Vendrella v. Astriab Family Ltd. Partnership ( 2014 )

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ANTHONY VENDRELLA ET AL. v. ASTRIAB FAMILY
LIMITED PARTNERSHIP ET AL.
(SC 18949)
Rogers, C. J., and Zarella, Eveleigh, McDonald, Espinosa and Vertefeuille, Js.
Argued September 24—officially released April 1, 2014
Steven L. Seligman, with whom, on the brief, were
Lester Katz and Christian Sterling, for the appel-
lants (defendants).
Hugh D. Hughes, with whom were Joseph D. Foti,
Jr., and, on the brief, William F. Gallagher and Garrett
Moore, for the appellees (plaintiffs).
Doug Dubitsky and Lisa Solomon filed a brief for
the Connecticut Farm Bureau Association et al. as
amici curiae.
Opinion
ROGERS, C. J. The primary issue that we must resolve
in this case is whether the keeper of a horse has a duty
to exercise reasonable care to prevent the horse from
causing injuries to others when the particular horse has
not previously exhibited mischievous propensities, but
the trier of facts reasonably could find that horses as a
species have a natural propensity to bite. The plaintiffs,
Anthony Vendrella (father) and his son, Anthony John
Vendrella (minor plaintiff),1 brought this action for per-
sonal injuries incurred when a horse known as Scuppy,
which was kept at a facility owned by the defendants,
Astriab Family Limited Partnership and Timothy D.
Astriab,2 bit the minor plaintiff. The defendants filed a
motion for summary judgment contending that there
was no genuine issue of material fact as to whether
the defendants had actual or constructive notice that
Scuppy had mischievous propensities. The trial court
granted the motion and rendered judgment for the
defendants. The plaintiffs appealed to the Appellate
Court, which reversed the judgment of the trial court.
Vendrella v. Astriab Family Ltd. Partnership, 133
Conn. App. 630, 660, 36 A.3d 707 (2012). We then granted
the defendants’ petition for certification to appeal.3 Ven-
drella v. Astriab Family Ltd. Partnership, 304 Conn.
919, 41 A.3d 306 (2012). The issues that we must resolve
on appeal are: (1) Did the Appellate Court properly
conclude as a matter of law that a defendant has a duty
of care to prevent injuries caused by a domestic animal
that did not have known mischievous propensities if the
injuries were foreseeable because the animal belongs to
a class of animals that is naturally mischievous, i.e.,
naturally inclined to do an act that might endanger the
safety of persons or property;4 and (2) if so, is there a
genuine issue of material fact as to whether, under the
specific facts and circumstances of the present case,
the minor plaintiff’s injury was foreseeable?5 With
respect to the first question, we conclude that, as a
matter of law, the owner or keeper of a domestic animal
has a duty to take reasonable steps to prevent injuries
that are foreseeable because the animal belongs to a
class of animals that is naturally inclined to cause such
injuries, regardless of whether the animal had pre-
viously caused an injury or was roaming at large and,
accordingly, the owner may be held liable for negligence
if he or she fails to take such reasonable steps and an
injury results.6 With respect to the second question, we
conclude that the evidence submitted by the plaintiffs
in the present case in opposition to the defendants’
motion for summary judgment created a genuine issue
of material fact as to whether the minor plaintiff’s injury
was foreseeable because horses have a natural propen-
sity to bite. Accordingly, we conclude that the Appellate
Court properly reversed the trial court’s summary judg-
ment rendered in favor of the defendants and remanded
the case for further proceedings.
Before addressing the merits of the defendants’
claims, it is important to clarify what this case is about.
As we have indicated, the first question that we must
decide is whether, as a matter of law, the keeper of a
domestic animal that did not have known mischievous
propensities, but that belongs to a class of animals with
naturally mischievous propensities, may be held liable
for foreseeable injuries caused by the animal when the
keeper was negligent in controlling the animal or,
instead, as claimed by the defendants, the keeper of
such an animal is immune from liability for such injur-
ies, even if he was negligent in controlling the animal,
unless the animal was roaming at large. In other words,
we must decide, as a matter of law, whether the owner
or keeper of a domestic animal that has not previously
displayed mischievous propensities has a duty to take
reasonable steps to prevent injuries that are foreseeable
because of the animal’s naturally mischievous propensi-
ties. Because we conclude that the answer to the first
question is ‘‘yes,’’ the second question that this court
must decide is whether there was a genuine issue of
material fact as to whether, under all of the relevant
facts and circumstances of this case, the injury caused
by Scuppy was reasonably foreseeable.
Thus, contrary to the defendants’ repeated suggestion
in their briefs to this court and at oral argument, the
Appellate Court did not adopt, and the plaintiffs are
not asking this court to adopt, a rule under which the
keeper of a horse can be held strictly liable for injuries
caused by the animal.7 Moreover, contrary to the defen-
dants’ suggestion, the Appellate Court did not hold, and
the plaintiffs make no claim, that injuries from horse
bites are foreseeable as a matter of law because all
horses have a natural propensity to bite under all cir-
cumstances. In other words, neither the Appellate Court
nor this court concludes that horses may be presumed
to be dangerous. Rather, that issue must be decided on
a case-by-case basis. Thus, because we conclude in the
present case that the plaintiffs’ evidence has created a
genuine issue of material fact as to whether horses have
a natural inclination to bite humans, the case must be
submitted to the trier of facts so that it may decide as
a matter of fact whether the plaintiffs have met their
burden of proof on that issue and, if so, whether the
defendants were negligent in controlling Scuppy. In
other words, the trier of facts must determine whether
the minor plaintiff’s injuries were foreseeable and, if
so, what the appropriate standard of care was, whether
the defendants breached that standard of care and, if
they did, whether the breach was a proximate cause
of the minor plaintiff’s injuries. Those questions are not
for this court to decide.8
The opinion of the Appellate Court sets forth the
following relevant facts and procedural history. ‘‘At all
relevant times Astriab operated a business located at
203 Herbert Street in Milford (property) known as Glen-
dale Farms. That business was open to the public and
was twofold in nature. Glendale Farms sold annual
flowers, vegetable plants, ground covers and seasonal
ornamentals, and it also provided horse boarding ser-
vices. The property contained, inter alia, greenhouses,
stables and paddocks. As manager and supervisor,
Astriab oversaw operations at Glendale Farms.
‘‘Astriab testified in his deposition that customers
of Glendale Farms enjoyed seeing the horses on the
property and acknowledged that although he could have
erected a barrier between the customers and the horses,
he chose not to do so. Crystal Cobb, an employee at
Glendale Farms and [the] girlfriend of Astriab, similarly
testified in her deposition that customers regularly
asked to look at the horses after purchasing goods from
the greenhouse. She explained that it was something
that customers expected because ‘when they have little
kids, they see the horse, they want to take a look.’
‘‘The plaintiffs patronized Glendale Farms on the
morning of May 18, 2006. At that time, the [minor] plain-
tiff . . . was two years old. After purchasing plants
from the greenhouse, the . . . father placed the plants
in their vehicle, which was located in a parking lot
adjacent to a paddock containing three horses. The
plaintiffs then walked over to the paddock and stood
approximately one foot outside its fence to admire a
brown horse known as Scuppy. The . . . father petted
Scuppy as the [minor] plaintiff . . . watched. The . . .
father stopped petting Scuppy when the [minor] plain-
tiff . . . noticed another horse in the paddock. Sud-
denly, and without warning, Scuppy lowered his head
and bit the [minor] plaintiff . . . on his right cheek,
removing a large portion of flesh. The injury ultimately
required surgery and resulted in a permanent scar on
the [minor plaintiff’s] right cheek.
‘‘The plaintiffs commenced the present action against
the defendants on May 14, 2008.9 Their complaint con-
sisted of six counts. In counts one and three, the [minor]
plaintiff . . . alleged negligence and recklessness on
the part of Astriab. In count two, the . . . father alleged
a claim of bystander emotional distress against Astriab.
Counts four, five and six were directed at the Astriab
Family Limited Partnership and repeated the respective
allegations of the first three counts.
‘‘On October 2, 2009, the defendants filed a motion
for summary judgment. That one sentence motion
alleged that ‘there is no genuine issue as to any material
fact and that the [d]efendants are entitled to judgment
as a matter of law on the basis that they neither had
actual notice nor constructive notice of any [mischie-
vous] disposition or propensities on the part of the
. . . horse which allegedly bit the minor [p]laintiff.’ The
defendants submitted the sworn affidavit of Astriab in
support of that motion. In that affidavit, Astriab averred,
inter alia, that ‘during the twenty-eight years that Glen-
dale Farm[s] has kept horses, we have never had an
episode where any of the horses we kept has bitten or
otherwise injured any person.’ He further maintained
that ‘[b]ecause I do not know the identity of [the horse]
which bit the [minor plaintiff], I have no way of know-
ing, and do not know, anything about the disposition
or propensities of [the horse] before he bit the minor
[plaintiff].’
‘‘The plaintiffs filed an opposition to the motion for
summary judgment in the spring of 2010, in which they
argued that ‘a horse, by its very nature, is capable of
biting someone without provocation or predisposition
and that this was known to the defendants.’ The affida-
vit of Bradley W. Amery, a doctor of veterinary medi-
cine, was filed in support thereof and contained a
detailed explanation as to a horse’s propensity to bite.
In addition, the plaintiff submitted portions of the
respective deposition testimony of (1) Astriab; (2)
Cobb; (3) Milford [A]nimal [C]ontrol [O]fficer Richard
George; and (4) Captain Bernard L. Begley, Jr., of the
Milford [F]ire [D]epartment. In his deposition testi-
mony, Begley testified that he had been riding horses
‘all of [his] life.’ He stated that, in his experience, a
horse can bite at any time, explaining that ‘[horses]
have been doing it . . . since the beginning of time,
biting and kicking.’ For that reason, Begley always is
careful to feed a horse either with a bucket or ‘palm
up—I never put my fingers anywhere near the mouth
of a horse.’ Consistent with the explanation provided
in Amery’s affidavit, Begley opined that a horse’s pro-
pensity to bite is part of its nature.
