University of Vermont AAHS

Cuddeback v. Flanagan

 

Washington Court of Appeals
UNPUBLISHED, 2000 WL 1146850
August 7, 2000

 

Summary of Opinion

Plaintiff Cuddleback was a social guest at defendant Flanagan’s home. She was injured when mounted on Ms. Flanagan’s horse and it spooked. She sued, alleging that defendant was negligent in supplying defective reins. The trial court ruled for the defendant and the court of appeals agrees. There was no evidence the reins were defective or if they were that the defect was the cause of plaintiff’s injuries.

 

Text of Opinion

At a party at Susan Flanagan's home, Leann Cuddeback rode Flanagan's horse. The horse bolted, and Cuddeback was injured. She alleges the reins broke. The trial court dismissed Cuddeback's negligence claim on the grounds that there was no more than 'mere speculation' as to what happened to the reins or whether Flanagan acted negligently, and that even assuming Flanagan was negligent, there was no evidence that her allegedly negligent acts were a proximate cause of Cuddeback's injury. We agree that the evidence is insufficient to raise a question of fact as to either negligence or proximate cause, and therefore affirm.

Facts

In September 1994, Leann Cuddeback, her husband, and their eight-year-old daughter attended a party at Susan Flanagan's home. Flanagan permitted her guests to ride her horse. The horse was twenty years old and had caused no trouble in the past. About six children rode the horse during the day, each time led by an adult holding the reins. One other adult, Lori Carroll, rode the horse without incident. Carroll had no trouble with the reins.

Sometime that day, before Cuddeback rode the horse, one of the reins disconnected from the bridle, and Flanagan reconnected it. She stated that she recalled the bridle as having buckle connections for the reins, and she 'buckled it back on.' She does not know how it came loose. She testified, 'I believe it's because the horse stepped on it, but I'm not positive about that.'

Before Cuddeback rode the horse, her husband recalls seeing the horse get 'spook(ed)' by the barking of dogs in a nearby kennel. As Cuddeback mounted the horse, the horse 'bolted' from Flanagan's yard. Cuddeback pulled on the reins as hard as she could, trying to get the horse to slow down or stop. As the horse almost stopped, it started to rear up. Cuddeback stated that as the horse reared up, 'all of a sudden I'm holding onto the reins and they're gone.' She also stated, 'All I know is that I had them in my hand at one instant, and then there was nothing, and I would have to say that they broke as I was pulling on them so hard.' And '(a)t this point it (the horse) stopped and reared up at which point I lost control when I was suddenly not pulling on anything. I am sure that the reins broke.'

Because Cuddeback had nothing to hold while the horse was rearing, she held onto the saddle and the horse's mane. The horse then stopped rearing and started running. Cuddeback started to fall off, so she pushed herself away from the horse. Her foot was seriously injured. Flanagan's neighbor, Einor 'Arnie' Mezich, heard the horse and when he saw Cuddeback on the ground, he assisted her. Mezich then grabbed the reins and tied the horse to a fence. Mezich recalled the reins were in one piece, hanging down instead of over the horse's head. He testified the reins were intact, forming a continuous loop.

Flanagan sold the horse a year or so after the accident. The whereabouts of the reins are unknown. Cuddeback brought this negligence action against Flanagan, alleging the horse was unreasonably dangerous and unmanageable, and Flanagan was negligent in failing to provide adequate gear for riding. The trial court granted Flanagan's motion for summary judgment, finding that: (1) there was no evidence the horse had vicious or dangerous propensities; and (2) there was no evidence that Flanagan ineffectively controlled the horse in a situation where it would reasonably be expected that injury could occur, or that the injury occurred as a proximate result of Flanagan's negligence.

Discussion

The trial court analyzed the evidence under section 518 of the Restatement (Second) of Torts, which provides that an owner of a domestic animal not known for abnormally dangerous propensities is subject to liability for harm done by the animal only if the owner is negligent in failing to prevent the harm. See Arnold v. Laird, 94 Wn.2d 867, 871, 621 P.2d 138 (1980). The amount of care required is commensurate with the character of the animal. Arnold, 94 Wn.2d at 871 (citing Restatement (Second) of Torts sec. 518, comment (f) (1977)). Thus, a negligence cause of action arises when there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from the negligence. The amount of control required is that which would be exercised by a reasonable person based upon the total situation at the time, including the past behavior of the animal and the injuries that could have been reasonably foreseen. Arnold, 94 Wn.2d at 871.

Washington also adheres to Restatement (Second) of Torts sec. 388 (1965):

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

DuVon v. Rockwell Int'l, 116 Wn.2d 749, 758, 807 P.2d 876 (1991) (citing Restatement (Second) of Torts sec. 388 (1965)). Section 388 applies "to determine the liability of any person who for any purpose or in any manner gives possession of a chattel for another's use." DuVon, 116 Wn.2d at 758 (quoting Restatement (Second) of Torts sec. 388, comment c (1965)).

Cuddeback alleges Flanagan was negligent in repairing and supplying reins which had broken earlier that day, and in failing to warn Cuddeback that the reins were in a hazardous condition. Cuddeback argues that the negligent repair and/or the failure to warn proximately caused her injury.

