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VENDRELLA v. ASTRIAB FAMILY LTD. PARTNERSHIP—CONCURRENCE

ZARELLA, J., with whom VERTEFEUILLE, J., joins,

concurring. I agree with the majority that, for reasons

of public policy, this court should adopt the rule that

‘‘the owner or keeper of a domestic1 animal has a duty

to take reasonable steps to prevent injuries that are

foreseeable because the animal belongs to a [species

or breed]2

. . . that is naturally inclined to cause such

injuries . . . [and that] the owner may be held liable

for negligence if he or she fails to take such reasonable

steps and an injury results.’’ (Footnotes added.) I do

not agree, however, that ‘‘the [evidence presented] . . .

created a genuine issue of material fact as to whether

the . . . injury [sustained by the plaintiff Anthony John

Vendrella] was foreseeable because horses have a natural propensity to bite.’’ The natural propensity of horses

to nip and bite was recognized by every witness who

gave testimony on the subject during the summary judgment proceedings, and, in any event, it is a matter of

common knowledge. Accordingly, because courts can

take judicial notice of matters of common knowledge,

the trial court should take judicial notice of the fact

that horses have a natural propensity to nip and bite,

and leave for the jury the more limited question of

whether the defendants, Astriab Family Limited Partnership and Timothy D. Astriab, in light of this knowledge and their knowledge of Scuppy’s3 past behavior,

took reasonable precautions to prevent Scuppy from

causing foreseeable harm.

I begin by observing that the present case does not

involve a wild animal or a domesticated animal that

the owner had reason to know possessed dangerous

propensities abnormal to its species. Rather, Scuppy

belongs to a species that is not abnormally dangerous.

Furthermore, Scuppy never demonstrated any dangerous propensities while in the defendants’ possession.

Thus, in defining the question that should be submitted

to the jury, this court should rely in part for guidance

on the Restatement (Second) of Torts, which speaks

directly to the liability of an owner in this circumstance.

See, e.g., Allen v. Cox, 285 Conn. 603, 606, 615–17, 942

A.2d 296 (2008) (relying on Restatement [Second] of

Torts to determine scope of defendants’ liability for

injuries caused by their cat).

Section 518 of the Restatement (Second) of Torts

provides: ‘‘Except for animal trespass, one who possesses or harbors a domestic animal that he does not

know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal

if, but only if . . . (b) he is negligent in failing to prevent the harm.’’ 3 Restatement (Second), Torts § 518,

p. 30 (1977).

Comment (e) explains that § 518 ‘‘is applicable to
those domestic animals of a class that can be confined

to the premises of their keepers or otherwise kept under

constant control without seriously affecting their usefulness and which are not abnormally dangerous.

Although the utility of these animals is sufficient to

justify their being kept without risk of . . . strict liability . . . many of them are recognizably likely to do

substantial harm while out of control and, therefore,

their keepers are under a duty to exercise reasonable

care to have them under a constant and effective control.’’ Id., comment (e), p. 31.

Comment (f) further explains that ‘‘[t]he amount of

care that the keeper of a domestic animal is required

to exercise in its custody is commensurate with the

character of the animal.’’ Id., comment (f), p. 31. Comment (g) adds that ‘‘the characteristics that are normal

to its class are decisive, and one who keeps the animal

is required to know the characteristics.’’ Id., comment

(g), p. 31.

Finally, in discussing domesticated animals that may

become dangerous in particular circumstances, comment (h) provides that ‘‘[o]ne who keeps a domestic

animal that possesses only those dangerous propensities that are normal to its class is required to know its

normal habits and tendencies. He is therefore required

to realize that even ordinarily gentle animals are likely

to be dangerous under particular circumstances and to

exercise reasonable care to prevent foreseeable harm.’’

Id., comment (h), pp. 31–32.