‘‘In his deposition testimony, Astriab concurred with
that assessment. He acknowledged that a horse, by its
very nature, could harm a person who attempts to pet
or feed [it], stating that ‘a horse could bite you and
cause great physical damage.’ He further acknowledged
that he understood that even though a horse does not
display a propensity to bite another person, horses by
their nature could bite a person. He testified, based on
his experience, that he was ‘well aware’ that horses can
bite people.
‘‘Astriab also indicated in his deposition testimony
that Scuppy was the horse involved in the incident
with the plaintiffs. Although he testified that he had no
knowledge of Scuppy biting a person prior to the May
18, 2006 incident, he repeatedly described Scuppy as a
‘typical horse.’ When asked if Scuppy was different from
other horses that would bite if a finger was put in front
of him, Astriab answered, ‘[n]o.’ He acknowledged his
concern that if someone made contact with Scuppy,
whether to pet or feed him, he or she could get bit.
When asked whether ‘a person who doesn’t know
Scuppy . . . can go up to Scuppy, put [his] hand out
and the horse, being a horse, could bite that person,’
Astriab answered, ‘[y]es.’
‘‘In rendering summary judgment in favor of the
defendants, the court concluded that ‘the plaintiffs have
failed to show, as they must, that the defendants were
on notice that Scuppy specifically, and not horses gen-
erally, had a tendency to bite people or other horses.
Therefore, the defendants owed no duty to the plaintiffs
and are entitled to judgment on the plaintiff[s’] negli-
gence claims as a matter of law.’ ’’ (Emphasis in original;
footnotes altered.) Vendrella v. Astriab Family Ltd.
Partnership, supra, 133 Conn. App. 632–37.
The plaintiffs appealed from the judgment of the trial
court to the Appellate Court, which reversed the judg-
ment in favor of the defendants. Id., 660. The Appellate
Court concluded that the plaintiffs were not required
to show that Scuppy had a known propensity to bite
human beings to prevail on their negligence claim, but
only that the injury was reasonably foreseeable because
Scuppy belongs to a class of animals having naturally
dangerous propensities. Id., 655–56. The Appellate
Court further concluded that there was a genuine issue
of material fact as to whether ‘‘horses as a class possess
a natural propensity to bite’’ and, therefore, whether it
was foreseeable that Scuppy would bite. Id., 659. This
certified appeal followed. On appeal, the defendants
contend that, contrary to the Appellate Court’s conclu-
sion, under the common law of this state, the keeper
of a domestic animal that does not have a known mis-
chievous propensity can be held liable for injuries
caused by the animal under a negligence standard only
if the animal was roaming at large. They further contend
that, because there is no dispute in the present case
that Scuppy was not roaming at large, and because
there was no genuine issue of fact as to whether Scuppy
had known mischievous propensities, the trial court
properly rendered summary judgment in their favor,
and the Appellate Court improperly reversed the judg-
ment of the trial court. The plaintiffs respond that, to
successfully oppose the defendants’ motion for sum-
mary judgment, they were required only to show, and
did show, that there is a genuine issue of material fact as
to whether the minor plaintiff’s injury was foreseeable
because horses, as a species, have a natural propensity
to bite. Accordingly, they urge us to affirm the judgment
of the Appellate Court. We agree with the plaintiffs.
At the outset, we set forth the standard of review
for the trial court’s ruling on a motion for summary
judgment. ‘‘Summary judgment shall be rendered forth-
with if the pleadings, affidavits and other proof submit-
ted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . The scope of our
appellate review depends upon the proper characteriza-
tion of the rulings made by the trial court. . . . When
. . . the trial court draws conclusions of law, our
review is plenary and we must decide whether its con-
clusions are legally and logically correct and find sup-
port in the facts that appear in the record.’’ (Internal
quotation marks omitted.) Schilberg Integrated Metals
Corp. v. Continental Casualty Co., 263 Conn. 245, 251–
52, 819 A.2d 773 (2003). ‘‘In deciding a motion for sum-
mary judgment, the trial court must view the evidence
in the light most favorable to the nonmoving party. . . .
The party seeking summary judgment has the burden of
showing the absence of any genuine issue [of] material
facts which, under applicable principles of substantive
law, entitle him to a judgment as a matter of law . . .
and the party opposing such a motion must provide an
evidentiary foundation to demonstrate the existence of
a genuine issue of material fact.’’ (Internal quotation
marks omitted.) Id., 252.
We next review the substantive law governing liability
for injuries caused by domestic animals. In Bischoff v.
Cheney, 89 Conn. 1, 92 A. 660 (1914), this court recog-
nized that domestic animals fall into three general cate-
gories: (1) animals that ‘‘have either mischievous or
vicious propensities which are known by [the owner]’’;
id., 4; (2) those that belong ‘‘to a species naturally
inclined to do mischief or be vicious,’’ but that have no
known mischievous propensities; id.; and (3) those that
neither have known mischievous propensities nor
belong to a species with naturally mischievous propen-
sities. Id., 5. This court acknowledged that many author-
ities have held that the owner of a domestic animal
with known mischievous propensities ‘‘keeps it, as he
would an animal ferae naturae, at his peril,’’ and is
strictly liable for any injuries caused by the animal; id.,
4; while the owner of an animal belonging to a ‘‘species
naturally inclined to do mischief or be vicious’’ can be
held liable only if he fails to ‘‘use reasonable care to
restrain the animal in such manner as to prevent its
doing injury . . . .’’ Id.; compare 3 Restatement (Sec-
ond), Torts § 509 (1977),10 with 3 Restatement (Second),
supra, § 518.11 The court in Bischoff rejected this distinc-
tion, however, and concluded that, for both categories,
‘‘negligence is the foundation of an action’’ for injuries
caused by a domestic animal.12 Bischoff v. Cheney,
supra, 4. Thus, there is no strict liability for injuries
caused by domestic animals under the common law of
this state, even if the animal had known mischievous
propensities. With respect to animals that neither have
known mischievous propensities nor belong to a spe-
cies having naturally mischievous tendencies, the
owner of such an animal cannot be held liable under
any theory because ‘‘an owner cannot be compelled to
anticipate and guard against the unknown and unusual.’’
Id., 5.
Although the defendants in the present case acknowl-
edge that the owner of an animal that has not previously
exhibited mischievous propensities but that belongs to
a class of animals having naturally mischievous tenden-
cies can be held liable under a negligence theory for
damages caused by the animal, they contend that
Bischoff and other decisions of this court have limited
such liability to cases in which the animal was allowed
to roam at large.13 See id. (if domestic animal is ‘‘of a
species having, or in fact of, a mischievous or vicious
disposition, or its owner knows this propensity, and
then permits the [animal] to go at large or trespass, he
will be liable for the damage done by it resulting from
the trespass’’); see also Hope v. Valente, 86 Conn. 301,
304, 85 A. 541 (1912) (‘‘[A] person may be negligent
in the use of an instrument which in itself is entirely
harmless. We have said in the case of a runaway horse
that it was a question for the jury whether it was negli-
gence to leave the horse unhitched in the street under
circumstances disclosed by the evidence, regardless of
its habit of running away.’’); Haywood v. Hamm, 77
Conn. 158, 160, 58 A. 695 (1904) (‘‘The trial court prop-
erly instructed the jury that to justify a verdict for the
plaintiff it was unnecessary for him to prove that the
horse had a habit of running away, which was known to
the defendant. It was enough if, whatever its disposition
and habits, it had been left in the street unhitched under
circumstances which, in the opinion of the jury, all
things considered, made that a negligent act on the part
of one whom the defendant had made his agent in
the matter.’’); Barnum v. Vandusen, 16 Conn. 200, 204
(1844) (owner of trespassing sheep may be held liable
for damages caused by sheep regardless of whether
sheep had known mischievous propensities or were
naturally mischievous).14 A careful review of these
cases, however, reveals that this court has never
directly held that the owner of a domestic animal with-
out known mischievous propensities, but belonging to a
class of animals with naturally mischievous tendencies,
may be held liable for negligence in handling the animal
only if the animal was roaming at large.
In Hope v. Valente, supra, 86 Conn. 304, for example,
the defendant argued that, ‘‘as the horse is a domestic
animal not naturally vicious or inclined to mischief, an
owner is not negligent in leaving it tied in the street,
unless the individual horse so left is vicious, and the
owner knows it.’’ This court rejected the defendant’s
argument and concluded that, because it was foresee-
able that the horse would kick if it was left tied to a
wagon in the public street in the manner alleged, the
owner could be held liable for his negligence even if
the individual horse was not abnormally mischievous.
Id., 304–305. The court did not hold, however, that an
owner may be held liable only if the horse was in a
public street or was trespassing.
Similarly, in Bischoff v. Cheney, supra, 89 Conn. 4,
this court held that the owner of a domestic animal
either with known dangerous propensities or belonging
to a class with naturally mischievous tendencies can
be held liable under a negligence standard for injuries
caused by the animal when it was roaming at large.
Again, however, the court in Bischoff did not conclude
that an owner of a domestic animal with dangerous
propensities natural to its class may be held liable only
if the animal was roaming at large, an issue that was
not before it.15 Indeed, this court’s statement in Bischoff
that, if a domestic animal ‘‘belongs to a species naturally
inclined to do mischief . . . it is [the owner’s] duty to
use reasonable care to restrain the animal in such man-
ner as to prevent its doing injury, and when he permits
the animal to go at large or to trespass, he fails in his
duty’’; id.; reasonably could be interpreted to mean that
allowing such an animal to go at large is merely one type
of negligence for which the owner may be held liable.
We acknowledge that, in Baldwin v. Ensign, 49 Conn.
