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UNPUBLISHED, 2000 WL 1715679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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