Bauman v. Auch, 18564

• Decision Date: 13 September 1994
• Docket Number: No. 18564,18564
• Parties: Robert C. BAUMAN and Melanie E. Bauman, Plaintiffs and Appellants, v. Loren AUCH, Special Administrator of the Estate of Garfield W. Bauman, Deceased, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 320

539 N.W.2d 320

Robert C. BAUMAN and Melanie E. Bauman, Plaintiffs and Appellants, v. Loren AUCH, Special Administrator of the Estate of Garfield W. Bauman, Deceased, Defendant and Appellee.

No. 18564.

Supreme Court of South Dakota.

Considered on Briefs Sept. 13, 1994.

Decided Oct. 4, 1995.

Peter J. Horner of Christopherson, Bailin & Anderson, Sioux Falls, for plaintiffs and appellants.

Michael L. Luce and Timothy M. Gebhart of Davenport, Evans, Hurwitz & Smith Sioux Falls, for defendant and appellee.

BASTIAN, Circuit Judge.

Robert and Melanie Bauman (plaintiffs), appeal the trial court's refusal to grant their motion for directed verdict, motion for judgment notwithstanding the verdict, and motion for new trial. We affirm in part, reverse in part, and remand.

FACTS

Robert Bauman (Bob) was injured on June 5, 1989, when the horse he was riding reared up as he attempted to mount her, throwing him to the ground. The horse, Krissy, was owned by Bob's father, Garfield Bauman (Garfield), who is now deceased. Prior to his death, Garfield was the defendant in this action.

In 1979, Bob and his wife Melanie, purchased a small acreage near Harrisburg, South Dakota, for their electrical contracting business. About the same time, Garfield purchased land next to them to fulfill a lifelong dream of raising quarter horses.

Over the years, Bob and Garfield bought and kept horses. Garfield had grown up with horses. As a young man, he broke and trained horses, and had extensive experience riding range for cattle and hunting on horseback. Bob was less experienced. He usually worked ten to fourteen hours a day, six days a week, in his contracting business. He had owned three horses and trained one. In the summer he averaged riding horses once a week, usually riding one of the gentler horses. Bob and his family were involved in the day-to-day maintenance of the horses.

In June 1984, a quarter horse named Krissy was born to one of Garfield's mares. In the summer of 1986, when Krissy was old enough to be ridden, Garfield sent her to Theresa Hughes (Hughes), a professional trainer. Hughes rode Krissy about thirty times and while she thought Krissy was "high strung," she found the horse to be controllable.

After returning to the acreage that fall, Krissy was sent for training in the Canton area. She later returned again to the acreage. When she was about four-years-old, Garfield began riding her.

Garfield described Krissy as "spirited." He often used a "tie-down" bridle on Krissy in the spring of the year when she had not been ridden often but not on other occasions. A tie-down is used to limit the upward mobility of the horse's head and neck and, as a result, makes it difficult for the horse to get its front feet off the ground. Bob was unaware that Garfield used a tie-down.

Garfield was not the only person who regularly rode Krissy. Glenn Vogel, a friend of Garfield and employee of Bob, rode the horse about two dozen times in 1987 and 1988. He rode her three or four times in the month prior to the incident. Vogel thought Krissy was "a little flightier" than some quarter horses and "a little high strung." Vogel, who characterized himself as a "fairly well experienced" horseman, never used a tiedown while riding her.

A farrier found Krissy to be one of the most difficult horses he worked on. Don Kohoutek, a neighbor who had raised horses for twenty years, observed that she had a different disposition than the other horses owned by Garfield and Bob. He described her as "flighty," "bossy," "aloof," and "irritable." In his opinion, these traits distinguished her from a normal quarter horse.

In the spring of 1989, when Garfield was unable to ride the horses because of illness, he asked Bob to ride Krissy to get her ready for him to ride in the summer. He did not instruct Bob to use the tiedown.

Bob rode Krissy for the first time on June 5, 1989. Bob had no difficulty saddling Krissy and riding her two miles to the neighboring Bill Allen farm. At the farm, Bob got off Krissy and talked with Allen for five or ten minutes. Krissy calmly stood near them and was petted by the Allen grandchildren. As Bob attempted to mount Krissy to return home, she side stepped away from him. On his second attempt, Krissy suddenly reared up. Bob was thrown from the horse and seriously injured.

