Replies

This decision merely means that since a horse CAN bite, the jury needs to hear the case to decide if the owner was negligent or not. It is NOT a determination that the owner was negligent, only that a jury should be allowed to hear the case.

From the decision:

“This court has recognized in another context that foreseeability “is a flexible concept . . . .” Burns v. Board of Education, 228 Conn. 640, 647, 638 A.2d 1 (1994). Consistent with this flexible approach, this court previously has recognized that, in making the determination as to whether an injury caused by a domestic animal was foreseeable, the jury may consider the animal’s “previous behavior, the owner’s knowledge of that behavior, the circumstances that gave rise to the harm, and the actual harm inflicted.” Allen v. Cox, supra, 285 Conn. 615. We now conclude that, in addition to these factors, the jury may consider the natural propensities of the class of domestic animals to which the specific animal belongs. See 3 Restatement (Second), supra, § 518, comment (g), p. 31 (”In determining the care that the keeper of a not abnormally dangerous domestic animal is required to exercise to keep it under control, the characteristics that are normal to its class are decisive, and one who keeps the animal is required to know the characteristics. Thus the keeper of a bull or stallion is required to take greater precautions to confine it to the land [*69] on which it is kept and to keep it under effective control when it is taken from the land than would be required of the keeper of a cow or gelding.”); id., comment (h), p. 32 (”Thus the keeper of even a gentle bull must take into account the tendencies of bulls as a class to attack moving objects and must exercise greater precautions to keep his bull under complete control if he drives it upon a public highway. So, too, the keeper of an ordinarily gentle bitch or cat is required to know that while caring for her puppies or kittens she is likely to attack other animals and human beings.”).

Thus, to establish that an injury caused by a domestic animal was foreseeable, the plaintiff need not prove that the species as a whole has a natural tendency to inflict such harm, but only that the class of animals to which the specific animal belongs has such a tendency. See id., comment (g), p. 31; see also Bischoff v. Cheney, supra, 89 Conn. 5 (although cats generally are harmless, if particular cat belongs to class of cats having mischievous propensities, owner can be held liable for injuries inflicted by cat). Conversely, if a plaintiff presents evidence that an entire species has naturally mischievous [*70] propensities, the defendant may rebut this evidence by producing evidence that the mischievous propensities of the specific animal, or of the particular class of animals to which the specific animal belongs, are less severe than the mischievous propensities of the species as a whole.

We also recognize that “[t]he degree of foreseeability necessary to warrant [imposing liability] will . . . vary from case to case.” Gomez v. Ticor, 145 Cal. App. 3d 622, 629, 193 Cal. Rptr. 600 (1983); see also Burns v. Board of Education, supra, 228 Conn. 647 (”evolving expectations of a maturing society [may] change the harm that may reasonably be considered foreseeable”). If the foreseeable harm was not severe and the harm could not be prevented except by extraordinarily burdensome means, the jury reasonably could find that the defendant should not be held liable unless the injury was highly foreseeable. Gomez v. Ticor, supra, 629 (”in cases where the burden of preventing future harm is great, a high degree of foreseeability may be required”). Conversely, when the foreseeable harm was severe and it could easily have been prevented by the defendant, a lesser degree of foreseeability may be sufficient [*71] to impose liability. Id.

With these principles in mind, we turn to the evidence presented by the plaintiffs in the present case. In their memorandum in support of their objection to the defendants’ motion for summary judgment, the plaintiffs quoted from a deposition given by Astriab. Astriab testified that, when he saw families near the horses in the paddock at Glendale Farms, he would tell them to stay away from the horses because he did not want them to be bitten. He testified that a horse bite could “cause great physical damage,” and admitted that horses with no known propensity to bite could bite “by their very nature . . . .” He also admitted that this was true of “the calmest horse on any given day . . . .” The plaintiffs also quoted from the deposition testimony of Fire Captain Begley, who stated that horses “have been doing it all since the beginning of time, biting and kicking.” He explained that “it’s like a kid, they want to feel everything with their mouth.”

In addition, the plaintiffs quoted the deposition testimony of George, the animal control officer who had investigated the incident. George agreed that “a horse doesn’t have to have a tendency to bite in order to bite.” [*72] He testified that he had been “nipped” and that he had “got it in the belly one time.” The horse that had bitten him in the belly “got a pretty good chunk of [him].” The bite broke the skin and left a bruise. That horse had not been known to bite.