In my view, the natural propensity of horses, which

are not abnormally dangerous animals, to nip and bite

as a consequence of their naturally inquisitive or playful

disposition is so widely known that the trial court

should take judicial notice of that fact and limit the

question submitted to the jury to whether the defendant

took reasonable steps to prevent Scuppy from causing

foreseeable harm. ‘‘To take judicial notice is a function,

and to apply it to the decision of causes a right, which

appertains to every court of justice, from the lowest to

the highest. . . . The true concept of what is judicially

known is that it is something which is already in the

court’s possession or, at any rate, is so accessible that

it is unnecessary and therefore time wasting to require

evidence of it. . . . Judicial notice, therefore, in its

appropriate field, meets the objective of establishing

facts to which the offer of evidence would normally be

directed. . . . The underlying theory is that proof by

evidence concerning a proposition may be dispensed

with where the court is justified, by general considerations, in declaring the truth of the proposition without

requiring evidence from the party. . . . This theory

goes no further, however, than to mean that the proposition is taken as true without an offer of proof by the

party who should ordinarily have offered it. Judicial

notice of the proposition is in no sense conclusive,
and the opponent is not prevented from disputing it by

evidence if he believes it to be disputable. . . . Matters

which may properly be judicially noticed in this way are

those which come to the knowledge of men generally in

the course of the ordinary experience of life or those

matters which are generally accepted by mankind as

true and are capable of ready and unquestionable demonstration. . . . Thus, facts may be judicially noticed

which are so notorious that the production of evidence

would be unnecessary, or which the judicial function

supposes the judge to be familiar with, in theory at

least, or which, although they are neither notorious

nor bound to be judicially known, are capable of such

instant and unquestionable demonstration, if desired,

that no party would think of imposing a falsity on the

tribunal in the face of an intelligent adversary.’’ (Citations omitted; internal quotation marks omitted.) State

v. Tomanelli, 153 Conn. 365, 368–69, 216 A.2d 625

(1966).

This court has further stated that matters of common

knowledge on which judicial notice may be taken are

limited to ‘‘those well substantiated facts that are obvious to the general community.’’ State v. Padua, 273

Conn. 138, 193, 869 A.2d 192 (2005) (Katz, J., dissenting

and concurring). ‘‘Although the concept of common

knowledge plays a significant role in our jurisprudence,

this court never explicitly has defined its meaning. Similarly, despite its universal importance, very few courts

outside Connecticut have endeavored to provide a standard by which to determine when a matter rises to the

level of common knowledge. . . . The few jurisdictions to do so have cited the definition set forth in

various editions of Black’s Law Dictionary. . . .

According to the [eighth] edition of that dictionary,

common knowledge is defined as a ‘fact that is so widely

known that a court may accept it as true without proof.’

. . . Black’s Law Dictionary (8th Ed. 2004).4

In order

for something to be considered a fact, it must, at the

very least, generally be accepted as true and have a

basis in reality. See id. (defining ‘fact’ as ‘[s]omething

that actually exists; an aspect of reality’). Therefore,

common knowledge is not tantamount to a common

belief that may be nothing more than a perception

grounded in folklore, not reality.’’ (Citations omitted;

emphasis in original; footnote added.) State v. Padua,

supra, 193–94 (Katz, J., dissenting and concurring).

Mindful of these principles, I would conclude that

the natural propensity of horses to nip and bite is a

matter of common knowledge. Accordingly, the trial

court should take judicial notice of this fact and not

submit it to the jury.

Taking judicial notice of the habits and characteristics of domestic animals is not unusual. In fact, it has

happened quite often in otherjurisdictions and has been

done in this state, as well. For example, this court noted
in Baldwin v. Ensign, 49 Conn. 113 (1881), that ‘‘[t]he

propensity of colts and of horses generally when at

liberty in the highway to run and gambol, and to annoy

and excite other horses, and their liability to cause

damage in various ways, are so well known that they

need only be mentioned.’’ Id., 117. The court subsequently added that ‘‘the natural playfulness of . . .

