Working with livestock is intrinsically a risky business. Finding yourself between a mother and her calf or a bull or ram is not something you plan for or where you want to be.
A bill introduced in the Texas Legislature seeks to clarify liability when participating in a farm animal activity. House Bill (HB) 365, introduced by Rep. Andrew S. Murr (R-Kerrville) and sponsored by five other representatives, amends language in the 2011 Farm Animal Liability Act (FALA) to include ranchers, ranch hands, veterinarians, and participants who engage in any activity on a farm “to handle and manage farm animals.”
In 1995, the Texas Equine Act was passed to provide horse owners protection from liability for participants’ injuries that were due to the inherent risks of being involved with horses. The Equine Act was amended in 2011 to include bovines, sheep, goats, pigs, hogs, ostriches, rheas, emus, chicken, and other fowl and became FALA. The language in FALA was also expanded to include an owner’s release from liability in farm animal activities or livestock shows.
“Ranching is a hard way of life, but one that is absolutely essential. Many of the risks and challenges faced by cattle producers every day are out of our control, but we can control legal liability. Many family livestock operations simply cannot weather an unexpected lawsuit and continue to feed America at the same time,” Murr said in an editorial.
HB 365 came about after Texas Supreme Court ruled in Carmine Charolais v. Heirs of the Estate of Raul Amaparo Zuniga Ortiz Jr. that FALA did not apply to “ranchers and ranch hands.”
Conway and Marlene Waak hired Zuniga part-time to work cattle, cut hay and do landscaping in 2005. Zuniga became full-time in 2008. Initially, Waak trained Zuniga on working cattle properly and supervised him to ensure Zuniga did the work correctly. Occasionally, Zuniga would work cattle alone while Waak was away on his other job.
In October 2013, Waak instructed Zuniga to move cattle from one end of the ranch to the other while the couple was in town running errands. Zuniga called Waak to ask about a bull, a cow and her calf remaining in a pen and if he should move them. When Waak arrived, he found Zuniga unconscious behind the barn. The cause of death was determined to be “blunt force and crush injuries” consistent with “to have come from an extensive force like that of a large animal trampling the body.”
The Zuniga family sued Waak, claiming negligence in several respects, including failure to provide a safe workspace and train and supervise Zuniga, and warning him of the dangers. The trial court ruled in favor of the Waaks based on FALA, barring the plaintiffs’ claims.
The Zuniga family appealed, and the First Court of Appeals in Houston reversed the decision citing Zuniga was an employee rather than an independent contractor, and employees were not a “participant” under FALA. The Waaks sought review from the Texas Supreme Court.
The Texas Supreme Court ruled that the statutory language applies to livestock shows and “the categories listed as examples do not suggest that ranchers should be included.”
Next, the court looked at “participant” as defined in FALA and found that an employee does not pay to work and found that “referring to a ranch hand as a ‘participant in a farm animal activity’ is inconsistent with the act’s history and context.”
Lastly, the court noted when FALA was expanded from the Texas Equine Act to include all animals, the definition of “farm animal activity” was expanded to include “handling, loading, or unloading.” The Court did not find this wording should apply to ranching, noting that these words “obviously have meaning outside the ranching context.”
Changes with HB 365
The bill explicitly defines the types of farm animal activities to include activities usually associated with those that occur on a ranch and includes “routine or customary activities on a farm to handle and manage farm animals.”
It also defines a farm and states that farm and ranch shall be interchangeable and apply to either or both. The bill details language defining “farm animal activity” to include: owning, raising, boarding and pasturing a farm animal; assisting or providing animal health management activities; and assisting or conducting routine tasks on a farm with farm animals.
The bill expands “farm animal activity sponsor” to include an owner of a farm and other persons who provide regular animal care on the farm. It also includes in the definition of “participant” an employee or independent contractor.
Changes also include a warning notice that must be posted in a visible location on the farm or ranch and be included in any written contract that the professional enters into with an employee, independent contractor, or participant regardless of whether or not they engage in a farm animal activity.
There are exceptions to the limitation of liability which include: the injury or death was due to faulty equipment or tack; an effort was not made to determine the ability of the participant to engage safely in the activity; written or verbal warnings were not posted in a conspicuous place; “willful or wanton disregard for safety”; and the livestock show allowed a person to participate, and they were not a participant.
Tiffany Dowell Lashmet, agricultural law specialist at Texas A&M Agrilife Extension, told WLJ she has some concerns with liability exceptions regarding the aspect to determine the participant’s ability. She recommends an employer should have training and protocols for employees.
“For example, one claim in the Waak lawsuit was inadequate training of the deceased employee. If the employer had a contract or employee handbook that set forth what training had been provided, required training, had safety protocols to be followed, etc., that might have been helpful evidence to defend against that claim,” Lashmet said.
While it is not required in Texas, Lashmet recommends employers carry worker’s compensation and liability insurance.
“It is important in the instance where an employee is injured because it steps in to compensate an injured employee, rather than there being a lawsuit filed,” Lashmet said. “Additionally, if a farmer or rancher has three employees or more and is a non-subscriber to worker’s compensation insurance, that farmer or rancher may be limited on the defenses available in the event that an employee is injured and a lawsuit is filed.”
The bill states that nothing in the language alters Chapter 406 of the Texas Labor Code, which covers worker’s compensation insurance or an employer’s “ability to refuse to subscribe to the worker’s compensation system.”
In mid-March, Texas and Southwestern Cattle Raisers Association (TSCRA) Director Jay Evans testified before the House Judiciary and Civil Jurisprudence Committee to support HB 365.
“We thought we had this covered [in the Farm Animal Liability Act], but we found out though as a result of the [Texas] Supreme Court ruling that was not the case,” Evans said. He also asked the committee to “enact legislation that would give us the protection that we originally thought we had.”
Murr stated in an editorial, “Passing this legislation will be one of my top priorities for the 2021 Texas Legislative Session, but there is a long road ahead.” A companion bill was introduced in the Texas Senate by Sen. Drew Springer (R-Gainesville). — Charles Wallace, WLJ editor