State Farm Mut. Auto. Ins. Co. v. Shoaf

• Decision Date: 22 April 1982
• Citation: 4 Ohio App.3d 122,446 N.E.2d 824
• Parties: , 4 O.B.R. 213 STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellee, v. SHOAF, Appellant; Gilliland et al., Appellees.
• Court: Ohio Court of Appeals

Page 122

4 Ohio App.3d 122

446 N.E.2d 824, 4 O.B.R. 213

STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellee, v. SHOAF, Appellant Gilliland et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

April 22, 1982.

Syllabus by the Court

1. Liability of an owner of a horse as a result of the animal's running onto a highway is determined by the law of negligence.

2. Where the owner of a horse negligently entrusts such horse to an inexperienced rider, the rider will also be negligent for riding the horse unless unaware of the attendant dangers.

3. In such a case, liability to a person injured by the horse may rest upon the combined negligence of the owner and the rider; negligence of the owner in entrusting the horse to an inexperienced rider, and negligence of the rider in riding the horse he or she was unable to control.

Hamilton, Kramer, Myers, Summers & Cheek, Evelyn J. Stratton and William Geary, Columbus, for appellee.

Arthur G. Wesner, Columbus, for appellant Sue Shoaf.

J. David Harris, Columbus, for appellees Anita C. Gilliland et al.

WHITESIDE, Presiding Judge.

Defendant Sue Shoaf appeals from a judgment of the Franklin County Municipal Court and raises four assignments of error as follows:

"1. The court erred in holding that it was negligence for the defendant-appellant to get on a horse.

"2. The court erred in holding that the defendant-appellant had a duty to foresee that the owner of a horse would place her on the horse without adjusting the stirrups, that the horse would begin to run out of control, that the horse would not respond to verbal commands, that the owner of the horse in attempting to capture the horse would run directly into the horse's path, causing the horse to veer and throw the defendant-appellant to the ground whereafter, that the horse would be chased by its owner to a practical standstill, whereafter, between six and ten children would chase the horse, joined by a dog, whereby the horse would leave the area where the defendant-appellant had been riding, go out onto a side street, down the street onto a main thoroughfare, whereupon, it would be seen by a passing motorist, who upon seeing the animal, would apply his accelerator, instead of his brakes, colliding with the horse, damaging his motor vehicle.

"3. The court erred in failing to find that the owner of the damaged motor vehicle, plaintiff-appellee, was contributorily negligent in that when confronted with a horse in front of him on the roadway, he accelerated his motor vehicle instead of attempting to stop it.

"4. The judgment of the court is against the manifest weight of the evidence."

Defendant Shoaf was found jointly and severally liable with her codefendant, Anita Luwall, to plaintiff State Farm Mutual Automobile Insurance Company for damages sustained by plaintiff's insured as a result of a collision between the insured's automobile and a horse owned by defendant Luwall and ridden by defendant Shoaf.

The trial court found that defendant Luwall was negligent in turning her horse over to defendant Shoaf, an inexperienced rider, in a crowded residential area without fences and in an area near streets with busy traffic. The court further found defendant Shoaf negligent in riding the horse since she was fully aware of her own inexperience and the dangers involved, as well as the nature of the surrounding area.

Defendant Shoaf's first and fourth assignments of error involve related issues of whether the trial court's judgment that she was negligent was contrary to law and against the manifest weight of the evidence.

Defendant Shoaf alleges that the trial court erred in finding that the combined acts of negligence of defendant Luwall and defendant Shoaf proximately caused the injuries to plaintiff's insured. Defendant Shoaf states that the only evidence of her conduct was that she accepted a ride on defendant Luwall's horse and was thrown off, and that the accident was caused solely by defendant Luwall's negligence in allowing an inexperienced rider to ride her horse under the surrounding circumstances.

Liability for negligence is based upon conduct involving unreasonable risk to another which must be established by affirmative evidence tending to show that such conduct falls below the standard represented by the conduct of a reasonable person under the same or similar circumstances. See paragraph two of the syllabus of Englehardt v. Philipps (1939), 136 Ohio St. 73, 23 N.E.2d 829 . In determining whether a defendant exercised that care which an ordinary and prudent person would have exercised under the same or similar circumstances, an important factor is whether the injury could or could not have been anticipated from the acts done or left undone by the defendant. In Drew v. Gross (1925), 112 Ohio St. 385, at page 491, 147 N.E. 907, the Ohio Supreme Court specifically described this duty of the owner of an animal to observe ordinary care, as follows:

" * * * This duty in modern times requires that the owner of livestock exercise ordinary care not to let his livestock stray out onto a much-traveled highway, because under our modern traffic conditions he can reasonably anticipate that if the livestock stray onto such a highway they are apt to damage persons or property."

Defendant Luwall's negligence was not predicated upon allowing her horse to stray onto the road but, rather, upon entrusting her horse to an inexperienced rider in an open area behind an apartment complex which abutted a busy street. Under these circumstances, defendant Luwall should reasonably anticipate an inexperienced rider's losing control of the horse, with the resultant danger to others if the horse ran out onto the road.

It naturally follows that, if defendant Luwall was negligent in entrusting her horse to defendant Shoaf, Shoaf would be negligent for riding the horse, unless she was unaware of the attendant dangers. The evidence in this case, however, was that defendant Shoaf was fully aware not only of the dangers involved and the nature of the surrounding area but also of her inexperience in controlling horses.

Additionally, without defendant Shoaf's failing to control the horse, the wrongful entrustment by defendant Luwall could not be said to have proximately caused the injury to plaintiff's insured. Elliott v. Harding (1923), 107 Ohio St. 501, 140 N.E. 338. A horse with a rider does not ordinarily get out of control unless the...