[colts] may be under some circumstances as dangerous

as a positive vice.’’ Id., 118. Thereafter, in Bischoff v.

Cheney, 89 Conn. 1, 92 A. 660 (1914), this court effectively took judicial notice of the fact that cats as a

species are harmless when it concluded that ‘‘[t]he cat

is not of a species of domestic animals naturally inclined

to mischief, such as, for example, cattle . . . . The

cat’s disposition is kindly and docile, and by nature it

is one of the most tame and harmless of all domestic

animals.’’ Id., 5.

Similarly, the trial court should take judicial notice

that horses as a species have a natural propensity to

bite because the overwhelming majority of people know

from their own experience and from the experience of

others, as reported in the media and otherwise, that

horses have a natural propensity to nip and bite and

may occasionally do so when they come into close

contact with humans.

Taking judicial notice of the fact that horses have a

natural propensity to nip and bite also is consistent

with the decisions of many other jurisdictions that have

taken judicial notice of, or described as ‘‘a matter of

common knowledge,’’the natural propensities of horses

to nip, bite, kick, or engage in other playful, inquisitive,

or inadvertent behavior that, due to their sheer size and

weight, may be harmful or dangerous to persons in

close proximity. See, e.g., Weaver v. National Biscuit

Co., 125 F.2d 463, 465 (7th Cir. 1942) (‘‘[a]ll men know

that a horse which has been stabled and well-fed will,

when turned out, run and plunge, and become dangerous in the midst of people; all horses are, when loose,

more or less dangerous on sidewalks and streets and

all men know this’’ [internal quotation marks omitted]);

Pool v. Clark, 207 Ark. 635, 637, 182 S.W.2d 217 (1944)

(‘‘[i]t is a well-known propensity of livestock, such as

horses, cattle, sheep and other domestic animals to

graze upon, trample down and destroy grass and other

growing crops’’ [internal quotation marks omitted]);

Cooper v. Oregon Short Line Railroad Co., 45 Idaho

313, 323, 262 P. 873 (1927) (‘‘The court can take judicial

notice of the habits and propensities of animals. . . .

It is a matter of common knowledge that horses, strange

to each other, frequently fight when brought into close

contact. They, when unused to railroad transportation,

become restive, excited and frightened in such surroundings.’’ [Citations omitted.]); Williams v. Hawkins,

304 So. 2d 75, 77 (La. App. 1974) (‘‘[a]llegations of being

‘high strung’ or ‘skittish’ and testimony that the horse

was acting up could not possibly be interpreted as a
‘dangerous propensity [of that particular horse],’ especially when considered in light of the common knowledge that a great many horses at times are skittish, high

strung, and act up’’), appeal denied, 307 So. 2d 373 (La.

1975); Tamburello v. Jaeger, 176 So. 2d 707, 709 (La.

App. 1965) (‘‘It is a matter of common knowledge that

all horses have [the] capacity [to cause injury by kicking]; and there are certain inherent dangers in handling

horses, such as being stepped on while currying, feeding, harnessing, or while preparing to mount. There is

the danger of being kicked or otherwise injured by a

horse subjected to sudden excitement or fear; the danger of being kicked or bitten when one disturbs a horse

while eating. It is also a matter of common knowledge

that some horses are by nature more gentle or more

nervous or fearful than others. In other words . . .

horses have certain characteristics in common

. . . .’’), aff’d, 249 La. 25, 184 So. 2d 544 (1966); Simonds

v. Maine Telephone & Telegraph Co., 104 Me. 440, 442,

72 A. 175 (1908) (‘‘[i]t is common knowledge that all

horses . . . are liable to be frightened by any unaccustomed . . . appearances and noises in unaccustomed

situations; that they are susceptible to fright from the

mosttrivial things;thattheir vagaries are unforeseeable;

and that it is practically impossible to guard against

them’’); Fraumeni v. Aleppo Temple Shriners Activities, Inc., Massachusetts Superior Court, Docket No.

