EMLAW v. CLARK
Supreme Court, Appellate Division, 4th Department, New York.
2006 WL 259608
Feb. 3, 2006
The driver of a car suffered damages when the car collided with a horse. She sues the owner of the horse who counterclaimed to recover for damages for the value of the horse. The drivers suit fails for lack of proof as to why the horse was in the road. The mere fact that it was there was not absolute proof of negligence. The court held that there were issues of fact regarding liability of both the plaintiff and defendant which precluded a finding of summary judgment for either side.
Text of Opinion
Plaintiff commenced this action to recover damages for injuries she sustained when the vehicle she was operating collided with defendant's horse, and defendant asserted a counterclaim for damages for the value of her horse, which was killed as a result of the collision. Plaintiff contends on her cross appeal that Supreme Court erred in denying her motion for partial summary judgment on liability, and defendant contends on her appeal that the court erred in denying her cross motion for summary judgment dismissing the complaint and for summary judgment on her counterclaim. We affirm.
We note at the outset that plaintiff has failed to establish her entitlement to judgment based on the doctrine of res ipsa loquitur. Plaintiff contended that "horses do not generally wander unattended on public streets in the absence of negligence," that the maintenance and keeping of the horse was under defendant's exclusive control, and that there is no evidence that plaintiff caused or contributed to the injury (Loeffler v. Rogers, 136 A.D.2d 824, 824; see Allis v. Turner, 259 A.D.2d 995). Partial summary judgment on liability based on the doctrine of res ipsa loquitur is appropriate only where "the prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable and unrebutted" (Salter v. Deaconess Family Medicine Ctr. [appeal No. 2], 267 A.D.2d 976, 977). Here, defendant rebutted the inference of negligence by submitting evidence in opposition to the motion and in support of the cross motion establishing that she had checked the integrity of the horse fencing prior to the accident and that something outside of her control may have caused the horse to break through the fencing. In addition, defendant contended that the accident was caused by the negligent manner in which plaintiff drove her vehicle. We further conclude on the record before us that there are issues of fact with respect to the liability of both plaintiff and defendant under a theory of ordinary negligence, precluding summary judgment in favor of either party (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
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