What a difference a new court can make!

A little over a year ago, a trial court in Connecticut dismissed a personal injury lawsuit brought by the parents of a young boy who was bitten on the cheek by a horse named Scuppy. The family had been visiting Glendale Farms, a dual-purpose business where flowers, vegetables and other plants were sold and where horses were boarded. Visiting the horses apparently was a popular pastime for customers at Glendale, and the child was bitten after the family walked over to Scuppy’s paddock and started petting the horse.

The farm owners argued that they had no liability for the injury because Scuppy had no history of biting and the judge agreed.

After a review of state law involving personal injuries suffered during encounters with other animals, the trial judge wrote: "the owner of a horse, classified as a domesticated animal, is only liable to an injured plaintiff if the owner had actual or constructive knowledge of the horse’s propensity to attack other people or animals."

The decision amounted to a restatement of the so-called "one bite rule," which gives a dog with no history of viciousness a free pass the first time it bites someone.

Not So Fast

The parents of the injured child appealed the dismissal of their lawsuit, as losing parties in these sorts of things are wont to do.

The problem, the parents argued, was that the trial court applied the wrong standard. Rather than basing the decision on whether one particular horse—Scuppy in this instance—had a known propensity to bite, the trial court should have considered a more general question: whether horses in general have vicious tendencies. The legal basis for that argument was a 100-year-old Connecticut case involving a cat.

In Bischoff v. Cheney, the Connecticut Supreme Court held that the owner of an animal must use reasonable care to prevent the animal from injuring someone if the "domestic animal belongs to a species naturally inclined to do mischief or be vicious, or if it in fact be vicious," and if the owner of the individual knows about the dangerous characteristics of the species.

Cats, the court concluded, are not a species "inclined to mischief." By nature, the court generously added, a cat is "kindly and docile," and is "one of the most tame and harmless of all domestic animals."

Really?

I’ve been bitten or scratched by every cat I’ve ever owned. And a recent adoptee feline responded to our generosity by attacking Plumpkin, our older, resident cat. The injury resulted in surgery, several visits to the vet, and a hefty bill.

But I digress.

The Individual or the Species?

In February 2012, the Connecticut Court of Appeals determined that the lower court might have gotten it wrong. The appellate court agreed that rather than having to prove that Scuppy was a vicious individual, it might be possible for the parents of the injured child to win by proving that Scuppy’s owner knew that horses are potential biters as a species.

According to the Court of Appeals, there was substantial evidence in the record establishing that even if Scuppy did not have a propensity to bite, horses as a species do. For example:

Horses "have been doing it . . . since the beginning of time, biting and kicking," said Bernard L. Begley Jr., a local fire captain who said that he had been riding all his life.

Veterinarian Bradley W. Amery agreed that "a horse could bite you and cause serious physical damage" and that horses, by their nature, could bite someone.

The Court of Appeals reversed the dismissal of the parents’ lawsuit. The case is back in the lap of the trial court for a determination of whether Scuppy’s owner "had notice that Scuppy belonged to a class of domestic animal that possessed a natural propensity to bite, thereby endangering customers such as the plaintiffs invited onto their property."

Connecticut is one of 46 states with an equine activity liability statute that requires individuals to assume the risk of injury resulting from inherent hazards associated with recreational equestrian activities. There are some exceptions, including the negligence of the person providing the horse for the activity. The appellate court said that the statute did not apply here, and neither party addressed the statute in their arguments to the court.

Which is the proper standard for a court to properly decide a case like this one?

Should the fact that any horse might be a biter trump the fact that a particular horse never has bitten anyone before?