On The Loose

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White v. Elias (Ohio)
(An individual who was kicked by an escaped horse brought an action against the horse owner and the property owner; the court ruled that there was no strict liability but that an issue of material fact as to the potential negligence of the defendants.)

A horse boarding facility released horses to graze in a pasture unsupervised.  However, because there was no food trough and because the pasture was bare, six-horse then escaped from the pasture and ended up on a neighboring property.  The neighbor saw the horses and called the plaintiff because she was familiar with the horses.  They asked if she could help lead the horses home.  However, when the plaintiff approached the group of horses, one of them kicked back and hit her in the face, causing serious and permanent injuries.

The plaintiff sued the horse owner and the owner of the property where the horse was boarded, alleging claims for strict liability and negligence.  The defendants moved for summary judgment, which the trial court granted.  The plaintiff appealed.

On appeal, the plaintiff first argued that the defendants were strictly liable for plaintiff’s injuries because the horses escaped their control and property and trespassed.  However, the Court explained that the law providing for recovery for personal injuries from the trespass by animals did not extend to injuries suffered on a third party’s private property.  The plaintiff did not own or occupy the property where the incident occurred.  Rather she was invited onto the property of a third party neighbor who did not own or control the horse.

Plaintiff next argued that a triable issue of fact existed as to the defendants negligence.  the evidence indicated that the subject horse “had acted aggressively in the past, and had previously bit and kicked other horses.”  The evidence also showed that there was a previous recommendation to install an electric fence because the split wooden fence “might not adequately contain the horses.”  There was also prior knowledge “that horses had escaped from the pasture before, the fence was missing rails and sections, and deer often knocked over the top rails of the fence.”  Despite all that, and despite the apparent existence of “a rule that the horse’s owner must supervise her horse in the pasture at all times,” the individual who agreed to board the horse left the subject horse unsupervised in the pasture.  As a result, the Court found that a material issue of fact existed as to the negligence claim against the boarding company.

The Court also found a triable issue of fact regarding the negligence claim against the property owner.  According to the Court, “questions of fact remain[ed] about whether the fence was in a state of disrepair . . . .”  The overall adequacy of the fencing was also in question.

Finally, the plaintiff argued that it was error for the trial court to have determined that assumption of the risk barred her from recovery.  After detailing the law of assumption of the risk in Ohio, the Court concluded that the doctrine did not apply to completely bar recovery.  The Court based this conclusion on Ohio statutes that permit a person to take and confine animals that are at large.

NOTE: The interpretation and application of the statutes relating to finding animals at large was interesting.  It seemed a bit of a stretch to find that if someone elects to undertake to take and control an animal at large (something permitted by, but not required by, statute), then assumption of the risk is not a bar to recovery.

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