In an affidavit attached to the plaintiffs’ response to the defendants’ reply to their objection, Amery, an equine veterinarian, stated that “[b]iting is a natural part of horses’ lives and horses can bite for many reasons.” Because of the anatomy of the horse’s head, a horse cannot see what is directly in front of its nose and “is reliant on the sensory input from his mouth. While the nervous system is fast it is unable to process all that information before the bite has occurred.” Amery also stated that “[b]iting is . . . a common form of mutual grooming” by horses. When humans replicate this natural grooming behavior, a bite can result. Horses also “nip” to attract a person’s attention, especially if they have been hand-fed treats. Other conduct, such as scratching the horse’s muzzle or head, petting its neck or giving verbal rewards can also result in nipping behavior that can escalate to a full bite if the person is not paying complete [*73] attention to the horse.26 Finally, Amery stated that most horse bites are not the result of an abnormally aggressive or nasty disposition, but occur when the horse is being groomed, is being “tacked up,” is being hand-fed treats, or is in pain.

In their supplemental objection to the defendants’ motion for summary judgment, the plaintiffs quoted from a second deposition by Astriab that had only recently been taken. Astriab testified in that deposition that he placed signs along his property to warn people not to touch or feed the horses. He was concerned that the horses would bite persons who tried to feed them. He also agreed that Scuppy was a “typical” horse that could bite when being hand-fed or petted, and that biting is a “typical reaction when something is put in front of a horse.”

We conclude that this evidence, viewed in the light most favorable to the plaintiffs, as it [*74] must be, created a genuine issue of material fact as to whether horses have a natural propensity to bite that rendered the minor plaintiff’s bite injury foreseeable. A jury reasonably could conclude from this evidence that, when a person stands directly in front of, hand-feeds or pets a horse, it is foreseeable that the horse will use its mouth and teeth to investigate the person or to attract the person’s attention and, if the person is not paying full attention to the horse, this behavior can escalate to a bite. Indeed, Astriab conceded that a “typical” horse will have a tendency to bite something that is placed directly in front of it or when being hand-fed or petted.

In support of their claim to the contrary, the defendants contend that, to establish that it was foreseeable under the circumstances of the present case that Scuppy would bite, the plaintiffs were required to present evidence that it was reasonably probable, or more likely than not, that such an injury would occur, not that it was merely possible. In support of this contention, they rely on the principle that “[a] trier is not concerned with possibilities but with reasonable probabilities.” (Internal quotation marks [*75] omitted.) Aspiazu v. Orgera, 205 Conn. 623, 630, 535 A.2d 338 (1987).

This principle, however, applies to the causal connection between a defendant’s conduct and a plaintiff’s damages; id.; and requires the plaintiff to prove that it is more likely than not that the defendant’s conduct actually caused the damages. This court has never held that, to be a foreseeable injury, the plaintiff must prove that an ordinary person would have believed before the fact that it was more likely than not that the defendant’s conduct would cause the plaintiff’s injury. For example, to establish that it was foreseeable that a pedestrian would slip and fall on an icy sidewalk and break his wrist, a plaintiff need not prove that an ordinary person would believe it was more likely than not that such an injury would occur.27 Rather, the test for foreseeability is “would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result . . . .” (Internal quotation marks omitted.) Allen v. Cox, supra, 285 Conn. 610.

As used in this context, the phrase “likely to result” means that there was an unreasonable [*76] risk that the injury would result.28 See Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003) (”in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress”... As we have explained, the determination as to whether a particular risk is unreasonable is to be left to the jury when reasonable minds could reach different conclusions.

In summary, we conclude that, as a matter of law, the owner or keeper of a domestic animal has a duty to take reasonable steps to prevent the animal from causing injuries that are foreseeable because the animal belongs to a class of animals that is naturally inclined to cause such injuries, regardless of whether the animal had previously caused an injury or was roaming at large. We also conclude that there is a genuine issue of material fact as to whether, under the specific facts and circumstances of the present case, it was foreseeable that Scuppy [*79] would bite the minor plaintiff causing his injury because horses, as a species, have a natural inclination to bite. Accordingly, we affirm the judgment of the Appellate Court reversing the trial court’s summary judgment rendered in favor of the defendants and remanding the case to the trial court for further proceedings.”