| Carey v Schwab |
| 2013 NY Slip Op 05370 [108 AD3d 976] |
| July 18, 2013 |
| Appellate Division, Third Department |
| Robert Carey et al., Respondents, v Burton P. Schwab,Appellant. |
—[*1] The Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of counsel), forrespondents.
Stein, J. Appeal from an order of the Supreme Court (Ferradino, J.), entered March20, 2012 in Saratoga County, which, upon reargument, adhered to its prior order denyingdefendant's motion for summary judgment dismissing the complaint.
On May 24, 2008, defendant, along with Diana Weaver and Jan Wilson, rode threehorses to a local tavern. Two of the horses, Whiskey and Sally, were paint horses thatbelonged to defendant and the third horse, Cowboy, belonged to Wilson. Whiledefendant, Wilson and Weaver were at the tavern, Whiskey and Cowboy got loose fromtheir restraints and took off down the road, with Wilson chasing after them on foot.Plaintiff Robert Carey (hereinafter plaintiff) was inside his nearby home, when heobserved the two horses running down the road and Wilson following them. Plaintifftried to assist Wilson in corralling the horses by following them in his car, and heultimately pulled his vehicle in front of the horses. When the horses stopped, Wilson wasable to take Whiskey's reins, but the horses got away and, once again, took off down theroad. Wilson and plaintiff continued to follow the horses and, when they stopped in apasture, Wilson again grabbed Whiskey's reins. She then asked plaintiff to hold Whiskeywhile she attempted to retrieve Cowboy. As plaintiff held Whiskey's reins, the horse "gotspooked" and "head swatted" plaintiff, who was knocked unconscious and fell to theground; Whiskey then dragged plaintiff, who was still holding the reins, stepped onplaintiff and ran over him.
As a result of the injuries that plaintiff allegedly sustained in this incident, he and his[*2]wife, derivatively, commenced this personal injuryaction. After joinder of issue and discovery, defendant moved for summary judgmentdismissing the complaint, claiming that he did not have prior notice that Whiskey hadany vicious propensities or a history of dangerous behavior.[FN1] Supreme Court (R. Sise, J.) denied defendant's motion and defendant thereafter movedto reargue. Supreme Court (Ferradino, J.) granted the motion to reargue, but adhered tothe prior order denying defendant's motion for summary judgment. Defendant nowappeals.
We affirm. As a general rule, an owner of a domestic animal will only be held strictlyliable for the harm caused by such animal if he or she " 'knows or should have known ofthat animal's vicious propensities' " (Bard v Jahnke, 6 NY3d 592, 596 [2006], quoting Collier v Zambito, 1 NY3d444, 446 [2004]; seeHastings v Sauve, 21 NY3d 122, 125 [2013]; Bloomer v Shauger, 21 NY3d917, 918 [2013]).[FN2] Therefore, on his motion for summary judgment, defendant bore the initial burden ofestablishing that he had no prior knowledge that Whiskey had any vicious propensity (see Hamlin v Sullivan, 93AD3d 1013, 1013 [2012]). It is now well established that a vicious propensity is "thepropensity to do any act that might endanger the safety of the persons and property ofothers in a given situation" (Collier v Zambito, 1 NY3d at 446 [internal quotationmarks and citations omitted]; see Bloomer v Shauger, 21 NY3d at 918), andincludes behavior that would not necessarily be considered dangerous or ferocious ifthose behaviors reflect a " 'proclivity to act in a way that puts others at risk of harm' " (Bloomer v Shauger, 94 AD3d1273, 1275 [2012], affd 21 NY3d 917 [2013], quoting Collier vZambito, 1 NY3d at 447). However, normal or typical equine behavior is insufficientto establish a vicious propensity (see Bloomer v Shauger, 94 AD3d at 1275; Bloom v Van Lenten, 106AD3d 1319, 1320 [2013]; Hamlin v Sullivan, 93 AD3d at 1014).
Here, in support of his motion, defendant offered, among other things, his affidavitand the deposition testimony of himself, Weaver and Wilson concerning Whiskey'sbehavioral history in general, as well as the incident at issue in this case. Defendantalleged that he owned two paint horses at the time of the incident and described Whiskeyas calm, docile, well-trained and sociable.[FN3] In addition, he claimed that he had never received complaints about Whiskey's behaviorin the past and had no knowledge of Whiskey ever moving or jerking his head violently[*3]or quickly, knocking anyone to the ground orstomping on anyone. Weaver and Wilson, both of whom were familiar with Whiskey,corroborated defendant's testimony regarding the horse's generally calm demeanor andthe lack of a history of aggressive behavior.
