Pahanish v. Western Trails, Inc.

BLOOM, Judge. It has been said that the horse is the “noblest conquest man has ever made.” 1 The horse was placed at its master’s side in the tombs of the pharoahs and in the graves of Scythian kings. Since the Stone Age, it has occupied an important place in the realm of art. From Bucephalus to Roan Barbery to the Byerly Turk, the horse has been a symbol of the potency, and power, and passion of man.

It ³⁴⁹ has borne him through his travels, labors and military adventures. This case, however, concerns a horse (named “Noble”) in a somewhat less than noble or heroic moment. On July 25, 1983, appellant, James Vernon Pahanish, was injured while horseback riding with his family in Garrett County, Maryland. In March, 1984, appellant instituted this action against appellee, Western Trails, Inc., in the Circuit Court for Garrett County, alleging, inter alia, that appellee, the operator of a horse riding stable, was negligent in failing to provide appellant’s family with safe and properly equipped horses, in failing to inspect the saddle and other equipment on appellant’s horse, and in neglecting properly to control and secure the horses used in the Pahanish family’s trail ride.

The matter was tried before Chief Judge Frederick A. Thayer, III, sitting without a jury, on December 13, 1985. At the close of the evidence offered by appellant, appellee made a motion for judgment pursuant to Rule 2-519. Judge Thayer granted appellee’s motion, reasoning that the evidence presented failed to demonstrate appellee knew or should have known of any mischievous propensity on the part of the horses involved in the incident and further failed to indicate that appellee knew or should have known that the equipment on appellant’s horse was defective. The trial court further noted there was no evidence showing the equipment was, in fact, defective.

Additionally, the court found that although appellee’s horse stables were not licensed or inspected in the year in question, as required by statute, the evidence failed to demonstrate a causal connection between the statutory violation and appellant’s injury. Appellant raises the following issues on appeal: I. Whether the trial court, in ruling on appellee’s motion for judgment, failed to consider the evidence presented in the light most favorable to appellant, as required by Md.Rule 2-519. ³⁵⁰ II. Whether the trial court erred in determining the doctrine of res ipsa loquitur was inapplicable.

III

Whether the trial court erroneously concluded that appellee’s violation of statutory provisions governing the licensing and inspection of horse stables did not establish a prima facie case of negligence on appellee’s part.

IV

Whether the trial court erred in concluding appellee was not strictly liable for appellant’s injuries in light of the possibility the tack on appellant’s horse may have contained a latent defect. Facts Members of appellant’s family testified that on 25 July 1983, appellant rented five horses from appellee in order that he, his wife, and three children, Melanie, Gregory and Michael, could go trail riding. The children selected their horses; appellee’s employees brought appellant and his wife the horses they were to ride. Each of the horses was brought out from the stables already saddled.

The horses’ stirrups were adjusted for the family riders. Only Melanie and Gregory appear to have been given any riding instructions, principally on the use of the reins to direct and control the horses. Appellee’s employees inquired into the prior riding experience of several members of appellant’s family, but did not ask appellant about his previous riding experience. All of appellant’s children had ridden before, but neither appellant nor his wife had been on a horse in recent years.

A trail guide led the Pahanish family through a field, down onto a rocky, muddy path, then out onto a small road. The testimony of appellant’s family members is conflicting as to whether the family was instructed by the trail guide to stay in a line. During this period appellant’s daughter became frightened because she thought her horse was going too fast. Appellant, at the request of the trail guide, rode his horse up to where Melanie was riding in an effort ³⁵¹ to talk to her and calm her down.

This apparently happened a second time. The trail guide then asked whether any of the family wished to run their horses in a nearby field. Gregory and Michael, accompanied by the trail guide, ran their horses for about ten minutes. Appellant and the rest of the family waited, without dismounting, for the boys’ return.

Appellant testified that soon after the boys’ return the family started out to ride again and that just as they began to ride Gregory’s horse started to jump around, tried to kick a couple of the horses, then pulled up next to or in front of appellant’s horse and kicked it. Appellant stated that his horse reared and, although he grabbed on to the reins and saddlehorn, he and the saddle were thrown off. He further testified that he noticed the saddle on the ground after he fell, but made no mention of its condition. Other members of appellant’s family described the incident in essentially the same manner.

