*1 occasion, On it is difficult determine whether one not in this case. ought disqualify, The ground alleged by movant is not a valid for recusal. ground It is the of this justice to refuse to disqualify.
Peter VAN HOUTEN Rick PRITCHARD 93-473 Court of
Supreme Arkansas Opinion February delivered [Rehearing denied March 1994*] participating. Corbin, JJ., *Glaze *2 Watts, P.A., Wilson, Laser, by: & Sharp, Mayes', Bufford Brown, for and Brian Allen appellant. Richard N. Watts Kitterman, Firm, Law S. by: Gregory appellee. Kitterman defendant, Justice. The Peter Van Robert H. Dudley, Houten, it bit for three years plain- had owned cat before tiff, it had never shown a dis- During Rick Pritchard. period and the being abnormally dangerous, biting toward position 21, 1992, cat it run at On March defendant allowed and, urinated, tried to and as plaintiff’s garage plaintiff entered outside, on index As a direct finger. it bit his plaintiff right take bite, has four is fitted undergone surgeries, result of the plaintiff $39,000 than more finger joint, with a has plastic expended for medical treatment. his against
Plaintiff filed suit the defendant recover this alleged contained one count that damages. complaint The trial liability alleged ordinary negligence. and another that count, but verdict the strict granted liability court directed on count Plaintiff jury. proved submitted the urinated, or entered his garage had previously mark a tomcat. It urinated territory again “sprayed,” it bit immediately plaintiff picked up before garage returned a verdict the amount plaintiff’s him. jury $80,000. reverse and dismiss. The defendant We appeals. set arguments,
In order
address the
first
fully
Strict,
out the
liability
doctrine of strict
as it relates to this case.
absolute,
is a common
rule which a defendant
law
is made
some
act.
doing
liable for
ultrahazardous When a defen-
dant
an
act he
carries out such
ultrahazardous
is liable irrespec-
tive
Under
one
of the rule of
lia-
negligence.
phase
absolute
bility, the owner of an animal is
liable for
inflicted
injuries
strictly
(1)
(2)
on a
animal,
was of a vicious
species,
domesticated,
dangerous
had
though
tendencies which
Jr., Comment,
were known
owner.
Jacob Sharp,
Absolute
Arkansas,
Ark. L. Rev.
first
This court
Leslie,
the rule in
adopted this
Holt v.
phase
(1915), and
S.W.2d 191
has
num-
reaffirmed it in a
subsequently
rule,
ber of
cases. To illustrate this
assume that the
phase
*3
owner of a
to be
dog
keeps
known
vicious
animal in a steel
animal,
cage
exercises extreme care to
its
prevent
escápe. The
however,
owner,
does
no
of its
through
fault
and attacks
escape,
innocent
The dog’s
an
owner is
passerby.
strictly liable regardless
of any
he
have taken
precautions may
to avoid the dog’s escape.
Stovall,
53,
See
261
Strange
(1977);
v.
Ark.
S.W.2d 421
see
546
Ivester, Note,
J.
also Herman
1602
Torts—AMI
and 1603—Strict
or
24 Ark.
Negligence?,
L. Rev. 593
refers to this
of
Appellant
the rule as the “one
aspect
bite” rule of
liability.
strict
the label “one
out
Actually,
bite” is
.of harmony with a modem
society
humanitarian
and our hold
ings, and we
that
have said
it is not
to
necessary
prove
rather,
owner knew that his animal had
bitten
ever before
anyone;
it is only
to
necessary
prove that the owner had
notice of
Hendricks,
of the animal to
propensities
251
injure
Bradley v.
people.
733,
Ark.
The
defendant-appellant,
part
argument,
of
contends
for
allow-
ordinary negligence
cause
action
that there is no
of
argument
partially
run at large.
a domestic animal to
ing
However,
of action for ordinary
are some causes
correct.
there
run
animals to
at
own-
domestic
negligence
allowing
horses,
cattle,
could
farm animals that
large
and other
ers
at
have a
con-
large
allowed
run
damage
substantial
Glover,
Civ.2d 1601. In
v.
Finley
trol their
See AMI
animals.
368,
(1958),
affirmed
because
Ark.
we
judgment
livestock to enter on the
allowed his
negligently
defendant
field
There have been numerous cases
graze.
rice
plaintiff’s
resulting
maintenance of fences and the
involving
See,
a roadway.
when livestock
entered
damage
escaped
caused
510,
Co.,
Trucking
280 Ark.
660 S.W.2d
e.g., Smith v. R.A.Brooks
Oliver,
(1979);
(1983);
Further, it provides: to at There certain permitted large.
