Vendrella v. Astriab Family Ltd. Partnership

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VENDRELLA v. ASTRIAB FAMILY LTD. PARTNERSHIP—CONCURRENCE
ZARELLA, J., with whom VERTEFEUILLE, J., joins,
concurring. I agree with the majority that, for reasons
of public policy, this court should adopt the rule that
‘‘the owner or keeper of a domestic1 animal has a duty
to take reasonable steps to prevent injuries that are
foreseeable because the animal belongs to a [species
or breed]2 . . . that is naturally inclined to cause such
injuries . . . [and that] the owner may be held liable
for negligence if he or she fails to take such reasonable
steps and an injury results.’’ (Footnotes added.) I do
not agree, however, that ‘‘the [evidence presented] . . .
created a genuine issue of material fact as to whether
the . . . injury [sustained by the plaintiff Anthony John
Vendrella] was foreseeable because horses have a natu-
ral propensity to bite.’’ The natural propensity of horses
to nip and bite was recognized by every witness who
gave testimony on the subject during the summary judg-
ment proceedings, and, in any event, it is a matter of
common knowledge. Accordingly, because courts can
take judicial notice of matters of common knowledge,
the trial court should take judicial notice of the fact
that horses have a natural propensity to nip and bite,
and leave for the jury the more limited question of
whether the defendants, Astriab Family Limited Part-
nership and Timothy D. Astriab, in light of this knowl-
edge and their knowledge of Scuppy’s3 past behavior,
took reasonable precautions to prevent Scuppy from
causing foreseeable harm.
I begin by observing that the present case does not
involve a wild animal or a domesticated animal that
the owner had reason to know possessed dangerous
propensities abnormal to its species. Rather, Scuppy
belongs to a species that is not abnormally dangerous.
Furthermore, Scuppy never demonstrated any danger-
ous propensities while in the defendants’ possession.
Thus, in defining the question that should be submitted
to the jury, this court should rely in part for guidance
on the Restatement (Second) of Torts, which speaks
directly to the liability of an owner in this circumstance.
See, e.g., Allen v. Cox, 285 Conn. 603, 606, 615–17, 942
A.2d 296 (2008) (relying on Restatement [Second] of
Torts to determine scope of defendants’ liability for
injuries caused by their cat).
Section 518 of the Restatement (Second) of Torts
provides: ‘‘Except for animal trespass, one who pos-
sesses or harbors a domestic animal that he does not
know or have reason to know to be abnormally danger-
ous, is subject to liability for harm done by the animal
if, but only if . . . (b) he is negligent in failing to pre-
vent the harm.’’ 3 Restatement (Second), Torts § 518,
p. 30 (1977).
Comment (e) explains that § 518 ‘‘is applicable to
those domestic animals of a class that can be confined
to the premises of their keepers or otherwise kept under
constant control without seriously affecting their use-
fulness and which are not abnormally dangerous.
Although the utility of these animals is sufficient to
justify their being kept without risk of . . . strict liabil-
ity . . . many of them are recognizably likely to do
substantial harm while out of control and, therefore,
their keepers are under a duty to exercise reasonable
care to have them under a constant and effective con-
trol.’’ Id., comment (e), p. 31.
Comment (f) further explains that ‘‘[t]he amount of
care that the keeper of a domestic animal is required
to exercise in its custody is commensurate with the
character of the animal.’’ Id., comment (f), p. 31. Com-
ment (g) adds that ‘‘the characteristics that are normal
to its class are decisive, and one who keeps the animal
is required to know the characteristics.’’ Id., comment
(g), p. 31.
Finally, in discussing domesticated animals that may
become dangerous in particular circumstances, com-
ment (h) provides that ‘‘[o]ne who keeps a domestic
animal that possesses only those dangerous propensi-
ties that are normal to its class is required to know its
normal habits and tendencies. He is therefore required
to realize that even ordinarily gentle animals are likely
to be dangerous under particular circumstances and to
exercise reasonable care to prevent foreseeable harm.’’
Id., comment (h), pp. 31–32.
