Henry v. Lewis

• Decision Date: 06 March 1997
• Docket Number: No. 2667,2667
• Citation: 327 S.C. 336,489 S.E.2d 639
• Parties: Charles A. HENRY, Appellant, v. Thomas LEWIS and Marie Lewis, Respondents. . Heard
• Court: South Carolina Court of Appeals

Page 639

489 S.E.2d 639

327 S.C. 336

Charles A. HENRY, Appellant, v. Thomas LEWIS and Marie Lewis, Respondents.

No. 2667.

Court of Appeals of South Carolina.

Heard March 6, 1997,

Decided June 2, 1997.

Rehearing Denied Sept. 3, 1997.

Certiorari Denied Feb. 20, 1998.

H. Fred Kuhn, Jr., of Moss & Kuhn, Beaufort, for appellant.

Randell C. Stoney and Stephen P. Groves, both of Young, Clement, Rivers & Tisdale, Charleston, for respondents.

HEARN, Judge.

Dr. Charles A. Henry brought this negligence action against Thomas and Marie Lewis for injuries he sustained when he was kicked by their horse. Henry appeals the order of the special circuit court judge granting the Lewises' motion for summary judgment. We affirm.

Facts

Dr. Henry is a veterinarian who had treated the Lewises' two horses, Bull and Two Socks, on several occasions. On February 15, 1993, the couple called Dr. Henry and asked him if he would examine Bull, who was lame. Dr. Henry drove to the stables where the Lewises boarded their horses. Marie Lewis met Dr. Henry at the stables, which adjoin an adjacent 10- to 15-acre pasture. Adjoining the pasture is a small fenced-in paddock which measures approximately 100 feet by 100 feet. A gate connects the pasture and paddock.

Marie Lewis put a lead line on Bull and led him toward the center of the paddock area. Bull's left rear foot was lame. Marie Lewis held Bull's lead while Dr. Henry knelt down behind Bull, resting Bull's foot on his knee. While Dr. Henry worked on Bull, Two Socks became agitated. Two Socks circled Dr. Henry once, then whirled around with her back feet to Dr. Henry. Two Socks then kicked Dr. Henry twice, hitting him just above his knees.

Dr. Henry testified that Two Socks was not in the paddock when he first arrived to care for Bull, but that the gate to the pasture was open. Marie Lewis, however, indicated she thought Two Socks had been in the paddock with Bull the entire time. Dr. Henry sustained severe injuries to both knees which required several operations to repair.

Dr. Henry brought this negligence action against the Lewises on November 23, 1993. Dr. Henry alleged the Lewises were liable under traditional principles of negligence as well as under "animal injury liability" pursuant to the case of Hossenlopp v. Cannon, 285 S.C. 367, 329 S.E.2d 438 (1985). The Lewises denied liability and alleged that Dr. Henry assumed the risk of being kicked by Two Socks. The trial judge granted the Lewises' motion for summary judgment, finding the Hossenlopp standard did not apply to horses and therefore Dr. Henry was required to present evidence that the Lewises knew Two Socks had a vicious or dangerous disposition. The trial judge found Dr. Henry had presented no such evidence, and, alternatively, had contractually assumed the risk of being kicked.

Discussion

Henry argues the trial judge erred in concluding as a matter of law that he had to prove the Lewises knew or should have known that their horse had a dangerous or vicious nature. We disagree.

In Mungo v. Bennett, 238 S.C. 79, 119 S.E.2d 522 (1961), the South Carolina Supreme Court set out the common law rule regarding liability for injuries caused by domestic animals. In Mungo, the plaintiff was injured when he was kicked by the defendant's horse. The court stated The authorities generally agree that all domestic animals, whether horses, mules, cattle, dogs, cats or others, are not presumed to be dangerous to persons, and before recovery of damages may be had against the owner the injured party must prove that the particular animal was of a dangerous, or vicious, nature and that this dangerous propensity was either known, or should have been known to the owner.

Id. at 81, 119 S.E.2d at 523. In Mungo, the court held there was sufficient evidence that the defendant knew of the horse's dangerous propensity because he testified he didn't trust the horse enough to curry him without a halter or bridle and was careful not to stand behind the horse. Id. at 83-84, 119 S.E.2d at 524. Furthermore, he apologized to the plaintiff immediately after the accident for not warning him the horse would kick. Id. at 83, 119 S.E.2d at 524.

In Hossenlopp v. Cannon, 285 S.C. 367, 329 S.E.2d 438 (1985), the court abandoned the common law rule in dog bite cases in favor of the "California rule." This rule...