Morrissey v. Carroll ( 2005 )


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  • 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
    original. The accuracy of the text and the accompanying data included in the Vermont trial court
    opinion database is not guaranteed.]
    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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Document Info

Docket Number: 327

Filed Date: 12/20/2005

Precedential Status: Precedential

Modified Date: 4/24/2018