Blose v. Mactier, S-95-418

• Decision Date: 24 April 1997
• Docket Number: No. S-95-418,S-95-418
• Citation: 252 Neb. 333,562 N.W.2d 363
• Parties: Michael BLOSE, Appellant, v. J. Allan MACTIER, d/b/a Ponca Hills Farm, Appellee.
• Court: Nebraska Supreme Court

Page 363

562 N.W.2d 363

252 Neb. 333

Michael BLOSE, Appellant, v. J. Allan MACTIER, d/b/a Ponca Hills Farm, Appellee.

No. S-95-418.

Supreme Court of Nebraska.

April 24, 1997.

Syllabus by the Court

1. Directed Verdict: Appeal and Error. In reviewing the action of a trial court, an appellate court must treat a motion for directed verdict as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.

2. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.

3. Directed Verdict. A trial court should direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom.

4. Directed Verdict. If there is any evidence which will sustain a finding for the party against whom a motion for directed verdict is made, the case may not be decided as a matter of law.

5. Negligence: Animals: Liability. Ordinarily, the existence of vicious or dangerous propensities in a domestic animal and knowledge of such propensities are indispensable to liability on the part of the owner of the animal.

6. Negligence: Animals. To merit recovery against the owner of a domestic animal, the animal must have demonstrated a propensity to engage in the same behavior which led to the injury at issue.

7. Negligence: Liability: Invitor-Invitee: Proximate Cause. In actions accruing prior to Heins v. Webster County, 250 Neb. 750, 552 N.W.2d 51 (1996), a possessor of land is subject to liability for injury caused to a business invitee by a condition of the land if (1) the possessor defendant either created the condition, knew of the condition, or by the exercise of reasonable care would have discovered the condition; (2) the defendant should have realized that the condition involved an unreasonable risk of harm to a business invitee; (3) the defendant should have expected that a business invitee such as the plaintiff either would not discover or realize the danger or would fail to protect himself against the danger; (4) the defendant failed to use reasonable care to protect the business invitee against the danger; and (5) the condition was a proximate cause of the damage to the plaintiff.

8. Negligence: Liability: Invitor-Invitee. It is the superior knowledge the invitor has or should have which is the foundation of the invitor's liability, and absent such superior knowledge, no liability exists.

Kevin R. Hopp and Thomas J. Young, of Young & LaPuzza, Omaha, for appellant.

Bartholomew L. McLeay and Diana J. Vogt, of Kutak Rock, Omaha, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

WHITE, Chief Justice.

Michael Blose appeals the Nebraska Court of Appeals' affirmance of the district court for Washington County's order sustaining J. Allan Mactier's motion for directed verdict and dismissing Blose's petition with prejudice. We affirm.

Blose is a farrier who came on a regular schedule to Ponca Hills Farm. At all times relevant to this case, Mactier owned Ponca Hills Farm, an enterprise which boarded horses, furnished riding lessons, and owned brood mares and hunt horses.

On June 26, 1992, Blose arrived at Ponca Hills Farm to replace three missing shoes on one of Mactier's horses, Saint Nicholas (Saint), an approximately 2,000-pound thoroughbred Clydesdale cross. Although he was generally docile, Saint had a reputation among employees at the farm for bolting or pulling away before the lead rope could be removed when he was turned out to pasture or when employees tried to catch him in the pasture. Blose had been Saint's farrier since at least 1990, and at Blose's request, an employee of the farm would normally hold Saint when Blose worked on him because Saint would not always stand still in the cross-ties.

On the day of the injury, Ponca Hills Farm manager, Judith Csejthey, and Blose drove to the paddock where Saint had been placed when he was brought from the pasture 3 to 5 days earlier. Although Blose shod horses only in a barn setting, Saint had been left in the paddock until Blose's arrival because the veterinarian had ordered that Saint not stand in a stall for prolonged periods. Csejthey took a lead rope and can of grain, entered the paddock by herself, and attempted to catch Saint. As she approached Saint, Saint took a few steps back and began a slow lope around the paddock. Csejthey tried again to catch Saint, and Saint again loped around the paddock.

