By: Kylee Greene
Kentucky’s Farm Animal Activity Act’s (FAAA) vague horse racing exemption has left plaintiffs racing toward recovery, only to stumble at the finish line. The FAAA, Kentucky Revised Statutes (KRS) §§ 247.401-4029, limits the liability of farm animal activity sponsors, professionals, and participants for injuries arising from the inherent risks of those activities.[1] Limited liability is available because the Kentucky General Assembly recognizes that farm animal activities attract Kentucky citizens and nonresidents, boosting the state’s economy.[2] However, not all farm animal activities are subject to limited liability under the FAAA.[3] One important exemption is KRS § 247.4025(1), which provides that limited liability “shall not apply to farm animal activity sponsors, farm animal activity professionals, persons, or participants when engaged in horse racing activities.”[4]
The FAAA defines horse racing activities as “the conduct of horse racing activities within the confines of any horse racing facility.”[5] This circular definition requires factfinders to evaluate the common meaning of the phrase “horse racing activity” on a case-by-case basis, rather than following a definitive test.[6] For example, in Bradley Racing Stables, LLC. v. Roby, a participant approached a stable pony at Churchill Downs and was injured when the pony lunged at and bit her.[7] The Court acknowledged the inadequacy of the state legislature’s definition of horse racing activities and relied on the common meaning of the phrase.[8] Subsequently, the participant injured in Roby was precluded from pursuing a negligence claim through the exemption because the pony was not engaged in activity directly related to horse racing, even though the incident occurred on the racetrack’s busiest day of the year (the Kentucky Derby).[9] Relying on the common meaning of “horse racing activities” leaves courts without a clear standard for applying the exemption, particularly because there are “plenty of circumstances ‘that uniquely occur at horse racing events’” where the public interacts with horses, such as the paddock and racetrack area prior to races.[10]
Moreover, the Kentucky Supreme Court has noted that the horse racing activity exemption does not apply simply because an activity occurred at a racetrack.[11] In Prather, the Court determined that the horse racing activity exemption did not apply when the only activities occurring at a racetrack were horse transport to and from sales arenas and transport vans where horses were loaded and taken after purchase.[12] Despite the Court outlining the distinction between horse sale and horse racing activity in Prather, we still do not have an established test that encapsulates the meaning of “horse racing activity.”
Potential plaintiffs still lack a clear standard for determining whether they can pursue a successful claim under the horse racing activities exemption. Precedent illustrates how the exemption may apply in highly fact-specific situations. Instead, Kentucky should adopt a three-factor test for determining whether a farm animal activity constitutes a horse racing activity based on: (1) the nature of the farm animal activity; (2) whether the plaintiff’s injury occurred on the racetrack; and (3) the temporal proximity between the plaintiff’s injury and the race.
Out of the proposed factors, the nature of the activity would hold the most weight because it would focus on the conduct of both the horse and the participant.[13] This approach would preserve the fact-specific inquiry reflected in current precedent while providing potential plaintiffs greater predictability when evaluating their claims.[14] As Roby demonstrates, the nature of the animal activity is a crucial piece of determining whether the exemption applies, because even on the busiest race day of the year, the activity in the stall was not a horse racing activity, and the plaintiff’s claim was precluded.[15]
The second factor--whether the injury occurred on the racetrack--preserves the legislature’s intent to limit liability for farm animal activities by preventing the exemption from applying to every horse at a racetrack, regardless of whether the horse is racing or not.[16] A horse’s presence at a racing facility should not automatically trigger the exemption, instead, the exemption should only apply when the horse is actively racing on the track.
Finally, the third factor’s evaluation of temporal proximity between the injury and the race would serve as a secondary consideration for the purpose of determining whether the activity itself was sufficiently connected to horse racing. For example, if the injury occurred immediately before, during, or after a race (while still on the racetrack), then the horse racing exemption would likely apply. Conversely, if the injury occurred in remote temporal proximity to the race, then the exemption would likely not apply. These factors, when evaluated together, preserve the fact-specific inquiry outlined in Roby and Prather[17] while providing a more definite framework for future litigants.
[1] Ky. Rev. Stat. § 247.401; Ky. Rev. Stat. § 247.402(1); Bradley Racing Stables, LLC. v. Roby, 694 S.W.3d 381, 384 (Ky. 2024); Keeneland Ass’n, Inc. v. Prather, 627 S.W.3d 878, 883 (Ky. 2021).
[2] Ky. Rev. Stat. § 247.401.
[3] Ky. Rev. Stat. § 247.4025.
[4] Ky. Rev. Stat. § 247.4025; Roby, 694 S.W.3d at 384.
[5] Ky. Rev. Stat. § 247.4015(8).
[6] See Roby, 694 S.W.3d at 387.
[7] Roby, 694 S.W.3d at 385.
[8] Id. at 387.
[9] Id. at 387–88.
[10] Margrit Parker & Francesca Ortiz, Recent Dev. in Animal Tort and Ins. L., 60 Tort Trial & Ins. Prac. L.J. 7, 37 (2025); Id. at 389.
[11] Prather, 627 S.W.3d at 886.
[12] Id.
[13] See Roby, 694 S.W.3d at 387–88.
[14] Id.
[15] Id.
[16] See Prather, 627 S.W.3d at 886; Roby, 694 S.W.3d at 388.
[17] See Roby, 694 S.W.3d at 387; Prather 627 S.W.3d at 881.