950204 (Mass. Super. April 23, 1997) (‘‘It is [common

knowledge and] uncontroverted that horses have a natural dangerous propensity without regard to conditioning or training. [The plaintiff] himself asserted that even

with the proper care, horses have a propensity to buck

and that ‘you can never depend on them.’ ’’); Rosenthal

v. Hill Top Riding Academy, Inc., 261 Minn. 88, 92, 110

N.W.2d 854 (1961) (It was entirely proper that ‘‘[t]he

trial court took judicial notice, ‘as a matter of common

knowledge, that some horses shy at traffic and some

horses don’t.’ . . . A reasonable man is assumed to

have such knowledge of the habits of animals as is

customary in his community. For instance, he should

know that certain objects are likely to frighten horses.

It is also a matter of common knowledge, which it may

be assumed that he knows, that horses are anxious to

return to their stable, particularly at the end of the day;

that they are nervous and excitable; and that, even

though gentle, many of them fear motorcycles and

motor scooters, and as night approaches, even gentle

horses may become restless and difficult to handle,

particularly when in the hands of an inexperienced

rider.’’ [Footnote omitted.]); Crosby v. Burge, 190 Miss.

739, 748, 1 So. 2d 504 (1941) (‘‘courts . . . take judicial

notice of the character and habits of domestic animals

. . . [and] [i]t is common knowledge that any horse,

regardless of how gentle he may be, is likely to jump

or lunge forward when his companion animal [in a

plowing team] falls or hits against him from a three

or four foot embankment’’ [citation omitted; internal
quotation marks omitted]); Bracken v. Bruce, 190 N.J.

Super. 146, 152, 462 A.2d 201 (App. Div. 1983) (‘‘[I]t

appears to us within common knowledge that most

animals . . . might be startled by . . . sudden, unexpected noises. . . . The excitability of horses [being

ridden on a highway with cars] is, therefore, a proper

subject of judicial notice . . . .’’ [Citations omitted.]);

Padilla v. Winsor, 67 N.M. 267, 273, 354 P.2d 740 (1960)

(taking judicial notice of fact that ‘‘horses no matter

how gentle, with slight provocation, or without any

known provocation, will sometimes shy, jump or even

start to buck’’); Hommel v. Benshoff, 178 Misc. 2d 1038,

1041, 682 N.Y.S.2d 546 (1998)(‘‘It is a matter of common

knowledge that one of the central dangers to all participants in sporting activities involving horses is the

strength and unpredictability of the animals themselves.

. . . Thus, for all who work closely with horses—even

if not direct participants in the sport itself—there is an

elevated risk of injury . . . . [T]here is no dispute that

a horse is a powerful and sometimes unpredictable

animal . . . .’’ [Citations omitted.]); Settlemeyer v.

Southern Railway Co., 91 S.C. 147, 150, 74 S.E. 137

(1912) (it is common knowledge that ‘‘horses [are]

excited and frightened by the odor of wild animals’’);

Blaha v. Stuard, 640 N.W.2d 85, 88 (S.D. 2002) (‘‘[i]t is

common knowledge that horses buck’’); Jarvis v. Koss,

139 Vt. 254, 255, 427 A.2d 364 (1981) (‘‘[t]he habits and

qualities of common animals . . . are matters of common knowledge and a proper subject for judicial

notice’’). But see Leipske v. Guenther, 7 Wis. 2d 86,

91, 95 N.W.2d 774, 96 N.W.2d 821 (1959) (‘‘there is no

evidence that it is a natural propensity of horses to bite

people, and we are not prepared to take judicial notice

of such a propensity’’).