113, 117–18 (1881), this court stated that, if a domestic
animal ‘‘is not accustomed to do mischief and is where
he rightfully belongs and does an injury, there is no
negligence and no liability. But if [the owner] allows
[the animal] to trespass on others, or if he knowingly
suffers [the animal] to be where he has no legal right
to be, that is negligence; and if the natural and probable
consequence is injury to others he is liable.’’ This state-
ment was dictum, however, and was not supported by
any authority.16 More importantly, the court in Baldwin
recognized an exception to the principle embodied in
this dictum that is so broad that it virtually swallows
the rule. Specifically, the court stated in other dictum
that ‘‘the owner of a horse which he knows to be vicious
is liable for injuries inflicted by [the horse] while upon
the owner’s land which is open to the public. The owner
is also liable, though he does not know the horse to be
vicious, if he turns him loose to go on such open land
[i.e., land belonging to the owner] in so negligent a
manner as to endanger the safety of persons passing
across it.’’ (Emphasis added; internal quotation marks
omitted.) Id., 119. This dictum directly supports the
plaintiffs’ position in the present case.17
Thus, contrary to the defendants’ claim, none of this
court’s decisions has directly held that the owner or
keeper of a domestic animal is categorically immune
to liability for damages caused by the animal unless
(1) the animal belonged to a species with naturally
mischievous propensities and was roaming at large or
(2) the animal had previously exhibited mischievous
tendencies. We also recognize, however, that none of
our cases has directly held that the owner or keeper
of a domestic animal that has not previously exhibited
dangerous propensities, but belongs to a class of ani-
mals that have naturally mischievous propensities, has
a duty to prevent foreseeable injuries caused by the
animal when the animal was on the owner’s or keeper’s
premises, although some cases contain dicta to that
effect. Accordingly, we address that question as a mat-
ter of first impression.
In making the determination as to whether, as a mat-
ter of public policy, the owner or keeper of a domestic
animal that has not previously exhibited mischievous
propensities may be held liable for injuries that were
foreseeable because the animal belonged to a class of
animals with naturally mischievous propensities, we
consider the following four factors: ‘‘(1) the normal
expectations of the participants in the activity under
review; (2) the public policy of encouraging participa-
tion in the activity, while weighing the safety of the
participants; (3) the avoidance of increased litigation;
and (4) the decisions of other jurisdictions.’’ Murillo v.
Seymour Ambulance Assn., Inc., 264 Conn. 474, 480,
823 A.2d 1202 (2003). With respect to the first factor,
we can perceive no reason why a reasonable person
would not expect the owner or keeper of a domestic
animal to take reasonable steps to prevent the animal
from causing foreseeable injuries. It is the owners of
such animals who have the ‘‘expertise and opportunity
to foresee and control hazards, and to guard properly
against [their own] negligence [and that] of their agents
and employees. They alone [can] properly maintain and
inspect their premises, and train their employees in
risk management.’’ (Internal quotation marks omitted.)
Reardon v. Windswept Farm, LLC, 280 Conn. 153, 162,
905 A.2d 1156 (2006). In addition, the owners and keep-
ers of domestic animals are ‘‘in a position continually to
gather more information regarding any hidden dangers
associated with [the animals], including the tempera-
ments of the individual [animals]’’; id.; as well as the
natural propensities of the class of animals to which
the individual animals belong. Accordingly, it would be
‘‘illogical to relieve [such owners and keepers], as the
[persons] with greater expertise and information con-
cerning the dangers associated with [the animals] from
potential claims of negligence surrounding an alleged
failure to [take reasonable steps to prevent foreseeable
injuries].’’ Id.
Indeed, the legislature has provided that ‘‘[e]ach per-
son engaged in recreational equestrian activities shall
assume the risk and legal responsibility for any injury
to his person or property arising out of the hazards
inherent in equestrian sports, unless the injury was
proximately caused by the negligence of the person
providing the horse or horses to the individual . . . .’’
(Emphasis added.) General Statutes § 52-557p. Nothing
in the language of this statute suggests that the legisla-
ture intended that the owner or keeper of a horse may
be held liable for negligence in controlling the horse
only if it previously had exhibited mischievous propen-
sities or was roaming at large. Rather, it is reasonable
to conclude that the legislature intended that the owner
or keeper of a horse may be held liable for all forms
of negligence, i.e., any failure to take reasonable steps
to prevent a foreseeable harm, because of his or her
familiarity with and knowledge of horses. Moreover, an
interpretation limiting liability to cases in which the
horse was roaming at large would be unreasonably
restrictive, inasmuch as ‘‘equestrian activities’’ fre-
quently, if not usually, take place on the premises of
the ‘‘person providing the horse . . . .’’18 General Stat-
utes § 52-557p.
With respect to the second factor, ‘‘the public policy
of encouraging participation in the activity, while
weighing the safety of the participants’’; Murillo v. Sey-
mour Ambulance Assn., Inc., supra, 264 Conn. 480; we
recognize that the keeping of domestic animals benefits
both those who own and keep the animals and those
who do not. Domestic animals provide us with food,
clothing, recreation and companionship. Accordingly,
the keeping of domestic animals should be encouraged.
We cannot conclude, however, that this policy out-
weighs the public policy in favor of ensuring that inno-
cent parties are protected from and compensated for
injuries caused by domestic animals. Rather, we con-
clude that these policies are in equipoise and, accord-
ingly, this factor neither favors nor disfavors the
recognition of a duty.
With respect to the third factor, ‘‘the avoidance of
increased litigation’’; id.; we conclude that holding the
owners and keepers of domestic animals with only the
mischievous propensities normal for their class poten-
tially liable for foreseeable injuries caused by the animal
while on the owner’s or keeper’s premises when the
injury was the result of the owner’s or keeper’s negli-
gence will not result in a flood of new claims. First, to
prevail on such a claim, the plaintiff carries the burden
of proving (1) that the type of injury was foreseeable
under all the facts and circumstances of the case
because the animal belonged to a class of animals hav-
ing naturally mischievous propensities and, only if the
plaintiff proves that the injury was foreseeable, (2) that
the owner or keeper failed to take reasonable steps to
prevent the injury. This burden is far from negligible.
Moreover, even if the plaintiff is able to meet this bur-
den, recovery still may be limited or barred by principles
of comparative negligence19 and premises liability.20
Finally, as we have indicated, this is the first case in
which this court has been required to determine
whether the owner or keeper of a domestic animal can
be held liable under these circumstances. It is reason-
able to conclude that this issue would have arisen long
before now if such injuries occur on a frequent basis,
especially in light of this court’s dicta in Baldwin v.
Ensign, supra, 49 Conn. 119, suggesting that the owner
of a domestic animal with no known mischievous pro-
pensities that is let loose on the owner’s property can
be held liable for injuries inflicted by the animal on
persons who have permission to be on the property,
and in Bischoff v. Cheney, supra, 89 Conn. 5, suggesting
that the owner of a domestic animal belonging to a
species with naturally mischievous propensities can be
held liable for injuries caused by the animal.21 Accord-
ingly, we conclude that this factor weighs in favor of
recognizing a duty.
With respect to the fourth factor, ‘‘the decisions of
other jurisdictions’’; Murillo v. Seymour Ambulance
Assn., Inc., supra, 264 Conn. 80; a large majority of
the jurisdictions that have considered the issue have
adopted the approach urged by the plaintiffs in the
present case and taken by § 518 of the Restatement
(Second) of Torts; see footnote 11 of this opinion; with-
out expressly limiting such liability to roaming ani-
mals.22 Accordingly, this factor weighs strongly in favor
of recognizing a duty.
We therefore conclude that ‘‘one who possesses or
harbors a domestic animal that he does not know or
have reason to know to be abnormally dangerous, is
subject to liability for harm done by the animal if, but
only if . . . he is negligent in failing to prevent the
harm’’; 3 Restatement (Second), supra, § 518; regardless
of whether the animal was roaming at large. To con-
clude otherwise would ‘‘undermine the policy consider-
ations governing our tort system . . . [which include]
compensation of innocent parties, shifting the loss to
responsible parties or distributing it among appropriate
entities, and deterrence of wrongful conduct . . . .’’
(Internal quotation marks omitted.) Reardon v. Wind-
swept Farm, LLC, supra, 280 Conn. 159.
Of course, as is apparent from the foregoing analysis,
for the owner of a domestic animal to be held liable
for negligence when the animal has caused an injury,
the injury must have been reasonably foreseeable. See
Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008)
(‘‘[t]he ultimate test of the existence of the duty to use
care is found in the foreseeability that harm may result if
it is not exercised’’ [internal quotation marks omitted]).
Accordingly, we turn to the defendants’ claim in the
present case that the evidence presented by the plain-
tiffs did not create a genuine issue of material fact
as to whether the defendants reasonably could have
foreseen the minor plaintiff’s injury because horses as
a species have a natural inclination to bite.23
The test for foreseeability is whether an ‘‘ordinary
[person] in the defendant’s position, knowing what he
knew or should have known, [would] anticipate that
harm of the general nature of that suffered was likely
to result.’’ (Internal quotation marks omitted.) Id.
Whether an injury was foreseeable is to be determined
by the jury when the evidence creates a genuine issue of
material fact as to that issue.24 See Stewart v. Federated
Dept. Stores, Inc., 234 Conn. 597, 613, 662 A.2d 753
(1995) (when evidence would support finding that
injury was within foreseeable scope of risk, issue
involved question of fact for jury, not question of law
for court); Gutierrez v. Thorne, 13 Conn. App. 493,
501, 537 A.2d 527 (1988) (foreseeability ‘‘becomes a
conclusion of law only when the mind of a fair and
reasonable man could reach only one conclusion; if
there is room for a reasonable disagreement, the ques-
tion is one to be determined by the trier as a matter of
fact’’ [internal quotation marks omitted]).25
This court has recognized in another context that
foreseeability ‘‘is a flexible concept . . . .’’ Burns v.
Board of Education, 228 Conn. 640, 647, 638 A.2d 1
(1994). Consistent with this flexible approach, this court
previously has recognized that, in making the determi-
nation as to whether an injury caused by a domestic
animal was foreseeable, the jury may consider the ani-
mal’s ‘‘previous behavior, the owner’s knowledge of
that behavior, the circumstances that gave rise to the
harm, and the actual harm inflicted.’’ Allen v. Cox, supra,
285 Conn. 615. We now conclude that, in addition to
these factors, the jury may consider the natural propen-
sities of the class of domestic animals to which the
specific animal belongs. See 3 Restatement (Second),
supra, § 518, comment (g), p. 31 (‘‘In determining the
care that the keeper of a not abnormally dangerous
domestic animal is required to exercise to keep it under
control, the characteristics that are normal to its class
are decisive, and one who keeps the animal is required
to know the characteristics. Thus the keeper of a bull
or stallion is required to take greater precautions to
confine it to the land on which it is kept and to keep
it under effective control when it is taken from the
land than would be required of the keeper of a cow or
gelding.’’); id., comment (h), p. 32 (‘‘Thus the keeper of
even a gentle bull must take into account the tendencies
of bulls as a class to attack moving objects and must
exercise greater precautions to keep his bull under com-
plete control if he drives it upon a public highway. So,
too, the keeper of an ordinarily gentle bitch or cat is
required to know that while caring for her puppies or
kittens she is likely to attack other animals and
human beings.’’).