Appellant attempted to get up off the ground several times but was unable to do so because he was experiencing severe pain in his back. His daughter remained with him while the trail guide and the rest of appellant’s family went to get a car to transport appellant. Some time later, appellant heard a female voice holler, “Did you find them, Eugene?” Appellant testified that a young man then approached him, picked up a “part of the saddle” and said, “This is the same thing that happened to my Pap.” In response to interrogation by the court on this portion of appellant’s testimony, appellant stated that the “part of the saddle” picked up by Eugene was a strap or girth. When asked to describe the strap, appellant remarked it looked like “just a brown belt.” Appellant was placed in a ear by a young man and woman and chose to remain there until the boys finished their ride.

Appellant’s son Gregory continued to ride the same horse which had recently kicked his father’s horse. Later appellant was taken to the hospital by his wife. Appellant was ³⁵² determined to have suffered an acute lumbosacral sprain. He testified regarding his persistent back problems since the accident.

Ms. Beverly Raymond of the Maryland Department of Agriculture testified that in 1983, the year of the incident in question, appellee had failed to obtain a license for his riding stables, in violation of section 2-710 of the Maryland Agriculture Code Annotated. She further testified that the stables had not been inspected in that year, in violation of section 2-713 of the Maryland Agriculture Code Annotated. Her testimony indicated that appellee’s stables were licensed and inspected in both 1981 and 1982. The 1981 inspection revealed some uncleanliness in the stable stalls and the inspection report recommended that some reins in the tack room be replaced or oiled.

The 1982 inspection report did not reveal any deficiencies with respect to the tack equipment. Appellee was unlicensed at the time of the State’s effort to inspect its stables in 1984. Ms. Raymond testified that her 1984 inspection revealed the bedding for the horses was scant and that the equipment hanging in the tack room was adequate, but could have been better. She did not specify the nature of any problem with the tack, or how any of the equipment might have been improved.

She testified that appellee was properly licensed in 1985. The State had not yet conducted its 1985 inspection at the time of the trial. I Appellant’s first contention is that the trial court, in ruling on appellee’s motion for judgment pursuant to Rule 2-519(b), failed to consider the evidence in the light most favorable to appellant. Appellant has, however, seriously misconstrued Rule 2-519(b).

The Rule provides: When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close ³⁵³ of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made. Rule 2-519(b) may be dichotomized. In a non-jury trial, when a party has moved for judgment, the court is allowed as trier of fact to determine the facts and render judgment thereon.

The trial judge is not compelled to make any evidentiary inferences whatsoever in favor of the party against whom the motion for judgment is made. When the motion for judgment is made “under any other circumstances,” viz, in a jury trial, the trial judge must consider the evidence and inferences arising therefrom in the light most favorable to the non-moving party. In the case sub judice, the matter was tried by the court. Thus, the trial judge was allowed to evaluate the evidence, as though he were the jury, and to draw his own conclusions as to the evidence presented, the inferences arising therefrom, and the credibility of the witnesses testifying.

The decision relied upon by appellant in support of the first contention, Lumber Terminals, Inc. v. Nowakowski, 36 Md.App. 82 , 373 A.2d 282 (1977), was issued prior to the change in Rule 2-519(b), effective July 1984, allowing the trial judge to proceed as trier of fact after a motion for judgment. Rule 1086 mandates that: When an action has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses. The task before us, therefore, is to review the evidence presented below to determine whether the trial judge’s findings were clearly erroneous. In re Trevor A., 55 Md. ³⁵⁴ App. 491, 501, 462 A.2d 1245 , cert. granted, 297 Md. 419 (1983), cert. dismissed, 299 Md. 428 , 474 A.2d 207 (1984); Schackow v. Medical-Legal Consulting Service, Inc., 46 Md.App. 179, 189 , 416 A.2d 1303 (1980), cert. granted, 288 Md. 741 (1980); Cosden v. Mercantile-Safe Deposit & Trust Co., 41 Md.App. 519, 531 , 398 A.2d 460 cert. denied, 285 Md. 728 (1979), cert. denied, 444 U.S. 941 , 100 S.Ct. 295 , 62 L.Ed.2d 308 (1979); Szewczyk v. State, 7 Md.App. 597, 602 , 256 A.2d 713 (1969); Grice v. State, 2 Md.App. 482, 486 , 235 A.2d 316 (1967).

The function of this Court in reviewing a non-jury case is not to determine whether, on the evidence, it might have reached a different conclusion. Rather, it is to decide only whether there is any evidence legally sufficient to support the findings of the trier of fact and, in making this decision, it assumes the truth of all the evidence, and of all the favorable inferences fairly deducible therefrom tending to support the factual conclusion of the trial court. Carling Brewing Co. v. Belzner, 15 Md.App. 406, 412 , 291 A.2d 175 (1972). See also Eastern Environmental Endeavor, Inc. v. Industrial Park Authority, 45 Md.App. 512, 519 , 413 A.2d 1355 (1980); Kline v. The Chase Manhattan Bank, 43 Md.App. 133, 140 , 403 A.2d 395 , cert. denied, 286 Md. 749 (1979).