Similarly, the evidence was undisputed in the present

case that horses have a natural propensity to nip and

bite. All of the witnesses on both sides who gave deposition testimony on the behavior of horses during the

summary judgment proceedings acknowledged this

propensity. Bradley W. Amery, a doctor of veterinary

medicine whose affidavit was filed in support of the

plaintiffs’ opposition to the summary judgment motion,

gave a detailed and lengthy explanation as to why this is

the case. Vendrella v. Astriab Family Ltd. Partnership,

133 Conn. App. 630, 635, 635–36 n.10, 36 A.3d 707 (2012).

Amery explained that he was ‘‘very familiar with . . .

horses and . . . uniquely familiar with the propensities

of horses to bite. . . . Biting is a natural part of horses’

lives and horses can bite for many reasons. Anatomically the horse has his eye located laterally on his head.

While this provides a near 350 degree range of vision

it does mean that there are two blind spots. These are

directly in front of the horse’s nose for approximately

3-4 feet, and directly behind the head creating a 10

degree blind spot behind the horse. This means that

the horse doesn’t see what he is grabbing 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. Biting is also a common

form of mutual grooming. Horses will usually stand

facing opposite directions and use their teeth to both

scratch and bite the other horse’s back, neck and withers. This behavior can be easily replicated by a human

scratching a horse’s withers. Nipping is a term that is

often applied to horses attracting attention. This behavior is generally believed to be the result of hand feeding

treats. However, this behavior can be created by any

form of positive reinforcement (like scratching their

muzzle, or head, patting their neck or even verbal

rewards) [and] [t]his nipping behavior can escalate if

the [person’s] attention is not on the horse to a full

bite. . . . [M]ost of the bites are not the result of

aggressive . . . or nasty horses. They occur when the

horse is being groomed, tacked up, being [hand-fed]

treats, or in pain.’’ (Internal quotation marks omitted.)

Id., 635–36 n.10.

In other deposition testimony, Milford Animal Control Officer Richard George agreed with the statement

that ‘‘a horse doesn’t have to have a tendency to bite

in order to bite’’ and that he himself had been bitten

by horses in the past. Captain Bernard L. Begley, Jr.,

of the Milford Fire Department similarly testified in

support of the plaintiffs’ opposition that he had been

riding horses ‘‘all of [his] life,’’ that ‘‘a horse [could]

bite at any time,’’ and that ‘‘[t]hey have all been doing

it . . . since the beginning of time, biting and kicking.’’

(Internal quotation marks omitted.) Vendrella v.

Astriab Family Ltd. Partnership, supra, 133 Conn.App.

636. Begley further stated that he always was careful

when feeding horses and that he ‘‘never put [his] fingers

anywhere near the mouth of a horse.’’ (Internal quotation marks omitted.) Id. Begley also opined that ‘‘a

horse’s propensity to bite is part of its nature.’’ Id.

The defendant Astriab concurred with these assessments. In his deposition testimony, Astriab ‘‘acknowledged that a horse, by its very nature, could harm a

person who attempts to pet or feed [it], stating that ‘a

horse could bite you and cause great physical damage.’

He further acknowledged that he understood that even

though a horse does not display a propensity to bite

another person, horses by their nature could bite a

person. He testified, based on his experience, that he

was ‘well aware’ that horses can bite people.

‘‘Astriab also . . . repeatedly described Scuppy as a

‘typical horse.’ When asked if Scuppy was different from

other horses that would bite if a finger was put in front

of him, Astriab answered, ‘[n]o.’ He acknowledged his

concern that if someone made contact with Scuppy,

whether to pet or feed him, he or she could get bit.

When asked whether ‘a person who doesn’t know

Scuppy . . . can go up to Scuppy, put [his] hand out
and the horse, being a horse, could bite that person,’

Astriab answered, ‘[y]es.’ ’’ Id., 636–37.

The fact that the plaintiffs’ witnesses and the defendant Astriab gave consistent testimony regarding the

natural propensity of horses to nip and bite—not

because they are abnormally dangerous animals but

because of their inherent disposition to engage in such

behavior—supports the conclusion that it is a matter

of common knowledge that horses as a species have a

natural propensity to bite. Accordingly, the trial court

should take judicial notice of this characteristic and

limit the question submitted to the jury to whether the

defendants, given this knowledge and their knowledge

of Scuppy’s past behavior, took reasonable precautions

to prevent Scuppy from causing foreseeable harm.