Although it was not part of Blose's job to assist in catching the horses on which he worked, and although Csejthey did not ask for his assistance, Blose entered the paddock as Saint was loping around after Csejthey's second attempt to catch him. Saint came to a stop in the corner of the paddock, and Csejthey approached from the rear while Blose walked toward Saint from the front in an attempt to keep the horse cornered. As they approached, Saint turned out of the corner and took a step toward Blose; Blose moved toward Saint, extended his left arm, and waved it. Saint took a step back, turned, and jumped over the paddock fence. Saint broke the top board of the fence as he went over, and part of the board came loose and hit Blose in the head, rendering him unconscious. The blow fractured Blose's temporal bone, bruised his brain, and left Blose in a coma for almost 2 weeks. Blose has no memory of the day of the accident.

Blose sued Mactier for damages resulting from this encounter with Saint. In his second amended petition, Blose alleged that Saint had developed dangerous propensities known to Mactier which posed an unreasonable risk of harm to Blose; that the material composition, nature, and type of construction of the paddock fence were inherently dangerous for use in constraining horses; that Blose could not discover, realize, or protect himself from these dangers, and Mactier knew or should have known this; and that Mactier was negligent in failing to protect or warn Blose of these dangers, such that Blose was damaged. At trial, the parties stipulated that Blose's injuries resulted in $80,016.94 in medical bills.

At trial, Ponca Hills Farm employees Csejthey, Nicole Prescott, and Jarrod Ryan testified that Saint had a tendency to bolt or pull away when he was turned out to pasture or an attempt was made to catch him. However, Ryan was uncontradicted in his testimony that Saint had never kicked, bit, threatened, or reared up in Ryan's presence and specifically recalled that, although he had warned Blose about some particularly problematic horses, Saint was not one of them. Csejthey stated that Saint did not have a habit of going through fences prior to the date of the accident. Csejthey testified that Blose had worked on Saint many times before the date of the accident and had particular knowledge about Saint. Csejthey and Prescott stated that Blose asked that someone hold Saint when Blose worked on him because Saint fidgeted in the cross-ties.

Blose's expert witness, Paul Bast, stated that the fencing in the paddock was adequate to contain Saint and that Saint's flightiness was not an unusual characteristic in horses. However, Bast testified that Saint created an unreasonable risk of harm to Blose. Bast stated that everyone had trouble catching Saint; Saint was a very large animal; Saint was herd bound (by nature he traveled in groups), but was left in the paddock for 3 to 5 days, where he could see his pasture mates; Saint was suffering from chronic lameness and had been standing on a hard surface for several days with three shoes missing; and the heat and flies were irritating on the day of the accident. Bast stated that in his opinion these factors combined to create in Saint an extremely agitated state, such that he did something he had never done before in jumping over the fence. Bast testified that Blose should have been warned about these circumstances.

Bast also stated that Saint's agitation would have been noticeable, manifesting itself in Saint's eyes and in his body language. However, Csejthey testified that when she was in the paddock with Saint on the day of the accident, Saint exhibited no nervous signs--he did not whinny, his ears were not pinned back, he was not rearing up, he did not show the whites of his eyes, and he was not weaving or cribbing. This testimony was uncontradicted.

Bast also stated that in his professional capacity, he worked with Blose on a regular basis. Bast testified that once Blose had seen a horse at Bast's place of employment 15 to 20 times, Bast did not feel that it was necessary to tell Blose specifically about the personality traits or temperament of a horse because Blose would then have been very familiar with the horse.

Following the close of Blose's case at trial, Mactier moved for a directed verdict. The district court granted the motion and dismissed Blose's petition with prejudice. Blose timely filed a motion for new trial, which the district court overruled, and Blose appealed to the Court of Appeals. In a memorandum opinion filed November 14, 1996, the Court of Appeals affirmed the decision of the district court, finding that Blose failed to prove a prima facie case of negligence against Mactier as either a domestic animal owner or a landowner. We granted Blose's petition for further review.

On petition for further review, Blose alleges that the Court of Appeals erred in (1) determining that the district court was correct when it granted Mactier's motion for directed verdict because there were issues of fact remaining upon which reasonable minds could reach differing...