Allegedly large portions of our Country face continuing drought and decreased food supply for livestock, of which some, by Humane Society designation, are "Companion Animals". The American West is identified in the popular imagination with herds of horses. The American West is a focus point regarding how we deal with the values conflicts manifested by the litigants in the 10th U.S. Circuit Court of Appeals in Denver.

At some point we are talking about numbers. As a Nation, are we talking about hundreds of horses whose owners are unable to care for them, or are we talking about thousands of horses, tens of thousands of horses? The answer most likely changes depending upon economic circumstances in a given geographical area. Often those economic circumstances are related to weather and climate conditions. The answer, if we can identify it, at least will tell us if we have any hope of saving even a minor percentage of those horses from mistreatment (not necessarily because of human malice) and eventual premature death.

For some there is no need to deal with numbers. If my value system is such that horses are no different than any other kind of domestic livestock, then excess horses, or even horses specifically bred to be consumed, to be devoured, are subject to slaughter for economic benefit to the owner. For others, only horses that otherwise would not receive adequate care and maintenance should be subject to slaughter, and for others no horse should be subject to slaughter. What is certain is this: for some there is no room for compromise.

Cruelty to animals by human beings exists. I have seen it. The most extreme example is one I witnessed as a Peace Corps Volunteer in South America. It was a beautiful December day in the mountains. The town conducted an annual fair with prizes going to animals and handicraft and related matters. There would be several days of bullfights. On one beautiful December afternoon the bull entered the ring. The matador strutted and brandished his cape in the dance of death. It was time. The sword plunged into the back of the bull close to the shoulder. The bull remained on its feet. Again and again the sword plunged in. Finally the bulled rested on the ground, its legs under it. The dagger plunged into the neck behind the base of the bull’s skull, ending its suffering. If a pride of lions had torn away at a Cape Buffalo bull until finally it fell, there would have been no cruelty for which the lions could be held blameworthy. But even though we human beings are animals, we hold ourselves to a higher standard in which cruelty exists, is acknowledged, and is not tolerated.

If the Bill and Melinda Gates Foundation were to turn its attention from human disease and suffering in Africa, and dedicate all of its resources to a giant horse rescue operation, I could see where maybe the numbers might work out. Every farmer, every rancher, every "companion horse" owner, would ship his underfed or overaged horse to some giant Gates Rescue Facility at Gates’ expense, and everybody would live and die happily ever after – except for the people in Africa who no longer were helped by the Gates Foundation. Or the farmers and ranchers who suffered economic loss and who are expected to finance the morals and values of others by keeping their horses alive when they can no longer feed them or the "companion animals" are too old to contribute to farm or ranch enterprise.

To the reader who questions not in the slightest the merits of his or her virtues and values, I tell you that you do not get a free pass. If you, in the aggregate, cannot get a handle on the dimensions of the challenge of being humane, then do not assume that your efforts will solve the challenge which you perceive. But if you are content with saving the horses you can without imposing your values on everyone, by all means do what I asked you to do in my writing on March 19, 2013: find your checkbook and write a check payable to Peaceful Ridge Rescue, which is s a 501 (c) (3) non-profit organization. Better yet, go to their website at
and click on the "donate" button. Consult with your CPA and make sure your donation is big enough to reduce your federal income tax liability. Don’t be a neigh-sayer. Make a difference.
Mount up, Ladies and Dudes.

Friday, June 21, 2013

Hialeah Park and Race Track Fantasy

So let’s say somebody who can decide it decides that no part of Hialeah Park should be redeveloped as anything other than the home of Hialeah Race Track. Hialeah Park is part of Greater Miami. And Greater Miami is the Gringo Capital of Latin America. Well, it would be the Gringo Capital if it were not for the fact that a great part of the population is not Gringo. We’ll call it the North American Capital of Latin America.

And let’s say that somebody who decides such things decides that the developed area surrounding Hialeah Park is going to be redeveloped into something. And let’s say that something is an equine theme park, featuring sophisticated, cosmpolitan shops with a horsey thread running through; and upscale housing for the horsey set to hang out while acting horsey in Greater Miami, the North American capital of Latin America (Sorry, Mexico. This fantasy will not work if we make you the capital).

And let’s say that a ton of thoroughbred race horse breeders from throughout the hemisphere put up a minimum of US $500,000 each to invest in the project of the Hialeah horsey theme park through the EB-5 visa program, and they all get permanent resident visas so they can live here more than half of the year as permanent residents while they watch their horses train at Hialeah Park and race at Hialeah Park.

And let’s say that stakes races are run on the Hialeah Race Track, with horses participating from all over the hemisphere, and rich people who like to hob nob with rich people mingle with rich horsey people, and the whole thing becomes a magnet that attracts birds of a feather from all over the world, people who really don’t care that much about South Beach but enjoy the aroma of a sweaty horse and whatever else goes with it. And Hialeah and the surrounding area are transformed. And the Florida thoroughbred industry has Ocala as its northern base and Hialeah as it s southern base, and north and south find ways to energize and nurture each other.

And in the playgrounds of public parks and on school campuses, little kids learn how to play horseshoes and the small kids who stay small grow up to become jockeys.

There is a hard reality looming over the fantasy: bringing in those horses to the U.S. will require clearance from the USDA. We’ll talk about that in a future blog.

Mount up, Ladies and Dudes.
Gary D. Malfeld