Smith v. American Indem. Ins. Co.

598 So. 2d 486, 1992 La. App. LEXIS 997, 1992 WL 72686
CourtLouisiana Court of Appeal
DecidedApril 8, 1992
Docket23,406-CA
StatusPublished
Cited by28 cases

This text of 598 So. 2d 486 (Smith v. American Indem. Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. American Indem. Ins. Co., 598 So. 2d 486, 1992 La. App. LEXIS 997, 1992 WL 72686 (La. Ct. App. 1992).

Opinion

598 So.2d 486 (1992)

Barbara A. SMITH, Plaintiff-Appellant,
v.
AMERICAN INDEMNITY INSURANCE COMPANY, et al., Defendant-Appellee.

No. 23,406-CA.

Court of Appeal of Louisiana, Second Circuit.

April 8, 1992.
Writ Denied July 1, 1992.

*488 William E. Byram, Shreveport, for plaintiff-appellant.

Henry M. Bernstein, Shreveport, for defendant-appellee.

Before LINDSAY, HIGHTOWER and BROWN, JJ.

LINDSAY, Judge.

The plaintiff, Barbara A. Smith, appeals from a judgment, following a jury verdict, denying recovery for the personal injuries which she sustained in a horseback riding accident. We affirm the trial court judgment.

FACTS

The defendant, W.C. Allen, Jr., is the plaintiff's uncle. Mr. Allen is in the oil business and also keeps a number of animals at his home in Oil City, La. The plaintiff was employed by her uncle in the oil business and was also responsible for caring for the animals and buying feed at the local feed store. The owner of the store, W.D. Harrell, owned a young horse, Sheik of '85, which was not yet fully trained. Mr. Harrell had accepted the horse in payment for a feed bill from its trainer, Mr. William C. Karlin. The plaintiff, who was approximately forty-eight years old at the time of the accident and an experienced horsewoman, heard about the horse and ultimately arranged for her uncle to purchase the horse from Mr. Harrell. The horse was to be kept at the defendant's home and was to be used for riding by the plaintiff and the defendant's guests.

On July 8, 1987, shortly after the horse was delivered to Mr. Allen's farm, the plaintiff attempted to ride the horse. The horse threw Ms. Smith. When she was thrown to the ground, she sustained a fractured wrist and a nondisplaced fracture of the pelvis. The injury to the plaintiff's wrist required two subsequent surgical procedures to correct carpal tunnel syndrome and to release tendons in her hand.

The plaintiff filed suit against her uncle, W.C. Allen, Jr., and his insurer, American Indemnity Insurance Company. The case was tried before a jury and the jury found that the horse did not pose an unreasonable risk of harm to the plaintiff. Therefore, the plaintiff failed to recover damages for her injuries. The plaintiff then filed motions for judgment notwithstanding the verdict and for a new trial. Both motions were denied by the trial court. The plaintiff appealed, asserting numerous assignments of error.

UNREASONABLE RISK OF HARM

The plaintiff contends the jury erred in failing to find that the horse posed an unreasonable risk of harm to her. This argument is meritless.

The plaintiff argues that the issue of determining the existence of an unreasonable risk of harm is governed by Levi v. Southwest Electric Membership Co-Op, 542 So.2d 1081 (La.1989), dealing with negligence of an electric company. We find that case to be inapplicable to the present case which deals with strict liability of an animal owner. The principles governing the responsibility of the owner of an animal are set forth in LSA-C.C. Art. 2321, Boyer v. Seal, 553 So.2d 827 (La.1989), Loescher v. Parr, 324 So.2d 441 (La.1976) and Entrevia v. Hood, 427 So.2d 1146 (La.1983).

LSA-C.C. Art. 2321 provides in pertinent part:

The owner of an animal is answerable for the damage he has caused....

The historical background of this provision was explored in Boyer v. Seal, supra. In that case, the Louisiana Supreme Court was called upon to decide the issue of whether a plaintiff, who has been injured by a domestic animal, must prove, in order to recover damages from the animal's owner under Art. 2321, that the injury occurred *489 through an unreasonable risk of harm created by the animal.

In Boyer v. Seal, supra, the Louisiana Supreme Court noted that in the earlier case of Holland v. Buckley, 305 So.2d 113, (La.1974), the court held that under LSA-C.C.P. Art. 2321, when a domesticated animal causes harm, the owner is presumed to be at fault and the fault so provided is in the nature of strict liability, and is an exception to or in addition to any ground for recovery on the basis of negligence. The liability arises from the owner's legal relationship to the animal. Boyer v. Seal, supra. The injured person need not prove the negligence of the owner. Andrade v. Shiers, 564 So.2d 787 (La.App. 2d Cir.1990), writ denied 567 So.2d 1128 (La.1990). The court indicated that the owner can exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, the fault of a third person for whom he is not responsible or by a fortuitous event.

Holland v. Buckley, supra, might be read to provide for almost absolute liability. However, in Loescher v. Parr, supra, the Louisiana Supreme Court held that a determination of a guardian's responsibility under strict liability also includes a showing that the damage was caused by a vice or aspect of the thing which creates an unreasonable risk of harm to others.

Thereafter, the court in Boyer stated that following Loescher v. Parr, supra, recovery was not allowed for damage by a domestic animal in the absence of proof that the injury resulted from an unreasonable risk of harm created by the animal.

In Boyer v. Seal, supra, the court held that the unreasonable risk of harm principle was to be applied in animal cases "in the interest of continued manageable and harmonious application of strict liability under the Civil Code." The court went on to provide guidance in determining whether a thing posed an unreasonable risk of harm. In Boyer v. Seal, supra, the court stated:

This court has explained that the judicial process involved in deciding whether a thing under garde posed an unreasonable risk of harm is similar to that of taking into account all of the social, moral, economic and other considerations as would a legislator regulating the matter. Entrevia v. Hood, 427 So.2d 1146 (La.1983). See also Pitre v. Opelousas General Hospital, 530 So.2d 1151 (La.1988); Bell v. Jet Wheel Blast, 462 So.2d 166 (La. 1985); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); B. Cardozo, The Nature of the Judicial Process 105 (1921); Geny, Method of Interpretation and Sources of Private Positive Law § 174 (LSLI translation 2d ed. 1963). We have also noted that the unreasonable risk of harm concept is virtually identical with the risk-utility balancing test that is part (but not all) of both negligence and strict products liability theories in Anglo-American law. Bell, supra; Entrevia, supra. See also L. Hand, J. in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) and Conway v. O'Brien, 111 F.2d 611, 612 (2d Cir.1940); Restatement (Second) of Torts §§ 291-293, 402A; Harper, James and Gray, The Law of Torts § 16.9 (1986); Prosser and Keeton on Torts § 31 (5th ed. 1984); R. Posner, A Theory of Negligence, 1 J. Legal Stud. 29 (1972). It is interesting and instructive that Justice Tate, the author of this court's opinions in Loescher and Holland, in an opinion he wrote as a judge of the United States Fifth Circuit Court of Appeals, confirmed that the legislative fact consideration and risk-utility balancing tests are valid approaches to determining whether a person or thing under garde posed an unreasonable risk of harm to others. See

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598 So. 2d 486, 1992 La. App. LEXIS 997, 1992 WL 72686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-american-indem-ins-co-lactapp-1992.