Peterson v. Eichhorn

• Citation: 344 Mont. 540,189 P.3d 615,2008 MT 250
• Decision Date: 15 July 2008
• Docket Number: No. 05-171.,05-171.
• Parties: Derinda PETERSON, Plaintiff and Appellant, v. Jim EICHHORN, Defendant and Appellee.
• Court: United States State Supreme Court of Montana

189 P.3d 615

2008 MT 250

344 Mont. 540

Derinda PETERSON, Plaintiff and Appellant, v. Jim EICHHORN, Defendant and Appellee.

No. 05-171.

Supreme Court of Montana.

Submitted on Briefs November 30, 2005.

Decided July 15, 2008.

For Appellant: William L. Managhan, Managhan Law Firm, PLLC, Kalispell, Montana.

For Appellee: Jack Jenks, Molly Hartman, Phillips & Boyer, P.C., Missoula, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Derinda Peterson appeals from the order of the District Court for the Twentieth Judicial District, Lake County, denying her motion for partial summary judgment and granting Jim Eichhorn's cross-motion for summary judgment. We affirm.

BACKGROUND

¶ 2 Peterson and her husband, Richard, reside on property in Lake County, Montana. Their neighbor, Bonnie Basta, resides on adjoining property to the west. A fence ("the Peterson/Basta fence") separates the two properties. Beginning in the late 1990s, Eichhorn routinely pastured horses on Basta's property pursuant to an oral agreement between Eichhorn and Basta's husband. Basta maintained this arrangement after her husband passed away in 2000.

¶ 3 During the spring of 2002, Eichhorn pastured ten horses, seven of which he owned, on Basta's property. About a month before the events at issue in this case, a few of the horses entered the Petersons' property through a break in the Peterson/Basta fence. The Petersons herded the horses back into Basta's pasture, and Richard repaired the break. In addition, Eichhorn installed an electric fence along the Peterson/Basta fence.

¶ 4 Nevertheless, on April 20, 2002, two or three of Eichhorn's horses again entered the Petersons' property, this time at a point along the northern half of the Peterson/Basta fence where both the fence and the electric fence were broken. The Petersons used oats and a rope to lead the horses back into Basta's pasture. Thereafter, Richard temporarily secured the Peterson/Basta fence.

¶ 5 The Petersons then decided to inform Basta of what had just transpired. From their property, they crossed the Peterson/Basta fence and entered Basta's pasture. They then opened a metal gate to access Basta's gravel driveway, which ran alongside the pasture, and proceeded up the driveway. The driveway also passed by a separately fenced corral connected to the pasture. Upon reaching a bale of hay, the Petersons tossed some of the hay over the fence to the horses, hoping that this would keep them away from the Peterson/Basta fence. Thereafter, the Petersons continued up the driveway to Basta's house and informed her that some of the horses had again escaped from her pasture onto their property.

¶ 6 On their way back to their property, the Petersons decided to stop at the corral and toss out more hay for the horses. While doing so, one of the horses in the corral — a mare named Hannah which was owned by Eichhorn — reached over the corral fence and bit Peterson on her breast. It is undisputed that Hannah was not one of the horses that had escaped earlier in the day onto the Petersons' property.

¶ 7 Peterson filed suit against Eichhorn and Basta on December 11, 2003, asserting claims of negligence, strict liability for an abnormally dangerous domestic animal, and punitive damages. The injuries alleged and the damages sought by Peterson related only to the horse bite — e.g., "expenses for medical treatment" and "course of life damages" — and not to any costs incurred as a direct result of the horses' breaking through the Peterson/Basta fence and entering the Petersons' property. Basta and Peterson eventually settled, and the claims against Basta were dismissed with prejudice on November 22, 2004. Accordingly, we discuss Peterson's allegations only as they relate to Eichhorn.

¶ 8 Under her negligence claim, Peterson alleged that Eichhorn owed her "a duty to exercise reasonable care in the keeping of domestic animals to prevent the horse from causing foreseeable injuries to persons in Plaintiff's position"; that "[i]t was reasonably foreseeable that the horse owned and kept by [Eichhorn] would bite Plaintiff"; that Eichhorn "breached [his] duty in the keeping of domestic animals by failing to take reasonable measures to protect Plaintiff from being injured by the horse"; and that Eichhorn's alleged negligence was the actual and proximate cause of Peterson's injuries. Under her strict liability claim, Peterson alleged that Eichhorn was the owner and keeper of "a domestic animal which had an abnormally dangerous tendency to bite people"; that Eichhorn "knew or should have known that one of the horses [he] owned and kept had an abnormally dangerous tendency to bite people"; and that Eichhorn was strictly liable for Peterson's injuries. Lastly, Peterson alleged that she was entitled to punitive damages.