Thus, to establish that an injury caused by a domestic
animal was foreseeable, the plaintiff need not prove
that the species as a whole has a natural tendency to
inflict such harm, but only that the class of animals to
which the specific animal belongs has such a tendency.
See id., comment (g), p. 31; see also Bischoff v. Cheney,
supra, 89 Conn. 5 (although cats generally are harmless,
if particular cat belongs to class of cats having mischie-
vous propensities, owner can be held liable for injuries
inflicted by cat). Conversely, if a plaintiff presents evi-
dence that an entire species has naturally mischievous
propensities, the defendant may rebut this evidence by
producing evidence that the mischievous propensities
of the specific animal, or of the particular class of ani-
mals to which the specific animal belongs, are less
severe than the mischievous propensities of the species
as a whole.
We also recognize that ‘‘[t]he degree of foreseeability
necessary to warrant [imposing liability] will . . . vary
from case to case.’’ Gomez v. Ticor, 145 Cal. App. 3d
622, 629, 193 Cal. Rptr. 600 (1983); see also Burns v.
Board of Education, supra, 228 Conn. 647 (‘‘evolving
expectations of a maturing society [may] change the
harm that may reasonably be considered foreseeable’’).
If the foreseeable harm was not severe and the harm
could not be prevented except by extraordinarily bur-
densome means, the jury reasonably could find that the
defendant should not be held liable unless the injury
was highly foreseeable. Gomez v. Ticor, supra, 629 (‘‘in
cases where the burden of preventing future harm is
great, a high degree of foreseeability may be required’’).
Conversely, when the foreseeable harm was severe and
it could easily have been prevented by the defendant,
a lesser degree of foreseeability may be sufficient to
impose liability. Id.
With these principles in mind, we turn to the evidence
presented by the plaintiffs in the present case. In their
memorandum in support of their objection to the defen-
dants’ motion for summary judgment, the plaintiffs
quoted from a deposition given by Astriab. Astriab testi-
fied that, when he saw families near the horses in the
paddock at Glendale Farms, he would tell them to stay
away from the horses because he did not want them
to be bitten. He testified that a horse bite could ‘‘cause
great physical damage,’’ and admitted that horses with
no known propensity to bite could bite ‘‘by their very
nature . . . .’’ He also admitted that this was true of
‘‘the calmest horse on any given day . . . .’’ The plain-
tiffs also quoted from the deposition testimony of Fire
Captain Begley, who stated that horses ‘‘have been
doing it all since the beginning of time, biting and kick-
ing.’’ He explained that ‘‘it’s like a kid, they want to feel
everything with their mouth.’’
In addition, the plaintiffs quoted the deposition testi-
mony of George, the animal control officer who had
investigated the incident. George agreed that ‘‘a horse
doesn’t have to have a tendency to bite in order to bite.’’
He testified that he had been ‘‘nipped’’ and that he had
‘‘got it in the belly one time.’’ The horse that had bitten
him in the belly ‘‘got a pretty good chunk of [him].’’
The bite broke the skin and left a bruise. That horse
had not been known to bite.
In an affidavit attached to the plaintiffs’ response to
the defendants’ reply to their objection, Amery, an
equine veterinarian, stated that ‘‘[b]iting is a natural part
of horses’ lives and horses can bite for many reasons.’’
Because of the anatomy of the horse’s head, a horse
cannot see what is directly in front of its nose and ‘‘is
reliant on the sensory input from his mouth. While the
nervous system is fast it is unable to process all that
information before the bite has occurred.’’ Amery also
stated that ‘‘[b]iting is . . . a common form of mutual
grooming’’ by horses. When humans replicate this natu-
ral grooming behavior, a bite can result. Horses also
‘‘nip’’ to attract a person’s attention, especially if they
have been hand-fed treats. Other conduct, such as
scratching the horse’s muzzle or head, petting its neck
or giving verbal rewards can also result in nipping
behavior that can escalate to a full bite if the person
is not paying complete attention to the horse.26 Finally,
Amery stated that most horse bites are not the result
of an abnormally aggressive or nasty disposition, but
occur when the horse is being groomed, is being ‘‘tacked
up,’’ is being hand-fed treats, or is in pain.
In their supplemental objection to the defendants’
motion for summary judgment, the plaintiffs quoted
from a second deposition by Astriab that had only
recently been taken. Astriab testified in that deposition
that he placed signs along his property to warn people
not to touch or feed the horses. He was concerned that
the horses would bite persons who tried to feed them.
He also agreed that Scuppy was a ‘‘typical’’ horse that
could bite when being hand-fed or petted, and that
biting is a ‘‘typical reaction when something is put in
front of a horse.’’
We conclude that this evidence, viewed in the light
most favorable to the plaintiffs, as it must be, created
a genuine issue of material fact as to whether horses
have a natural propensity to bite that rendered the
minor plaintiff’s bite injury foreseeable. A jury reason-
ably could conclude from this evidence that, when a
person stands directly in front of, hand-feeds or pets a
horse, it is foreseeable that the horse will use its mouth
and teeth to investigate the person or to attract the
person’s attention and, if the person is not paying full
attention to the horse, this behavior can escalate to a
bite. Indeed, Astriab conceded that a ‘‘typical’’ horse
will have a tendency to bite something that is placed
directly in front of it or when being hand-fed or petted.
In support of their claim to the contrary, the defen-
dants contend that, to establish that it was foreseeable
under the circumstances of the present case that
Scuppy would bite, the plaintiffs were required to pre-
sent evidence that it was reasonably probable, or more
likely than not, that such an injury would occur, not
that it was merely possible. In support of this con-
tention, they rely on the principle that ‘‘[a] trier is not
concerned with possibilities but with reasonable proba-
bilities.’’ (Internal quotation marks omitted.) Aspiazu
v. Orgera, 205 Conn. 623, 630, 535 A.2d 338 (1987). This
principle, however, applies to the causal connection
between a defendant’s conduct and a plaintiff’s dam-
ages; id.; and requires the plaintiff to prove that it is
more likely than not that the defendant’s conduct actu-
ally caused the damages. This court has never held
that, to be a foreseeable injury, the plaintiff must prove
that an ordinary person would have believed before the
fact that it was more likely than not that the defendant’s
conduct would cause the plaintiff’s injury. For example,
to establish that it was foreseeable that a pedestrian
would slip and fall on an icy sidewalk and break his
wrist, a plaintiff need not prove that an ordinary person
would believe it was more likely than not that such an
injury would occur.27 Rather, the test for foreseeability
is ‘‘would the ordinary [person] in the defendant’s posi-
tion, knowing what he knew or should have known,
anticipate that harm of the general nature of that suf-
fered was likely to result . . . .’’ (Internal quotation
marks omitted.) Allen v. Cox, supra, 285 Conn. 610. As
used in this context, the phrase ‘‘likely to result’’ means
that there was an unreasonable risk that the injury
would result.28 See Carrol v. Allstate Ins. Co., 262 Conn.
433, 446, 815 A.2d 119 (2003) (‘‘in order to prevail on
a claim of negligent infliction of emotional distress, the
plaintiff must prove that the defendant should have
realized that its conduct involved an unreasonable risk
of causing emotional distress’’ [internal quotation
marks omitted]); Bigbee v. Pacific Telephone & Tele-
graph Co., 34 Cal. 3d 49, 57, 665 P.2d 947, 192 Cal. Rptr.
857 (1983) (‘‘[o]ne may be held accountable for creating
even the risk of a slight possibility of injury if a reason-
ably prudent [person] would not [act as the defendant
did]’’ [internal quotation marks omitted]); Sirmans v.
Penn, 588 A.2d 1103, 1108 (Del. 1991) (injury is foresee-
able when defendant ‘‘should reasonably have antici-
pated that its conduct would create an unreasonably
enhanced danger to one in the position of the injured
plaintiff’’ [internal quotation marks omitted]); see also
Brown v. Edwards Transfer Co., 764 S.W.2d 220, 224
(Tex. 1988) (‘‘[a]ll that is required is that the injury be
of such a general character as might reasonably have
been anticipated and that the injured party be so situ-
ated with relation to the wrongful act that injury might
reasonably have been foreseen’’). As we have explained,
the determination as to whether a particular risk is
unreasonable is to be left to the jury when reasonable
minds could reach different conclusions.
In summary, we conclude that, as a matter of law,
the owner or keeper of a domestic animal has a duty
to take reasonable steps to prevent the animal from
causing injuries that are foreseeable because the animal
belongs to a class of animals that is naturally inclined
to cause such injuries, regardless of whether the animal
had previously caused an injury or was roaming at large.
We also conclude that there is a genuine issue of mate-
rial fact as to whether, under the specific facts and
circumstances of the present case, it was foreseeable
that Scuppy would bite the minor plaintiff causing his
injury because horses, as a species, have a natural incli-
nation to bite. Accordingly, we affirm the judgment of
the Appellate Court reversing the trial court’s summary
judgment rendered in favor of the defendants and
remanding the case to the trial court for further pro-
ceedings.
The judgment of the Appellate Court is affirmed.
In this opinion EVELEIGH, McDONALD and
ESPINOSA, Js., concurred.
1
Anthony John Vendrella, who is a minor, brought this action by and
through his mother, Marylou Vendrella.
2
The complaint also named ‘‘Timothy D. Astriab [doing business as] Glen-
dale Farms’’ as a defendant. As noted by the Appellate Court; see Vendrella
v. Astriab Family Ltd. Partnership, 133 Conn. App. 630, 631 n.2, 36 A.3d
707 (2012); ‘‘the use of a fictitious or assumed business name does not
create a separate legal entity . . . [and] [t]he designation [doing business
as] . . . is merely descriptive of the person or corporation who does busi-
ness under some other name . . . . [I]t signifies that the individual is the
owner and operator of the business whose trade name follows his, and
makes him personally liable for the torts and contracts of the business
. . . .’’ (Internal quotation marks omitted.) Monti v. Wenkert, 287 Conn.