In opposition to the motion, plaintiffs relied, in large measure, on the depositiontestimony of Thomas Merrills—a neighbor of plaintiff and a friend ofdefendant—who also witnessed the incident and tried to help Wilson retrieve thehorses. Merrills explained that he visited defendant's barn many times and was familiarwith defendant's horses. Merrills stated that he knew that defendant rode his paint horseoften and had observed that the paint horse "would usually give [defendant] a hard timegetting on and off" and was often "circling [defendant], dancing around." Further,Merrills testified that he had seen the paint horse rear up and stand on two legs whiledefendant tried to mount him and that the horse was "flighty" and "was always throwinghis head in the air," which Merrills—who had substantial experience withhorses[FN4]—believed to be aggressive behavior that is not ascribed to horses in general(compare Bloomer v Shauger, 21 NY3d at 918). However, Merrills was not ableto identify Whiskey as the paint horse that he had previously observed actingaggressively. The crux of defendant's argument is that Merrills' inability to make suchidentification renders his testimony insufficient to create an issue of fact regardingwhether defendant had prior knowledge of Whiskey's vicious propensity.
We disagree. While, indeed, plaintiffs will ultimately bear the burden of establishingat trial that defendant had notice of a vicious propensity attributable to Whiskey, it isdefendant's burden, as the movant on this summary judgment motion, to demonstrate as amatter of law the absence of such notice, i.e., that Merrills' previous observations were ofa different horse. The record, including defendant's own testimony, clearly establishesthat Whiskey was the paint horse that defendant usually rode and that defendant hadridden Whiskey to the tavern on other occasions. This supported an inference thatWhiskey was the horse that Merrills previously observed acting aggressively and createda credibility issue for a jury to resolve (see Reil v Chittenden, 96 AD3d 1273, 1274 [2012]).Viewing, in a light most favorable to plaintiffs, Merrills' testimony regarding hisobservations of defendant's paint horse, together with the evidence that Whiskey was thepaint horse that defendant usually rode, and giving plaintiffs the benefit of all reasonableinferences that can be drawn therefrom, we find that there are genuine issues of factwhich preclude summary judgment (see Reil v Chittenden, 96 AD3d at 1274; Gannon v Conti, 86 AD3d704, 706 [2011]; Seybolt vWheeler, 42 AD3d 643, 645 [2007]). Therefore, Supreme Court properlyadhered to the prior order denying defendant's motion for summary judgment.[FN5][*4]
Rose, J.P., Spain and Garry, JJ., concur. Orderedthat the order is affirmed, with costs.
Footnote 1: Because the complaintset forth a claim for common-law negligence, plaintiffs cross-moved to amend thecomplaint to add a claim for strict liability. At that time, both parties acknowledged that anegligence claim did not lie based upon the circumstances presented. Supreme Courtdenied the cross motion as "unnecessary" because it found that the factual allegationscontained in the complaint adequately stated a cause of action based on strict liability.Plaintiffs' cross motion is not a subject of this appeal.
Footnote 2: Although plaintiffscontended at oral argument that the Court of Appeals' recent decision in Hastings vSauve (supra)—decided on May 2, 2013, just weeks before oralargument—permits a common-law negligence claim in this case, we need notreach that issue in light of our decision herein.
Footnote 3: It is undisputed thatWhiskey was the horse involved in the incident herein.
Footnote 4: Merrills grew up aroundhorses and worked as a trainer for 11 years.
Footnote 5: In the original order,Supreme Court (R. Sise, J.) made a factual error by finding that there was no evidence inthe record that defendant owned another paint horse, as defendant clearly owned twopaint horses (Whiskey and Sally). This factual error was the basis for Supreme Court(Ferradino, J.) granting defendant's application for leave to reargue. Nonetheless, thecourt correctly concluded that summary judgment was inappropriate based upon Merrills'testimony and the question of whether Whiskey was the paint horse that Merrills hadpreviously observed.