In my view, the natural propensity of horses, which
are not abnormally dangerous animals, to nip and bite
as a consequence of their naturally inquisitive or playful
disposition is so widely known that the trial court
should take judicial notice of that fact and limit the
question submitted to the jury to whether the defendant
took reasonable steps to prevent Scuppy from causing
foreseeable harm. ‘‘To take judicial notice is a function,
and to apply it to the decision of causes a right, which
appertains to every court of justice, from the lowest to
the highest. . . . The true concept of what is judicially
known is that it is something which is already in the
court’s possession or, at any rate, is so accessible that
it is unnecessary and therefore time wasting to require
evidence of it. . . . Judicial notice, therefore, in its
appropriate field, meets the objective of establishing
facts to which the offer of evidence would normally be
directed. . . . The underlying theory is that proof by
evidence concerning a proposition may be dispensed
with where the court is justified, by general considera-
tions, in declaring the truth of the proposition without
requiring evidence from the party. . . . This theory
goes no further, however, than to mean that the proposi-
tion is taken as true without an offer of proof by the
party who should ordinarily have offered it. Judicial
notice of the proposition is in no sense conclusive,
and the opponent is not prevented from disputing it by
evidence if he believes it to be disputable. . . . Matters
which may properly be judicially noticed in this way are
those which come to the knowledge of men generally in
the course of the ordinary experience of life or those
matters which are generally accepted by mankind as
true and are capable of ready and unquestionable dem-
onstration. . . . Thus, facts may be judicially noticed
which are so notorious that the production of evidence
would be unnecessary, or which the judicial function
supposes the judge to be familiar with, in theory at
least, or which, although they are neither notorious
nor bound to be judicially known, are capable of such
instant and unquestionable demonstration, if desired,
that no party would think of imposing a falsity on the
tribunal in the face of an intelligent adversary.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Tomanelli, 153 Conn. 365, 368–69, 216 A.2d 625
(1966).
This court has further stated that matters of common
knowledge on which judicial notice may be taken are
limited to ‘‘those well substantiated facts that are obvi-
ous to the general community.’’ State v. Padua, 273
Conn. 138, 193, 869 A.2d 192 (2005) (Katz, J., dissenting
and concurring). ‘‘Although the concept of common
knowledge plays a significant role in our jurisprudence,
this court never explicitly has defined its meaning. Simi-
larly, despite its universal importance, very few courts
outside Connecticut have endeavored to provide a stan-
dard by which to determine when a matter rises to the
level of common knowledge. . . . The few jurisdic-
tions to do so have cited the definition set forth in
various editions of Black’s Law Dictionary. . . .
According to the [eighth] edition of that dictionary,
common knowledge is defined as a ‘fact that is so widely
known that a court may accept it as true without proof.’
. . . Black’s Law Dictionary (8th Ed. 2004).4 In order
for something to be considered a fact, it must, at the
very least, generally be accepted as true and have a
basis in reality. See id. (defining ‘fact’ as ‘[s]omething
that actually exists; an aspect of reality’). Therefore,
common knowledge is not tantamount to a common
belief that may be nothing more than a perception
grounded in folklore, not reality.’’ (Citations omitted;
emphasis in original; footnote added.) State v. Padua,
supra, 193–94 (Katz, J., dissenting and concurring).
Mindful of these principles, I would conclude that
the natural propensity of horses to nip and bite is a
matter of common knowledge. Accordingly, the trial
court should take judicial notice of this fact and not
submit it to the jury.
Taking judicial notice of the habits and characteris-
tics of domestic animals is not unusual. In fact, it has
happened quite often in other jurisdictions and has been
done in this state, as well. For example, this court noted
in Baldwin v. Ensign, 49 Conn. 113 (1881), that ‘‘[t]he
propensity of colts and of horses generally when at
liberty in the highway to run and gambol, and to annoy
and excite other horses, and their liability to cause
damage in various ways, are so well known that they
need only be mentioned.’’ Id., 117. The court subse-
quently added that ‘‘the natural playfulness of . . .
[colts] may be under some circumstances as dangerous
as a positive vice.’’ Id., 118. Thereafter, in Bischoff v.
