A dog entered the defendants Morlangs property and began to chase their horse. The horse jumped the fence and collided with the plaintiff Roachs car on the public highway. The Roachs lawsuit was thrown out of court by the trial judge on the ground that there was no evidence of negligence on the part of the Morlangs.
The Washington Court of Appeals disagreed and reversed the case and sent it back to the trial court for trial. Under Washington law, the Morlangs was liable for the injury caused by their horse only if they were negligent in permitting the horse to get onto the highway--whether the accident occurred in a strock-restricted zone or on open range.
There was evidence that previously the Morlangs dog had chased this horse onto the highway. The Morlangs had gotten rid of that dog, but that incident put them on notice that there was a danger of the same thing happening with another dog. There failure to take further precautions might or might not be negligent, but that is a matter that should be addressed in a trial.
Buddy and Dee Roach sued Bruce and Maureen Morlang for damages resulting from a highway collision between the Roaches' vehicle and the Morlangs' horse. The trial court granted summary judgment in favor of the Morlangs. The Roaches now appeal. We reverse and remand for trial.
The Morlangs reside and maintain horses on property located along Highway 302 North in Pierce County. On January 30, 1991, a dog entered the Morlangs' horse pasture and began chasing one of their horses. Bruce Morlang heard the commotion and tried unsuccessfully to chase off the dog. The horse jumped the electrified, four-foot high fence and ran onto the highway, where it collided with a vehicle driven by Dee Roach.
On January 26, 1994, the Roaches filed suit, alleging that the Morlangs' negligent failure to confine their horse, and related violations of RCW 16.24.065(1) and 16.24.090, caused the collision, resulting in injuries to Dee Roach and damages to their automobile.
In April 1995, the Morlangs moved for summary judgment, asserting that: (1) They exercised reasonable care to keep their horse in the pasture; (2) they did not breach any duty of care; and (3) their conduct was not the proximate cause of the Roaches' damages. In opposition to summary judgment, the Roaches filed several affidavits and declarations, most of which the Morlangs moved to strike.
The trial court adopted the Morlangs' argument and struck the challenged documents as inadmissible. Based on the remaining admissible evidence, the trial court concluded that there was no genuine issue of material fact regarding negligence and granted summary judgment for the Morlangs.
The Roaches moved for reconsideration, claiming that the trial court erroneously refused the submitted evidence, impermissibly weighed the evidence, and misapplied controlling case law. In support of reconsideration, the Roaches offered new declarations, which the Morlangs again moved to strike. The trial court struck the new evidence as untimely and denied the Roaches' motion for reconsideration.
When reviewing summary judgment, an appellate court engages in the same inquiry as the trial court. Mountain Park Homeowners Assoc., Inc. v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994). To prevail on a motion for summary judgment, the moving party must demonstrate that "there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Marincovich v. Tarabochia, 114 Wash.2d 271, 274, 787 P.2d 562 (1990). The court must construe facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Vodopest v. MacGregor, 128 Wash.2d 840, 850, 913 P.2d 779 (1996); Scott v. Pacific West Mt. Resort, 119 Wash.2d 484, 502, 834 P.2d 6 (1992).
When the defendant is the moving party and meets the initial burden of showing absence of an issue of material fact, the burden shifts to the plaintiff to make a showing sufficient to establish "the existence of an element essential to that party's case." Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). To prevail in their negligence action the Roaches needed to establish: (1) the existence of a duty owed to the complaining party; (2) a breach of that duty; (3) a resulting injury; and (4) that the claimed breach was the proximate cause of the injury. Hansen v. Friend, 118 Wash.2d 476, 479, 824, 824 P.2d 483 (1992); Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166 (1984).
The Morlangs had a common law duty to exercise "ordinary care," such as a
reasonable person would exercise under similar circumstances, to maintain and to control
their horses to prevent harm to motorists using the adjacent highway. See Misterek v.
Washington Mineral Prod., Inc., 85 Wash.2d 166, 170, 531 P.2d 805 (1975); Mathis v.
Ammons, 84 Wash.App. 411, 416, 928, 928 P.2d 431 (1996). The Morlangs also had a statutory
duty to prevent their livestock from straying upon a public highway. RCW 16.24.065(1); RCW
FN1. RCW 16.24.065(1) states: No person owning or in control of any livestock shall willingly or negligently allow such livestock to run at large in any stock restricted area or to wander or stray upon the right-of-way of any public highway lying within a stock restricted area when not in the charge of some person.
RCW 16.24.090 states: Except as provided in chapter 16.24 RCW, a person who owns ... horses ... shall not negligently allow them to run at large at any time within any territory.
The Morlangs initially asserted that the accident did not occur in a stock- restricted area. On appeal, the Morlangs state that it is irrelevant whether the accident occurred in a stock-restricted area. In either case the Roaches would still need to prove that the Morlangs were negligent in order to establish liability. RCW 16.24.065(1); RCW 16.24.090; RCW 5.40.050; Mathis, 84 Wash.App. at 416, 928 P.2d 431.
The Morlangs argued and the trial court summarily agreed that they did not breach their duty to use ordinary care. Mere presence of their horse on the roadway does not establish that the Morlangs acted negligently per se. RCW 5.43.050; Boyce v. Adams, 87 Wash.2d 56, 59, 549 P.2d 18 (1976). But the presence of the Morlangs' horse on the highway does give rise to an inference of negligence. Scanlan v. Smith, 66 Wash.2d 601, 604, 404 P.2d 776 (1965).
Here, a rational trier of fact could have found the Morlangs negligent. As explained in
Dee Roach's affidavit, ruled admissible by the trial court, the Morlangs admitted to her
that their horse had previously escaped from the pasture after being chased by the
Morlangs' dog. [FN2] This admission, plus the presence of the unattended horse on the
highway, creates an issue of fact concerning the reasonableness of the Morlangs' measures
to control their horses and the foreseeability of a dog chasing the Morlangs' horse out of
the pasture, onto the roadway.
FN2. Dee Roach's affidavit does not specify when the horse got loose or whether the precautionary measures were in place at the time. The affidavit does assert that the Morlangs used to own a dog, which aggravated the horses, but the affidavit states that the Morlangs got rid of the dog soon after.
The facts in Scanlan are analogous. In Scanlan, a motorist collided with livestock on a highway in a stock-restricted area. After presentation of all the evidence, the trial court took the case from the jury, dismissed the action, and entered judgment for the defendant. The Washington State Supreme Court reversed, holding that how the livestock got onto the highway was disputable and, thus, the case should have gone to the jury. Scanlan, 66 Wash.2d at 603-04, 404 P.2d 776.
Even with the limited facts presented to the trial court here, reasonable minds could differ as to whether the Morlangs were negligent and whether that negligence was the proximate cause of the Roaches' injuries. The Morlangs have failed to raise evidence sufficient (1) to rebut the inference of negligence or arising from the straying of their horse onto the highway, and (2) to establish conclusively that they exerted reasonable care to prevent such occurrence.
The Scanlan case is controlling here. Granting summary judgment was erroneous. Having found sufficient factual issues of negligence warranting taking the case to trial, we need not address the Roaches' additional assignments of error concerning admissibility of the affidavits and declarations struck by the trial court. Similarly, review of the trial court's denial of the Roaches' motion for reconsideration is also unnecessary.
Accordingly, we reverse and remand for trial.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, Acting C.J., and MORGAN, J., concur.
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