Hojem v. Kelly

584 P.2d 451, 21 Wash. App. 200, 1978 Wash. App. LEXIS 1911

• Court: Court of Appeals of Washington
• Decided: August 28, 1978
• Docket: 4697-1
• Status: Published

Opinions

Andersen, A.C.J.—

Facts of Case

This is a personal injury action brought by the plaintiff against the proprietors of a riding stable which rented her the horse she was riding at the time she fell and was injured. The jury returned a $20,000 verdict for the plaintiff and reduced it by 50 percent for her contributory negligence. The trial court granted the defendants' motion for judgment notwithstanding the verdict and the plaintiff appeals.

At the time of her fall, the plaintiff had been riding at the defendants' stables for 16 or 17 months, occasionally as often as twice a week and sometimes once a month.

On her initial visit to the stables, the plaintiff was accompanied by one of the defendants' employees over some of the trails on the ranch, and a field in which she could ride was made available. One of the defendants also taught her how to mount and dismount. She regularly rode for pleasure at the defendants' ranch using a western style saddle, starting with the most gentle horse available and then moving on to more spirited horses. She rode all over the ranch,, sometimes in fields where there were riderless horses. At all times, signs were posted on the premises reading, "Ride and visit at your own risk."

Following some 11 months or so of pleasure riding, the plaintiff began formal lessons in English-style riding using English tack. It was after 6 months of English riding lessons, including lessons on how to mount, dismount and stop a horse, that the injury occurred.

On the day of the injury, the plaintiff and a friend went to the riding stables where they rented horses. They then rode to a field of their own choosing and practiced riding. After 45 minutes, a riderless horse somehow entered the field. That horse, a gelding, was being boarded at the defendants' ranch. The riderless horse ran up to the horse being ridden by the plaintiff and frightened it into a gallop, then ran along side of it or behind it. The plaintiff lost control of the horse she was riding, and the horse broke stride. She then lost her hold, fell and was injured.

One issue is determinative.

Issue

Did the trial court err in granting the defendants' motion for judgment notwithstanding the verdict in this negligence action?

Decision

Conclusion. The trial court did not err in granting the judgment n.o.v. (judgment non obstante veredicto). As a matter of law, the plaintiff did not present substantial evidence, as distinguished from a mere scintilla, that the defendants breached any duty owed to her.

The law is settled as to situations in which judgment n.o.v.'s may be granted:

Such a motion involves no element of discretion and will not be granted unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference from evidence sufficient to sustain the verdict. In ruling on a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the party against whom the motion is made, and all material evidence favorable to the contention of the party benefited by the verdict must be taken as true. If there is substantial evidence supporting the verdict of the jury, as distinguished from a mere scintilla of evidence, the verdict must stand. By "substantial evidence" is meant that character of evidence which would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed.

Grange v. Finlay, 58 Wn.2d 528, 529, 364 P.2d 234 (1961). Accord, Pacific Nat'l Bank v. Morrissey, 17 Wn. App. 525, 527, 564 P.2d 337 (1977).

The plaintiff's case was pleaded, tried and decided on a negligence theory. The jury was instructed that the plaintiff had the burden of proving that the defendants were negligent. No exception was taken to the instructions given. In order to recover damages due to the negligence of another, a party must prove the existence of a duty by the other to him or her, breach of that duty, causation and damages. LaPlante v. State, 85 Wn.2d 154, 159, 531 P.2d 299 (1975); Georges v. Tudor, 16 Wn. App. 407, 409, 556 P.2d 564 (1976).

At the close of the plaintiff's case, the defendants challenged the sufficiency of the plaintiff's evidence. The trial court stated at that time:

Well, I have heard a lot of these cases where — well, this type of case. . . .

This is about the thinnest case that I have ever run into as far as liability on the defense is concerned, because there has been absolutely — at least there doesn't appear to me to be — any real showing of negligence.

The trial court did, however, deny the defendants' challenge at that time and the defendants then presented their case.

When both sides had rested, the defendants renewed their challenge. The trial court then ruled:

I agree with you. I think the case should be dismissed right here and now. But I am going to let the jury have it anyway, and if they should award her anything, then I will take it away from the plaintiff and then let an Appellate Court decide, because that would save the county money because they wouldn't have to go through the four days that we have gone through already in trial. But, in my humble opinion, the plaintiff has failed to prove by a preponderance, any negligence on behalf of the defendant. It is that simple.

Following the verdict for the plaintiff, a judgment n.o.v. was granted. In connection therewith, the trial court stated:

There is no question about the fact that she was injured. But, under the case, it would mean absolute liability; if this verdict were sustained it would mean that any riding stable is absolutely liable for any injury occurring while somebody is renting a horse on the place.

And further,

So I just feel the plaintiff, in my humble opinion, certainly didn't prove this. And there was no expert opinion by anybody that it was dangerous to allow another horse, a riderless horse, into a pasture where people were riding horses — none.

Pivotal to our decision in this case is what the defendants' duty to the plaintiff was and whether or not it was breached.

The horse plaintiff was riding at the time she was injured was owned by the defendants who rented it to her. Owners or bailors of a horse known to be vicious, dangerous or unmanageable are negligent in hiring it out and thus endangering the bailee, and will be held liable for injuries proximately caused thereby. O'Brien v. Gateway Stables, 104 Cal. App. 2d 317, 231 P.2d 524, 526 (1951); Evans v. Upmier, 235 Iowa 35, 16 N.W.2d 6, 9 (1944); 4 Am. Jur. 2d Animals § 68 (1962); 15 A.L.R.2d 1313, 1316 (1951). In the present case, however, the plaintiff conceded in her testimony, as did her counsel in argument to the trial court, that the horse she was riding was not vicious, dangerous or unmanageable. Thus no liability was established on that basis.

