Morrissey v. Carroll ( 2005 )

Morrissey v. Carroll, No. 327-10-03 Bncv (Wesley, J., Dec. 20, 2005)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
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STATE OF VERMONT BENNINGTON SUPERIOR COURT
BENNINGTON COUNTY, SS. DOCKET NO. 327-10-03 Bncv
MARY A. MORRISSEY,
Plaintiff,
v.
RHODA W. CARROLL and
TIMOTHY CARROLL,
Defendants.
ORDER RE:
DEFENDANTS MOTION FOR SUMMARY JUDGMENT
In this personal injury suit the Plaintiff alleges that she was injured by Defendants’
visually impaired horse (“Joker”) which had escaped from its corral. As established by the
undisputed evidence, Plaintiff was driving her motor vehicle along Middle Pownal Road when
she encountered two escaped horses on the roadway. Plaintiff activated her vehicle’s flashers and
followed the horses along the roadway until they re-entered the corral from which they appeared
to have escaped through a knocked-down section of fencing. By this time, five Town of
Bennington employees had arrived on the scene, and they propped the heavy metal section of
fencing in place and secured it with chains. As Plaintiff was observing from a few feet away,
Joker abruptly and unexpectedly galloped straight through the replaced section of fence, causing
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it to strike Plaintiff and knocking her to the ground. Plaintiff suffered injury as a result of this
incident, although the degree of injury remains in question,
The standard of care for the keeping of domestic animals is set out in Zukatis v. Perry,
165 Vt. 298 (1996). In Zuaktis - which also involved the keeping of a horse - the Court noted
that the standard “has been variously described,” and that:
As a general rule: “the keeper of a domestic [animal] is not liable for injuries to persons
and property unless the owner had some reason to know the animal was a probable source
of danger.” Stated another way, liability attaches only when “the [animal]'s past behavior
has been such as to require a person of reasonable prudence to foresee harm to the person
or property of others.” Hillier, 142 Vt. at 556-57, 458 A.2d at 1104 (citations omitted)
(quoting Davis v. Bedell, 123 Vt. 441, 442-43, 194 A.2d 67, 68 (1963)); see also Jividen
v. Law, 194 W.Va. 705, 711-12, 461 S.E.2d 451, 457-58 (1995) (liability for harm caused
by animal will not attach unless injured party can show, based on animal's past behavior
and characteristics, that injury could reasonably and foreseeably have been anticipated).
Zukatis v. Perry, 165 Vt. 298, 303 (1996).
Plaintiff’s pleadings distill the holding in Zukatis to require that “liability for harm caused
by animal will not attach unless injured party can show, based on animal's past behavior and
characteristics, that injury could reasonably and foreseeably have been anticipated.” Id. at 303
(citing Jividen v. Law, 194 W.Va. 705, 711-12 (1995)). However, Plaintiff reads this language to
allow liability to attach based exclusively on the characteristics of the animal. To accept this
reading is to ignore the fact that the language on which Plaintiff relies plainly requires evidence
of “past behavior”as well as characteristics.
Summary judgment is appropriate where, after giving the benefit of all reasonable doubts
and inferences to the nonmoving party, it appears that there is no issue of material fact, and
therefore, that the moving party is entitled to judgment as a matter of law. Select Designs, Ltd. v.
Union Mut. Fire Ins. Co. 165 Vt. 69, 72 (1996). Plaintiff has adduced no evidence whatsoever of
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any past bolting/escape behavior by Joker. Giving fully credence to the opinion offered by
Plaintiff’s expert - that visually impaired horses generally spook easily - she still must produce
evidence of Joker’s past bolting/escaping behavior to activate any heightened duty of care. There
is simply nothing of record from which it might reasonably be inferred that either Defendant
should have been aware of Joker’s potential danger due to a susceptibility to startle or bolt.
Therefore, Defendants are entitled to judgment as a matter of law, and their motion for summary
judgment is GRANTED.
Dated at Bennington, Vermont this ____day of December, 2005.
____________________________
John P. Wesley
Superior Court Judge
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