Hardin v. Christy
| Decision Date | 25 April 1984 |
| Docket Number | No. 1-783A232,1-783A232 |
| Citation | 462 N.E.2d 256 |
| Parties | Deana R. HARDIN and Barry A. Hardin, Plaintiffs-Appellants, v. David K. CHRISTY, Individually, and David K. Christy, d/b/a Christy's Appaloosas, Defendants-Appellees. |
| Court | Indiana Appellate Court |
Melvin R. Daniel, William C. Potter, II, Dann, Pecar, Newman, Talesnick & Kleiman, Indianapolis, for plaintiffs-appellants.
Donald L. Tunnell, John W. Hammel, Mark L. Dicken, Indianapolis, for defendants-appellees.
Plaintiff-Appellants Deana and Barry Hardin appeal an adverse jury verdict rendered in their personal injury and loss of consortium action against David K. Christy. The action arose out of an incident in which Christy's Appaloosa stallion, Plaudit, attacked Deana.
We affirm.
Deana and Barry Hardin both have considerable experience in riding, training, showing, and handling horses. Deana in fact owned her first horse at age twelve. Barry and Deana married in 1972, and at the time of their marriage, they owned 13 horses. The Hardins subsequently commenced a part-time horse business in which they trained "outside horses": Deana handled approximately 70% of the training because Barry had a full-time job. Deana's task involved starting the colt off by teaching it the basic commands, walk, trot, cantor, and whoa. She then trained the colt to become accustomed to a saddle. Her husband took over the training at this point to work "the roughness out of the colt" and then finally Deana resumed training to finish the horse, "polish it for the show ring".
In 1978, the Hardins bought a farm in Coatesville, and they reconstructed the barn to suit the growing needs of the horse business, adding horse stalls, a tackroom, and an indoor area for training purposes.
Defendant-appellee David Christy worked with Barry for Ayr-Way and in January 1980, he asked Barry whether the Hardins would be willing to board his Appaloosa stallion, 1 Plaudit, while he was on vacation. Barry agreed, and the stallion was transported to the Hardins' farm.
On January 23rd, 1980, two weeks after the Hardins had commenced boarding Plaudit, the horse attacked Deana while she The Hardins learned shortly after the incident that Plaudit had in fact been involved in three prior incidents which resulted in personal injuries, the latest of which occurred in 1980. Christy did not mention the incidents when he asked Barry to board Plaudit; in fact, Christy stated that, in his opinion, the horse's behavior "is reasonable for a stallion". 2
was exercising him. Until this date, Deana had cared for the stallion without incident. Just before the attack, Deana attached a lounge line to Plaudit's bridle and began working the stallion. After the exercise period had started, the horse suddenly stopped, "swung his hip around", and directly faced Deana. Sensing that something was wrong, Deana put down the lounge line, turned, and headed for the door. Plaudit followed her, knocked her to the ground, kneeled over her, and bit her on the head, neck, shoulders, back, and hands. In the process of the attack, Deana's right index finger was broken. Eventually Plaudit was distracted by the Hardins' dog and Deana managed to escape.
The Hardins raise three issues on appeal:
I. The trial court erred in granting Christy's motion to strike Count II of the first amended complaint which dealt with misrepresentation.
II. The trial court erred in granting Christy's motion for judgment on the pleadings with respect to Hardins' strict liability count of the second amended complaint.
III. The verdict is not supported by the evidence.
The trial court granted Christy's motion to strike Count II of the Hardins' first amended complaint pursuant to Ind.Rules of Procedure, Trial Rule 12(F) as being redundant to the allegations in Count I. Count I alleges that Deana's physical and mental injuries are a direct and proximate result of Christy's failure to warn the Hardins of the stallion's propensity to attack on occasion. Count II stated that the injuries are a result of Christy's misrepresentation and concealment of facts concerning Plaudit's propensities. Each count is made up of ten numerical paragraphs; Count II repeats paragraphs one through nine of Count I and then simply alleges a different legal theory in the tenth and conclusory paragraph.