Cheney, 89 Conn. 1, 92 A. 660 (1914), this court effec-
tively took judicial notice of the fact that cats as a
species are harmless when it concluded that ‘‘[t]he 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.’’ Id., 5.
Similarly, the trial court should take judicial notice
that horses as a species have a natural propensity to
bite because the overwhelming majority of people know
from their own experience and from the experience of
others, as reported in the media and otherwise, that
horses have a natural propensity to nip and bite and
may occasionally do so when they come into close
contact with humans.
Taking judicial notice of the fact that horses have a
natural propensity to nip and bite also is consistent
with the decisions of many other jurisdictions that have
taken judicial notice of, or described as ‘‘a matter of
common knowledge,’’ the natural propensities of horses
to nip, bite, kick, or engage in other playful, inquisitive,
or inadvertent behavior that, due to their sheer size and
weight, may be harmful or dangerous to persons in
close proximity. See, e.g., Weaver v. National Biscuit
Co., 125 F.2d 463, 465 (7th Cir. 1942) (‘‘[a]ll men know
that a horse which has been stabled and well-fed will,
when turned out, run and plunge, and become danger-
ous in the midst of people; all horses are, when loose,
more or less dangerous on sidewalks and streets and
all men know this’’ [internal quotation marks omitted]);
Pool v. Clark, 207 Ark. 635, 637, 182 S.W.2d 217 (1944)
(‘‘[i]t is a well-known propensity of livestock, such as
horses, cattle, sheep and other domestic animals to
graze upon, trample down and destroy grass and other
growing crops’’ [internal quotation marks omitted]);
Cooper v. Oregon Short Line Railroad Co., 45 Idaho
313, 323, 262 P. 873 (1927) (‘‘The court can take judicial
notice of the habits and propensities of animals. . . .
It is a matter of common knowledge that horses, strange
to each other, frequently fight when brought into close
contact. They, when unused to railroad transportation,
become restive, excited and frightened in such sur-
roundings.’’ [Citations omitted.]); Williams v. Hawkins,
304 So. 2d 75, 77 (La. App. 1974) (‘‘[a]llegations of being
‘high strung’ or ‘skittish’ and testimony that the horse
was acting up could not possibly be interpreted as a
‘dangerous propensity [of that particular horse],’ espe-
cially when considered in light of the common knowl-
edge that a great many horses at times are skittish, high
strung, and act up’’), appeal denied, 307 So. 2d 373 (La.
1975); Tamburello v. Jaeger, 176 So. 2d 707, 709 (La.
App. 1965) (‘‘It is a matter of common knowledge that
all horses have [the] capacity [to cause injury by kick-
ing]; and there are certain inherent dangers in handling
horses, such as being stepped on while currying, feed-
ing, harnessing, or while preparing to mount. There is
the danger of being kicked or otherwise injured by a
horse subjected to sudden excitement or fear; the dan-
ger of being kicked or bitten when one disturbs a horse
while eating. It is also a matter of common knowledge
that some horses are by nature more gentle or more
nervous or fearful than others. In other words . . .
horses have certain characteristics in common
. . . .’’), aff’d, 249 La. 25, 184 So. 2d 544 (1966); Simonds
v. Maine Telephone & Telegraph Co., 104 Me. 440, 442,
72 A. 175 (1908) (‘‘[i]t is common knowledge that all
horses . . . are liable to be frightened by any unaccus-
tomed . . . appearances and noises in unaccustomed
situations; that they are susceptible to fright from the
most trivial things; that their vagaries are unforeseeable;
and that it is practically impossible to guard against
them’’); Fraumeni v. Aleppo Temple Shriners Activi-
ties, Inc., Massachusetts Superior Court, Docket No.
950204 (Mass. Super. April 23, 1997) (‘‘It is [common
knowledge and] uncontroverted that horses have a nat-
ural dangerous propensity without regard to condition-
ing or training. [The plaintiff] himself asserted that even
with the proper care, horses have a propensity to buck
and that ‘you can never depend on them.’ ’’); Rosenthal
v. Hill Top Riding Academy, Inc., 261 Minn. 88, 92, 110
N.W.2d 854 (1961) (It was entirely proper that ‘‘[t]he
trial court took judicial notice, ‘as a matter of common
knowledge, that some horses shy at traffic and some
horses don’t.’ . . . A reasonable man is assumed to
have such knowledge of the habits of animals as is
customary in his community. For instance, he should
know that certain objects are likely to frighten horses.
