Plaintiff-appellant, James Borton (Bor-ton) appeals an order granting summary judgment favoring defendants-appellees Violet Lavendusky, and Violet Lavendusky as successor in interest to Jack Lavendusky (Lavenduskys) in a personal injury action arising from Borton being kicked by the Lavenduskys' steer.
We reverse.
ISSUE
The sole issue raised here is whether the trial court erred in granting the Laven-duskys' motion for summary judgment.
FACTS
Borton has been a farm hand on the Ackley dairy farm in North Liberty for 10 years. On June 15, 1982, he as a volunteer went with his employer, Robert Ackley (Ackley) to the Lavenduskys' neighboring farm to load some of the Lavenduskys' cattle onto a trailer for mаrketing.
The trailer was divided into front and back sections separated by a center gate. Borton's job was to open that gate so some of the cattle could reach the front section. After it was full, Borton was to close the gate to keep the cattle placed there in plаce, so as to maintain the trailer's balance while the cattle were in transit.
While loading the cattle, Borton noticed a particular steеr was "acting a little nervous." While guiding the steer to the front section, he partially turned his back. While Borton was so positioned, the steer kicked him in the knee. Borton sustained tendon and ligament damage.
Borton stated in his deposition he was an experienced cattleman who had been around steеrs most of his life. Years earlier he had been kicked by another steer, knew they could kick when nervous or when placed in confined areas. Bortоn also testified he knew the Lavenduskys' steer was nervous before it kicked him, but was not warned by the Lavenduskys the steer was more prone to kick than their othеr steers until after the incident.
The Lavenduskys moved for summary judgment under Trial Rule 56, claiming there was (a) no genuine issue of material fact, and (b) Borton incurred the risk оf getting kicked by the nervous steer as a matter of law. The trial court granted their motion.
DISCUSSION AND DECISION
Borton claims the trial court's grant of summary judgment was contrary to lаw, claiming conflicting inferences can be gleaned from these facts as to whether he had actual knowledge of the specific risk he incurrеd while loading the steer which kicked him. Namely, he claims the Laven-duskys knew the steer in question had a greater tendency to kick than the average steеr, but failed to warn him of that fact until after the incident. We agree with Borton's contention summary judgment was granted improvidently in this case.
SUMMARY JUDGMENT
Summary judgment is appropriate only when the pleadings, depositions, answers to
*641
interrogatories, and admissions on file, together with the affidavits and testimony, if any, show there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Creighton v. Caylor-Nickel Hospital, Inc. (filed November 13, 1985),
When reviewing the grant of a motion for summary judgment we stand in the shoes of the trial court. Lafary v. Lafary (1985), Ind.App.,
INCURRED RISK
In the present case, the trial court held Borton incurred the risk as a matter of law. This holding was based on Borton's deposition statement he was familiar with cattle and their general tendencies; they could kick when nervous or when placed in confined areas; and the Lavenduskys' steer was acting a littlе nervous.
The doctrine of incurred risk is based upon the proposition one incurs all ordinary and usual risks of an act upon which he voluntarily enters, so lоng as those risks are known and understood by him, or could be readily discernible by a reasonable and prudent man under like or similar circumstances. Stallings v. Dick (1965),
"Where the evidence on the question of assumed or incurred risk presents an issue of fact, that issue is for the jury, but where there is no real dispute in the evidence bearing on that question, it is for the court to say as a matter of law that the plaintiff assumed or incurrеd that risk." (Emphasis in original).
In Power v. Brodie (1984), Ind.App.,
It involves a mental state of venturousness on the part of the actor, and demаnds a subjective analysis into the actors actual knowledge and voluntary acceptance of the risk. By definition ... the very essence of incurred risk is the conscious, deliberate and intentional embarkation upon the course of conduct with knowledge of the cireumstances. If requires much more than the general awareness of a potential for mishap. Incurred risk contemplates acceptance of a specific risk of which the plaintiff had actual knowledge. (Emphasis supplied, citations omitted).
Borton admits he has been around cattle since he was a boy. Hе knew a steer could kick him if it were nervous. Borton claims, though, the Lavenduskys knew this particular steer was "wild" and had a greater tendency to kick than the аverage one. Thus, he claims he could not have incurred the risk as a matter of law because an issue of fact exists regarding the Lavenduskys' failure tо warn him about the "wild" steer. We agree.
The owner 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. Insоfar as such propensities are likely to cause injury, he must exercise reasonable care to guard against them and to prevent injuries reasonably anticipated therefrom. Doe v. Barnett (1969),
It is well settled in this state cattle are not naturally ferocious or dangerous animals and the owner thereof is not
*642
strictly liable for injuries caused thereby unless the owner had knowledge of the vicious propensity of the particular animal. Thompson v. Lee (1980), Ind.App.,
Incurred risk as a defense to Borton's recovery can be found as a matter of law only if the evidence is without conflict and the sole inference to be drawn therefrom is he (a) had actual knowledge of the danger in loading this particular steer, and (b) understood and appreciated the risk. See, Moorе v. Federal Pacific Electric Co. (1980), Ind.App.,
Because conflicting inferences can be drawn regarding Borton's knowledge and acceptance of the specific risk in loading this steer, summary judgment was inappropriate here.
Reversed and remanded for further proceedings consistent with this opinion.
Notes
. We note this incident occured on June 15, 1982. Indiana's Comparative Fault statute, LC. 34-4-33-1, et seq., is a 1983 enactment which became effective January 1, 1985. This act does not apply to any civil action which accrues before the effective date.