University of Vermont AAHS

Bove v. Schlosstein

Washington Court of Appeals
UNPUBLISHED, 2000 WL 1715679
November 16, 2000

 

Summary of Opinion

Ten-year-old plaintiff Mark Bove was permanently injured when a two-year-old horse named Rusty leaned over his corral fence and bit Mark on the face. The horse was owned by defendant Schlosstein but kept on property owned by defendant Allisons. The trial court released defendant Allisons from the lawsuit and Mark appealed.

The Court of Appeals held that Allison might be held liable in a trial as landowner. Allisons had ample notice that Rusty had aggressive tendencies and that children often came by the corral, which was next to public ways. There was also some evidence upon which a jury could conclude that Mark was a social licensee on the premises, which would have given rise to a duty on the part of the Allisons to correct the defect (removing the horse) or warn the public of the danger that Rusty posed. The Court of Appeals reversed the trial court and sent the case back for trial.

 

Text of Opinion

Thomas and Molly Bove appeal the summary judgment dismissal of their lawsuit against Paul and Willene Allison. The Boves sued the Allisons because a horse, boarded on the Allisons' property, leaned over a fence and bit the Boves' 10-year-old son, Mark. The superior court concluded that the 10-year-old boy was a licensee to whom the Allisons would be liable for the injury only if they had knowledge that the horse constituted a danger to the public. We reverse the order of summary judgment because we conclude that there is a genuine issue of material fact regarding whether the Allisons breached their duty to warn Mark that the horse was dangerous.

FACTS

Paul and Willene Allison own property on which a large, fenced horse corral is located. The Allisons allowed Leroy and Patricia Schlosstein to keep a mare named Destiny and her colt named Rusty in their corral. Initially, the Schlossteins paid a small amount of rent for the use of the corral, but later Mr. Schlosstein performed work on the Allisons' property in exchange for the use of the corral as a place to keep his horses.

The two-year-old Rusty had spent most of his life in the Allisons' corral. The presence of the young horse did not go unnoticed by children in the Allisons' neighborhood. The corral was bordered to the north and east by public roads, and children were known to approach the fence in order to see the horses. The horses were contained in the corral by a plastic fence that allowed the horses to reach two to three feet over the fence.

On the south side of the corral, there is a lane leading to the Allisons' home. Accompanied by his grandmother and sister, young Mark Bove had walked down the Allisons' driveway and approached the corral to see the two horses. Mark testified that about two years prior to the incident, a young lady with blonde hair, working inside the Allisons' pasture with the horses, said that he could stop by to pet the horses anytime he wanted.

Although Mark had visited the corral on prior occasions in the past two years without incident, this time the two-year-old colt leaned over the fence and bit him on the face, causing permanent scarring.

Mark's parents filed a complaint for damages naming both the Allisons and the Scholssteins as defendants. [FN1] Following discovery, the Allisons filed a motion for summary judgment dismissal of all claims brought against them by the Boves. The motion was granted. The Boves filed a timely notice of appeal.

FN1. The claim against the Schlossteins is not at issue in this appeal.

ANALYSIS

An appeal of a summary judgment order of dismissal is reviewed de novo. As such, we perform the same inquiry as did the superior court viewing all facts and reasonable inferences in favor of the nonmoving party, in this case the Boves. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See McMann v. Benton County, 88 Wn.App. 737, 740, 946 P.2d 1183 (1997) (citing Ruffer v. St. Frances Cabrini Hosp., 56 Wn.App. 625, 627-28, 784 P.2d 1288 (1990)), review denied, 135 Wn.2d 1005 (1998).

A material fact is one that affects the outcome of the litigation. Ruff v. King County, 125 Wn.2d 697, 703, 887 P.2d 886 (1995).

In any negligence action the plaintiff must prove duty, breach, proximate cause and harm. Whether a defendant owes a plaintiff a duty is a question of law. In actions involving premises liability, the plaintiff's status as an invitee, licensee, or trespasser determines the scope of the duty of care owed by the owner or occupier of the property. Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994).

The parties agree that the outcome of this case turns on the common law rules of premises liability. Accordingly, we must determine Mark's status at the time of the accident--trespasser, invitee or licensee. The Allisons claim that Mark was a trespasser at the time of the accident because he was on their private property without permission. The Allisons support their claim that Mark was a trespasser by maintaining they had never spoken to any member of the Bove family prior to the accident. Accordingly, they firmly deny Mark had ever been given permission to pet the horse or to walk onto their driveway in order to touch or feed the horses.

A trespasser is someone who enters the premises of another without an invitation or express or implied permission and is on the premises for his own purposes or convenience, and not in the performance of a duty to the owner or one in possession of the premises. Restatement (Second) of Torts sec. 333 (1965) (duties generally owed to a trespasser). 'The general rule is that a landowner owes no duty to a trespasser, except to refrain from causing willful or wanton injury to him.' Ochampaugh v. City of Seattle, 91 Wn.2d 514, 518, 588 P.2d 1351 (1979).

