Sandy v. Bushey

Supreme Judicial Court of Maine · Torts

TortsLiability for domestic animalsVicious propensitiesScienterContributory negligencedomestic animalsvicious animalscienter

Facts

In the summer of 1923, the plaintiff's mare and colt were pastured with other horses, including the defendant's three-year-old colt. On July 14, 1923, the plaintiff went to the pasture to grain his mare and was seriously injured when the defendant's horse kicked him. The evidence fairly tended to show that before the incident the defendant's horse had displayed a vicious and ugly disposition on various occasions and that the defendant had notice of those vicious propensities. At the time of the injury, the plaintiff had led his mare away from the other horses, drove the defendant's horse away when it approached threateningly, and then was unexpectedly attacked when it returned silently and swiftly.

Issue

When a keeper of a domestic animal knows of the animal's vicious propensities, does the plaintiff's alleged contributory negligence bar recovery? More specifically, was the plaintiff's conduct here enough to show that he voluntarily and unnecessarily put himself in the way of harm knowing the probable consequences, thereby relieving the defendant of liability?

Rule

At common law, the owner or keeper of a domestic animal is not liable for injuries caused by the animal in a place where it has a right to be unless the animal is vicious and the owner knows it. When a person keeps a vicious or dangerous domestic animal known to be accustomed to attack and injure mankind, that keeper is liable as an insurer, and negligence is immaterial; the plaintiff need prove only the keeping, the vicious propensities, and scienter. Because negligence is not the basis of liability in Maine, contributory negligence in the strict sense is not a defense; the keeper is relieved only if the injured person, with knowledge of the danger, voluntarily and unnecessarily put himself in the way of injury so that the harm is fairly attributable to his own act rather than to the keeping of the animal.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Bangor, Maine, Owen Mercer kept a ram on his property. The ram had previously charged two delivery workers, and several neighbors had warned Owen about its aggressive behavior. While Ava Lin was walking up the front path to drop off a misdelivered package, the ram broke free from a gate and injured her.

If Ava sues Owen, which is the strongest basis for liability under the governing rule?

Explanation. The majority rule is that a keeper of a domestic animal is liable when the animal is vicious and the keeper has scienter. Liability is founded on the keeping of the known vicious animal, not on negligence, so the plaintiff need only prove keeping, vicious propensities, and knowledge. (Derived from Sandy v. Bushey (n.d.).)