Morrissey v. Carroll, No. 327-10-03 Bncv (Wesley, J., Dec. 20, 2005)

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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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