As the boarders of the riderless horse which found its way into the pasture where the plaintiff was riding, the defendants could also be held liable to the plaintiff if it was established that the gelding was vicious or dangerous and that such was known or reasonably should have been known to the defendants. Reeves v. John A. Cooper Co., 304 F. Supp. 828, 833 (W.D. Ark. 1969); Hagerty v. Radle, 228 Minn. 487, 37 N.W.2d 819, 828 (1949); 4 Am. Jur. 2d Animals § 101.5 (Cum. Supp. 1977); 85 A.L.R.2d 1161, 1163 (1962). No such showing was made as to that either. See Harris v. Carstens Packing Co., 43 Wash. 647, 651, 86 P. 1125 (1906); Gunderson v. Bieren, 80 Wash. 459, 462, 142 P. 685 (1914).

Here there was testimony that riderless horses were not usually present in the riding areas, and when they were, they would sometimes be shooed away because they could be a bother. Even assuming that the defendants were responsible for the riderless horse being in the pasture where the plaintiff was riding, as we do for the purpose of testing the judgment n.o.v., there was still no substantial evidence, expert or otherwise, that a riderless horse in a riding practice area is dangerous or violates any customary standards of care of riding stables.

Central to all aspects of this case is the principle that a domesticated animal such as a horse will not be presumed to be vicious or dangerous. Moessinger v. Johnson, 292 So. 2d 606, 607 (Fla. Dist. Ct. App. 1974); Vigue v. Noyes, 24 Ariz. App. 144, 536 P.2d 713, 715 (1975), modified on other grounds, 113 Ariz. 237, 550 P.2d 234 (1976).

Absent some showing that the horses involved were vicious, dangerous or unmanageable, the defendants had no duty to warn of them. Dam v. Lake Aliso Riding School, 48 P.2d 98, 101 (Cal. Dist. Ct. App. 1935), aff'd, 6 Cal. 2d 395, 57 P.2d 1315 (1936); 4 Am. Jur. 2d Animals § 68 (1962); 15 A.L.R.2d 1313, 1319 (1951).

No contention has been made that the equipment on the horse being ridden by the plaintiff was faulty in any way.

The plaintiff also argues that ”[t]he land owner has a duty to provide and maintain safe riding stables [si’c] premises." She cites in support thereof Restatement (Second) of Torts § 342 (1965);¹ Memel v. Reimer, 85 Wn.2d 685, 538 P.2d 517 (1975) and Miniken v. Carr, 71 Wn.2d 325, 428 P.2d 716 (1967). It is true that Restatement (Second) of Torts § 342 (1965) is the law of this state, having been adopted in Miniken and Memel. This section of the Restatement is entitled "Dangerous Conditions Known to Possessor," Restatement (Second) of Torts § 342 (1965), and relates only to a landowner's "duty to exercise reasonable care where there is a known dangerous condition on the property ..." Memel v. Reimer, supra at 689. There was no breach of any duty based on these principles since, as discussed above, the plaintiff failed to present substantial evidence showing the existence of a known dangerous condition.

The plaintiff also • urges that the doctrine of res ipsa loquitur should be held to apply. We disagree. The horse which the plaintiff was riding was frightened by another horse and galloped off, and the plaintiff lost control of the horse and fell. There is no question as to the actual cause of the injury; therefore, res ipsa loquitur does not apply. Chase v. Beard, 55 Wn.2d 58, 68, 346 P.2d 315 (1959).

To then summarize.

The plaintiff fell off the rented horse she was riding and was injured. She was at least a moderately experienced horseback rider at the time and chose the pasture in which she and her friend were riding when the injury occurred. The plaintiff had been riding regularly for 16 or 17 months, had taken riding lessons and was familiar with the riding premises.

There is no claim that the riding horse she rented from the defendants was not entirely suitable for that purpose or that the tack on the horse was unfit. Neither was there any showing that the other horses in the pasture where she was riding were vicious, unmanageable or dangerous in any way.

No expert witness' testimony was presented by the plaintiff that the defendant stable owners owed her any duty with respect to riding instructions, keeping the horses separated, etc., which was breached.

No breach of warranty or of contract is claimed and the plaintiff's case was submitted on a negligence theory entirely. The most that can be said of the plaintiff's proof in that regard is that she proved horses are animals, all of which will occasionally play, kick or nip. We are not prepared to rule that it is or should be the law in a partly rural western state such as ours, that anyone who loans or rents a riding horse to another is the insurer that the rider will not be injured — or the guarantor that the horse will always remain insulated from others of its kind while it is being ridden on their premises.

The trial court did not err in granting the judgment n.o.v. in that the plaintiff presented no substantial evidence showing that the defendants breached any duty which they owed to the plaintiff.

The plaintiff having as a matter of law failed to prove negligence, the remaining assignments of error which relate to instructions refused and mistrial motions denied are moot.

Affirmed.

Callow, J., concurs.

1 ^ince this is the only standard of care on the part of the respondents as landowners that the appellant has argued on appeal, it is the only one which we address in this opinion. Gunnar v. Brice, 17 Wn. App. 819, 822, 565 P.2d 1212 (1977).