A jury trial was held August 24-26, 1993. At the close of the evidence both parties moved for a directed verdict. Plaintiffs argued they had established liability of the defendant upon the theories of strict liability and negligence as a matter of law. Regarding strict liability, they argued the evidence was clear that Krissy was an abnormally dangerous domestic animal. Defendant's motion was based, in part, upon the opposite theory. The trial court denied plaintiffs' motion but granted defendant's motion on all claims except negligence and failure to warn. In making its decision, the trial court also indicated its impending ruling on plaintiffs' proposed jury instructions on abnormally dangerous domestic animals, stating

viewing the evidence in the light most favorable to the nonmoving party, the evidence is clear that the horse was flighty and fidgety but I'm persuaded that the horse was not abnormally dangerous for its class and not a dangerous type horse that would warrant granting that type of instruction to the jury. So, I'm going to let it go to the jury on the failure to warn and negligence type claim.

The jury returned a verdict in favor of the defendant. Plaintiffs then motioned for judgment notwithstanding the verdict upon the same grounds as those asserted in their motion for directed verdict. They also moved for a new trial upon the grounds that the trial court erred in instructing the jury on assumption of the risk and the burden of proof on affirmative defenses. They also claimed that the trial court erred when it refused to instruct on their theory of liability based upon abnormally dangerous domestic animals. The trial court did not rule on these motions and they are deemed denied. SDCL 15-6-50(b), 15-6-59(b). It is upon these claimed errors that Plaintiffs base their appeal.

ISSUE I

WHETHER THE TRIAL COURT PROPERLY REFUSED TO SUBMIT TO THE JURY THE ISSUE OF WHETHER KRISSY WAS ABNORMALLY DANGEROUS?

Our standard of review of the circuit court's refusal to give a requested instruction is well settled and generally set forth in Sommervold v. Grevlos, 518 N.W.2d 733, 739 (S.D.1994). The trial court should instruct the jury on issues supported by competent evidence in the record and is not required to instruct on issues that do not find support in the record. Generally, failure to give a requested instruction that correctly sets forth the law is prejudicial error. Jury instructions are reviewed as a whole and are sufficient if they correctly state the law and inform the jury. Error is not reversible unless it is prejudicial. The party asserting error has the burden of showing prejudice in failure to give a requested instruction. The party asserting error must also show the jury might, and probably would, have returned a different verdict if the proposed instruction had been given. Sommervold, supra.

The possessor of a domestic animal may be subject to liability under either a strict liability or negligence theory for harm caused by it to others. Plaintiffs' theory was based upon strict liability. Their proposed jury instructions on this issue were generally premised upon Section 509 of the Restatement (Second) of Torts, which provides:

(1) A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm.

(2) This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know.

Restatement (Second) of Torts § 509 (1977).

South Dakota law on liability for injuries caused by domestic animals has been long established; the approach is similar to the Restatement. A person possessing a domestic animal "known to be of vicious tendencies" is liable for such injuries as may be caused by the animal, regardless of the degree of care exercised by the owner in restraining and controlling the animal or the precautions taken by the owner of the animal to prevent its doing injury. This liability is subject to the defenses of contributory negligence and assumption of the risk. Anderson v. Anderson, 41 S.D. 32, 36, 168 N.W. 852, 852-53 (1918). The owner must have seen or heard enough to convince a person of ordinary prudence of the animal's inclination to commit the class of injury charged against it. Warwick v. Mulvey, 80 S.D. 511, 127 N.W.2d 433, 434 (1964). Where proof is made of mischievous propensities which cause injury to another, of which the owner knew or should have known, liability follows. Id.

The rule was reiterated in Ross v. Hanson, 86 S.D. 654, 656-657, 200 N.W.2d 255, 256 (1972):

Proof of negligence on the part of the owner in keeping or restraining a domestic animal is not essential to liability. Anderson v. Anderson, 41 S.D. 32, 168 N.W. 852. The gist of the action is the keeping of an animal after knowledge of its vicious propensity. Warwick v. Mulvey, 80 S.D. 511, 127 N.W.2d 433. As stated in 4 Am.Jur.2d, Animals, § 95, p. 343:

The owner is liable if he knew or should have known its dangerous propensities or that it was a probable source of harm, and proof that the owner of a vicious dog had notice of his vicious propensities may be made by introducing evidence of facts and circumstances from which an inference of knowledge arises. Knowledge of one attack by a dog is generally held sufficient to charge the owner with all its subsequent acts. There need be, however, no notice of injury actually committed, and therefore it is unnecessary to prove that a dog had...