101, 135, 947 A.2d 261 (2008).
3
Thereafter, we granted permission to the Connecticut Farm Bureau Asso-
ciation and the Connecticut Horse Council, Inc., to file an amicus curiae
brief in support of the defendants’ position.
4
As the Appellate Court observed in the present case, ‘‘a vicious or mischie-
vous propensity in [domestic animals] is simply a propensity or tendency
of an animal to do any act that might endanger the safety of the persons
and property of others in a given situation; and any propensity on the part
of a domestic animal, which is likely to cause injury to human beings under
the circumstances in which the party controlling the animal places him, is
a dangerous or vicious propensity.’’ (Internal quotation marks omitted.)
Vendrella v. Astriab Family Ltd. Partnership, supra, 133 Conn. App. 653.
5
We granted certification to appeal on the following issue: ‘‘Did the Appel-
late Court properly conclude that a horse belongs to a species so naturally
inclined to do mischief or be vicious to human beings that the minor plain-
tiff’s injuries were reasonably foreseeable, regardless of whether the particu-
lar horse has shown a prior vicious disposition known to the keeper?’’
Vendrella v. Astriab Family Ltd. Partnership, supra, 304 Conn. 919. The
plaintiffs now contend that the certified question mischaracterizes the basis
for the Appellate Court’s decision because that court did not conclude that
horses, as a species, have a natural propensity to bite humans. Instead, they
contend, the Appellate Court held that: (1) the defendants can be held liable
for injuries resulting from their negligence in handling Scuppy even in the
absence of proof that Scuppy had known mischievous propensities if the
injuries were foreseeable because horses, as a species, have a natural propen-
sity to bite; see Vendrella v. Astriab Family Ltd. Partnership, supra, 133
Conn. App. 655–56; and (2) there is a genuine issue of material fact as to
whether Scuppy’s behavior in biting the minor plaintiff was foreseeable
under the specific facts and circumstances of this case. Id., 659. We agree
with the plaintiffs and, accordingly, we reframe the certified question. See,
e.g., State v. Ouellette, 295 Conn. 173, 184, 989 A.2d 1048 (2010) (court may
reformulate certified question to conform to issue actually presented).
6
This court has stated that ‘‘[d]uty is a legal conclusion about relationships
between individuals . . . and imperative to a negligence cause of action.’’
(Internal quotation marks omitted.) Gomes v. Commercial Union Ins. Co.,
258 Conn. 603, 615, 783 A.2d 462 (2001). This court also has recognized that
the foreseeability of harm is a prerequisite for the existence of a duty. See
Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002) (‘‘[a]lthough
it has been said that no universal test for [duty] ever has been formulated
. . . our threshold inquiry has always been whether the specific harm alleged
by the plaintiff was foreseeable to the defendant’’ [citation omitted; internal
quotation marks omitted]). Although the existence of a duty is ordinarily a
question of law; Gomes v. Commercial Union Ins. Co., supra, 614; as we
discuss later in this opinion, when reasonable minds could differ as to
whether a particular harm was foreseeable, the issue is one for the jury.
See Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 613, 662 A.2d
753 (1995) (when evidence would support finding that injury was within
foreseeable scope of risk, issue involved question of fact for jury, not ques-
tion of law for court); Gutierrez v. Thorne, 13 Conn. App. 493, 501, 537
A.2d 527 (1988) (foreseeability ‘‘becomes a conclusion of law only when
the mind of a fair and reasonable man could reach only one conclusion; if
there is room for a reasonable disagreement the question is one to be
determined by the trier as a matter of fact’’ [internal quotation marks omit-
ted]). Thus, we hold as a matter of law only that, if a plaintiff can prove
that an injury by a domestic animal was foreseeable because the animal
belonged to a class with naturally mischievous propensities, the owner or
keeper of the animal has a duty to take reasonable steps to prevent foresee-
able harm. In any given case, the existence of this duty will depend on proof
that the harm was foreseeable, which is a question of fact for the trier of facts.
7
Strict liability means liability without proof that the defendant was negli-
gent, i.e., that the defendant failed to take reasonable steps to prevent a
foreseeable harm. Caporale v. C. W. Blakeslee & Sons, Inc., 149 Conn. 79,
83, 175 A.2d 561 (1961) (defendant subject to strict liability can be held liable
‘‘even though he uses all proper care’’ [internal quotation marks omitted]). In
the present case, the plaintiffs have assumed the burden of proving both
that the minor plaintiff’s injury was foreseeable and that the defendants
failed to take reasonable steps to prevent it. Indeed, as we discuss later in
this opinion, under the common law of this state, the owner of a domestic
animal cannot be held strictly liable for injuries caused by the animal, even
if the animal had known mischievous propensities. See Bischoff v. Cheney,
89 Conn. 1, 3–4, 92 A. 660 (1914). On the other hand, owners and keepers
of dogs are held strictly liable for injuries caused by the dog pursuant to
statute, with a few enumerated exceptions. See General Statutes § 22-357.
8
We also are not called upon in this case to consider the scope and
application of General Statutes § 52-557p, which provides that persons
engaged in recreational equestrian activities assume the risk of the inherent
hazards of such activities, because the defendants make no claim that the
plaintiffs were engaged in recreational equestrian activities. See General
Statutes § 52-557p (‘‘[e]ach person engaged in recreational equestrian activi-
ties shall assume the risk and legal responsibility for any injury to his person
or property arising out of the hazards inherent in equestrian sports, unless
the injury was proximately caused by the negligence of the person providing
the horse or horses to the individual engaged in recreational equestrian
activities or the failure to guard or warn against a dangerous condition, use,
structure or activity by the person providing the horse or horses or his
agents or employees’’).
9
‘‘The complaint alleged that the defendants were ‘the keeper, boarder
and/or owner of [Scuppy, who] was being kept on or about the premises
of Glendale Farms.’ In his deposition testimony, Astriab indicated that, at
the time of the incident, he was the keeper of Scuppy, who was owned by
Laura Pendleton. Pendleton is not a party to this action.’’ Vendrella v. Astriab
Family Ltd. Partnership, supra, 133 Conn. App. 633.
10
Section 509 of the Restatement (Second), supra, provides: ‘‘(1) A pos-
sessor of a domestic animal that he knows or has reason to know has
dangerous propensities abnormal to its class, is subject to liability for harm
done by the animal to another, although he has exercised the utmost care
to prevent it from doing the harm.
‘‘(2) This liability is limited to harm that results from the abnormally
dangerous propensity of which the possessor knows or has reason to know.’’
11
Section 518 of the Restatement (Second), supra, provides: ‘‘Except for
animal trespass, one who possesses or harbors a domestic animal that he
does not know or have reason to know to be abnormally dangerous, is
subject to liability for harm done by the animal if, but only if,
‘‘(a) he intentionally causes the animal to do the harm, or
‘‘(b) he is negligent in failing to prevent the harm.’’
12
In support of this conclusion, the court in Bischoff cited Baldwin v.
Ensign, 49 Conn. 113, 117 (1881), in which this court stated in dictum that
‘‘[i]t is the duty of a man who owns a vicious animal to give notice of his
propensity or to restrain him; his omission to do so is negligence which
makes him liable for the consequences.’’ See Bischoff v. Cheney, supra, 89
Conn. 4. The court in Baldwin cited no authority for the proposition that
the owner of an animal with known mischievous propensities can be held
liable only if he was negligent in restraining the animal, however, and, as
the court in Bischoff recognized; see id.; it appears to be inconsistent with
Woolf v. Chalker, 31 Conn. 121, 130 (1862), in which this court recognized
that, under the common law, the owner of a ‘‘ferocious’’ dog is strictly liable
for injuries inflicted by it. See id. (‘‘[t]he keeping of [a ferocious] dog is
wrongful and at the peril of the owner, and therefore prima facie the owner
is liable to any person injured by such a dog, without any averment or proof
of negligence in securing or taking care of it, and irrespective of any question
of negligence of the plaintiff’’ [emphasis in original]).
13
The defendants in the present case do not dispute that the owner or
keeper of a domestic animal that previously has exhibited mischievous
propensities can be held liable for injuries inflicted by the animal even if
the animal was not roaming at large. See Woolf v. Chalker, 31 Conn. 121,
130 (1862) (owner of ferocious dog is strictly liable for injuries caused by
dog while on owner’s premises), overruled in part by Bischoff v. Cheney,
supra, 89 Conn. 4 (owner of domestic animal with known mischievous
propensities is not strictly liable for injuries caused by animal, but can be
held liable for negligent restraint of animal).
14
The court in Barnum held that the owner of a trespassing animal may be
held strictly liable for damages caused by the animal. Barnum v. Vandusen,
supra, 16 Conn. 205 (defendant could be held liable ‘‘upon proof of the
facts . . . averred [by the plaintiff], without any proof of knowledge by the
defendant, that the said sheep so in his custody, were diseased . . . and
without any proof of malice, misconduct or neglect, on the part of the
defendant’’ [internal quotation marks omitted]). This holding was effectively
overruled by this court’s decisions in Baldwin v. Ensign, 49 Conn. 113,
116–17 (1881) (owner is liable for negligence in allowing domestic animal
to roam at large), and Bischoff v. Cheney, supra, 89 Conn. 4 (owner of
domestic animal cannot be held strictly liable for damages caused by animal).
15
For the same reasons, it does not logically follow from the Appellate
Court’s statement in Stokes v. Lyddy, 75 Conn. App. 252, 265–66, 815 A.2d
263 (2003), that ‘‘[i]t is the duty of the owner of [a vicious] animal, having
knowledge of its vicious propensities, to give notice of the propensities or
to restrain the animal, and that failure to do so is negligence that makes
the owner liable for its consequences’’ that the owner has no duty to restrain
an animal with no known mischievous propensities, but belonging to a class
of animals with naturally mischievous propensities. The duty owed by the
owner of such animals was not at issue in Stokes.
