Vendrella v. Astriab Family Ltd. P'ship

• Decision Date: 21 February 2012
• Docket Number: No. 32735.,32735.
• Citation: 36 A.3d 707,133 Conn.App. 630
• Parties: Anthony VENDRELLA et al. v. ASTRIAB FAMILY LIMITED PARTNERSHIP et al.
• Court: Connecticut Court of Appeals

133 Conn.App. 630
36 A.3d 707

Anthony VENDRELLA et al.
v.
ASTRIAB FAMILY LIMITED PARTNERSHIP et al.

No. 32735.

Appellate Court of Connecticut.

Argued Dec. 5, 2011.Decided Feb. 21, 2012.

[36 A.3d 708]

William F. Gallagher, New Haven, with whom, on the brief, were Hugh D. Hughes, Joseph D. Foti, Jr., and Garrett Moore, Cheshire, for the appellants (plaintiffs).

Steven L. Seligman, with whom, on the brief, was Lester Katz, Hartford, for the appellees (defendants).

DiPENTIMA, C.J., and GRUENDEL and BISHOP, Js.

GRUENDEL, J.

[133 Conn.App. 631] This case concerns natural propensities of a class of domestic animal. The plaintiffs, Anthony Vendrella and his son, Anthony John Vendrella,¹ appeal from the summary judgment rendered in favor of the defendants, the Astriab Family Limited Partnership and Timothy D. Astriab. ² They claim that the court improperly concluded that no genuine issue of material

[36 A.3d 709]

fact [133 Conn.App. 632] existed as to whether the defendants had notice of a horse's propensity to bite. We reverse the judgment of the trial court.

Mindful of the procedural posture of the case, we set forth the following facts as gleaned from the pleadings, affidavits and other proof submitted, viewed in a light most favorable to the plaintiffs. See Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009). At all relevant times Astriab operated a business located at 203 Herbert Street in Milford (property) known as Glendale Farms. That business was open to the public and was twofold in nature. Glendale Farms sold annual flowers, vegetable plants, ground covers and seasonal ornamentals, and it also provided horse boarding services. The property contained, inter alia, greenhouses, stables and paddocks.³ As manager and supervisor, Astriab oversaw operations at Glendale Farms.

Astriab testified in his deposition that customers of Glendale Farms enjoyed seeing the horses on the property and acknowledged that although he could have erected a barrier between the customers and the horses, he chose not to do so. Crystal Cobb, an employee at Glendale Farms and girlfriend of Astriab, similarly testified in her deposition that customers regularly asked to look at the horses after purchasing goods from the greenhouse. She explained that it was something that customers expected because “when they have little kids, they see the horse, they want to take a look.”

The plaintiffs patronized Glendale Farms on the morning of May 18, 2006. At that time, the plaintiff son was two years old. After purchasing plants from the [133 Conn.App. 633] greenhouse, the plaintiff father placed the plants in their vehicle, which was located in a parking lot adjacent to a paddock containing three horses. The plaintiffs then walked over to the paddock and stood approximately one foot outside its fence to admire a brown horse known as Scuppy.⁴ The plaintiff father petted Scuppy as the plaintiff son watched. The plaintiff father stopped petting Scuppy when the plaintiff son noticed another horse in the paddock.⁵ Suddenly, and without warning, Scuppy lowered his head and bit the plaintiff son on his right cheek, removing a large portion of flesh. The injury ultimately required surgery and resulted in a permanent scar on the boy's right cheek.

The plaintiffs commenced the present action against the defendants on May 14, 2008.⁶ Their complaint consisted of six counts. In counts one and three, the

[36 A.3d 710]

plaintiff son alleged negligence and recklessness on the part of Astriab.⁷ In count two, the plaintiff father alleged a claim [133 Conn.App. 634] of bystander emotional distress against Astriab. Counts four, five and six were directed at the Astriab Family Limited Partnership and repeated the respective allegations of the first three counts.⁸

[133 Conn.App. 635] On October 2, 2009, the defendants filed a motion for summary judgment. That one sentence motion alleged that “there is no genuine issue as to any material fact and that the [d]efendants are entitled to judgment as a matter of law on the basis that they neither had actual notice nor constructive notice of any vicious disposition

