KINLEY v. BIERLY
Superior Court of
2005 PA Super 168
May 4, 2005
The fact that a horse is an uncastrated male,
alone, will not prove dangerous propensities. This court holds that there
must be evidence of the dangerous behavior so that one will know or should
know that such behavior is expected. Being male, by itself, just won’t do
Text of Opinion
Sharon Kinley has appealed the trial court's
October 6, 2004 order granting summary judgment to Sharon Bierly and David
Schon in this personal injury action. We affirm.
Appellant and Appellee Bierly both owned horses and
were boarding them on Appellee Schon's premises. Appellant was bitten by
Appellee Bierly's horse, Dollar, when Appellant was feeding her own horse in a
stall in Appellee Schon's barn. This personal injury action ensued. Appellees
filed motions for summary judgment based on the fact that Appellant failed to
demonstrate, following discovery, that they knew or should have known that
Dollar had vicious tendencies and would bite Appellant. Those motions were
granted, and this appeal followed.
First, we examine our standard of review:
"[S]ummary judgment may be granted only in those
cases in which the record clearly shows that there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of
law." Capek v. Devito, 564 Pa. 267, 270 n. 1, 767 A.2d 1047, 1048 n. 1
(2001). Our standard of review is well-settled: we may reverse a grant of
summary judgment only for an abuse of discretion or error of law. See
McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 941
(Pa.Super.1998), appeal denied 560 Pa. 707, 743 A.2d 921 (1999). Our
scope of review is plenary as the present appeal presents a question of
law in the review of a grant of summary judgment, see Long v. Ostroff,
854 A.2d 524, 527 (Pa.Super.2004), and involves the trial court's construction
of a statute. See Caruso ex rel. Caruso v. Medical Professional Liability
Catastrophe Loss Fund, 2004 858 A.2d 620, 623 (Pa.Super.2004).
Pennsylvania Property & Casualty Insurance
Guarantee, Ass'n., 2005 PA Super 99, 7.
We are confronted first with the question of
whether the fact that Dollar was a stallion, standing alone, establishes that
Appellees knew or should have known that Dollar had vicious tendencies and
might bite Appellant. We also must address the merits of a motion to strike
the portion of Appellant's reproduced record containing veterinary reports not
included in the certified record on appeal and to strike any portion of
Appellant's brief referencing those veterinary records that Appellees filed.
This latter question apparently implicates whether Appellant can rely upon the
detail that Dollar was a stallion for purposes of appeal. However, the fact
that Dollar was a stallion can be inferred from the expert report of Brenda
Hall, which was filed by Appellant. Furthermore, the report of Nancy Kate
Diehl, Appellees' expert witness, states that Dollar was a stallion. Thus, the
veterinary records are superfluous. Furthermore, the answer to the first
question on appeal essentially moots the need to address Appellees' motion to
Appellant's argument on appeal can be distilled to
this: "Stallions, as a 'class' are generally known to have vicious
propensities despite being legally characterized as a domestic animal."
Appellant's brief at 9. In leveling this argument, Appellant relies upon
McIlvaine v. Lantz, 100 Pa. 586 (1882), where a jury found that stallion
colts, as a class, have vicious tendencies. However, McIlvaine
addressed an issue relating to the jury instructions regarding the fencing of
the stallion colt, and never examined whether it is universally known as true
that stallions have vicious tendencies, which is the inquiry herein.
Appellant's reliance on Bender v. Welsh, 344
Pa. 392, 25 A.2d 182 (1942), is unavailing for the same reason. Liability in
that case was premised upon harm caused when an unattended horse on the
highway at night caused a car accident. The evidence in that case established
that the owners should have known that the horse might escape his fencing due
to the fact that the horse regularly scratched himself on the fencing and that
the horse had escaped on one prior occasion.
The harm in this case was not occasioned by
Dollar's state of restraint; indeed, the horse was properly restricted.
Rather, the harm herein was caused by a bite. While the Bender case
unquestionably held that the dangers of allowing a horse to roam freely on
roads utilized by car was apparent, there is no "apparent" risk presented in
In arguing the apparency of the risk in this case,
Appellant essentially is asking us to take judicial notice that stallions have
Pa.R.E.201(b) governs judicial notice of
adjudicative facts. The rule states: "A judicially noticed fact must be one
not subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned." Pa.R.E.201(b). "A court may take judicial notice of
an indisputable adjudicative fact." Interest of D.S., 424 Pa.Super.