It is also a matter of common knowledge, which it may
be assumed that he knows, that horses are anxious to
return to their stable, particularly at the end of the day;
that they are nervous and excitable; and that, even
though gentle, many of them fear motorcycles and
motor scooters, and as night approaches, even gentle
horses may become restless and difficult to handle,
particularly when in the hands of an inexperienced
rider.’’ [Footnote omitted.]); Crosby v. Burge, 190 Miss.
739, 748, 1 So. 2d 504 (1941) (‘‘courts . . . take judicial
notice of the character and habits of domestic animals
. . . [and] [i]t is common knowledge that any horse,
regardless of how gentle he may be, is likely to jump
or lunge forward when his companion animal [in a
plowing team] falls or hits against him from a three
or four foot embankment’’ [citation omitted; internal
quotation marks omitted]); Bracken v. Bruce, 190 N.J.
Super. 146, 152, 462 A.2d 201 (App. Div. 1983) (‘‘[I]t
appears to us within common knowledge that most
animals . . . might be startled by . . . sudden, unex-
pected noises. . . . The excitability of horses [being
ridden on a highway with cars] is, therefore, a proper
subject of judicial notice . . . .’’ [Citations omitted.]);
Padilla v. Winsor, 67 N.M. 267, 273, 354 P.2d 740 (1960)
(taking judicial notice of fact that ‘‘horses no matter
how gentle, with slight provocation, or without any
known provocation, will sometimes shy, jump or even
start to buck’’); Hommel v. Benshoff, 178 Misc. 2d 1038,
1041, 682 N.Y.S.2d 546 (1998) (‘‘It is a matter of common
knowledge that one of the central dangers to all partici-
pants in sporting activities involving horses is the
strength and unpredictability of the animals themselves.
. . . Thus, for all who work closely with horses—even
if not direct participants in the sport itself—there is an
elevated risk of injury . . . . [T]here is no dispute that
a horse is a powerful and sometimes unpredictable
animal . . . .’’ [Citations omitted.]); Settlemeyer v.
Southern Railway Co., 91 S.C. 147, 150, 74 S.E. 137
(1912) (it is common knowledge that ‘‘horses [are]
excited and frightened by the odor of wild animals’’);
Blaha v. Stuard, 640 N.W.2d 85, 88 (S.D. 2002) (‘‘[i]t is
common knowledge that horses buck’’); Jarvis v. Koss,
139 Vt. 254, 255, 427 A.2d 364 (1981) (‘‘[t]he habits and
qualities of common animals . . . are matters of com-
mon knowledge and a proper subject for judicial
notice’’). But see Leipske v. Guenther, 7 Wis. 2d 86,
91, 95 N.W.2d 774, 96 N.W.2d 821 (1959) (‘‘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’’).
Similarly, the evidence was undisputed in the present
case that horses have a natural propensity to nip and
bite. All of the witnesses on both sides who gave deposi-
tion testimony on the behavior of horses during the
summary judgment proceedings acknowledged this
propensity. Bradley W. Amery, a doctor of veterinary
medicine whose affidavit was filed in support of the
plaintiffs’ opposition to the summary judgment motion,
gave a detailed and lengthy explanation as to why this is
the case. Vendrella v. Astriab Family Ltd. Partnership,
133 Conn. App. 630, 635, 635–36 n.10, 36 A.3d 707 (2012).
Amery explained that he was ‘‘very familiar with . . .
horses and . . . uniquely familiar with the propensities
of horses to bite. . . . Biting is a natural part of horses’
lives and horses can bite for many reasons. Anatomi-
cally the horse has his eye located laterally on his head.
