Flynn v. Lindenfield
| Decision Date | 20 November 1967 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 433 P.2d 639,6 Ariz.App. 459 |
| Parties | Corylss FLYNN, by her next best friend, Elna Eicke, Appellant, v. William LINDENFIELD and Darlene Lindenfield, husband and wife, Appellees. 371. |
| Court | Arizona Court of Appeals |
Feldman & Wolin, by Marvin Wolin, Tucson, for appellant.
Chandler, Tullar, Udall & Richmond, by James L. Richmond, Tucson, for appellees.
This is an appeal from a summary judgment rendered against the plaintiff in a personal injury action. The plaintiff at the time of her injury was a 15-year old girl employed as a baby-sitter (for her board and room only) at a country home or ranch at which livestock was kept. She was injured in an encounter with a mare.
The plaintiff in her complaint predicates liability on five possible theories:
(1) strick liability in maintaining a dangerous animal;
(2) negligence in maintaining a dangerous animal;
(3) not containing an animal in a secure and safe place;
(4) not providing the plaintiff with a safe place to work; and
(5) not warning the plaintiff of the dangers of the premises where she was employed.
A motion for summary judgment should be denied if there is any doubt as to whether there are issues of fact to be litigated under any theory of liability advanced. Peterson v. Valley National Bank of Phoenix, 90 Ariz. 361, 368 P.2d 317 (1962).
The facts as developed by the plaintiff's affidavit and answer to interrogatories indicate that she had been working at this home for approximately a month and a half when she was seriously injured in a livestock corral or enclosure upon the subject property. She had been left in charge of the defendants' three children, a girl of 11, a boy of 5, and a girl of 2 years of age. The corral in question was about a quarter of a mile from the family home, and on this afternoon, the children wanted to go over to see the animals in the enclosure. In the corral was a mare with a colt of about 5 months of age.
The plaintiff had never been told by the mother and father (defendants) to stay out of the corral, either with or without the younger children, and the father had indicated that it was permissible to take the children to this corral to see the colt.
The structure of the corral was such that a 2-year old child could slip under the lower board of the corral easily, and on this particular afternoon, Lory, the 2-year old baby girl, went into the corral and headed for the mare which was standing near her colt--approximately 25 feet from the corral fence. When the child entered the corral, the mare lowered her ears and advanced meancingly toward the child. At this point, the plaintiff went into the corral and hastily pushed the child back under the fence. Seeing the mare, ears lowered, approaching at a lope, the plaintiff attempted to hasten out of the corral and in the process either stumbled over some concrete blocks in the corral, and/or was knocked down and/or kicked by the mare, the incident resulting in a bad break to her right leg. When she fell, the plaintiff lost consciousness.
In resisting the motion for summary judgment, the plaintiff submitted an affidavit of two persons experienced in animal husbandry. One of these affidavits stated:
'* * * that female horses show a great deal of protective instinct for their young; that a mare which is normally gentle can become a dangerous animal if she thinks her offspring or colt are in danger; that it is quite likely that a mare would attack or tend to protect her offspring from an intruder if she felt her colt were in danger.
It is the law in Arizona that any person who keeps or harbors a domestic animal with knowledge of its vicious tendencies or propensities is liable in damages to another for any injury caused by it unless it is shown that the injured person, with knowledge of its viciousness, did something to such animal which caused it to injure him. Walter v. Southern Arizona School for Boys, 77 Ariz. 141, 143, 267 P.2d 1076, 1078 (1954). See also Arizona Livestock Co. v. Washington, 52 Ariz. 591, 84 P.2d 588 (1938).
The determinative factor here is knowledge of vicious propensities, and this question must be viewed in the light most favorable to the plaintiff. Sarti v. Udall, 91 Ariz. 24, 369 P.2d 92 (1962). Here, there was evidence that approximately three weeks before the plaintiff's injury, while the mare was...
To continue reading
Request your trial
-
Orme School v. Reeves
...370 P.2d 56, 57 (1962) (summary judgment should never be entered unless the facts are "clear and undisputed"); Flynn v. Lindenfield, 6 Ariz.App. 459, 460, 433 P.2d 639, 640 (1967) ("any doubt" as to whether there are issues of fact to be litigated under any theory of liability will preclude......
-
Rodgers v. Ray, 1
...summary judgment, the initial burden is upon the moving party to establish that there is no issue of material fact. Flynn v. Lindenfield, 6 Ariz.App. 459, 433 P.2d 639 (1967). There is no conclusive proof here that this particular intersection has not been regularly causing accidents, which......
-
Clark v. Brings
...121 N.W.2d 753; and they are to be protected from dangerous animals as well as from other hazards of their employment. Flynn v. Lindenfield, 6 Ariz.App. 459, 433 P.2d 639. As with the scienter action, however, what this cause of action lacked is proof sufficient to go to a An employee injur......
-
State v. Crawford
...to do in order to prevail on summary judgment. Lujan v. MacMurtrie, 94 Ariz. 273, 277, 383 P.2d 187, 190 (1963); Flynn v. Lindenfield, 6 Ariz.App. 459, 433 P.2d 639 (1967). Reversed and remanded for proceedings consistent HATHAWAY, C.J., and KRUCKER, J., concur. 1 43 Code of Fed.Regs. (1967......