By Jennifer Dorsett
Field Editor

The Texas Supreme Court recently handed down a decision which may have far-reaching implications for Texas farmers, ranchers and livestock owners.

In the case, Zuniga v. Waak, the family of ranch hand Raul Zuniga allege he was killed on the job by a bull owned by Conway and Marlene Waak.

The Waaks, who run a cattle operation, were sued by Zuniga’s family for wrongful death. In their suit, the family alleged the Waaks were negligible in providing a safe workspace, failed to adequately train Zuniga and warn him of the dangers of working cattle, as well as failed to supervise Zuniga.

The trial court who first heard the case granted summary judgement in favor of the Waaks and dismissed the case, saying the Texas Farm Animal Liability Act (FALA) barred the plaintiffs’ claims.

The Zuniga family appealed, and the case was taken up by the First Court of Appeals in Houston, which reversed the decision. The appeals court held that FALA was inapplicable because Zuniga “was not a participant in a farm animal activity” for whom FALA is applicable.

The Waaks sought review from the Texas Supreme Court, and their petition was granted. In their case, the longtime ranchers argued FALA applies by its plain terms to ranching—working farm animals for a living or for profit.

FALA is an update to the previous Texas Equine Activity Limitation of Liability Act, passed in 1995, which provided horse owners were not liable for participants’ injuries due to the inherent risks of interacting with horses, according to Agricultural Law Specialist at Texas A&M AgriLife Extension Service Tiffany Lashmet.

In 2011, the Equine Act was amended to include bovine animals, sheep, goats, pigs, hogs, ratites, ostriches, rheas, emus, chickens and other fowl. The act was also expanded to cover veterinarians and livestock shows, and the words “handling, loading or unloading” were added to the definition of farm animal activities.

FALA limits liability for injury to a “participant in a farm animal activity or livestock show” that results from “inherent risk” of activities.

A participant is defined as “with respect to a farm animal activity, a person who engages in the activity, without regard to whether the per son is an amateur or professional, or whether the person pays for the activity or participates in the activity for free.”

But in a divided opinion issued in June, the Texas Supreme Court upheld the decision of the appeals court, writing, “Not only do the many examples in the Equine Act omit any mention of ranchers and ranch hands, every textual indication shows that they are not covered. The court of appeals came to that conclusion 10 years after the Equine Act was passed in Dodge v. Durdin. In the 40-year history of equine activity statutes, the Dodge court—the only one to consider the issue of which we have been made aware—held that the Texas Equine Act does not apply to ranching.”

As such, the court’s majority opinion said, “Ranch hands have none of the characteristics the Farm Animal Act lists for ‘participants.’ Ranch hands do not work as amateurs or professionals, they certainly do not pay to do their work, and they ordinarily do not work for free.”

The Waaks did not subscribe to any workers’ compensation insurance.

The court noted in its opinion that though the Texas Workers’ Compensation Act limits the non-subscribing employer’s defenses, it does not prevent an employer from “asserting the liability shield of FALA.”

However, Lashmet said the interpretation of the Texas Supreme Court limits the scope of the act, and Texas farmers and ranchers need to be aware because the decision limits FALA from applying to working ranches.

“Previously, I read the FALA as applying to activities like moving cattle, branding and processing calves. This decision, however, expressly excludes injured ranchers or ranch hands,” she said. “Instead, it appears the Texas Supreme Court believes the defense is limited to situations involving injuries at livestock or horse shows, rodeos, exhibitions, competitions, trail rides and riding lessons.”

The court drew a distinction between ranchers, ranch hands and other participants, instead of focusing on the distinction between an employee and an independent contractor.

“There had been some appellate court cases, including Dodge v. Durdin, where the courts had drawn a distinction between employees, to whom the act did not apply, and independent contractors, to whom it did apply. And at the appellate level, the Waaks’ counsel argued Mr. Zuniga was an independent contractor, not an employee,” she said. “The Texas Supreme Court had never ruled on that issue, so while they knew the appellate courts believe it was limited to independent contractors, the Supreme Court could have ruled differently. But the Supreme Court did not address the employee versus independent contractor distinction at all. They just said the act did not apply to any ranchers or ranch hands.”

But nothing in the language of the statute expressly excludes ranchers from those protections, according to Lashmet.

“FALA defines a ‘livestock producer’ as a person who owns, breeds, raises or feeds livestock animals. It then provides that any person, including a farm animal activity sponsor, farm animal professional, livestock producer, livestock show participant or livestock show sponsor, is not liable,” she said. “If the majority [of the Texas Supreme Court] was concerned about the categories of people included on this list, it seems that ‘livestock producer’ certainly could intend to encompass a rancher who produces livestock.”

Lashmet recommends livestock operations and landowners in Texas have some form of liability insurance, and any operation with employees should consider carrying workers’ compensation insurance.

“This is especially critical if the operation has three or more employees,” Lashmet said. “Because under the Texas Workers’ Compensation Act, farm and ranch employers who do not subscribe with three or more employees are prohibited from raising certain defenses in wrongful death lawsuits.”