While this provides a near 350 degree range of vision
it does mean that there are two blind spots. These are
directly in front of the horse’s nose for approximately
3-4 feet, and directly behind the head creating a 10
degree blind spot behind the horse. This means that
the horse doesn’t see what he is grabbing 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. Biting is also a common
form of mutual grooming. Horses will usually stand
facing opposite directions and use their teeth to both
scratch and bite the other horse’s back, neck and with-
ers. This behavior can be easily replicated by a human
scratching a horse’s withers. Nipping is a term that is
often applied to horses attracting attention. This behav-
ior is generally believed to be the result of hand feeding
treats. However, this behavior can be created by any
form of positive reinforcement (like scratching their
muzzle, or head, patting their neck or even verbal
rewards) [and] [t]his nipping behavior can escalate if
the [person’s] attention is not on the horse to a full
bite. . . . [M]ost of the bites are not the result of
aggressive . . . or nasty horses. They occur when the
horse is being groomed, tacked up, being [hand-fed]
treats, or in pain.’’ (Internal quotation marks omitted.)
Id., 635–36 n.10.
In other deposition testimony, Milford Animal Con-
trol Officer Richard George agreed with the statement
that ‘‘a horse doesn’t have to have a tendency to bite
in order to bite’’ and that he himself had been bitten
by horses in the past. Captain Bernard L. Begley, Jr.,
of the Milford Fire Department similarly testified in
support of the plaintiffs’ opposition that he had been
riding horses ‘‘all of [his] life,’’ that ‘‘a horse [could]
bite at any time,’’ and that ‘‘[t]hey have all been doing
it . . . since the beginning of time, biting and kicking.’’
(Internal quotation marks omitted.) Vendrella v.
Astriab Family Ltd. Partnership, supra, 133 Conn. App.
636. Begley further stated that he always was careful
when feeding horses and that he ‘‘never put [his] fingers
anywhere near the mouth of a horse.’’ (Internal quota-
tion marks omitted.) Id. Begley also opined that ‘‘a
horse’s propensity to bite is part of its nature.’’ Id.
The defendant Astriab concurred with these assess-
ments. In his deposition testimony, Astriab ‘‘acknowl-
edged 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 . . . 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.’ ’’ Id., 636–37.
The fact that the plaintiffs’ witnesses and the defen-
dant Astriab gave consistent testimony regarding the
natural propensity of horses to nip and bite—not
because they are abnormally dangerous animals but
because of their inherent disposition to engage in such
behavior—supports the conclusion that it is a matter
of common knowledge that horses as a species have a
natural propensity to bite. Accordingly, the trial court
should take judicial notice of this characteristic and
limit the question submitted to the jury to whether the
defendants, given this knowledge and their knowledge
of Scuppy’s past behavior, took reasonable precautions
to prevent Scuppy from causing foreseeable harm.
The majority acknowledges that judicial notice has
been taken of the natural propensities of animals in
past cases and that the court in Bischoff ‘‘effectively
took judicial notice of the fact that cats as a species
are harmless,’’ but states that, ‘‘[i]f 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.’’ Footnote 24 of the
majority opinion. The majority explains that, ‘‘when
reasonable minds could differ as to whether a particular
harm was foreseeable, the issue is one for the jury.
. . . Thus . . . if a plaintiff can prove that an injury
by a domestic animal was foreseeable because the ani-
mal belonged to a class with naturally mischievous
propensities, the owner or keeper of the animal has a
duty to take reasonable steps to prevent foreseeable
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.’’5 (Citations
omitted; emphasis in original.) Footnote 6 of the major-
ity opinion.
I disagree. Asking a jury to decide whether a particu-
lar species of domesticated animal has a natural propen-
sity to engage in potentially harmful behavior makes
no sense. First, the natural propensities of a species
are, by definition, fixed, which means that they are an
essential part of the animal’s nature. Thus, to the extent
reasonable minds can differ as to whether a natural
propensity exists, it means that common experience
and the current state of scientific knowledge are insuffi-
cient to justify the application of a legal standard that
charges the owner of an animal with such knowledge.
In these cases, all guesswork should be eliminated, and
the legal standard that should be applied to determine
an owner’s negligence should be based on the owner’s
knowledge of the propensities of the animal in question.
