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socrateaser
socrateaser, Lawyer
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Experience:  Retired (mostly)
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Arizona law will apply here. A mother (M) took her daughter

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Arizona law will apply here.

A mother (M) took her daughter (D) and daughter's friend (DF) to a commercial horse boarding facility (CHBF). The M says she had taken the D and DF to the CHBF many times in the past with the consent of the DF's parents. On this day, I am told the DF's parents were asked and gave their consent.

They took my horse out to ride without my permission and the DF was injured. The DF's attorney says the horse bucked and she fell off. The D says she was on the horse and the horse got spooked and sideswipped the DF as she stood on the ground. Either way, it seems like it was an inherent danger when being with a horse, so, in my opinion, the parent's of the DF assumed the risk.

There are no known witnesses other than the D and DF. The M did not witness the event. I was not there when this event occurred. I wonder if they were trying to ride double, but they both deny it. They were using the saddle and tack of the people that own the CHBF, and I believe it was without permission.

Of course, the DF is suing the M and D, and they are suing me for negligence because they say I have a duty to the DF. I have never met the DF, and I have never talked to her or her parents or communicated with them in any way. I never gave the DF or her parents permission to be on the property and I never gave the DF or her parents permission to ride my horse. The M and D previously had permission to ride my horse under supervision, but it was revoked because my horse was in training.

I bought the horse in question from the CHBF, and the D used to show the horse before I bought the horse, so the D has a lot of experience with this horse and is a good rider. However, after I bought the horse she still wanted to ride, but initially it was under supervision and then permission was revoked all together...

I have a law degree, but I do patent law...

I found this for Az:

In order to maintain a negligence/tort action in Arizona, an injury victim must establish the four elements of a tort. Those four elements are duty, breach, causation and damages. In other words, the injury victim must prove that the defendant had a duty to the victim, the defendant breached that duty, and the breach of the duty caused damages.

In the complaint, they just mention I had a duty to the DF, but they do not say why. They are silent as to how I allegedly breached the duty and how the breach allegedly caused the damages.

The relevant horse statute for Arizona is A.R.S. § 12-553, and it mentions gross negligence.

Help! I do not want to spend my summer dealing with this. I am really sorry she got hurt, but there is no way I was negligent or grossly negligent. Besides, it seems like A.R.S. § 12-553 protects me and the CHBF, as well as the M and D because the parents of the DF assumed the risk.
Submitted: 1 year ago.
Category: Legal
Expert:  socrateaser replied 1 year ago.
The statute that you reference only applies if you allowed the plaintiff to take control of the horse. You claim that no permission to use the horse was granted. Assuming that you can prove that the plaintiff took the horse out to ride without permission, then that is trespass to chattel, and that would also mean you have no duty of care to the plaintiff -- since the use was wrongful to begin with.

I don't see that the plaintiff can use an attractive nuisance theory, because plaintiff was with her parent, and parent was supervising the taking of the horse.

I would countersue for trespass to chattel and try to get an offset against M for taking the horse out without permission.

But, even if M shows she had permission, that doesn't mean that permission extended to DF. That exceeded the scope of the license, and so you would have no duty to DF.

So, that's the goal, i.e., to deflect the duty back onto M, by either proving trespass to chattel or exceeding the scope of permission by permitting DF to ride, and thus either offseting DF's claim with a judgment against M, or by showing that M was a supervening independent cause, since she exceeded the scope of permission and thereby became the actual and legally proximiate cause of DF's injuries.

This feels like a bar exam essay. What a mess!

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33377
Experience: Retired (mostly)
socrateaser and 14 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

OK. That does help. Thanks! It is like a bar exam question... Maybe I should submit it to them.


 


I was confused by that Statute since I was not there when they took the horse, so thanks for clarifying.

Expert:  socrateaser replied 1 year ago.
You're welcome.

Happy Independence Day.
Customer: replied 1 year ago.

I have a follow-up question. The opposing attorney says the girl was bucked off my horse, and is basing his case against me on the theory of negligence.


 


I think I need to file a Motion to Dismiss based on the fact that I did not cause the horse to buck, and I was not even there when it happened. Further, I do not even know the girl and never gave her permission to take possession of my horse. Because of all this, I do not owe her a legal duty which obligates me to adhere to a certain standard of conduct to protect others from unreasonable risks.


