Chance v. Ringling Bros. Barnum & Bailey, Combined Shows, Inc.

• Decision Date: 31 December 1970
• Citation: 257 Or. 319,478 P.2d 613
• Parties: Evelyn CHANCE, Appellant, v. RINGLING BROS. BARNUM & BAILEY, COMBINED SHOWS, INC., Respondent.
• Court: Oregon Supreme Court

Page 613

478 P.2d 613

257 Or. 319

Evelyn CHANCE, Appellant, v. RINGLING BROS. BARNUM & BAILEY, COMBINED SHOWS, INC., Respondent.

Supreme Court of Oregon, Department 2.

Argued and Submitted Sept. 16, 1970.

Decided Dec. 31, 1970.

Gerald R. Pullen, Portland, argued the cause for appellant. With him on the brief was James A. Luebke, Portland.

Ridgway K. Foley, Jr., Portland, argued the cause for defendant. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe and Ben Lombard, Jr., Portland.

Before O'CONNELL, C.J., and DENECKE, HOLMAN and HOWELL, JJ.

HOWELL, Justice.

Plaintiff filed an action for personal injuries sustained in a fall while on her way to a circus operated by defendant at the Portland Memorial Coliseum. After a jury returned a verdict for plaintiff, the trial court granted a judgment n.o.v. for defendant, and plaintiff appeals.

In considering a motion for a judgment n.o.v. the evidence and the reasonable inferences to be drawn therefrom must be considered in the light most favorable to the party obtaining the verdict. Yates v. Stading, 219 Or. 464, 347 P.2d 839 (1959).

Plaintiff, an elderly woman, and her nephew purchased tickets to the circus and were walking together with other patrons across the coliseum grounds. Several trailers and vans housing circus personnel and their animals were parked in a line along the route. One of the trailers contained a dog and monkey owned by Oscar Konyat, an employee of the circus who performed an act with the animals. Plaintiff, while walking 10 to 20 feet from the Konyat trailer, observed an animal in the cage and moved forward a 'step or two' to see the animal. When she did so, the Konyat dog, a female boxer on a chain attached to the trailer, suddenly lunged at her, snarled and bared its teeth. Plaintiff became frightened and fell and broke her ankle.

The plaintiff alleged that the defendants, Konyat and Ringling Bros., were each negligent in three particulars: failing to warn plaintiff of the presence of the dog; failing to inspect the premises; and failing to keep the dog adequately confined.

At the conclusion of all the evidence, Ringling Bros. moved for a directed verdict on the grounds that the evidence failed to show knowledge of the propensities of the dog, failed to show the dog was not adequately confined, and failed to show that it had not made a reasonable inspection of the premises. The motion was denied.

The jury returned a verdict in favor of defendant Konyat and against his employer, Ringling Bros. Ringling Bros. moved for a judgment n.o.v. and in the alternative for a new trial. The court granted the motion for judgment n.o.v. but did not rule on the motion for a new trial.

Except for some testimony that boxer dogs in general are protective and have a tendency to jump, there was no direct evidence that Konyat or Ringling Bros. knew of any vicious propensities of the dog.

The general rule is that the owner of a domestic animal such as a dog is not liable for its vicious conduct unless the owner had knowledge of its dangerous disposition. Brooks v. Mack, 222 Or. 139, 352 P.2d 474 (1960); Funkhauser v. Goodrich, 187 Or. 220, 210 P.2d 487 (1949); Schnell v. Howitt, 158 Or. 586, 76 P.2d 1130 (1938).

However, a different rule applies where the negligence is charged against the occupier of the premises who has control over the premises and the animals. According to Dean Prosser: '* * * (S)cienter is of course not required where any negligence can be shown in the keeping or control of the animal.' Prosser, Law of Torts (3d ed.) 516, § 75.

In support of the foregoing, Dean Prosser cites Gardner v. Koenig, 188 Kan. 135, 360 P.2d 1107 (1961). There, the defendant was the owner and operator of a cattle auction yard, and the plaintiff was a business invitee. A cow, unattended and without a halter, was being moved from a pen to the ring, when it suddenly broke away and injured plaintiff. The defendant relied on the general rule that the owner of a domestic animal is not liable for injuries caused by the animal unless its dangerous propensities are known to the owner. The court pointed out that this was not an action against the owner, but against the operator of the cattle auction as the party in control of the premises. The court cited a comment from Restatement of Torts, § 518, to the effect that one who keeps a domestic animal is required to realize that even gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm. The court concluded:

'The plaintiff was not required to allege the cow was naturally vicious, as contended by the defendants, to state a cause of action. It is not unreasonable to assume that the defendants should have anticipated some cows would become nervous, uncontrollable and resort to dangerous behavior when driven into a small enclosure, such as a sales ring, in the presence of numerous spectators where unfamiliar noises, commotion and confusion are encountered.' 360 P.2d at 1109. (Emphasis supplied.)