A trial judge has a broad area of discretion in determining whether redundant material will be stricken. William Harvey, 1 Indiana Practice, Rule 12 at 610 (1969). See Apple v. Apple, (1973) 158 Ind.App. 7, 301 N.E.2d 534. His decision will not be reversed unless prejudicial error is clearly shown. Smith v. Midwest Mutual Insurance Co., (1973) 154 Ind.App. 259, 289 N.E.2d 788.
In Martz v. Stillwell, (1968) 142 Ind.App. 572, 236 N.E.2d 185, the court cautioned that where "averments or matters in a pleading are in any way material" they should not be stricken out on motion under the auspices of T.R. 12(F). Martz, supra, at 573, 263 N.E.2d 185. A plea is material if it tends to constitute a cause of action or defense. Id. However, the Martz court diluted the liberality of the above pleading rule by adding:
In their brief, Hardins outline the elements of the theories of negligent failure to warn and misrepresentation in order to illustrate the distinction between the two causes of action. They readily admit that the two counts of the complaint have the same factual basis but contend that they were prejudiced by the striking of the misrepresentation count. They do not, however, substantiate the allegation of prejudice.
We agree with Hardins that misrepresentation in and of itself constitutes a separate cause of action; however, we believe that the striking of the misrepresentation count is harmless error as the evidence admissible under Count II is the same as the evidence admissible under Count I, negligent failure to warn. See Martz, supra.
We find only harmless error here.
Hardins assert that the trial judge erred in granting a motion for judgment on the evidence with regard to the strict liability count of their complaint. In granting Christy's motion, the trial court consequently refused to read Hardins' jury instruction on the subject, which stated:
"Horses are not naturally ferocious or dangerous animals and an owner of a horse is not strictly liable for injuries caused by the horse unless the owner had knowledge of a vicious propensity of a particular animal."
Hardins cite Thompson v. Lee, (1980) Ind.App., 402 N.E.2d 1309 as authority for the above proposition of law; indeed, the instruction is virtually a verbatim statement from the Thompson case.
Thompson involved a motorcyclist's claim against the owner of a Black Angus cow which had escaped from a fenced field and wandered onto a county road. The motorcyclist struck the cow and sustained severe injury as well as property damage.
Initially, Thompson brought his claim under a strict liability theory; this complaint was dismissed by the trial court, and the plaintiff ultimately proceeded under a negligence claim. One of the issues, then, before the First District was whether a strict liability theory could have been asserted under the above set of facts. Judge Robertson, writing for the court, explained that there are only two circumstances in which strict liability is imposed on the owners of animals which have caused injury. The first situation occurs when the injury is the result of an attack by a naturally ferocious or dangerous animal, animal ferae naturae. Bostock-Ferari Amusement Co. v. Brocksmith, (1904) 34 Ind.App. 566, 73 N.E. 281.
Thompson, supra, at 1311 (Citations omitted).
Ultimately, the court determined that neither situation was applicable to the Thompson case since first, the Angus cow is not a "naturally ferocious animal"; and second, the facts did not involve a trespassing cow but rather an escaping one. Id. at 1312.
Hardins argue, in spite of the clear limitations set out in the above discussion, that the language from Thompson included in their instruction constitutes yet a third circumstance under which strict liability is imposed: an owner is strictly liable for injuries caused by his domestic animal if he has knowledge of a vicious propensity of that animal. This proposition is evidently a watered-down derivative of the animal ferae naturae situation to which strict liability precepts apply.
While there appears to be little doubt that a domestic animal owner may be liable for resultant injuries, the question remains as to what type of liability attaches. "In some jurisdictions, the owner may be held absolutely or strictly liable if the injured party was not himself at fault, and in others, he is at least prima facie negligent." 4 Am.Jur.2d Animals Sec. 85 (1962). Indiana's position on this question of law is somewhat difficult to ascertain.
In Klenberg v. Russell, (1890) 125 Ind. 531, 25 N.E. 596, a seminal case in this area, the so-called "vicious propensity" language first arose in the context of a cow which, permitted to run at large, attacked and injured a woman. Determining that the trial court erred in overruling the owner's demurrer to the plaintiff's...
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...involving injuries caused by domestic animals in the same manner as they apply to other negligence actions. See Hardin v. Christy, 462 N.E.2d 256, 258, 262-63 (Ind. 1984) (jury reasonably could have found that plaintiff who had been bitten by stallion was contributorily negligent when plain......
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