 


I also see Restatement of Torts § 518, which states


 


LIABILITY FOR HARM DONE BY DOMESTIC ANIMALS WHICH ARE NOT ABNORMALLY DANGEROUS


 


(O)ne who possesses or harbors a domestic animal, which he does not have reason to know to be abnormally dangerous but which is likely to do harm unless controlled, is subject to liability for harm done by such animal if, but only if,


 


(a) he fails to exercise reasonable care to confine or otherwise control it, and


 


(b) the harm is of a sort which it is normal for animals of its class to do.


 


I can argue the case should be dismissed because my horse was held in a stall like all the other horses on this horse ranch, and they took the horse from the stall without my permission and without me being there, and under the supervision of another adult.


 


What do you think? Is this a good way for me to get this case dismissed?


 


Thanks in advance.

Expert:  socrateaser replied 1 year ago.
What do you think? Is this a good way for me to get this case dismissed?

 

A: This is not really a follow-up. You're asking a new question requiring considerable detail to answer.

 

"A Court should not grant motion to dismiss complaint for failure to state claim unless it appears certain that plaintiff would not be entitled to relief under any state of facts susceptible of proof under claim stated."  16 A.R.S. Rules Civ.Proc., Rule 12(b), par. 6; Acker v. CSO Chevira, 188 Ariz. 252, 934 P.2d 816 (Ariz. Ct. App. 3/20/1997).

 

You are attempting to add additional facts to show that you have no duty. If you do this, you convert the motion into one for summary judgment, which would permit both you and the plaintiff produce a great deal of evidence (and which you may not yet have, because there's been no discovery). However, motion for summary judgment means you must show that no genuine issue of material fact is in dispute, and that could be pretty tough to do right out of the gate.


Here's a useful case: Dolezal v. Carbrey, 161 Ariz. 365, 778 P.2d 1261 (4/18/1989) (favorably citing Wolfe v. Wilkins, 491 P.2d 595 (Colo. App. 1971): where horse had no history of vicious or dangerous behavior, had been ridden without incident by teenage children of the owner, and the professional trainer of the horse classified this horse as a good horse, the owner was not liable for injuries sustained by the social guest who was bucked off by the horse).

 

Also, if I were representing you, I would sue the other parent for intentional interference with chattel, contribution, indemnity, misrepresentation, and negligence, and try to deflect any liability onto the other parent -- just in case, you lose the negligence claim.

 

Hope this helps.

 

Customer: replied 1 year ago.

OK. The problem is that I already filed my answer thinking the DF was next to the horse. In the Plaintiff's disclosure under 26.1, they are saying the DF was bucked off the horse... So now the DF is an equine participant instead of a spectator.


 


Can I now amend my answer to add counterclaims, or are they waived? Is it up to the judge to let me add counterclaims? Maybe I will get lucky.


 


In my Answer, I included affirmative defenses, such as the DF did not have permission to be on the property and ride, and the DF is at fault and the DF assumed the risk. I also say that I did not cause the injury and damages to the DF.


 


Are you an Az attorney? It says you are semi-retired, but I have no idea where you are at.

Expert:  socrateaser replied 1 year ago.
Can I now amend my answer to add counterclaims, or are they waived? Is it up to the judge to let me add counterclaims? Maybe I will get lucky.

A: Rule 15(a)(1)(B), permits amendment of an answer, "within twenty-one days after service of a responsive pleading if the pleading is one to which a responsive pleading is required or, if a motion under Rule 12(b), (e), or (f) is served, on or before the date on which a response to the motion is due, whichever is earlier."

In my Answer, I included affirmative defenses, such as the DF did not have permission to be on the property and ride, and the DF is at fault and the DF assumed the risk. I also say that I did not cause the injury and damages to the DF.

 

Are you an Az attorney? It says you are semi-retired, but I have no idea where you are at.

A: I prefer to remain anonymous. Arizona civil procedure is practically identical to the Federal Rules. Case law in Arizona provides that federal case law is to be treated as highly persuasive in determining AZ rules.

Note: If you would like to continue this conversation, I would appreciate another positive rating for one of my subsequent answers, so that I may receive appropriate compensation for my continuing efforts.

Thanks in advance for your understanding.

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