A similar case is Porter v. Thompson, 74 Cal.App.2d 474, 169 P.2d 40 (1946). The plaintiff, a prospective purchaser at a cattle auction conducted by defendant, was injured when a frightened cow jumped out of the sales ring. The court stated that the defendant's lack of knowledge as to the propensities of the particular cow should not relieve them of liability, as it was not unreasonable to assume that some cows would be dangerous under the particular circumstances. The court stated the test as: What would a reasonable, prudent person be required to do under these circumstances for the protection of his invited customers?

In Thompson v. Yellowstone Livestock Commission, 133 Mont. 403, 324 P.2d 412 (1958), a cow also jumped out of a sales ring at an auction and injured plaintiff. The court held that since the plaintiff was a business invitee the defendant sales yard had a duty to use ordinary care to keep the premises in a reasonably safe condition. The court also held that the trial court properly refused an instruction that plaintiff could not recover unless she established knowledge by defendant of the cow's dangerous propensities.

In Baley v. J. F. Hink & Son, 133 Cal.App.2d 102, 283 P.2d 349 (1955), a customer in a store fell over a leashed dog belonging to another customer. No evidence was introduced as to the disposition of the dog or knowledge of such disposition on the part of the defendant store. The customer with the dog had visited the store on several previous occasions, and the court held that the store was charged with actual or constructive notice of the dangerous condition. The court also held that the defendant store had a duty to exercise reasonable care for the safety of its customers, and that it was for the jury to determine whether the store was negligent in permitting dogs to be brought into the store during business hours, whether the dog was 'on a leash or not.'

In Smith v. Benson's Wild Animal Farm, 99 N.H. 243, 109 A.2d 39 (1954), a small boy was kicked by a pony tied to a tree on the animal farm. The area had been used for a playground by various children in the neighborhood. The plaintiff did not contend that the pony was vicious. The court held that the boy was a licensee and that the jury could have found, considering plaintiff's business of operating an animal farm, that tying the pony in the pasture under the circumstances created a dangerous condition, imposing a duty on the defendant to warn the children.

In Barnett v. La Mesa Post No. 282, 15 Cal.2d 191, 99 P.2d 650 (1940), the plaintiff was injured by a horse during a parade sponsored by the defendant. The court held that it was a question for the jury as to whether the defendant was negligent in the supervision and management of the animals, although there was no evidence of any prior vicious propensities of the horse.

It is our view that the defendant Ringling Bros. had a duty to exercise reasonable care for the safety of the plaintiff. Ringling Bros. are experienced circus operators. Mrs. Konyat stated that 'people do snoop' in circus areas. Ringling Bros. directed the owners of the caravans where to park on the coliseum grounds. The caravans containing trained dogs, chimpanzees and sea lions were located in an area where people--men, women and children--would pass close to the animals on their way to the circus. There were no signs warning people away from the caravans, and plaintiff testified that there were no chains or barricades separating the caravans from the pedestrians. The performance director for Ringling Bros. testified that it was his job to see that 'no animal would be allowed loose or uncaged or untied, where they could possibly cause any damage or harm to either people or the other animals.' He was present at the caravans two or three times each performance, but did not feel he had any responsibility to warn anybody or do anything about the Konyat dog.

The jury was entitled to assume that reasonable care would have required the performance director to notice that people with children were walking past the caravans housing the animals and that there were no barricades to prevent them from approaching the animals or signs warning of the animals. The jury was also entitled to assume that reasonable care would have required the circus to park the caravans away from the public or to direct the owners of the animals to keep them inside or caged while the patrons were walking by, to prevent any injury to the customers.

We conclude that the evidence presented a jury question as to the liability of Ringling Bros., and that the court erred in granting the judgment n.o.v.

The defendant Ringling Bros. joined a motion for a new trial with its motion for judgment n.o.v. When the trial court allowed the judgment n.o.v. it failed to rule on the motion for a new trial although required to do so by ORS 18.140(3). We...