My colleague, Alison Rowe, is what I affectionately call a horse lawyer. Actually, Alison practices Equine Law (which broadly includes a diverse area of transactional and litigation issues involving farm, ranch, agricultural and real and personal property issues) and is recognized as a "go to" authority on this subject area in Texas. She also happens to publish the award winning Equine Law Blog. This week Alison agreed to guest post an article on a legal subject she and I have been debating for weeks and that is the breadth of the immunity that may be afforded certain farm and ranch employers in the state of Texas. Without further introduction, here is Alison's take on thescope of employer immunity under the Texas Farm Animal Limitation of Liability Act.
By Alison Rowe
If you have been sued by a worker whose injuries resulted from inherent risks associated with farm animals, you may be able to successfully assert the defense of immunity from liability under Chapter 87 of the Texas Civil Practice & Remedies Code (“Chapter 87”).
Passed in 1995, Chapter 87 (formerly entitled, “Texas Equine Limitation of Liability Act”) originally only afforded immunity in suits arising from equine activities. Chapter 87 (now entitled “Texas Farm Animal Limitation of Liability Act”) was amended in 2011 to, among other things, expand its applicability to suits involving all farm animals.
The Supreme Court of Texas interpreted the pre-amendment version of Chapter 87 for the first time in Loftin v. Lee (Tex. 2011). The Court construed Chapter 87 broadly, stating,
The Equine Act is a comprehensive limitation of liability for equine activities of all kinds…The Equine Act applies to all ‘participants’”. [Emphasis supplied].
Though the Supreme Court has never directly addressed the issue of whether Chapter 87 applies to suits brought by employees or independent contractors, two courts of appeals have weighed in in favor of employers, at least where the injured plaintiff was found to be an independent contractor. Here is a summary of the three appellate cases that have addressed the issue:
1) Johnson v. Smith, 88 S.W.3d 729 (Tex. App. – Corpus Christi 2002, no pet.)-- The Corpus Christi court of appeals acknowledged that an independent contractor in charge of breeding and handling stallions was a participant under Chapter 87. As such, the employer in that case was found to have appropriately raised the defense of immunity under Chapter 87. Johnson was not appealed to the Supreme Court of Texas. For more information, see this post and this post.
2) Dodge v. Durdin, 187 S.W.3d 523 (Tex. App. – Houston [1st] 2005, no pet.)-- The 1st Court of Appeals held that Chapter 87 does not apply to an employer - employee relationship. Citing its review of legislative intent, together with the duties assigned to Texas employers under the Texas Workers’ Compensation Act, the 1st Court of Appeals held that, “the Equine Act applies to consumers and not to employees and that Dodge is therefore not a ‘participant’ under the Equine Act.” Dodge was not appealed to the Supreme Court of Texas. For more information, see this post and this post.
3) Young v. McKim, No. 14-11-00376-CV, 2012 WL 1951099 (Tex. App.—Houston [14th] May 31, 2012, pet. denied)--The Fourteenth Court of Appeals determined that Young was an independent contractor, not an employee, and affirmed the employer’s summary judgment under Chapter 87. The court did not reach the issue of whether Chapter 87 would have applied had Young been an employee. Citing the Supreme Court’s broad interpretation of Chapter 87 in Loftin, the Fourteenth Court disagreed with the discussion in Dodge suggesting that Chapter 87 only applied to “tourists and other consumers of equine activities.” Young was appealed to the Supreme Court of Texas, but the petition for review was recently denied. More information can be found here and here.
Until the Supreme Court or another appellate court takes up a case specifically involving an employer-employee relationship, plaintiff’s lawyers continue to argue that a nonsubscriber employer should not be afforded the benefits of Chapter 87, or any other defense not specifically enumerated in the Workers’ Compensation Act. In other words, plaintiff’s lawyers will continue to cite Dodge in cases involving employees, in an effort to get around Chapter 87.
I personally disagree with the reasoning in Dodge, and so might the Supreme Court. In a recent tort case involving a hospital employee, the Supreme Court was willing to allow a tort-reform statute to override Workers’ Compensation Act’s limitations on non-subscriber defenses. For more information, see this post.
The Legislature has also expressly exempted certain farm or ranch workers from the provisions of Workers’ Compensation Act altogether, as long as the employer has a payroll of less than $25,000 or fewer than three employees. See Section 406.091 of the Texas Labor Code. This issue seems to have been completely ignored in Dodge.
Texas farm and ranch employers should be sure to raise Chapter 87 as a defense in farm animal-related injury cases. However, until the Supreme Court takes up this issue, employers should not rely completely upon Chapter 87 to provide immunity from suits brought by employees or independent contractors.
Farms and ranches can take several steps to minimize liability risk in this area, including 1) procuring insurance to cover employee or independent contractor injuries; 2) having workers sign liability releases; 3) posting the applicable warning signs referenced in Chapter 87; and 4) including the applicable Chapter 87 warning language in all written agreements with workers.
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