¶ 9 Peterson filed a motion for partial summary judgment on the issue of Eichhorn's liability. Eichhorn filed a cross-motion for summary judgment on all of Peterson's claims. The District Court heard arguments on the motions. Thereafter, on January 7, 2005, the court denied Peterson's motion and granted Eichhorn's motion. The court entered judgment on March 29, 2005, dismissing Peterson's claims with prejudice. The court stated that Peterson shall recover nothing from Eichhorn and that Eichhorn shall recover costs from Peterson. Peterson now appeals.

¶ 10 Additional facts are set forth below where relevant.

ISSUES

¶ 11 We restate the issues on appeal as follows:

1. Did the District Court err in granting summary judgment in favor of Eichhorn on the issue of strict liability for an abnormally dangerous domestic animal?

2. Did the District Court err in granting summary judgment in favor of Eichhorn on the issue of negligence?

3. Did the District Court err in granting summary judgment in favor of Eichhorn on the issue of punitive damages?

STANDARD OF REVIEW

¶ 12 We review a district court's ruling on a motion for summary judgment de novo, applying the same criteria of M.R. Civ. P. 56 as did the district court. Hughes v. Lynch, 2007 MT 177, ¶ 7, 338 Mont. 214, ¶ 7, 164 P.3d 913, ¶ 7. Rule 56(c) provides that "[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Thus, the moving party must establish both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Hadford v. Credit Bureau of Havre, Inc., 1998 MT 179, ¶ 14, 289 Mont. 529, ¶ 14, 962 P.2d 1198, ¶ 14. The evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences are to be drawn therefrom in favor of the party opposing summary judgment. Our Lady of the Rockies, Inc. v. Peterson, 2008 MT 110, ¶ 14, 342 Mont. 393, ¶ 14, 181 P.3d 631, ¶ 14.

¶ 13 Once the moving party has met its burden, the party opposing summary judgment must present substantial evidence, as opposed to mere denial, speculation, or conclusory statements, raising a genuine issue of material fact. Hadford, ¶ 14; Klock v. Town of Cascade, 284 Mont. 167, 174, 943 P.2d 1262, 1266 (1997). The determination that the moving party is or is not entitled to judgment as a matter of law is a legal conclusion, which we review for correctness. Hughes, ¶ 8.

DISCUSSION

¶ 14 Issue 1. Did the District Court err in granting summary judgment in favor of Eichhorn on the issue of strict liability for an abnormally dangerous domestic animal?

¶ 15 Peterson relies on § 509 of the Restatement (Second) of Torts (1977), which states:

(1) A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm.

(2) This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know.

According to comment g, "[i]t is not necessary to the application of the rule stated in this Section that the possessor of the domestic animal know of its abnormally dangerous propensities; it is enough that he has reason to know of them." Restatement (Second) of Torts § 509 cmt. g.

¶ 16 The District Court noted that "a horse by nature possesses the ability, if not the propensity, to bite and kick." The court decided that "such dangers [are] normal for its class or category." On appeal, Peterson maintains that the District Court erroneously "dismissed the evidence" concerning Hannah's "dangerous tendency to bite" which, in Peterson's view, was "abnormal for horses in general." Specifically, Peterson contends that Hannah bit "at least four" other people before biting Peterson. Peterson further asserts that Hannah's original owners warned Eichhorn that Hannah tried to bite when they fed her. Additionally, although Eichhorn testified that in his 88 years of experience with horses, he had seen only one horse bite someone, Peterson claims that Eichhorn was present when Hannah allegedly bit Basta's brother-in-law on the hand. In essence, Peterson contends that genuine issues of material fact exist with respect to whether Hannah had a dangerous propensity — to bite — which was abnormal for a mare and whether Eichhorn knew or had reason to know of this allegedly abnormally dangerous propensity.

¶ 17 At the outset, we note Eichhorn's arguments concerning the applicability of § 509. He points out that § 509 has not been adopted in Montana and is not binding authority. While this is true, it is also true that we have adopted other sections of the Restatement. See e.g. Sunburst School Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 36, 338 Mont. 259, ¶ 36, 165 P.3d 1079, ¶ 36 (adopting Restatement (Second) of Torts § 929 and...