On the other hand, the Boves contend their son was a licensee at the time of the accident. A licensee includes a social guest and has been defined as a person who is privileged to enter or remain on land only by virtue of the possessor's consent. Anderson v. Weslo, Inc., 79 Wn.App. 829, 834, 906 P.2d 336 (1995). Mark and his grandmother both testified that he had been given permission to pet Rusty. They each testified the permission came from someone who was caring for the horse inside the corral on the Allisons' property. There was evidence that other neighborhood children visited the horses as well. Viewing the evidence in the light most favorable to the Boves, a trier of fact could determine that Mark was a licensee.

Washington has adopted the Restatement (Second) of Torts sec. 342, defining a landowner's responsibility to licensees for dangerous conditions on the land: A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he (or she) fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved.

Tincani, 124 Wn.2d at 133 (quoting Restatement, supra, sec. 342). This means the landowner does not owe a licensee an affirmative duty to seek out hidden dangers. Singleton v. Jackson, 85 Wn.App. 835, 843, 935 P.2d 644 (1997). Rather, a landowner is liable for an injury to a licensee only if the landowner has knowledge of a dangerous condition and the licensee does not.

The first question is whether Rusty's presence on the Allisons' property constituted a dangerous condition. In Washington, horses are considered domestic animals and, as such, are not presumed to be vicious or dangerous. Hojem v. Kelly, 21 Wn.App. 200, 205, 584 P.2d 451 (1978), aff'd, 93 Wn.2d 143, 606 P.2d 275 (1980). However, an animal is dangerous if it has a propensity 'to do any act that might endanger the safety of (people).' Mungo v. Bennett, 238 S.C. 79, 119 S.E.2d 522, 523, 85 A.L.R.2d 1155 (1961) (citing 3 C.J.S. Animals sec. 148, at 1250-51). Viewing the evidence in the light most favorable to the Boves, a trier of fact could determine that Rusty's presence on the Allisons' property constituted a dangerous condition.

The colt had repeatedly acted aggressively toward people. While being boarded at the Allisons, Rusty had twice been placed in pastures belonging to other people. At each place, the colt had acted in an aggressive manner, and neither property owner would take him back. One property owner was so afraid of Rusty that she made Mr. Schlosstein remove the colt from her property. Rusty's history also included aggressive acts toward Mr. Schlosstein, Mr. Schlosstein's granddaughter, and Mr. Allison. The Boves provided expert testimony that Rusty was unnaturally aggressive.

The pivotal and more difficult issue is whether the Allisons knew of Rusty's propensity to act aggressively toward people. The Allisons assert that they had no idea that Rusty was dangerous. They further assert that the Schlossteins' knowledge of Rusty's behavior cannot be imputed to them. They emphasize that the Boves presented no evidence that Mr. Schlosstein ever told the Allisons, prior to the accident, that Rusty was dangerous or that further measures should be taken to protect the public from the horse.

Again, we must accept the Boves' evidence as true and must consider all the facts, and all reasonable inferences therefrom, in the light most favorable to them. Dickinson v. Edwards, 105 Wn.2d 457, 461, 716 P.2d 814 (1986). An inference is "(a) process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted." Shelby v. Keck, 85 Wn.2d 911, 914-15, 541 P.2d 365 (1975) (quoting Blacks Law Dictionary 917 (4th ed.1968)). There is both direct and inferential evidence from which a trier of fact could determine that the Allisons knew that Rusty was dangerous.

Mr. Allison testified that Rusty would approach him with his ears laid back, which alerted him that he should be careful around Rusty. Additionally, a trier of fact could infer from Rusty's history, including the two occasions on which he was placed on other people's property for pasture, that anyone who was exposed to Rusty over a period of time would become aware that he acted aggressively toward people.

If the Allisons had knowledge that Rusty was dangerous, they were required to exercise reasonable care to protect Mark by warning him of the risk involved in feeding Rusty. The evidence is that no warning signs were posted on or around Rusty's corral at the time of the accident. Mr. Allison knew that horses could lean over fences and bite. He also knew that children visited the horses. Nevertheless, the fence that contained Rusty allowed him to lean two to three feet over the fence. Viewing the evidence in the light most favorable to the Boves, a trier of fact could determine that the Allisons failed to exercise reasonable care to protect Mark from a dangerous condition.

The final issue is whether Mark knew or had reason to know that Rusty could bite and injure him. Mark was approximately 10 years old at the time of the accident. An adult always accompanied him when he visited the horses in the corral. He had been warned not to climb on the fence and not to feed Rusty from his hand; he was instructed to throw the grass over the fence. Mark also testified that he knew all horses could kick and bite. However, viewing the evidence in the light most favorable to the Boves, a trier of fact could determine that Mark did not know or have reason to know that Rusty would lean over the fence and bite him.

Reversed.


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