The majority acknowledges that judicial notice has

been taken of the natural propensities of animals in

past cases and that the court in Bischoff ‘‘effectively

took judicial notice of the fact that cats as a species

are harmless,’’ but states that, ‘‘[i]f the question of cats’

naturally mischievous propensities had come before

this court as a matter of first impression today, we

might have applied the more flexible approach that we

adopt in this opinion and have left that determination

to the jury on a case-by-case basis.’’ Footnote 24 of the

majority opinion. The majority explains that, ‘‘when

reasonable minds could differ as to whether a particular

harm was foreseeable, the issue is one for the jury.

. . . Thus . . . if a plaintiff can prove that an injury

by a domestic animal was foreseeable because the animal belonged to a class with naturally mischievous

propensities, the owner or keeper of the animal has a

duty to take reasonable steps to prevent foreseeable

harm. In any given case, the existence of this duty will

depend on proof that the harm was foreseeable, which

is a question of fact for the trier of facts.’’5

(Citations

omitted; emphasis in original.) Footnote 6 of the majority opinion.

I disagree. Asking a jury to decide whether a particular species of domesticated animal has a natural propensity to engage in potentially harmful behavior makes

no sense. First, the natural propensities of a species

are, by definition, fixed, which means that they are an

essential part of the animal’s nature. Thus, to the extent

reasonable minds can differ as to whether a natural

propensity exists, it means that common experience

and the current state of scientific knowledge are insufficient to justify the application of a legal standard that

charges the owner of an animal with such knowledge.

In these cases, all guesswork should be eliminated, and

the legal standard that should be applied to determine

an owner’s negligence should be based on the owner’s

knowledge of the propensities of the animal in question.

Second, and closely related, if reasonable minds can

differ as to whether such a propensity exists, an owner
never can be charged with knowledge and with the

obligation to protect against the potentially harmful

consequences of the animal’s behavior because he reasonably may believe that the propensity does not exist.

Third, if reasonable minds can differ, defendants will

not be judged under the same legal standard in identical

circumstances because juries may reach differing conclusions as to whether the propensity is natural to the

species and whether the defendant should be charged

with knowledge that it exists. This is not only unfair

to owners charged with negligence, whose fate will

depend on the ‘‘luck of the draw’’ and the subjective

opinions of the jury members, but will lead to confusion

regarding the future liability of animal owners under

Connecticut’s negligence law and to disputes as to

whether there was sufficient notice of the animal’s propensity to engage in the harmful behavior.

Owners must have notice of their potential liability

for an animal’s harmful behavior so that they will be

encouraged to take proper precautions. For example,

if this court were to take judicial notice of the natural

propensity of horses to nip and bite, owners would

know not only that they must protect against harm due

to the unique characteristics of a particular horse, but

that they also must take steps to protect against foreseeable harm that might arise from the general propensity

of horses to nip and bite. Such steps might consist of

posting warning signs, building fences, or otherwise

separating their horses from persons with whom they

should not come into contact.

None of the cases cited by the majority suggests that

the question of whether a domesticated animal has a

natural propensity to engage in harmful behavior should

be submitted to the jury.6 See footnote 22 of the majority

opinion. Rather, most of the cases state that the owner

or keeper ‘‘is assumed to know the animal’s general

propensities’’; (emphasis added; internal quotation

marks omitted) Humphries v. Rice, 600 So. 2d 975, 978

(Ala. 1992); thus indicating that the only question the

jury must decide is whether the owner took appropriate

steps to prevent foreseeable harm. See, e.g., Groh v.

