United States: Legal Fencing After Motorcycle Collides With A Horse On Route 197

The number and frequency of contentious disputes and complicated and protracted proceedings– involving many parties, claims/counterclaims and cross-claims and a plethora of legal issues — is not limited to multi-tranche collateralized debt obligations litigation reported on the front page of the New York Law Journal.

As a recent case illustrates, an accident involving a motorcycle and two horses that occurred on June 12, 2017, at approximately 10:17 PM, on the roadway in front of 229 State Route 197, Fort Edward, Washington County, had almost as many moving parties and parts as the most complex New York County suit– even though the key issue related to the height of the fencing around a country field.

Simeon Hunsdon and Linda Hunsdon own 29.6 acres at 229 State Route 197 where, since 1984, they operated a horse farm. The Hunsdons raised the own horses on the farm and also boarded horses owned by others. Owners rented stalls in the barn and were required to clean the stalls. Owners did not need permission to go to the farm, had free access and could ride in open fields and also a fenced-in area which consisted of a large open field, approximately 10 to 12 acres in size, surrounded by page wire, with barbed wire on top in most areas. The page wire was intended to be four foot in height, but the actual height varied due to the contour of the ground. Five-foot high metals gates were located at one end of the fenced-in area. A metal gate, approximately 4-feet high and 3-feet wide, was around 200 feet from the side of the barn. The gate was affixed to metal fencing, which was attached to the page wire. Mr. Hunsdon was never made aware that the metal gate was open when horses were in the field.

Owners were permitted to put their horses in the field at their discretion and the horses could be left in the field overnight, again at the discretion of their owners. The Hunsdons testified at their depositions that, approximately 10 to 12 years prior to the accident, horses got out of the field after a hot air balloon landed there and horses stampeded and ran through the fence, taking the fence with them and spreading it all over the field. On another occasion, a filly ran full speed into the fence, and flipped over it, and her mother jumped the fence. Concetta Sucese claimed that the same summer as the accident, her husband observed that one of the Hunsdons' horses, who was pregnant or with her foal, got out of the field, into another field at the farm. Sucese testified that her husband called the Hunsdons, but she did not discuss the incident with them. There was no evidence that, on any other occasions prior to the accident, horses got out of the field, onto neighbors' property or into the road.

At the time of the accident, the Hunsdons were boarding two horses. Gary Fisher boarded horses with the Hunsdons on and off for 15 to 20 years and had been boarding his horse, “Determined Desire”, at the farm since approximately 2007 or 2008. Another horse, “Car-Lins Two by Too”, had been at the farm for eight to 10 years.

The Hunsdons claimed they sold Car-Lins to Sucese prior to the accident. However, Sucese claimed she was only leasing and caring for the horse. Sucese had reached an agreement with Mr. Hunsdon to purchase Car-Lins for $2,000, which she would “pay” by providing services at the farm. Pursuant to the agreement, Mr. Hunsdon would be permitted to breed Car-Lins one time. Sucese acknowledged that, on or about September, 2011, she had completed sufficient work at the farm to purchase the horse. However, at her deposition, Sucese denied that she is, or was, the owner of Car-Lins, because she had no documentation stating she was the owner and was never given a bill of sale. Sucese argued that, because she never received any documentation regarding ownership, she was “under the belief that [she did] not own Car-Lins.”

The Hunsdons provided a bill of sale for the horse, dated September 25, 2011, which was allegedly signed by Sucese, who denied that the signature on the bill of sale was hers. And claimed that someone else signed her name on the document and that she never signed a bill of sale for Car-Lins.

At the time of the accident, the United States Trotting Association registry listed the Hunsdons as the owners of Car-Lins. Mrs. Hunsdon testified that was only because the Hunsdons' agreement with Sucese provided that the Hunsdons retained breeding rights for Car-Lins.

The Hunsdons did not have any problems with either Dee or Car-Lins at the farm. Nor had the horses ever escaped from the field or the barn before the accident. The Hunsdons had not received any complaints from neighbors about either horse getting out of the farm.