[36 A.3d 711]

or propensities on the part of the ... horse which allegedly bit the minor [p]laintiff.” The defendants submitted the sworn affidavit of Astriab in support of that motion. In that affidavit, Astriab averred, inter alia, that “during the twenty-eight years that Glendale Farm[s] has kept horses, we have never had an episode where any of the horses we kept has bitten or otherwise injured any person.” He further maintained that “[b]ecause I do not know the identity of [the horse] which bit the [plaintiff son], I have no way of knowing, and do not know, anything about the disposition or propensities of [the horse] before he bit the minor.” ⁹

The plaintiffs filed an opposition to the motion for summary judgment in the spring of 2010, in which they argued that “a horse, by its very nature, is capable of biting someone without provocation or predisposition and that this was known to the defendants.” The affidavit of Bradley W. Amery, a doctor of veterinary medicine, was filed in support thereof and contained a detailed explanation as to a horse's propensity to bite.¹⁰ [133 Conn.App. 636] In addition, the plaintiff submitted portions of the respective deposition testimony of (1) Astriab; (2) Cobb; (3) Milford animal control officer Richard George; and (4) Captain Bernard L. Begley, Jr., of the Milford fire department. In his deposition testimony, Begley testified that he had been riding horses “all of my life.” He stated that, in his experience, a horse can bite at any time, explaining that “[t]hey have been doing it ... since the beginning of time, biting and kicking.” For that reason, Begley always is careful to feed a horse either with a bucket or “palm up—I never put my fingers anywhere near the mouth of a horse.” Consistent with the explanation provided in Amery's affidavit, Begley opined that a horse's propensity to bite is part of its nature.

[36 A.3d 712]

In his deposition testimony, Astriab concurred with that assessment. He acknowledged that a horse, by its very nature, could harm a person who attempts to pet or feed them, stating that “a horse could bite you and cause great physical damage.” He further acknowledged that he understood that even though a horse does [133 Conn.App. 637] not display a propensity to bite another person, horses by their nature could bite a person. He testified, based on his experience, that he was “well aware” that horses can bite people.

Astriab also indicated in his deposition testimony that Scuppy was the horse involved in the incident with the plaintiffs. Although he testified that he had no knowledge of Scuppy biting a person prior to the May 18, 2006 incident, he repeatedly described Scuppy as a “typical horse.” When asked if Scuppy was different from other horses that would bite if a finger was put in front of him, Astriab answered, “[n]o.” He acknowledged his concern that if someone made contact with Scuppy, whether to pet or feed him, he or she could get bit. When asked whether “a person who doesn't know Scuppy ... can go up to Scuppy, put [his] hand out and the horse, being a horse, could bite that person,” Astriab answered, “[y]es.”

In rendering summary judgment in favor of the defendants, the court concluded that “the plaintiffs have failed to show, as they must, that the defendants were on notice that Scuppy specifically, and not horses generally, had a tendency to bite people or other horses. Therefore, the defendants owed no duty to the plaintiffs and are entitled to judgment on the plaintiff[s'] negligence claims as a matter of law.” (Emphasis in original.) From that judgment, the plaintiffs now appeal.

Before considering the precise claim presented on appeal, we note the well established standard of review. “Practice Book § [17–49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case.... The facts at issue are those alleged [133 Conn.App. 638] in the pleadings.... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.... The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17–44 and 17–45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact.... Our review of the trial court's decision to grant a motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn.App. 379, 382–83, 942 A.2d 469 (2008).

The plaintiffs contend that the court improperly concluded that no genuine issue of material fact existed as to whether Astriab had notice of Scuppy's propensity to bite. More specifically, they claim that the court improperly held them to the standard applicable to cats by requiring the plaintiffs to establish that “ Scuppy specifically, and not horses generally, had a tendency to bite people or other horses.” (Emphasis in original.) As they cogently state in their appellate brief, “[t]he issue before this court is whether the plaintiffs can provide constructive notice through evidence of the normal characteristics of an

[36 A.3d 713]

animal or whether the plaintiff[s] must prove prior knowledge of viciousness of the specific animal.” Astriab argues...