16
Although the court in Baldwin relied generally on Barnum v. Vandusen,
supra, 16 Conn. 204; see Baldwin v. Ensign, supra, 49 Conn. 116; the court
in Barnum had stated only that, ‘‘the owner of a domestic animal, not
naturally inclined to commit mischief, is not liable for an injury committed
by it [in a place where it rightfully belongs] unless [the owner] has notice
that such animal is accustomed to commit mischief . . . .’’ (Emphasis
added.) Barnum v. Vandusen, supra, 204. Thus, the court in Barnum simply
did not address the question of the owner’s liability for injuries caused by
an animal that is where it rightfully belongs and that belongs to a species
that is ‘‘naturally inclined to commit mischief . . . .’’ Id.
Neither the defendant nor the court in Barnum cited any case of this
court in support of the proposition that the owner of an animal that is where
it is entitled to be cannot be held liable for injuries caused by the animal
in the absence of scienter. Rather, the defendant cited a treatise and a New
York case, both of which state categorically that the owner of a domestic
animal is not liable for injuries caused by the animal unless the owner had
knowledge of its previous mischievous behavior. See Barnum v. Vandusen,
supra, 16 Conn. 202 (argument of defendant), citing 1 Z. Swift, Digest of
the Laws of the State of Connecticut (1822), p. 551 (‘‘if a man has a dog,
or a bull, or any other domestic animal, such as are usually kept, and are
necessary to the existence of man, no action is maintainable for any injury
done by such animal, unless the owner knew that he was accustomed to
do mischief: for without such knowledge, no negligence or fault is imputable
to him’’), and Vrooman v. Lawyer, 13 Johnson’s Reports 339 (N.Y. Sup.
1815–1816) (‘‘[i]f damage be done by any domestic animal, kept for use or
convenience, the owner is not liable to an action on the ground of negligence,
without proof that he knew that the animal was accustomed to do mischief’’).
Neither of these authorities cited a single Connecticut case to support this
proposition, however, and we find their reasoning unpersuasive for the
reasons set forth in this opinion. With respect to a third authority cited by the
defendant in Barnum, namely, ‘‘1 Chitt. Plead. 69 (old [edition])’’; Barnum v.
Vandusen, supra, 202; it is unclear what edition of Chitty’s treatise on
pleading the defendant was relying on. The 1840 edition of the treatise,
however, provides that ‘‘[t]he owner of domestic or other animals not natu-
rally inclined to commit mischief, as dogs, horses, and oxen, is not liable
for any injury committed by them to the person or personal property; unless
it can be shown that [the owner] previously had notice of the animal’s
mischievous propensity . . . or that the injury was attributable to some
other neglect on his part . . . .’’ (Emphasis added.) 1 J. Chitty & T. Chitty,
A Treatise on the Parties to Actions, and on Pleading (8th American Ed.
1840), p. 81a. This language is very similar to the language used by the court
in Barnum.
17
We also recognize that the Appellate Court’s decision in Mann v. Regan,
108 Conn. App. 566, 948 A.2d 1075 (2008), provides some indirect support
for the defendants’ claim that, if a domestic animal was not roaming at
large, the owner can be held liable for damages caused by the animal only
if it had known mischievous propensities. In Mann, the plaintiff brought a
negligence action against the owner of a dog that had bitten the plaintiff
while she was caring for the dog in her own residence. Id., 569. The Appellate
Court and the parties in Mann appear to have assumed that, to prevail on
her claim, the plaintiff was required to ‘‘prove that the dog had vicious
propensities and that the owner or keeper had knowledge, or the means of
knowledge, of them’’; (internal quotation marks omitted) id., 579–80; as that
issue was not contested. This assumption apparently was based on a decision
of the Connecticut Circuit Court. See id., quoting Basney v. Klema, 2 Conn.
Cir. 538, 544, 203 A.2d 95 (1964). (The Connecticut Circuit Court acted as a
trial court for certain cases from 1960 through 1974. See State of Connecticut
Judicial Branch, ‘‘History of the Courts,’’ available at http://jud.ct.gov/ystday/
history.html [last visited March 24, 2014].) In turn, the court in Basney v.
Klema, supra, 544, cited Frederickson v. Kepner, 82 Cal. App. 2d 905, 908,
187 P.2d 800 (1947), which held that the owner of a dog with known savage
propensities ‘‘keeps the dog at his risk and is liable for damages resulting
from the conduct of the animal.’’ Although the court in Frederickson did not
specify whether the owner would be strictly liable or liable for negligence, its
use of the phrase ‘‘at his risk’’; Frederickson v. Kepner, supra, 908; suggests
the former, a distinction that was not recognized by the court in Basney.
The failure to make the distinction between strict liability and liability for
negligence also has caused confusion in other jurisdictions. In Griner v.
Smith, 43 N.C. App. 400, 405, 259 S.E.2d 383 (1979), for example, the Court
of Appeals of North Carolina observed that ‘‘[t]he notion that a party must
show the dangerous propensity of a domestic animal before establishing a
basis for recovery arose originally in what were essentially strict liability
cases. See generally [W.] Prosser, Law of Torts, § 76 (4th Ed. 1971).’’ The
court then observed that ‘‘often times decisions [of the North Carolina
courts] are rendered without distinguishing between traditional negligence
actions and actions which at common law might amount to actions involving
strict liability.’’ Griner v. Smith, supra, 406. The court stated that the cases
involving strict liability for injuries caused by abnormally dangerous animals
‘‘should not . . . be read as restricting the rights of action against the keeper
of a domestic animal when injury is caused by conduct other than [the
abnormal] viciousness of an animal.’’ Id., 407. Accordingly, the court in
Griner concluded that ‘‘[t]he owner of a domestic animal is chargeable
with knowledge of the general propensities of certain animals and he must
exercise due care to prevent injury from reasonably anticipated conduct.’’
Id.; see also Drake v. Dean, 15 Cal. App. 4th 915, 929, 19 Cal. Rptr. 2d 325
(1993) (observing that, in previous case before court involving dog bite,
‘‘legal principles governing strict liability and negligence were conflated’’).
For this and the other reasons stated in this opinion, Basney is hereby
overruled.
The defendants in the present case also rely on D. Wright et al., Connecticut
Law of Torts (3d Ed. 1991) § 125, pp. 359–60, which, in the section of the
treatise dealing with strict liability, provides that, ‘‘[i]n the case of domestic
animals . . . liability is predicated upon the knowledge (actual or construc-
tive) by the owner or harborer of the animal that the animal has previously
exhibited vicious tendencies. In other words, liability is based upon scienter,
and ordinarily the owner or harborer of the domestic animal will not be
liable until a second vicious act is committed by the animal. Thus the liability
of the owner or a harborer of domestic animal is not a strict or absolute
liability . . . .’’ We conclude that this reliance is misplaced for two reasons.
First, contrary to the authors’ suggestion, strict liability does not mean
liability without proof of scienter; it means liability without proof of negli-
gence. See Caporale v. C. W. Blakeslee & Sons, Inc., 149 Conn. 79, 83, 175
A.2d 561 (1961) (defendant subject to strict liability can be held liable ‘‘even
though he uses all proper care’’ [internal quotation marks omitted]). In other
words, if proof of negligence is required, there is no strict liability, regardless
of whether the animal previously has caused an injury. Thus, the reason
that there is no strict liability for injuries caused by domestic animals in
Connecticut is not because our common law requires proof of scienter—
which we conclude it does not—but because this court in Bischoff v. Cheney,
supra, 89 Conn. 4, held that it would be unduly harsh to hold owners liable
for injuries caused by domestic animals without proof of negligence, even
if the owner had knowledge of the animal’s mischievous propensities. Sec-
ond, to the extent that this treatise on Torts suggests that, under the common
law of this state, there is no liability for negligence in the absence of scienter,
we have determined that such a conclusion is not supported by this
court’s cases.
Because it is also likely to cause some confusion, it is appropriate to
clarify this court’s statement in Granniss v. Weber, 107 Conn. 622, 625, 141
A. 877 (1928), that the ‘‘principal purpose and effect of [a dog bite statute
imposing strict liability on the owner of a dog that causes damage to the
body or property of any person] was to abrogate the common-law doctrine
of scienter as applied to damage by dogs to persons and property, so that
liability of the owner or keeper became no longer dependent upon his
knowledge of the dog’s ferocity or mischievous propensity . . . .’’ This
language may be understood as implying that, before strict liability for dog
bites was imposed by statute, the owner of a domestic animal was not subject
to liability of any kind in the absence of scienter. It is more reasonable to
conclude, however, that the dog bite statute eliminated the common-law
requirement that the dog have a known vicious propensity to injure persons
in order for the owner to be held strictly liable. See Woolf v. Chalker, 31
Conn. 121, 130 (1862) (under common law, owner of ferocious dog was
strictly liable for injuries caused by dog), overruled by Baldwin v. Ensign,
supra, 49 Conn. 117. There is no reason to believe that the statute was
premised on the assumption that the owner of a dog that caused a foreseeable
injury to a person could not be held liable for his or her negligence in the
absence of proof of scienter.
18
We recognize that § 52-557p provides that the owner or keeper of a
horse is not liable for injuries ‘‘arising out of the hazards inherent in eques-
trian sports,’’ and we express no opinion here as to whether, if a jury
reasonably could conclude in a particular case that horses have a natural
propensity to bite or to inflict other types of injuries, the risk of such an
injury would be ‘‘inherent in equestrian sports . . . .’’ We hold only that
the statute clearly contemplates that the mere fact a horse is on the premises
of its owner or keeper will not immunize the owner or keeper from negli-
gence claims involving foreseeable injuries caused by the horse. Nor does
the statute provide that there is no liability for negligence if the specific
horse has no known mischievous propensities.
19
The defendants in the present case raised the affirmative defense that
the plaintiffs’ injuries were the result, in whole or in part, of the father’s
negligence. A number of courts have concluded that principles of compara-
tive or contributory negligence apply to negligence cases involving injuries
caused by domestic animals in the same manner as they apply to other
negligence actions. See Hardin v. Christy, 462 N.E.2d 256, 258, 262–63 (Ind.
