Sunday, June 12, 2016

Equine Equality?

Deveneau v. Wielt, 2016 VT 21

By Andrew Delaney

As a horse owner whose horses just so happen to be summering in my neighbor’s field at this very moment, this case is close to home. In fact, after I post this, I'm headed over to move a fence.

Mr. Deveneau was injured when he drove into a horse that was standing in the road. He sued Ms. Wielt (the horse’s owner) and Mr. Toomey (the landowner whose land the horse escaped from).

Several years ago, Ms. Wielt leased a house and land from Mr. Toomey. Mr. Toomey allowed Ms. Wielt to keep and pasture two horses there. He also allowed Ms. Wielt to pasture the horses next door on a lot he also owned, on the condition that she take all responsibility for the care and fence maintenance. So she kept the horses on both lots, alternating for grazing purposes. 

Ms. Wielt put up a temporary electric fence. Mr. Toomey drove by the horses on his way to the grocery store, but he never rode the horses. He knew nothing about the fence. He knew nothing about the horses ever escaping. He never inspected or maintained the fence.

Around 1:00 in the morning, plaintiff was driving home from work past the field where the horses were kept. He saw the horse in the road, tried to hit the brakes and avoid hitting it, but was unable to. The horse crushed the windshield and the top of Mr. Deveneau’s vehicle.

The trial court found there was insufficient evidence to establish how the horse escaped. There was a gate down and some of the wire sagged. There was a solar-powered electrifier on the fence, but it was unclear whether electricity was circulating at the time of the accident.

Mr. Toomey moved for summary judgment, arguing that he had no duty to plaintiff to prevent the horse’s escape. The trial court agreed that without some facts showing foreseeability, a landowner doesn’t have a duty to inspect or maintain a tenant’s fences. So the trial court granted summary judgement to Mr. Toomey.

Mr. Deveneau appeals.

Does everybody remember the standard of review for summary judgment? Essentially it’s whether under the facts as alleged by the non-moving party the moving party is entitled to judgment as a matter of law. I’ve run out of jokes about it.

The SCOV majority frames the question on appeal like so: “What duty, if any, runs from Toomey, as noncustodial landowner, to plaintiff?” The majority notes the general duty to act as a reasonably prudent person, but notes that the duty is defined by public policy and other relevant factors, noting the broad concept that duty is defined by the undertaking.

The majority gives a nod to the issue-of-first-impression piece at play here, but also notes that this 1962 case “provides a solid foundation for our analysis here.” In that case, a horse owned by a defendant wandered into a road and the plaintiff ran into it. The owner was liable, but the owner’s wife was dismissed from the case because there wasn’t anything to tie her to “ownership, management or control of the horses that were involved in the accident.”

In the majority’s view, the case implies that duty doesn’t attach until there’s some involvement in the ownership, management, or control of the horse. Just owning the land isn’t gonna cut the mustard.

The majority opines, “This view is in line with centuries of Vermont statutory law,” and even digs up a 1797 statute that still exists in close-to-original form today that more-or-less says the “owner or keeper” of a stallion is liable for negligence when the horse is on the loose. Ruh-roh. The SCOV majority points to some cases from other states (Indiana, Iowa, North Carolina, and South Dakota) that generally support its view, and distinguishes a New York case offered up by plaintiff on the grounds that the New York decision goes into the “vicious-propensity” rule and doesn’t really get into liability for controlling animals kept on the landowner’s land. In that same vein, the majority also rejects another lower-court New York case on the grounds that the defendant in that case was the only person in control of the land, the fence, and the cow.

Mr. Deveneau argues that “an inadequately contained horse creates a dangerous condition on a property.” The majority rejects this argument on grounds that control-of-animals principles control, and that “holding that pasturing horses creates a dangerous condition on property would disregard strong public policy supported by this state's agricultural character.”

Plaintiff’s argument that a duty exists pursuant to the Restatement (Second) of Torts § 379A (1965) is also rejected. Duty exists under the Restatement if—and only if—the landowner knew or had reason to know that the activity unavoidably involved such an unreasonable risk or that special precautions needed to be taken.

Mr. Toomey allowed Ms. Wielt to keep the horses on his land subject to the condition that she maintain the fence. The majority doesn’t see that as an unreasonable risk. The majority—while opining that it’s hard to imagine horse pasturing as being a dangerous condition in Vermont—does note that at least one other court has found a duty under the Restatement section when the landowner knew the fence was in poor condition, but then points to other decisions declining to do so (an Iowa decision and the South Dakota decision noted above) where there wasn’t a knowledge-of-the-fence-being-in-poor-repair element.

The SCOV holds: “Vermont is an agricultural state. Allowing a tenant to pasture a horse on the property does not, without some assumption of responsibility for control of the animal, create liability for permitting an ‘unreasonable risk.’” I know my neighbors will be happy to hear that.

The majority points out that underlying all the plaintiff’s arguments is the allegation that the landowner should’ve foreseen that possibility of the harm that occurred. The majority concedes that Mr. Toomey certainly could’ve foreseen the possibility of a horse escaping and causing damage, but that requiring a landowner to be responsible for the tenant’s fence would distort the contractual relationship between tenant and landowner.

The majority concludes: “Because Toomey had no connection to the ownership, management, or control of the injurious horse or of the fence containing it, we cannot impose a duty on him to prevent that horse from escaping and harming passing motorists. We therefore affirm the trial court’s grant of summary judgment to Toomey.”

Justice Robinson dissents. In her view, because Mr. Toomey retained possession and control of the property from which the horse escaped, he is potentially liable—at least to the extent to preclude summary judgment.

Justice Robinson notes the common-law framework, which provides that a landowner needs to exercise reasonable care with respect to the conduct of others on his or her land. Letting someone perform an activity on one’s land puts one on notice of the activity and requires one to exercise reasonable care. In relation to the Restatement, Justice Robinson would find potential liability on the basis that Mr. Toomey knew what was going on and had not actually transferred possession and control of the land to Ms. Wielt under a lease, but merely let her use the land.

Justice Robinson notes that Mr. Toomey’s requirement that Ms. Wielt “ensure adequate fencing for the horses as a condition of her use may give rise to an obligation to indemnify him, but does not alter his obligations, as a landowner in possession and control of the property, to third parties.”

Justice Robinson points to the condition of the fence and notes that a jury could conclude that Mr. Toomey was aware of it. In that sense, Mr. Toomey was not entitled to summary judgment.

In the dissent’s view, the “majority opinion misses the mark both on the facts and the law.” The dissent opines that the majority misses “the significance of Toomey’s continuing possession and control over the 1952 Harwood Hill property, and this “undermines much of its analysis.” On the law, the dissent reasons that that majority isn’t properly considering landowner liability from a statutory or case-law perspective.

There’s a wonderfully detailed analysis covering nearly all of the cases and statutes cited by the majority that I won’t get into here because . . . I’m lazy.

You tell us: who got it right? Should a landowner be liable if an animal escapes from the landowner’s property and causes damage or does the responsibility fall with the landowner? What facts might change your view?

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