On the date of the accident, Dee and Car-Lins were out in the field. It was unclear who put them in the field leading up to the accident. Mr. Hunsdon denied that he or his wife put the horses out. Both Fisher and Sucese testified that they would each put out and take in the other's horse on occasion and they were the only ones to put out or take in the horses.

Fisher testified that he believed the horses had been in the field “for a couple of days.” Sucese testified that, when she was at the farm a day or two before the accident, she brought both horses in from the field and when she left, they were in their stalls; when she arrived at the farm on the date of the accident, both horses were in the field and the gate was secured shut.

On the night of the accident, Jarred Dillon knocked on the Hunsdons' door and advised Mrs. Hunsdon that two horses were in the road and he had almost struck them. Dillon parked his car in the roadway and turned on his emergency flashers and stood in the roadway waving to ensure traffic would stop. Mrs. Hunsdon went outside and called the horses. As the horses were walking towards Mrs. Hunsdon, crossing the center of the roadway to enter the driveway to the farm, Dee was struck by a motorcycle being operated by Robert Saddlemire, on which his wife, Tamica Saddlemire, was riding as a passenger.

The day after the accident, the Hunsdons walked around the field and did not observe any broken or downed fencing or any broken or open gates. It was unknown how the horses were able to get out of the field and into the road.

The Saddlemires sued the Hunsdons, alleging that they were negligent and/or acted with reckless disregard towards motorists traveling on State Route 197. The Hunsdons sued Gary Fisher, Mary Jane Fisher and Sucese, alleging that they were negligent in failing to secure, control and stable their horses.

The Fishers moved to dismiss the Hunsdons' claims. Sucese moved to dismiss all claims against her. And the Hunsdons moved to dismiss the complaint and for judgment against the Hunsdons.

The Fishers contended that the third-party complaint must be dismissed as to Mrs. Fisher because she did not own the horse, Dee, and, therefore, was not responsible for the horse. The Fishers further claimed that Mr. Fisher could not be held liable, as Dee's presence on the road at the time of the accident was not caused by any negligence on his part. Specifically, Mr. Fisher was not present at the time of the accident, was not in exclusive control of the barn, the stalls, or the field, had no authority or responsibility to alter or repair the fencing around the field and did not have any prior notice of any horses jumping the fence of escaping from the farm, which would have placed him on notice that the fencing was inadequate. Further, there were never any occasions where Mr. Fisher forgot to latch the gate. According to the Fishers, it was completely unforeseeable to Mr. Fisher that Dee would escape and wander into the roadway.

Sucese alleged that all claims against her should be dismissed because she did not owe any duty to the Saddlemires and did not breach any duty upon which liability could be established against her. Specifically, Sucese claimed that she did not own either of the horses that strayed into the road, did not have actual or constructive notice of the horses' propensities to escape, nor did she negligently permit or cause the horses to escape into the public road and did not own, maintain or control the farm from which the horses escaped.

The Hunsdons argued that they were entitled to judgment dismissing the Saddlemires' claims because they did not own the horses, did not have actual or constructive knowledge of the horses' conduct or behavior on the night of the accident, whatever that conduct may have been, did not negligently permit the horses to escape and did not have sole custody and control of the horses sufficient to incur legal responsibility for their behavior. The Hunsdons further contended that, if an issue of fact existed which precluded granting them summary judgment against the Saddlemires, the same issue of fact precluded granting the Fishers and Sucese summary judgment against them.

The Saddlemires argued that material issues of fact existed with respect to whether the Hunsdons were negligent with respect to fencing around the field and that the motion should be denied as premature to allow for a previously agreed-upon site inspection.

The Court dismissed the Hunsdons' complaint against Mrs. Fisher because she did not own Dee and, therefore, she was not legally responsible for the horse. Hunsdons' counsel's claim that Mrs. Fisher was responsible for feeding and watering Dee on occasion was unsupported in the record. And the record did not contain any evidence that Mrs. Fisher ever put the horses out in the field.