To establish negligence, a plaintiff must demonstrate the existence of a duty owed her, a breach of that duty, and an injury proximately caused by the breach. Beltran v. Department of Social and Health Serv., 98 Wn.App. 245, 249, 989 P.2d 604 (1999). A plaintiff is entitled to a trial unless the defendant demonstrates the plaintiff cannot establish one of the elements. Gall v. McDonald Industries, 84 Wn.App. 194, 202, 926 P.2d 934 (1996). On a motion for summary judgment, the parties must set forth facts based on personal knowledge that would be admissible in evidence. Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988); see CR 56(e). A fact is 'what took place, an act, an incident, a reality as distinguished from supposition or opinion.' Grimwood, 110 Wn.2d at 359. Conclusions of fact and conclusory statements are insufficient to raise a question of fact. Grimwood, 110 Wn.2d at 359-60.

Here, the principal basis for Cuddeback's negligence theory is Flanagan's acknowledgement that the reins became disconnected from the bridle on one side earlier in the day and she rebuckled them. Flanagan testified she did not know why the reins became disconnected, but said 'I believe it's because the horse stepped on it, but I'm not positive about that.' No one testified to seeing the horse step on the reins and break them. [FN4]

FN4. There is also no evidence that one rein became detached from the bridle again; both Cuddeback and her daughter testified that the 'pieces' of the reins were hanging from the horse's head.

Cuddeback presented the testimony of an expert who reviewed photographs of the horse taken at a rodeo and on the day of the accident. [FN5] The expert stated that it was not possible for the reins to unbuckle because there were no buckles on the type of reins shown in the photographs, and in any event a buckle would not come undone from a tightening force on the reins. Rather, the expert opined, '(w)hen the reins parted it was, in all probability, from the breaking of the leather itself.' The expert concluded that the only solution was for Flanagan to knot the two broken ends together or tie the end of the broken rein to the bit. Implicit in the expert's opinion is that when Cuddeback pulled hard on the reins to slow the horse, the reins parted at the same point.

FN5. The record does not clearly indicate what photos the expert reviewed. There are no rodeo photos in the record. The photos taken the day of the accident show the horse being led by a long lead line while children rode bareback. Two photos show the horse saddled and ridden by different men, but they appear to have been taken on a different day and from a greater distance, the occasion is clearly not a rodeo, the tack on the horse is different from that on the horse when the children were riding, and the photos do not clearly show the bridle and reins.

The difficulty with this reasoning is that it proceeds in a circular fashion from a speculative premise. The key assumption is derived from the adoption of Flanagan's speculation that the reins became detached because the horse stepped on them. If the horse stepped on the reins, reasons the expert, the reins would not merely have become detached, but rather the leather would have snapped at the contact point. Thus, the expert begins from the assumption that the horse stepped on the reins, and concluded they 'parted' rather than becoming detached from the bridle ('When the reins parted it was, in all probability from the breaking of the leather itself.'). From the assumption that the reins parted, the expert apparently concludes the reins later broke in the same place during Cuddeback's ride. Thus two speculations are involved: the reins broke initially, instead of becoming detached, and later broke again in the same place.

The expert disregards Flanagan's testimony that she rebuckled the reins to the bridle, first because she would have had to 'retie' them at the breaking point, and second because the expert sees no buckles on the reins in the photos. While the photos are problematic in terms of the foundation they offer for the expert's opinion, Flanagan testified that the equipment in the pictures is the only gear she used with the horse. The expert's opinion that the reins were not the type that attached by a buckle thus has a basis.

But without the premise that the reins broke because the horse stepped on them, which depends entirely on speculation, there is no basis for a claim that Flanagan retied them at the breaking point and in doing so was negligent. It may be ironic that the speculation originated from Flanagan's guess about what caused the reins to become detached, but her speculation is no more valuable as evidence than anyone else's. Unless the reins were broken, as opposed to detached, there is nothing to tie or retie, and no showing of even a possibility of negligence. There is also no reason to know of danger and thus no duty to warn. The expert's opinion, therefore, does not create a genuine issue of material fact as to whether Flanagan was negligent.

No one who saw the reins after the accident testified that they were broken. The only description of the reins immediately following the accident was from Flanagan's neighbor, who assisted Cuddeback after she fell off the horse. He testified that the reins were hanging from the horse's head, were attached at both sides of the bridle, and were intact. [FN7]

FN7. Although a question of fact exists as to whether the reins were knotted together at the point they would be held by a rider (Flanagan so testified, while her neighbor described a continuous leather rein), the question is immaterial in the absence of evidence relating such knot to any alleged negligence.

This testimony is unrebutted. Thus, even when viewed in the light most favorable to Cuddeback, there is no evidence that the reins came untied, unbuckled, or otherwise separated during Cuddeback's ride on the horse. We accept her testimony that the reins suddenly were no longer in her hands, but that description does not establish negligence as a cause of their disappearance.

Finally, even if we accept Cuddeback's certainty that the reins broke, there is nothing to link that event to Flanagan's act of reattaching them to the bridle. Essentially, Cuddeback's argument as to proximate cause depends on a presumption that the two events were linked, in the absence of any evidence. Such a presumption is not unprecedented, but requires a strong common sense appreciation that an event simply does not occur in the absence of negligence, as, for example, when forceps are left in the patient after the operation is over. See Tinder v. Nordstrom, Inc. 84 Wn.App. 787, 929 P.2d 1209 (1997) (applying res ipsa loquitur to escalator). No such common sense presumption applies here.

In sum, there is no evidence that Flanagan acted negligently, nor that anything Flanagan did was a proximate cause of Cuddeback's injury. We therefore affirm.


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