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Ann Reilly v. Michele Leasure et al.
Memorandum of Decision
In this case the plaintiff claims that she was severely injured on June 1, 2008, when she was kicked by a horse named Ridley which was owned by the defendant, Michele Leasure (“Leasure”). At that time Leasure and her horse were participating in the Wilton Pony Club Horse Trials (“the Horse Trials”), an event sponsored by defendants The Wilton Pony Club and The United States Pony Club. The event was held on Millstone Farm in Wilton, a property owned by defendant Millstone Properties, LLC. The plaintiff attended the event at the invitation of Leasure. At the time she was kicked she was in the process of washing Ridley with water and a sponge at Leasure's request.
The plaintiff's fourth amended complaint, dated September 28, 2010, alleges that Leasure was aware that Ridley had dangerous and vicious propensities to attack without provocation. The complaint alleges that Leasure breached her duty to warn the plaintiff of Ridley's dangerous propensities and was thereby negligent. The second, third and fourth counts of the plaintiff's complaint make allegations regarding the conduct of defendants The Wilton Pony Club, The United States Pony Club and Millstone Properties, LLC, respectively.
Presently before the court is a motion for summary judgment filed by Leasure on March 4, 2011 (# 218.00). Leasure points out that under Connecticut law, the owner of a domestic animal (other than a dog) can only be held responsible if the animal in question is known to have vicious or abnormally dangerous propensities. Leasure claims that there is no evidence to support the claim that prior to the plaintiff's injuries she had any knowledge that Ridley had dangerous propensities.
In paragraph 11(c) of her complaint the plaintiff alleges that Leasure “had actual prior knowledge of Ridley's dangerous and vicious propensity to kick unprovoking humans based on the fact that Ridley had kicked and seriously injured defendant Leasure on or about December 11, 2005 and based on the fact that prior to June 1, 2008 the previous owner of Ridley, Lori Garnant, had told defendant Leasure that Ridley had kicked during the time that Lori Garnant had owned Ridley.”
In the documents attached to her motion for summary judgment Leasure claims that the injuries she sustained from Ridley on December 11, 2005 were not the result of any dangerous propensities of the horse but rather were the result of an attack on Ridley by Leasure's two Welsh corgi dogs. Leasure filed the following documents in support of her motion: a) her answers to the plaintiff's interrogatories; b) extracts from her deposition; c) her affidavit; d) the affidavit of her expert witness, Matthew Elliott, DVM, Ripley's veterinarian. All of these documents supported Leasure's claim that the injuries she sustained on December 11, 2005 were not the result of the horse's propensity to kick, but instead were caused by an attack on the horse by Leasure's corgis. In her deposition, Leasure denied that Ridley's previous owner had ever told her that the horse had a propensity to kick.
In opposition to the motion for summary judgment, the plaintiff filed the following documents: a) the plaintiff's affidavit; b) a program for the Horse Trials that includes the “no dogs please” rule; c) a prize list for the Horse Trials that states “no dogs allowed on property”; d) June 18, 2008 photos of the plaintiff's injuries; e) a portion of the transcript of the deposition of Stephen Baluzy, a friend of Leasure; f) a portion of the transcript of the deposition of Robert Moore, the plaintiff's fiancé; g) a February 5, 2009 e-mail authored by Leasure in which she provides an account of the December 11, 2005 incident which differs somewhat from her affidavit; h) Leasure's answers to interrogatories; i) extracts from the deposition of Leasure; j) the affidavit of Nancy Reilly, the plaintiff's mother, in which she relates a conversation with Leasure regarding the December 11, 2005 incident which did not include an attack on Ridley by corgis; k) a transcript of an interview with Leasure in which she denies that Ridley ever kicked anyone prior to the plaintiff's injuries; l) e-mails sent to the plaintiff by Leasure; m) a disclosure of the plaintiff's expert witness, Marcy Shelton, and her affidavit in which she opines that Leasure's account of the December 11, 2005 incident is not credible.
In her affidavit, the plaintiff attests that Leasure spoke with her immediately after the December 11, 2005 incident and stated that Ridley had “bolted” suddenly and without warning and made no mention of provocation by the defendant's corgis. In her affidavit the plaintiff states that in August 2008, Leasure gave her additional accounts of the December 11, 2005 incident which differed significantly from the story she first related to her. Finally, the plaintiff claims that Leasure informed her after the plaintiff was injured by Ridley that Ridley's former owner had told her that Ridley was prone to kick when he got nervous.
In his deposition, Baluzy testified as to a version of the December 11, 2005 incident which was related to him by Leasure which differed somewhat from the account given in Leasure's affidavit. Moore testified in his deposition that he went to the barn where Ridley was boarding in or around April 2006 and was told not to enter Ridley's stall because “he is a kicker.”
DISCUSSION
“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790–91 (2007). “[Summary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.” (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].” (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318–19 (2006).
In filing her motion for summary judgment Leasure undertook to demonstrate that there was no credible evidence that her horse, Ridley, had ever exhibited an unusual propensity to kick prior to injuring the plaintiff. In her efforts she was required to address the December 11, 2005 incident in which she herself suffered injuries as the result of being kicked or thrown by Ridley. Her explanation of the incident—the corgi attack on Ridley—together with the supporting opinion of her expert witness might have sufficed to carry her burden. However, the evidence offered by the plaintiff shows that Leasure related several accounts of the incident, some of which omit any reference to the provocation of Ridley by the dogs. Moreover, the plaintiff's evidence calls into question whether and to what extent the plaintiff received knowledge as to Ridley's tendencies to kick from the former owner of the horse.
The issue of foreseeability with respect to the potential behavior of domestic animals is a “fact-bound question involving a determination of the [animal's] previous behavior, the owner's knowledge of that behavior, the circumstances that gave rise to the harm, and the actual harm inflicted.” Allen v. Cox, 285 Conn. 603, 615 (2008). In this case, material facts concerning Ridley's behavior prior to the incident in which the plaintiff was injured are in dispute. There are also issues as to whether and the extent to which Leasure was informed by Ridley's prior owner about his tendencies to kick. Finally, the expert witnesses are at odds as to whether Ridley's kicking represents normal or aberrant equine behavior. Under these circumstances the court finds that there are issues of material fact. Accordingly, Leasure's motion for summary judgment is denied.
David R. Tobin, J.
Tobin, David R., J.
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Docket No: FSTCV085009675S
Decided: May 17, 2011
Court: Superior Court of Connecticut.
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