1984) (jury reasonably could have found that plaintiff who had been bitten
by stallion was contributorily negligent when plaintiff was experienced horse
trainer); Baker v. McIntosh, 132 S.W.3d 230, 233 (Ky. App. 2004) (owner not
liable for injuries caused by colt when risk of injury was, or should have
been, as apparent to injured person as to owner); Huber v. Timmons, 184
Neb. 718, 722–23, 171 N.W.2d 794 (1969) (plaintiff who was injured by pony
was contributorily negligent when evidence showed that she was familiar
with ponies and their natural propensities and was as aware of handler’s
ability to handle horses as defendants); see also 3 Restatement (Second),
supra, § 518, comment (i), p. 32 (‘‘[w]hen the liability stated in this [s]ection
is based upon the negligence of the keeper of the animal, the person injured
is barred by his contributory fault under the same conditions as in all other
cases of negligence’’). We note that, ‘‘[a]lthough Connecticut has adopted
the doctrine of comparative negligence; see General Statutes § 52-572h (b);
our statutes retain the term contributory negligence. See, e.g., General Stat-
utes §§ 52-114 and 52-572h (b).’’ (Internal quotation marks omitted.) Juchnie-
wicz v. Bridgeport Hospital, 281 Conn. 29, 32 n.4, 914 A.2d 511 (2007).
20
The plaintiffs in the present case alleged in their complaint that the
defendants ‘‘invited members of the general public to enter and patronize
[Glendale Farms].’’ The defendants admitted this allegation except as to the
words ‘‘to enter and patronize [Glendale Farms],’’ which they denied. ‘‘In
general, there is an ascending degree of duty owed by the possessor of land
to persons on the land based on their entrant status, i.e., trespasser, licensee
or invitee.’’ (Internal quotation marks omitted.) Morin v. Bell Court Condo-
minium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992). A number
of courts have concluded that the liability of an owner or keeper of a
domestic animal to a person injured by the animal while on the owner’s or
keeper’s premises depends on the injured person’s entrant status. See Duren
v. Kunkel, 814 S.W.2d 935, 938 (Mo. 1991); DeRobertis v. Randazzo, 94 N.J.
144, 157, 462 A.2d 1260 (1983); Dunnings v. Castro, 881 S.W.2d 559, 563
(Tex. App. 1994); but see Mercer v. Fritts, 9 Kan. App. 2d 232, 235–38, 676
P.2d 150 (1984) (when plaintiff was injured by domestic animal, law govern-
ing liability for injuries caused by animals applies regardless of plaintiff’s
entrant status), aff’d, 236 Kan. 73, 689 P.2d 774 (1984); cf. Giacalone v.
Housing Authority, 306 Conn. 399, 408, 51 A.3d 352 (2012) (‘‘Whether a
dangerous condition is created by rats, snow, rotting wood or vicious dogs,
these differing facts present no fundamental ground of distinction [for pur-
poses of establishing liability for failure to keep the premises reasonably
safe]. What defines the landlord’s duty is the obligation to take reasonable
measures to ensure that the space over which it exercises dominion is safe
from dangers, and a landlord may incur liability by failing to do so.’’ [Empha-
sis in original.]).
21
The amici argue that this issue has not arisen in the past because our
case law has been clear that such claims are not allowed. As we have
indicated herein, we disagree. Although there is dicta in some of our cases
that arguably supports the defendants’ position, and one Circuit Court case
adopted that position based on a misreading of a California case; see footnote
17 of this opinion; this court has never directly addressed the issue.
22
See Humphries v. Rice, 600 So. 2d 975, 978 (Ala. 1992) (‘‘the owner of
a domestic animal is assumed to know the animal’s general propensities
and, therefore, is under a duty to use due care to prevent injury from the
animal’s reasonably anticipated behavior’’; [emphasis in original; internal
quotation marks omitted]; even in absence of evidence that animal had
mischievous propensities); Vigue v. Noyes, 113 Ariz. 237, 240, 550 P.2d 234
(1976) (applying rule set forth in § 518 of Restatement [Second], supra);
Van Houten v. Pritchard, 315 Ark. 688, 692, 870 S.W.2d 377 (1994) (same);
Drake v. Dean, 15 Cal. App. 4th 915, 929, 19 Cal. Rptr. 2d 325 (1993) (‘‘As
the Restatement [(Second), supra, § 518] and the cases indicate, negligence
may be predicated on the characteristics of the animal which, although
not abnormal to its class, create a foreseeable risk of harm. As to those
characteristics, the owner has a duty to anticipate the harm and to exercise
ordinary care to prevent the harm.’’); Taft v. Taft, 209 Ga. App. 499, 500,
433 S.E.2d 667 (1993) (bull is not abnormally vicious animal subject to 3
Restatement [Second], supra, § 509, imposing strict liability for injuries
caused by abnormally dangerous domestic animals, but owner could be
held liable under negligence theory for ‘‘the usual and natural consequence
to be anticipated from allowing an ordinary animal of that kind to go at
large’’ [internal quotation marks omitted]); Farrior v. Payton, 57 Haw. 620,
630, 562 P.2d 779 (1977) (‘‘[t]he owner or keeper of a domestic animal is
bound to take notice of the general propensities of the class to which it
belongs . . . and insofar as such propensities are of a nature likely to
cause injury he must exercise reasonable care to guard against them and to
prevent injuries which are reasonably to be anticipated from them’’ [internal
quotation marks omitted]); Ross v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993)
(‘‘the owner of a dog is bound to know the natural propensities of dogs,
and if these propensities are the kind which reasonably might be expected
to cause injury, the owner must use reasonable care to prevent such injuries
from occurring’’); Gardner v. Koenig, 188 Kan. 135, 138, 360 P.2d 1107 (1961)
(applying rule set forth in 3 Restatement [Second], supra, § 518); Baker v.
McIntosh, 132 S.W.3d 230, 232 (Ky. App. 2004) (same); Moura v. Randall,
119 Md. App. 632, 646, 705 A.2d 334 (‘‘[a]n animal owner may be liable under
a negligence theory even where he is unaware of any mischievous propensity
on the animal’s part, if he has failed to exercise reasonable care in controlling
the animal or preventing the harm caused by him’’), cert. denied, 349 Md.
495, 709 A.2d 140 (1998); Trager v. Thor, 445 Mich. 95, 104–105, 516 N.W.2d
69 (1994) (applying rule set forth in 3 Restatement [Second], supra, § 518);
Duren v. Kunkel, 814 S.W.2d 935, 938–39 (Mo. 1991) (same); Huber v.
Timmons, 184 Neb. 718, 722,171 N.W.2d 794 (1969) (‘‘Even in the absence
of any known viciousness in a domestic animal, its owner is obliged to
exercise over it a certain degree of care depending upon the kind and
character of the particular animal concerned, the circumstances in which
it is placed, and the purposes for which it is employed or kept. The owner
. . . is charged with knowledge of the natural propensities of animals . . .
and, if these propensities are of the kind that might cause injury he must
exercise the care necessary to prevent such injuries as may be anticipated.’’
[Internal quotation marks omitted.]); DeRobertis v. Randazzo, 94 N.J. 144,
156, 462 A.2d 1260 (1983) (‘‘[i]f either the dog is not vicious or the owner
does not know of its vicious propensities, then negligence, not absolute
liability, applies’’); Smith v. Ruidoso, 128 N.M. 470, 477, 994 P.2d 50 (1999)
(adopting rule set forth in § 518 of Restatement [Second], supra, and conclud-
ing that ‘‘a negligence claim is appropriate where the dog owner lacks
knowledge of the dog’s vicious propensities and ineffectively controls the
animal in a situation where it would reasonably be expected that injury
could occur’’ [internal quotation marks omitted]); Griner v. Smith, 43 N.C.
App. 400, 407, 259 S.E.2d 383 (1979) (‘‘[t]he owner of a domestic animal is
chargeable with knowledge of the general propensities of certain animals
and he must exercise due care to prevent injury from reasonably anticipated
conduct’’ even in absence of evidence that animal had known vicious propen-
sities); Westberry v. Blackwell, 282 Or. 129, 133, 577 P.2d 75 (1978) (applying
rule set forth in § 518 of Restatement [Second], supra); Sybesma v. Sybesma,
534 N.W.2d 355, 358 (S.D. 1995) (same); Dunnings v. Castro, 881 S.W.2d
559, 563 (Tex. App. 1994) (applying rule set forth in § 518 of Restatement
[Second], supra, and concluding that ‘‘an owner of a dog may be liable for
injuries caused by the dog even if the animal is not vicious, if the plaintiff
can prove that the owner’s negligent handling of the animal caused the
animal to injure the plaintiff’’); Arnold v. Laird, 94 Wash. 2d 867, 871, 621
P.2d 138 (1980) (applying rule set forth in § 518 of Restatement [Second],
supra); Jividen v. Law, 194 W. Va. 705, 712, 461 S.E.2d 451 (1995) (West
Virginia rule recognizing negligence action against owner of animal that
does not have known, abnormally dangerous propensities ‘‘is similar, if not
identical, to that utilized in [§ 518 of the Restatement [Second], [supra]’’);
Nelson v. Hansen, 10 Wis. 2d 107, 113–14, 102 N.W.2d 251 (1960) (‘‘[a]t
common law, an owner or keeper of a domestic animal which is not abnor-
mally dangerous, and which he does not have reason to know to be abnor-
mally dangerous, but which is likely to do harm unless controlled, is liable
for the harm done by such an animal only if he fails to exercise reasonable
care to confine or otherwise control it, or the harm is of a sort which it is
normal for animals of that class to do’’); Borns ex rel. Gannon v. Voss, 70
P.3d 262, 270 (Wy. 2003) (‘‘if [the plaintiff] can prove that, under all the
circumstances, the [dog owners] violated their duty to her of reasonable
care in the control of [the dog], liability may result even if [the owners] had
no knowledge of [the dog’s] propensity to bite people, or indeed, even if
[the dog] had no such propensity’’); but see Bard v. Jahnke, 6 N.Y.3d 592,
599, 848 N.E.2d 463, 815 N.Y.S.2d (2006) (declining to recognize action for
negligence arising from injuries caused by animal that belongs to breed that
is naturally dangerous); Searcy v. Brown, 607 S.W.2d 937, 941 (Tex. Civ.
