Vendrella v. Astriab Family Ltd. P'ship

VENDRELLA v. ASTRIAB FAMILY LTD. PARTNERSHIP

SC18949

Supreme Court of Connecticut

Dated: April 1, 2014

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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 tothose 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 other jurisdictions and has been done in this state, as well. For example, this court note...