Hasencamp, 407 So. 2d 949, 952 (Fla. App. 1981) (‘‘[t]he

owner or keeper of a domestic animal is bound to take

notice of the general propensities of the class to which

it belongs, and also of any particular propensities peculiar to the animal itself of which he has knowledge or

is put on notice; and in so far as such propensities

are of a nature likely to cause injury he must exercise

reasonable care to guard against them and to prevent

injuries which are reasonably to be anticipated from

them’’ [emphasis added; internal quotation marks omitted]),review denied, 415 So. 2d 1360 (Fla. 1982); Farrior

v. Payton, 57 Haw. 620, 630, 562 P.2d 779 (1977) (‘‘[t]he

owner or keeper of a domestic animal is bound to take

notice of the general propensities of the class to which
it belongs . . . and insofar as such propensities are of

a nature likely to cause injury he must exercise reasonable care to guard against them and to prevent injuries

which are reasonably to be anticipated from them’’

[emphasis added; internal quotation marks omitted]);

Ross v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993) (‘‘the

owner of a dog is bound to know the natural propensities of dogs, and if these propensities are [of] the kind

which reasonably might be expected to cause injury,

the owner must use reasonable care to prevent such

injuries from occurring’’ [emphasis added]); Huber v.

Timmons, 184 Neb. 718, 722, 171 N.W.2d 794 (1969)

(‘‘Even in the absence of any known viciousness in a

domestic animal, its owner is obliged to exercise over

it a certain degree of care depending upon the kind

and character of the particular animal concerned, the

circumstances in which it is placed, and the purposes

for which it is employed or kept. The owner . . . is

charged with knowledge of the natural propensities of

animals . . . and, if these propensities are of the kind

that might cause injury he must exercise the care necessary to prevent such injuries as may be anticipated.’’

[Emphasis added; internal quotation marks omitted.]);

Griner v. Smith, 43 N.C. App. 400, 407, 259 S.E.2d 383

(1979)(‘‘[t]he owner of a domestic animalis chargeable

with knowledge of the general propensities of certain

animals and he must exercise due care to prevent injury

from reasonably anticipated conduct,’’ even in absence

of evidence that animal had known vicious propensities

[emphasis added]). Indeed, after the court in Huber

v. Timmons, supra, 721, observed that horses have a

natural propensity to rear or bolt when frightened and

that a person riding a horse for hire must take this

propensity into account, it concluded that the only question that should have been presented to the jury was

‘‘whether . . . [the] defendants were negligent in

entrusting the pony [on which the child was riding] to

[the inexperienced handler’s] care.’’ Id., 722.

In the present case, I would conclude that it is a

matter of common knowledge that horses as a species

have a natural propensity to nip and bite and that, to the

extent the majority believes that evidence is required to

support this conclusion, it has been provided by the

uncontroverted testimony of all of the witnesses in this

case who testified about the general disposition and

behavior of horses. Accordingly, the majority should

not conclude, in light of the evidence in this case, that

the natural propensity of horses to bite is a genuine

issue of material fact that must be submitted to the

jury. Rather, the jury should be asked to determine

whether, given the fact that horses as a species have a

natural propensity to bite and given the defendants’

knowledge of Scuppy’s past behavior, the defendants

took appropriate measures to prevent Scuppy from

causing foreseeable harm.

For the foregoing reasons, I respectfully concur in
the judgment.

1 A ‘‘domestic animal’’ is defined in the Restatement (Second) of Torts as

‘‘an animal that is by custom devoted to the service of mankind at the time

and in the place in which it is kept.’’ 3 Restatement (Second), Torts § 506

(2), p. 10.

2 The majority describes horses as a ‘‘class’’ of animals, but horses are a

species within the class of ‘‘mammals . . . .’’ Sykes v. Commissioner of

Internal Revenue, 57 T.C. 618, 626 (1972).

3 Scuppy is the name of the horse that bit Anthony John Vandrella.

4 The ninth, and most recent, edition of Black’s Law Dictionary retains

this definition of ‘‘common knowledge,’’ as well as the eighth edition’s

definition of ‘‘fact.’’ Black’s Law Dictionary (9th Ed. 2009).