Second, and closely related, if reasonable minds can
differ as to whether such a propensity exists, an owner
never can be charged with knowledge and with the
obligation to protect against the potentially harmful
consequences of the animal’s behavior because he rea-
sonably may believe that the propensity does not exist.
Third, if reasonable minds can differ, defendants will
not be judged under the same legal standard in identical
circumstances because juries may reach differing con-
clusions as to whether the propensity is natural to the
species and whether the defendant should be charged
with knowledge that it exists. This is not only unfair
to owners charged with negligence, whose fate will
depend on the ‘‘luck of the draw’’ and the subjective
opinions of the jury members, but will lead to confusion
regarding the future liability of animal owners under
Connecticut’s negligence law and to disputes as to
whether there was sufficient notice of the animal’s pro-
pensity to engage in the harmful behavior.
Owners must have notice of their potential liability
for an animal’s harmful behavior so that they will be
encouraged to take proper precautions. For example,
if this court were to take judicial notice of the natural
propensity of horses to nip and bite, owners would
know not only that they must protect against harm due
to the unique characteristics of a particular horse, but
that they also must take steps to protect against foresee-
able harm that might arise from the general propensity
of horses to nip and bite. Such steps might consist of
posting warning signs, building fences, or otherwise
separating their horses from persons with whom they
should not come into contact.
None of the cases cited by the majority suggests that
the question of whether a domesticated animal has a
natural propensity to engage in harmful behavior should
be submitted to the jury.6 See footnote 22 of the majority
opinion. Rather, most of the cases state that the owner
or keeper ‘‘is assumed to know the animal’s general
propensities’’; (emphasis added; internal quotation
marks omitted) Humphries v. Rice, 600 So. 2d 975, 978
(Ala. 1992); thus indicating that the only question the
jury must decide is whether the owner took appropriate
steps to prevent foreseeable harm. See, e.g., Groh v.
Hasencamp, 407 So. 2d 949, 952 (Fla. App. 1981) (‘‘[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 pecu-
liar 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’’ [emphasis added; internal quotation marks omit-
ted]), review denied, 415 So. 2d 1360 (Fla. 1982); 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 reason-
able care to guard against them and to prevent injuries
which are reasonably to be anticipated from them’’
[emphasis added; 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 propensi-
ties of dogs, and if these propensities are [of] the kind
which reasonably might be expected to cause injury,
the owner must use reasonable care to prevent such
injuries from occurring’’ [emphasis added]); 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 neces-
sary to prevent such injuries as may be anticipated.’’
[Emphasis added; 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 propensities
[emphasis added]). Indeed, after the court in Huber
v. Timmons, supra, 721, observed that horses have a
natural propensity to rear or bolt when frightened and
that a person riding a horse for hire must take this
propensity into account, it concluded that the only ques-
tion that should have been presented to the jury was
‘‘whether . . . [the] defendants were negligent in
entrusting the pony [on which the child was riding] to
[the inexperienced handler’s] care.’’ Id., 722.
In the present case, I would conclude that it is a
matter of common knowledge that horses as a species
have a natural propensity to nip and bite and that, to the
extent the majority believes that evidence is required to
support this conclusion, it has been provided by the
uncontroverted testimony of all of the witnesses in this
case who testified about the general disposition and
behavior of horses. Accordingly, the majority should
not conclude, in light of the evidence in this case, that
the natural propensity of horses to bite is a genuine
issue of material fact that must be submitted to the
jury. Rather, the jury should be asked to determine
whether, given the fact that horses as a species have a
natural propensity to bite and given the defendants’
knowledge of Scuppy’s past behavior, the defendants
took appropriate measures to prevent Scuppy from
causing foreseeable harm.
For the foregoing reasons, I respectfully concur in
the judgment.
1
A ‘‘domestic animal’’ is defined in the Restatement (Second) of Torts as
‘‘an animal that is by custom devoted to the service of mankind at the time
and in the place in which it is kept.’’ 3 Restatement (Second), Torts § 506
(2), p. 10.
2
The majority describes horses as a ‘‘class’’ of animals, but horses are a
species within the class of ‘‘mammals . . . .’’ Sykes v. Commissioner of
Internal Revenue, 57 T.C. 618, 626 (1972).
