Overlawyered – All Horse Edition

by Jason Barney on August 12, 2008

The need for tort reform doesn’t necessarily arise from headline-grabbing blockbuster verdicts but rather a “death by a thousand cuts” of many small suits of questionable merit.  Example: A woman sues the party host after drinking and then attempting to get on his horse as part of the party festivities.  She falls, suffers injuries and files suit against the host making general allegations of negligence, including, “providing … the opportunity to participate in the ‘inherently dangerous activity of horseback’ ”.

Does the host’s behavior rise to the level of negligence?  And, if so how is the woman’s negligence less than his?  He may have offered the alcohol; she drank it.  He may have offered the horseback ride; she accepted.  Have we reached the point in America that we need to have party goers sign waivers for private festivities?   But since exculpatory agreements are generally frowned upon by the courts I think I’ll just stay home alone.  A lot of fun that will be.  (“Suit shows you shouldn’t drink and ride horses”, The West Virginia Record, Aug. 8).

Horse example number 2:  Certified Massage Therapist Mercedes Clemens is suing two state agencies because her avocation is massaging horses but the state won’t let her (at least not for a fee) because she is only licensed to massage humans.  And, for once it’s really not about the money because she’s not asking for it in her lawsuit, just the right to massage animals.  It’s not as if Clemens is practicing pediatric anesthesiology for kicks.  So who cares, really?

I suspect it’s the veterinary board or the National Board of Certification for Animal Acupressure (at the behest of its members) who fear Clemens and people like her will poach their clients. And, if the state would simply step out of the way in this instance it could avoid this lawsuit. (“Woman sues for right to massage horses”, MSNBC, Aug. 11 and “Rockville therapist sues state for right to massage animals”, Gazette.Net, Jul 2).

{ 2 comments }

1 Sherri 08.14.08 at 10:21 am

I would like to point out an enormous error in your statement “I suspect it’s the veterinary board or the National Board of Certification for Animal Acupressure (at the behest of its members) who fear Clemens and people like her will poach their clients.”

The National Board of Certification for Animal Acupressure and Massage (NBCAAM) is a new organization that was started for the SOLE purpose of enhancing the standing of animal acupressure and massage practitioners in this country. It does this by hosting a national certification exam and offering ongoing continuing education so that veterinarians, animal health care providers and the general public can have confidence in the education and abilities of nationally certified practitioners. The reason for doing this is clear – there are currently no licensing or standard requirements for practicing animal massage and acupressure. Laws vary from state to state. Anyone who takes a weekend workshop or views a video can say they’re “certified” and set up practice. This, as you can imagine, can at best denigrate a legitimate practice and at worst be very dangerous. Therefore, leaders in the animal acupressure and massage fields got together to come up with a solution. Their answer was NBCAAM and a national certification exam. No one is forced to participate in this organization or to take the exam. NBCAAM will in NO WAY EVER put pressure on anyone to do anything. It is simply a vehicle for those who wish to enhance their practice. I am a small animal massage and acupressure practitioner and I can tell you that I look forward to taking both exams, when they are available.

I am certain that Ms. Clemens will see the value in being nationally certified, and based on what I’ve read about this case so far, I suspect she will have no trouble passing the exam! Finally, as author of this article, I encourage you to do your research on NBCAAM before you discredit this organization.

2 Jason Barney 08.15.08 at 12:03 pm

Thank you for pointing that out. Perhaps I was too harsh. It’s been my experience that professional organizations similar to NBCAAM in the name of “quality” demand onerous licensing exams before one is allowed to perform services. The effect is similar to erecting an artificial barrier to competition since entry into the occupation is restricted.

A perhaps better example is that paralegals can competently prepare legal documents but only under the supervision of a licensed attorney. The paralegal is prohibited by law to give legal advice or draft documents independently, even though many are perfectly capable. This example holds especially true if you want a basic will drawn up or settle an uncomplicated personal injury matter without litigation. Instead, you have to go to an attorney. This equals more jobs for attorneys and higher prices for consumers.

And, take note of my “pediatric anesthesiology” comment. I realize when the stakes are that high there is no margin for error. Professional examinations and licensing requirements are more compelling. I just don’t see the same stakes in the case of animal massage.

Thanks for commenting.

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