Children of plaintiffs White were injured when they were thrown off their grandfather’s horse. The trial court granted the grandfather’s motion for summary judgment. In this opinion, the Court of Appeals disagrees with that decision. There was a conflict in evidence as to whether the horse had a dangerous propensity for the conduct in question. That calls for a trial on the merits.
Matt and Michelle White appeal the trial court's grant of summary judgment to Richard Singleton. We reverse and remand for a trial.
On April 21, 2000, the Whites' children were injured after being thrown from their grandfather's (Singleton's) horse. The Whites filed a petition for damages asserting that Singleton was negligent.
Singleton had his horse, Zip, for approximately 5 weeks prior to the accident. He stated that he had no problem with Zip and the children had ridden Zip approximately six times. Michelle testified that her mother, Lori Singleton, rode the horse and was bucked off prior to the children's accident. She also testified that Lori would not ride the horse until it was trained. Matt White, Michelle's husband, described the horse as "wild."
Lori signed an affidavit stating that she had never ridden Zip and had never witnessed the horse display any dangerous propensities prior to the accident.
Singleton filed a motion for summary judgment, which was granted.
The Whites timely appeal, contending that the trial court erred by granting Singleton's motion for summary judgment because there are genuine issues of material fact.
" 'Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]" ' Mitchell v.. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
There is conflicting testimony about Singleton's knowledge of the horse's demeanor and temperament. The parties agree that the law controlling these issues is animal law, not premises law. Both parties cite Mercer v. Fritts, 9 Kan.App.2d 232, 676 P.2d 150, aff'd 236 Kan. 73, 689 P.2d 774 (1984), in support of their positions. The Mercer court relied on 4 Am.Jur.2d, Animals § 104 and the Restatement (Second) of Torts § 518 (1976). The court held that an owner or possessor of a domestic animal is subject to liability if he or she knows or has reason to know of its dangerous propensities. Furthermore, if the owner or possessor does not know or have reason to know of an animal's dangerous propensities, he or she can still be subject to liability if (1) he or she intentionally causes the animal to do harm; or (2) he or she is negligent in failing to prevent the harm. Mercer, 9 Kan.App.2d at 236.
The issue of material fact is whether Singleton had knowledge of Zip's dangerous tendencies prior to the accident. Singleton argues that Michelle's allegation is hearsay. In Mastin v. Kansas Power & Light Co., 10 Kan.App.2d 620, 706 P.2d 476 (1985), this court recognized the principle that hearsay evidence can establish a genuine issue of material fact. Specifically, when one party repeated a statement made by another that the defendant had knowledge of a danger, but the defendant stated there was no prior knowledge, it was a question for a trier of fact. Mastin, 10 Kan.App.2d at 622-24.
In Mastin, the plaintiff appealed when his suit for damages was dismissed after Kansas Power and Light (KP & L) filed a motion for summary judgment. During Mastin's deposition, he stated that Stoll told Mastin he had notified KP & L of the dangerously low lines before Mastin's combine accident. However, after the accident, Stoll signed an affidavit saying that he had not reported the low lines to KP & L. KP & L contended that it was unaware of any problems with the lines. Mastin, 10 Kan.App.2d at 621.
The trial court granted KP & L's motion for summary judgment based on the pleadings, depositions, answers to interrogatories, and affidavits and concluded that Mastin had " 'brought forth no evidence of negligence on the part of [KP & L]." ' Mastin, 10 Kan.App.2d at 622. However, this court reversed the trial court, noting that to determine which statements were truthful was to pass on credibility and to balance and weigh evidence, an "action that the trial judge and we must not engage in on summary judgment motions. [Citation omitted.]" Mastin, 10 Kan.App.2d at 624.
The conflicting statements of the parties here leave a genuine issue of material fact.
Reversed and remanded for trial.
Return to Top of This Page
Return to Mounted Accidents Page