Pony's vicious propensities' not sufficiently established

Daily Record (Rochester, NY), Apr 4, 2003 by Jill Miller

In a case where a child is injured by a domestic animal brought to a picnic, did the defendant fail to take adequate precautions to ensure that children would not be injured by the animal? Is the defendant liable based on the "known vicious propensities" of the animal?

In Ann Marie Hertweck Doyle, Individually and as Parent and Natural Guardian of Daniel Doyle, an Infant, v. The Monroe County Deputy Sheriff's Association, Inc. and Sandy Neumann, the plaintiff brought suit on behalf of her son after he was kicked by a pony at a picnic hosted by one of the defendants. Specifically, the plaintiff alleges two causes of action, one for strict liability based on the known vicious propensities of the pony and the second for common law negligence.

New York State Supreme Court Judge Robert Lunn carefully reviewed the arguments and relevant case law before granting the Monroe County Deputy Sheriff's Association's motion for summary judgment. However, the judge determined that the plaintiff raised triable issues of fact as to whether Neumann was negligent in the manner in which the ponies were unloaded from the trailer in the presence of children, and denied her motion for summary judgment.

The Facts

On August 19, 2000, 7 year-old Daniel Doyle, the infant plaintiff, went to a picnic at Mendon Ponds Park with his mother. The picnic was sponsored by one of the defendant's, the Monroe County Deputy Sheriff's Association.

Another defendant, Sally Neumann, brought some animals, two ponies and some goats, to the picnic for a petting zoo. (Neumann had brought animals to the picnic in past years.) The ponies, Pippin and Tomarra, had been extensively trained to be children's ponies.

The plaintiff and his friend Matt were playing ball when Neumann started to unload the animals from the trailer. As the goats were being unloaded both boys approached the truck. Before the ponies were unloaded the boys were asked if they wanted to pet the goats.

Both answered "yes" and proceeded to pet the goats. Before the ponies were unloaded Neumann told the boys to move away from the back of the trailer. They moved approximately 15 ft. to the right side of the trailer.

Neumann backed Pippin out of the trailer, handed the pony's lead rope to an assistant and started to unload Tomarra. Neumann handed the second pony off to another assistant and turned to close the trailer up.

Neumann stated that out of the corner of her eye she saw Tomarra move forward. She looked around and saw the plaintiff lying on the ground with his right leg bent saying his leg hurt. The plaintiff told her that the horse had kicked him.

The plaintiff testified that he and his friend moved behind Tomarra. He thought the pony was about to kick Matt so he dove to push Matt out of the way. As he was pushing his friend out of the way, the pony allegedly kicked him.

The plaintiff submitted an affidavit from an expert horse handler. The handler stated that Neumann was negligent in not having another experienced horse handler with her to help her unload the ponies given the fact that horses tend to kick or run when they are startled from behind.

The plaintiff's mother, Ann Marie Hertweck Doyle, commenced this action asserting two causes of action -- one for strict liability based on the known "vicious propensities of the pony" and one for common law negligence.

The defendants moved for summary judgment dismissing the complaint on the grounds that there is no proof that Tomarra has ever kicked anyone else in the past or "otherwise demonstrated any vicious propensities." The plaintiff did not oppose granting summary judgment to the Monroe County Deputy Sheriff's Association and thus, New York State Supreme Court granted its motion to dismiss.

Court Ruling

In order to render a decision, Judge Lunn reviewed the plaintiff's first cause of action. Is Neumann liable based on the "known vicious propensities" of the pony?

"Generally, since a horse is a domestic animal, a horse owner is not liable for injuries caused by the animal unless he or she knew or should have known of its vicious or violent propensities (see Wardrop v. Koerner, 208 AD2d 1147 [3rd Dept. 1994]; Landes v. H.E. Farms, Inc., 169 AD2d 446 [1st Dept. 1991]," wrote Judge Lunn in the decision for the court. "Plaintiff concedes that there is no proof showing any vicious or violent propensities of Tomarra. Accordingly, plaintiffs' first cause of action is dismissed."

Next, the judge turned to the second cause of action. Is Neumann liable under a theory of common law negligence?

Judge Lunn reviewed two cases offered by the plaintiff in support of its argument. Both cases explore recovery for injuries caused by domestic animals on a theory of negligence.

In Schwartz v. Armand Erpf Estate, 225 AD2d 35, a 4 year-old boy was kicked in the head by a horse after he crawled under a horse corral fence. The horse had no known vicious propensities

The Appellate Division, First Department held that in the limited circumstances, "when young children are known to be present, the landowner's normal duty, i.e., to maintain its premises in a reasonably safe condition in view of all the circumstances, includes a duty to recognize the danger created by the presence of horses to which a small child could easily gain access, which danger, although obvious to adults, may not be appreciated by children."