For appellant to succeed in his action for negligence, he would have had to demonstrate that (1) the appellee owed him a duty; (2) appellee breached said duty; and (3) the breach by appellee was the actual and proximate cause of a demonstrable injury sustained by appellant. Myers v. Montgomery Ward & Co., Inc., 253 Md. 282, 291 , 252 A.2d 855 (1969); Jackson v. Pennsylvania R.R. Co., 176 Md. 1, 5 , 3 A.2d 719 (1939). Testimony offered below establishes that appellant and his family were business invitees of appellee. An invitee is one who is permitted or invited to enter or remain on another’s property for purposes connected with the owner’s business.

Ralph Pritts & Sons, Inc. v. Butler, 43 Md.App. 192, 196 , 403 A.2d 830 (1979). Appellant entered ³⁵⁵ on appellee’s premises and rented horses from appellee’s business for his family’s use. At common law, the landowner’s duty to business invitees is to use reasonable and ordinary care to keep his premises in a safe condition and to protect invitees against the dangers of which the landowner is aware or which, with reasonable care, he could have discovered. Lloyd v. Bowles, 260 Md. 568, 572 , 273 A.2d 193 (1971); Keene v. Arlan’s Department Store of Baltimore, Inc., 35 Md.App. 250, 255 , 370 A.2d 124 (1977); Ralph Pritts & Sons, supra, 43 Md.App. at 196, 403 A.2d 830 ; Maryland State Fair & Agricultural Society v. Lee, 29 Md.App. 374, 378 , 348 A.2d 44 (1975).

A landowner is not, however, an insurer of the safety of his business invitees. Maryland State Fair, supra, 29 Md.App. at 378 , 348 A.2d 44 . In the case sub judice, there was no direct evidence to demonstrate that appellee was aware or should have been aware that the horses involved in the incident presented a danger to appellant’s family. Nor was there any evidence which would demonstrate that appellee knew or should have known the equipment on appellant’s horse was defective.

The only direct evidence which could conceivably indicate appellee’s knowledge that the saddle girth was defective was the remark made by the young man, Eugene, that, “this is the same thing that happened to my Pap.” There was no testimony regarding what that “same thing” might have been, or when or where that “same thing” might have happened. The remark could have concerned an incident at Western Trails or somewhere else. It could have referred to an incident in recent weeks or at some remote time. It could have referred to an individual falling off a horse or being thrown by a horse, a saddle falling off a horse, or a girth becoming unfastened or breaking.

It could even have referred to the fact “Pap” recently sustained an injury. It could have referred to the very horses in question or any other horses. In sum, there was no relevant testimony explaining the import of this remark. There was simply not sufficient direct evidence to raise the ³⁵⁶ inference appellee had been forewarned of any defect in the equipment. 2 Having concluded that the evidence was inadequate to demonstrate appellee breached the duty it owed appellants as business invitees, we will now determine whether appellee breached the duty it owed appellant in its capacity as the owner of domestic animals.

Under Maryland law, the owner of a domestic animal may be liable under two separate theories of liability for injuries caused by his animal—strict liability or negligence. Slack v. Villari, 59 Md.App. 462, 470 , 476 A.2d 227 , cert. denied, 301 Md. 177 , 482 A.2d 502 (1984). In order to hold an animal owner strictly liable for injuries caused by his animal, a plaintiff must demonstrate the owner knew or, with reasonable care, should have known that the animal had a propensity to commit the particular type of mischief that was the cause of harm. Finneran v. Wood, 249 Md. 643, 648 , 241 A.2d 579 (1968); Herbert v. Ziegler, 216 Md. 212, 216 , 139 A.2d 699 (1958); Twigg v. Ryland, 62 Md. 380, 386 (1884); Slack, supra, 59 Md.App. at 470 , 476 A.2d 227 .

Appellant, in his pleadings, did not allege that appellee should be held strictly liable for the injuries appellant suffered. In any event, as previously mentioned, there was no evidence appellee knew or with reasonable care should have known that Gregory’s horse had a propensity to be frisky or that “Noble,” appellant’s horse, was inclined to rear up. This case is a far cry from the situation involved in Herbert v. Ziegler, supra. In Herbert , the owner of a riding academy appealed from a judgment below holding him liable for the injury sustained by a patron of his riding academy.

The appellee, a patron, mounted a horse named ³⁵⁷ “Chubby.” A man identified at trial as an employee was adjusting the