350, 622 A.2d 954, 957 (Pa.Super.1993). A fact is indisputable if it is so
well established as to be a matter of common knowledge. Judicial notice is
intended to avoid the formal introduction of evidence in limited circumstances
where the fact sought to be proved is so well known that evidence in support
thereof is unnecessary. 220 Partnership v. Philadelphia Elec. Co., 437
Pa.Super. 650, 650 A.2d 1094, 1096 (Pa.Super.1994).
Judicial notice allows the trial court to accept
into evidence indisputable facts to avoid the formality of introducing
evidence to prove an incontestable issue. Interest of D.S., 622 A.2d at
957. However, the facts must be of a matter of common knowledge and derived
from reliable sources "whose accuracy cannot reasonably be questioned."
Commonwealth v. Brown, 839 A.2d 433, 435
(Pa.Super.2003) (emphasis omitted).
The tendency of a stallion to be spirited may be so
well known as to be a matter of common knowledge, but the implication that
everyone knows stallions are vicious and will bite simply is not true. In
fact, Appellant's own expert witness conceded this fact in her report,
admitting that not all stallions exhibit unpredictable and aggressive
tendencies, but "the individual personality of the horse plays a large part"
in whether a stallion is vicious and also that breeding and training are
contributing factors. Opinion Letter from Brenda Hall, 7/9/04, at 2.
In concluding that summary judgment was
appropriate, the trial court aptly cited Andrews v. Smith, 324 Pa. 455,
459, 188 A. 146, 148 (1936) (emphasis added), which states, "Animals such as
horses, oxen and dogs are not beasts that are ferae natura, i.e., wild
beasts, but are classed as mansuetae natura, i.e., tamed and
domesticated animals, and their owners are not responsible for any vicious
acts of theirs unless the owners have knowledge that they are likely to break
away from their normal domestic nature and become vicious." In the present
case, then, Appellant cannot rely solely on the fact that Dollar is an
uncastrated male horse to establish Appellees' liability.
The relevant law is clear. Before liability for the
bite of an animal attaches, the defendant must know or have reason to know
that the animal will display vicious tendencies, as set forth in the
Restatement (Second) of Torts § 518, and Andrews:
§ 518 Liability for Harm Done by Domestic Animals
That Are Not Abnormally Dangerous.
Except for animal trespass, one who possesses or
harbors a domestic animal that he does not know or have reason to know to be
abnormally dangerous, is subject to liability for harm done by the animal if,
but only if,
(a) he intentionally causes the animal to do the
(b) he is negligent in failing to prevent the harm.
Similarly, Restatement (Second) of Torts § 509
§ 509 Harm Done by Abnormally Dangerous Domestic
(1) A possessor of a domestic animal that he knows
or has reason to know has dangerous propensities abnormal to its class, is
subject to liability for harm done by the animal to another, although he has
exercised the utmost care to prevent it from doing the harm.
(2) This liability is limited to harm that results
from the abnormally dangerous propensity of which the possessor knows or has
reason to know.
In accordance with this authority, Pennsylvania law
requires evidence of viciousness before the possessor of a horse will be
subject to liability for harm caused by the animal. Barshay v. American Ice
Co., 84 Pa.Super. 538 (1925) (owner of horse is not insurer against bites
and is liable only if horse displayed vicious tendencies in past); Quigley
v. Adams Express Co ., 27 Pa.Super. 116 (1905) (defendant was not liable
for his horse's bite when plaintiff failed to produce any evidence tending to
show that defendant had knowledge of vicious propensities of animal); see
also Deardorff v. Burger, 606 A.2d 489 (Pa.Super.1992) (applying
Restatement section 590 and holding dog owner is subject to liability for dog
bite only if he knows or has reason to know of dog's vicious tendencies and
failed to properly restrain the dog). Appellant acknowledges that she cannot
demonstrate from "past acts of the animal, a stallion named Dollar, that the
horse had vicious propensities." Appellant's brief at 7.
Thus, Appellant's tenet that Dollar's status as a
stallion establishes liability cannot succeed, and in the absence of evidence
of Dollar's vicious tendencies, summary judgment was properly granted.
Motion to strike Appellant's brief and reproduced
record dismissed as moot. Order affirmed.
2005 WL 1027901 (Pa.Super.), 2005 PA Super 168
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