5 The majority essentially says the same thing in a different part of its

opinion when it states that, ‘‘if a plaintiff presents evidence that it was

reasonably foreseeable that a horse would be dangerous under the particular

facts and circumstances of the case, and reasonable minds could differ on

that question, the issue is one for the trier of facts.’’ Footnote 22 of the

majority opinion.

6 The majority responds in a footnote that ‘‘the court in Dolezal v. Carbrey,

[161 Ariz. 365, 370, 778 P.2d 1261 (App. 1989)], concluded that the questions

of whether ‘an otherwise gentle horse might bolt in reaction to out-of-theordinary cues’ and whether ‘an inexperienced rider on a runaway horse

could be harmed in some manner’ were questions for the jury because

reasonable minds could reach different conclusions on those questions.’’

Footnote 25 of the majority opinion. The majority also claims that the

natural propensity of horses to bite is not a matter of common knowledge

in contemporary society because horses are not a daily presence in most

people’s lives, and that different types of horses may have a more or less

pronounced propensity to engage in biting behavior, thus justifying submission of propensity questions to the jury. See id. I disagree.

First, insofar as the majority relies on Dolezal, that case is unpersuasive.

The question in Dolezal was not whether the horse had a natural propensity

to bolt that the owner should have foreseen but whether it was foreseeable

that a show horse trained to respond to subtle cues might unexpectedly

bolt when the novice rider’s ‘‘legs were flapping during her ride and . . .

she jabbed the horse with one foot and dragged her heel across the horse’s

back when she attempted to dismount.’’ Dolezal v. Carbrey, supra, 161 Ariz.

370. In this context, which did not require the jury to consider the natural

propensities of horses but the qualities instilled in the particular horse

because of its special training, the court concluded that ‘‘[r]easonable minds

could differ whether it is foreseeable that an otherwise gentle horse might

bolt in reaction to out-of-the-ordinary cues. Taking this one step further,

[the court] also believe[s] that reasonable minds could conclude that it is

foreseeable that an inexperienced rider on a runaway horse could be harmed

in some manner.’’ (Emphasis added.) Id. The court thus determined that

resolving the question of negligence required an examination of the owner’s

conduct, such as whether he should have allowed an inexperienced rider

on the horse, whether he instructed the rider properly, and whether he

sufficiently supervised her ride and dismount. Id., 370–71.

Second, the fact that horses are not a daily presence in people’s lives

does not mean that it is not common knowledge that they have a natural

propensity to nip and bite. Bulls are not a daily presence in people’s lives,

but it is common knowledge that they have a natural propensity to engage

in behavior that causes harm to others if they are not sufficiently controlled.

See 3 Restatement (Second), supra, § 518, comment (g), p. 31 (‘‘the keeper

of a bull . . . is required to take greater precautions to confine it to the

land 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’’). Similarly, it is common knowledge that domesticated horses,

although not naturally dangerous animals, have certain potentially harmful

propensities, including bucking, biting, and kicking, because people are

constantly exposed to horses by way of books, television, movies, computer

games, parades, and a wide variety of recreational activities. Accordingly,

one need not have direct contact with horses to have knowledge of their

general propensities in our media-saturated world.

Third, to the extent the propensities of an animal may not be common

knowledge because the animal belongs to a subspecies with characteristics

that distinguish it from other members of the species, that issue has not

been raised. The issue before the court is whether the owner of a horse

had a duty to take reasonable steps to prevent the horse from causing
foreseeable harm because horses as a species are naturally inclined to

engage in the type of conduct that caused Anthony John Vendrella’s injuries.

As previously noted, Astriab described Scuppy as a ‘‘typical horse’’ who

would react no differently from other horses when in close contact with

people who might approach to pet or feed him. Thus, to the extent the

majority considers how the issue of duty should be resolved when an animal

is a member of a subspecies with characteristics that differ from other

members of the species, or when a particular animal has known mischievous

propensities that might result in foreseeable harm, its reasoning has no

relevance to the issue in the present case.