Young v. Brandt

Beasley, Judge,

dissenting.

Although I concur in Division 1 of the opinion, I respectfully dissent with respect to Divisions 2 and 3. The judgment of the trial court and the underlying verdict of the jury should be affirmed.

1. The trial court was not remiss in submitting to the jury the issue of plaintiff’s conduct. As in Waits v. Makowski, 191 Ga. App. 794, 795-796 (1) (383 SE2d 175) (1989), so here: “£ “As a general proposition, issues of negligence, contributory negligence and lack of *894ordinary care for one’s own safety are not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial before a jury. . . .”’ (Cits.) . . . [Considering the reasonable inferences that may be drawn [from the evidence, it] presents matters which should be resolved by the jury. [Cit.]” Accord Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 119 (4) (372 SE2d 265) (1988).

Brandt testified she consented to ride the horse “[b]ecause I trusted Tammy [Young], I relied on her judgment. She was the expert in the situation, she was my instructor, it was her horse, she knew all about her horse and she knew all about my riding ability.” Brandt contends she did not assume the risk of being thrown and kicked because she did not know Loverboy had any such propensity.

On the other hand, appellants counter that Brandt’s knowledge of the risks was substantial, noting she knew Loverboy could buck because he had previously bucked while she was riding him; that she willingly agreed to exercise Loverboy, with no lunge line and hunter-jumper tack rather than dressage tack; and that she knew that horses, and stallions in particular, could behave unpredictably and might be bothered by unfamiliar surroundings.

Appellants contend this evidence required a directed verdict because it shows “[t]he knowledge among the parties here was nearly, if not precisely, equal, and a warning from defendants would have to be met with the response T know.’ ” McNish v. Gilbert, 184 Ga. App. 234, 236 (361 SE2d 231) (1987). But a warning from Young that Loverboy had previously kicked a thrown rider would not have met with such a response because Brandt testified she did not know this and would not have mounted Loverboy if she had known he was a kicker. When Brandt asked if she would be all right with that particular saddle and bridle, Young assured her that she would “be fine.” Since Loverboy’s propensity to kick was an undisclosed risk, Brandt did not have a full appreciation of the dangers involved as a matter of law.

The recent case of Muller v. English, 221 Ga. App. 672 (472 SE2d 448) (1996), does not support the conclusion that Brandt assumed the risk of being kicked, as a matter of law. That case was specifically decided in the context of fox hunting, “a very dangerous sport, over and above the inherent dangers of all equine activities.” (Footnote omitted.) Id. at 676 (2) (c). There was evidence that being kicked by a horse is a “particular risk” of fox hunting, that kicking does occur during hunts, and that plaintiff knew that. Id. at 677-678. Here there was no such evidence about dressage or that Brandt knew kicking does occur during dressage exercises. Muller is inapposite.

The motion for directed verdict based upon assumption of the risk was properly denied.

*895Decided March 20,1997 Reconsideration denied April 3,1997 Webb, Carlock, Copeland, Sender & Stair, Dennis J. Webb, Marvin D. Dikeman, for appellants. Finestone & Morris, Bruce H. Morris, Kenneth J. dayman, for appellee.

2. Appellants contend a directed verdict should have been granted because any negligence on their part was not the proximate cause of Brandt’s injuries, in that the incident was not foreseeable because Loverboy had no propensity to buck and kick. “ ‘(T)o support an action for damages for injuries sustained by being bitten or kicked by a horse, it is necessary to show that the horse was vicious and that the owner had knowledge of that fact.’ [Cit.]” McNish, supra at 235. The question is whether Brandt showed Loverboy had any propensity to act as he did. See Banks v. Adair, 148 Ga. App. 254 (251 SE2d 88) (1978). Young testified Loverboy had never kicked anyone. Bandaras, a former employee of Young’s, testified that prior to the Brandt incident, Young returned from a horse show in Florida and stated Loverboy had thrown her and kicked her in the stomach. Brandt testified that Young told her essentially the same thing in the hospital after she was kicked.

Although the only evidence that Loverboy had previously acted similarly concerned a single act, that is sufficient to establish a propensity for an animal to engage in such conduct. Sutton v. Sutton, 145 Ga. App. 22, 25 (1) (243 SE2d 310) (1978); LaHoste v. Yaarab Mounted Patrol, 89 Ga. App. 397, 402 (79 SE2d 570) (1953). Appellants argue that the prior instance of bucking and kicking was unrelated and isolated, but “[t]he test should be whether the one incident was of such a nature as to cause a reasonably prudent person to believe the animal was sufficiently dangerous as to be likely to cause an injury at a later time. [Cit.]” Sutton, supra. This question is usually for the jury and was in this instance. Id. at 26. There was some evidence from which the jury could determine that Young was on notice that Loverboy had a dangerous propensity to buck and kick a thrown rider.

It was not error to deny the motion for directed verdict on the ground of proximate cause.

I am authorized to state that Presiding Judge McMurray and Presiding Judge Pope join in this dissent.