3
Scuppy is the name of the horse that bit Anthony John Vandrella.
4
The ninth, and most recent, edition of Black’s Law Dictionary retains
this definition of ‘‘common knowledge,’’ as well as the eighth edition’s
definition of ‘‘fact.’’ Black’s Law Dictionary (9th Ed. 2009).
5
The majority essentially says the same thing in a different part of its
opinion when it states that, ‘‘if a plaintiff presents evidence that it was
reasonably foreseeable that a horse would be dangerous under the particular
facts and circumstances of the case, and reasonable minds could differ on
that question, the issue is one for the trier of facts.’’ Footnote 22 of the
majority opinion.
6
The majority responds in a footnote that ‘‘the court in Dolezal v. Carbrey,
[161 Ariz. 365, 370, 778 P.2d 1261 (App. 1989)], 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.’’
Footnote 25 of the majority opinion. The majority also claims that the
natural propensity of horses to bite is not a matter of common knowledge
in contemporary society because horses are not a daily presence in most
people’s lives, and that different types of horses may have a more or less
pronounced propensity to engage in biting behavior, thus justifying submis-
sion of propensity questions to the jury. See id. I disagree.
First, insofar as the majority relies on Dolezal, that case is unpersuasive.
The question in Dolezal was not whether the horse had a natural propensity
to bolt that the owner should have foreseen but whether it was foreseeable
that a show horse trained to respond to subtle cues might unexpectedly
bolt when the novice rider’s ‘‘legs were flapping during her ride and . . .
she jabbed the horse with one foot and dragged her heel across the horse’s
back when she attempted to dismount.’’ Dolezal v. Carbrey, supra, 161 Ariz.
370. In this context, which did not require the jury to consider the natural
propensities of horses but the qualities instilled in the particular horse
because of its special training, the court concluded that ‘‘[r]easonable minds
could differ whether it is foreseeable that an otherwise gentle horse might
bolt in reaction to out-of-the-ordinary cues. Taking this one step further,
[the court] also believe[s] that reasonable minds could conclude that it is
foreseeable that an inexperienced rider on a runaway horse could be harmed
in some manner.’’ (Emphasis added.) Id. The court thus determined that
resolving the question of negligence required an examination of the owner’s
conduct, such as whether he should have allowed an inexperienced rider
on the horse, whether he instructed the rider properly, and whether he
sufficiently supervised her ride and dismount. Id., 370–71.
Second, the fact that horses are not a daily presence in people’s lives
does not mean that it is not common knowledge that they have a natural
propensity to nip and bite. Bulls are not a daily presence in people’s lives,
but it is common knowledge that they have a natural propensity to engage
in behavior that causes harm to others if they are not sufficiently controlled.
See 3 Restatement (Second), supra, § 518, comment (g), p. 31 (‘‘the keeper
of a bull . . . 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’’). Similarly, it is common knowledge that domesticated horses,
although not naturally dangerous animals, have certain potentially harmful
propensities, including bucking, biting, and kicking, because people are
constantly exposed to horses by way of books, television, movies, computer
games, parades, and a wide variety of recreational activities. Accordingly,
one need not have direct contact with horses to have knowledge of their
general propensities in our media-saturated world.
Third, to the extent the propensities of an animal may not be common
knowledge because the animal belongs to a subspecies with characteristics
that distinguish it from other members of the species, that issue has not
been raised. The issue before the court is whether the owner of a horse
had a duty to take reasonable steps to prevent the horse from causing
foreseeable harm because horses as a species are naturally inclined to
engage in the type of conduct that caused Anthony John Vendrella’s injuries.
As previously noted, Astriab described Scuppy as a ‘‘typical horse’’ who
would react no differently from other horses when in close contact with
people who might approach to pet or feed him. Thus, to the extent the
majority considers how the issue of duty should be resolved when an animal
is a member of a subspecies with characteristics that differ from other
members of the species, or when a particular animal has known mischievous
propensities that might result in foreseeable harm, its reasoning has no
relevance to the issue in the present case.