App. 1980) (‘‘[t]he owner of a domestic animal is not liable for injuries
caused by it in a place where it has a right to be, unless the animal is of
known vicious propensities or the owner should know of the vicious or
unruly nature of the animal’’ [internal quotation marks omitted]); cf. Groh
v. Hasencamp, 407 So. 2d 949, 952 (Fla. App. 1981) (holding that ‘‘[t]he
owner or keeper of a domestic animal is bound to take notice of the general
propensities of the class to which it belongs, and also of any particular
propensities peculiar to the animal itself of which he has knowledge or is
put on notice; and in so far as such propensities are of a nature likely to
cause injury he must exercise reasonable care to guard against them and
to prevent injuries which are reasonably to be anticipated from them’’;
[internal quotation marks omitted]; but stating that domestic animals are
presumed not to be mischievous in absence of evidence of prior mischievous
conduct), petition denied, 415 So. 2d 1360 (Fla. 1982); Kinley v. Bierly, 876
A.2d 419, 422 (Pa. Super. 2005) (applying 3 Restatement [Second], supra,
§ 518, but concluding that plaintiff was required to show that animal had
known mischievous propensities to prevail on negligence claim).
The defendants in the present case rely on Peterson v. Eichhorn, 344
Mont. 540, 189 P.3d 615 (2008), and Hojem v. Kelly, 21 Wash. App. 200, 584
P.2d 451 (1978). In Peterson, the plaintiff brought an action for negligence
after she was injured when a horse owned by the defendant Jim Eichhorn
and kept on property owned by the defendant Bonnie Basta leaned over
the fence of the corral in which Basta kept it and bit the plaintiff. Peterson
v. Eichhorn, supra, 541–42. The plaintiff and Basta reached a settlement.
Id., 542. With respect to the claims against Eichhorn, the court concluded
that the plaintiff had ‘‘not established the existence of a genuine issue of
material fact as to whether Eichhorn’s keeping [the horse] in the corral on
Basta’s property as he did fell below the [proper] degree of care . . . .’’
Id., 550. It is entirely unclear, however, whether the court in Peterson con-
cluded that the mere fact that Eichhorn was keeping his horse on Basta’s
property did not present a genuine issue of material fact as to whether
Eichhorn had violated the standard of care or, instead, it concluded that
there was no genuine issue of material fact as to whether the manner in
which the horse was being kept violated the standard of care. Accordingly,
the case provides little guidance.
In Hojem v. Kelly, supra, 21 Wash. App. 200, the plaintiff brought a negligence
action against the proprietors of a riding stable that had rented her a horse.
While the plaintiff was riding the horse on a field on the defendants’ property,
a riderless horse entered the field and frightened the plaintiff’s horse, causing
it to bolt. Id., 201–202. The plaintiff fell and was injured. Id., 202. The court
in Hojem stated that the defendants could be held liable if the plaintiff
proved that the riderless horse ‘‘was vicious or dangerous and that such
was known or reasonably should have been known to the defendants.’’ Id.,
205. The court held that, because there was no evidence that a riderless
horse in a riding area is dangerous and ‘‘a horse will not be presumed to
be vicious or dangerous,’’ the plaintiff could not prevail on her claim. Id.
We find the defendants’ reliance on this case to be misplaced for two
reasons. First, the court in Hojem applied to a negligence claim the known,
‘‘abnormally dangerous propensity’’ standard that applies to claims of strict
liability under § 509 of the Restatement (Second), supra. In a later case, the
Supreme Court of Washington applied the standard set forth in § 518 of
the Restatement (Second), supra, to negligence claims involving domestic
animals. See Arnold v. Laird, 94 Wash. 2d 867, 871, 621 P.2d 138 (1980).
Accordingly, Hojem has been implicitly overruled. Second, to the extent
that the defendants in the present case rely on Hojem for the proposition
that horses are presumed not to be dangerous, we do not conclude in the
present case that horses may be presumed to be dangerous. Rather, we
conclude that, if a plaintiff presents evidence that it was reasonably foresee-
able that a horse would be dangerous under the particular facts and circum-
stances of the case, and reasonable minds could differ on that question, the
issue is one for the trier of facts.
23
The plaintiffs contend that, because the defendants did not claim before
the trial court that the plaintiffs’ evidence did not create a genuine issue of
material fact as to whether horses have a natural propensity to bite, but
claimed only that, even if horses have such a propensity, they owed no duty
to the plaintiffs, this issue was not preserved for review. Because both
parties have briefed the issue, the issue presents a pure question of law,
the issue would inevitably arise on remand if we declined to address it and
the defendants cannot prevail on their claim, we conclude that we may and
should address it regardless of whether it was preserved.
24
In Bischoff v. Cheney, supra, 89 Conn. 5, this court effectively took
judicial notice of the fact that cats as a species are harmless. See id. (‘‘The
cat is not of a species of domestic animals naturally inclined to mischief,
such as, for example, cattle . . . . The cat’s disposition is kindly and docile,
and by nature it is one of the most tame and harmless of all domestic
animals.’’). Under § 2-1 (c) of the Connecticut Code of Evidence, ‘‘[a] judi-
cially noticed fact must be one not subject to reasonable dispute in that it
is either (1) within the knowledge of people generally in the ordinary course
of human experience, or (2) generally accepted as true and capable of
ready and unquestionable demonstration.’’ If the question of cats’ naturally
mischievous propensities had come before this court as a matter of first
impression today, we might have applied the more flexible approach that
we adopt in this opinion and have left that determination to the jury on a
case-by-case basis. Indeed, it is far from clear to us that the proposition
that cats are ‘‘kindly and docile, and by nature . . . one of the most tame
and harmless of all domestic animals’’; Bischoff v. Cheney, supra, 5; is ‘‘[a]
judicially noticed fact . . . not subject to reasonable dispute . . . .’’ Conn.
Code Evid. § 2-1 (c). The correctness of this particular ruling in Bischoff,
however, is not before the court in the present case.
25
See also Dolezal v. Carbrey, 161 Ariz. 365, 369, 778 P.2d 1261 (App.
1989) (‘‘In the first instance, the determination of whether the defendant
owed to [the] plaintiff any duty to use due care at all is always a question
of law for the court. . . . This issue is to be presented to the jury, however,
where there is a debatable question as to whether the injury to the plaintiff
was within the foreseeable scope of the risk and whether the defendant
was required to recognize the risk and take precautions against it.’’ [Internal
quotation marks omitted.]); Bigbee v. Pacific Telephone & Telegraph Co.,
34 Cal. 3d 49, 56, 665 P.2d 947, 192 Cal. Rptr. 857 (1983) (‘‘Ordinarily,
foreseeability is a question of fact for the jury. . . . It may be decided as
a question of law only if, under the undisputed facts there is no room for
a reasonable difference of opinion.’’ [Citation omitted; internal quotation
marks omitted.]).
The concurrence states that ‘‘[n]one of the cases cited by the majority
suggests that the question of whether a domesticated animal has a natural
propensity to engage in harmful conduct should be submitted to the jury.’’
The concurrence then cites a number of cases for the proposition that the
owner or keeper of a domestic animal is assumed to know the animal’s
general propensities, ‘‘thus indicating that the only question the jury must
decide is whether the owner took appropriate steps to prevent the foresee-
able harm.’’ Contrary to the concurrence’s statement, the court in Dolezal
v. Carbrey, supra, 161 Ariz. 370, concluded that the questions of whether
‘‘an otherwise gentle horse might bolt in reaction to out-of-the-ordinary
cues’’ and whether ‘‘an inexperienced rider on a runaway horse could be
harmed in some manner’’ were questions for the jury because reasonable
minds could reach different conclusions on those questions. The cases
holding that the owner or keeper of a domestic animal is assumed to know
the animal’s propensities simply do not address the question of whether
those propensities are a matter of common knowledge. Although the natural
propensity of horses to bite may have been a matter of common knowledge
in earlier times, when horses were a daily presence in most peoples’ lives,
we do not believe that that is the case today. See, e.g., Leipske v. Guenther,
7 Wis. 2d 86, 91, 95 N.W.2d 774 (1959) (‘‘[i]n the present case there is no
evidence that it is a natural propensity of horses to bite people, and we
are not prepared to take judicial notice of such a propensity’’). Moreover,
although it may be undisputed in the present case that horses, as a species,
have a natural tendency to bite, it is possible that, in another case, the horse
at issue may belong to a class of horses for which the propensity is less
pronounced. We do not believe that it places an undue burden on plaintiffs
to require proof of the natural propensities of the class of animals at issue
in the particular case.
26
We note that, although Amery indicated in his affidavit that a horse can
bite when being groomed or petted, he did not equate petting a horse with
grooming a horse. To the extent that the plaintiffs attempt to suggest that
these forms of conduct are equivalent, that conclusion is not supported by
the evidence.
27
See Bigbee v. Pacific Telephone & Telegraph Co., 34 Cal. 3d 49, 57, 665
P.2d 947, 192 Cal. Rptr. 857 (1983) (‘‘foreseeability is not to be measured
by what is more probable than not, but includes whatever is likely enough
in the setting of modern life that a reasonably thoughtful [person] would
take account of it in guiding practical conduct’’ [internal quotation marks
omitted]); Sirmans v. Penn, 588 A.2d 1103, 1108 (Del. 1991) (trial court
improperly instructed jury that, to be foreseeable, it must be ‘‘more likely
than not’’ that injury would result from defendant’s negligence); Franklin
v. Benock, 722 N.E.2d 874, 879 (Ind. App. 2000) (‘‘By logical deduction, the
foreseeability component of the duty analysis must be something different
than the foreseeability component of proximate cause. More precisely, it
must be a lesser inquiry; if it was the same or a higher inquiry it would
eviscerate the proximate cause element of negligence altogether. If one
were required to meet the same or a higher burden of proving foreseeability
with respect to duty, then it would be unnecessary to prove foreseeability
a second time with respect to proximate cause.’’).
28
To the extent that the defendants are disputing, not the meaning of the
word ‘‘foreseeable,’’ but the meaning of the word ‘‘propensity,’’ we reach
the same conclusion. As we have indicated, the touchstone of negligence
is foreseeability. Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752
(2002). Accordingly, if it is foreseeable that a class of domestic animals will
cause a particular injury, the class of animals has a propensity to cause
such injuries.