The issue of ownership of Car-Lins could not be resolved as a matter of law on the record before the Court. The record contained proof indicating that the United States Trotting Association would only recognize the Hunsdons as the owners of the horse based on the certificate of registration and that evidence in certain cases could be dispositive. However, while the Court recognized that Sucese denied signing a bill of sale for Car-Lins, Sucese admitted that, as of September, 2011, she had performed sufficient services to “pay” for Car-Lins, pursuant to her agreement with Mr. Hunsdon. The Court found that proof sufficient to rebut any inference of nonownership on the part of Sucese which was raised by the absence of her name on the certificate. However, even assuming, arguendo, that Sucese was the owner of Car-Lins, she could not be held liable based upon the horse's presence in the roadway, and the claims against her were dismissed.

A landowner or the owner of an animal may be liable under ordinary tort-law principles when a farm animal—i.e., a domestic animal as that term is defined in Agriculture and Markets Law § 108(7)—is negligently allowed to stray from the property on which the animal is kept.

The Fishers met their burden to establish they were entitled to judgment as a matter of law, dismissing the Hunsdons' complaint, by demonstrating that the presence of the horses in the roadway at the time of the accident was not caused by any negligence on their part, which permitted the horses to escape the field.

While there was some speculation that the horses jumped the fence after being spooked, the record was devoid of proof as to how Dee and Car-Lins actually escaped the field and got out into the roadway. There was no evidence of any specific defect that led to the horses getting out. When the Hunsdons inspected the field the morning after the accident, they did not observe any damaged or downed fencing. And no proof in admissible form was offered to demonstrate that the fencing was in any way deficient.

The Hunsdons offered an affidavit from Laurie Tranowicz, who claimed to have almost 40 years of experience with horses and horse farms, including fencing used at such farms and, in particular, at the Hunsdons' farm. In her affidavit, Tranowicz stated that the fencing at the farm was reasonable and appropriate.

Further, neither Mr. Fisher nor Sucese owned, maintained or controlled the farm and neither had any responsibility to alter or repair the fencing around the field. As such, they were not responsible if the horses escaped the field due to a defect in the fence, if any even existed.

The Fishers and Sucese were not in exclusive control of the barn, the stalls or the field and, therefore, negligence could not be inferred to them.

And there was no evidence that Dee or Car-Lins had jumped the fence or escaped from the field or farm prior to the accident and, as such, the Fishers and Sucese did not have any prior notice of any alleged defect in the fence or propensities of the horses to escape.

Even viewing the facts in the light most favorable to them, the Hunsdons failed to meet their burden to demonstrate that material issues of fact existed to warrant denial of the Fishers and Sucese' motions. In light of that is finding, the Hunsdons' motion for summary judgment against the Fishers and Sucese was denied.

Conversely, in their opposition to the Hunsdons' motion seeking dismissal of the complaint, the Saddlemires demonstrated that issues of fact existed, requiring a trial.

The Saddlemires argued that the presence of Dee and Car-Lins in the roadway created a rebuttal presumption of negligence. And contended the presence created an issue of fact requiring jury determination and denial of the Hunsdons' motion.

The Saddlemires also claimed that an issue existed with respect to whether the fencing around the field was adequate. They contended that a jury should consider whether the Hunsdons were negligent due to inadequate fencing, in light of the fact that horses (other than Dee and Car-Lins) had gotten out of the field prior to the date of the accident.

The Saddlemires also argued that the motion was premature and should be denied because they had been prevented from conducting a site inspection, previously agreed to by the parties. And they claimed that, without the site inspection, they were unable to hire the appropriate expert to provide the opinion that the fencing around the field was inadequate, as they expected to do based upon “industry materials” setting forth that industry standards require fencing to be higher than the four feet height of the Hunsdons' fence.

The Court found that, in light of the fact that the site inspection had not yet been conducted, “facts essential to justify opposition may exist but cannot be stated”. And the Court also found that an issue of fact existed with respect to whether the Hunsdons were negligent, due to inadequate fencing around the field, and such negligence was a proximate cause of the accident. As a result, the Hunsdons' motion for summary judgment dismissing the Saddlemires' complaint was be denied.

Query: Were the horses spooked by the roar of the motorcycle? And, if so, was that contributory negligence by the Saddlemires?

Originally published by Smith Gambrell, on June 2020

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