Animals run are domestic animals so to do harm if left to themselves unlikely and so of constant control incapable purpose satisfied, which it is them is that they proper keep been traditionally have This class permitted cats, bees, dogs, includes and similar birds pigeons in a in which locality they also custom are poultry, per- mitted to run at and therefore are large, regarded as livestock for whose intrusion the land of another their upon liable under the rule possessor strictly stated 504. § It would be to confine bees within the owner’s impossible without their premises entirely destroying usefulness as honey insects at producing except prohibitive expense. Although it is not to confine impossible dogs the premis- es of their or to them under leash taken keepers keep when into a they have been public place, traditionally regarded unlikely do substantial harm if allowed to run at large, so that their are not keepers required them under keep However, constant control. The same is true of cats. although or harborer of a or cat possessor dog is priv- run to allow it to and therefore ileged large is not required control, to exercise care to it under constant he is keep liable if he dog sees his or cat about to attack a human or animal or harm to being do or chattels and crops does not exercise reasonable care to it from prevent doing so. Id., 518 cmt. j. the owner summary, of a domestic cat may permit
his cat to run at unless it has shown a toward vio lence, or unless an ordinance or statute otherwise. The provides *5 trial court ruled that the defendant had no notice any propen toward violence cat and a sity granted directed verdict on the.
the issue of strict The liability. does not plaintiff cross-appeal that the plaintiff then is law of the case The ruling. from that In addi- toward violence. had a the cat propensity failed to prove leash kind of tion, any failed cat, or Thus, to confine control had no duty the defendant the defendant instructing jury erred in the trial court running cat from care to ordinary keep had a to use “duty in his argument also correct defendant-appellant large.” verdict a directed refusing grant court also erred the trial result, and, the cat no to control duty the defeAdanthad since Because the cat. to confine control did not breach errors, we reverse and dismiss. must and dismissed. Reversed
Holt, C.J., Hays, J., dissent.
Glaze, J., not participating. Hays, Justice, summarily majority dissenting.
Steele his cat may permit “the owner of a domestic concludes that violence, toward shown a unless has I Because otherwise.” or statute provides unless an ordinance bemay which an owner are circumstances under believe there restrain control or care to liable for failure to exercise animal, decision. the majority’s I with disagree a domestic below) the trial (defendant has appealed Van Houten Peter and his directed verdict his motion for denying court’s decision on the issue of the verdict notwithstanding motion for a motion for from the denial of An ordinary negligence. of the challenge verdict or is a jnov a directed evidence, sufficiency of the evi- determining' sufficiency test the ver- evidence to support whether there is substantial dence is State, 865 S.W.2d dict. Cleveland enough which is forceful evidence is that evidence Substantial other, conclusion, beyond suspicion or the way one compel exists, substantial evidence whether determining Id. conjecture. favorable to the appellee. in a most light review the evidence State, 860 S.W.2d Coleman that, because majority of the I to the assertion also except directed from the not cross appeal did the plaintiff (appellee) the case is the law of liability, of strict on the issue verdict *6 694
plaintiff failed
the
had a
prove
toward violence.
There was no onus on
“A
cross
cross
appellee
appeal.
is
only when
required
seeks affirmative relief that
appellee
court,
he failed to
obtain
the trial
he won
not when
the case
below and merely asks that the
v.
judgment be affirmed.” Moose
86,
Gregory,
(1979).
267
We have defined as the failure to do something do; that a careful reasonably would person act aris- es from a situation where an ordinarily person prudent same situation would foresee such an risk of harm appreciable to others that he would not act or at least would act in a more Moon, careful manner. White River Rural Water Dist. v. 310 Ark. Further, necessary is not to fore- see a particular injury, to foresee general act or omission is likely Bolstad injury. Pergeson,
Applying substantial evidence standard facts of this case, instant I find the evidence of more negligence was than substantial. Mr. Van Houten agreed that “when a tomcat in his mating cycle they get little hostile He was sometimes.” aware that his cat roamed around and had been seen “spraying” *7 in Mr. Pritchard’s Mr. garage/upholstery Van Houten knew shop. Pritchards had female cat that allowed they to enter through Nevertheless, their garage. Mr. Van Houten left his cat outside for the weekend to fend for itself without food or water. Once again, Mr. Pritchard discovered the cat his Mr. garage. As cat, Pritchard was attempting remove the the cat bit him and would not let go. Mr. Pritchard testified that the cat held on and had to be slung loose. It was not a case of the cat biting simply it had escape, to be forcibly disengaged.
Further, Mr. Van Houten acknowledged that while he was aware was roaming neighborhood and being a nui- others, sance to he did not care and it was his common practice to allow the cat to run at when he and his wife went to the lake for the weekend. It is significant that Mr. Van Houten did vaccinated, see to it that his cat was a clear violation of Ark. Code Ann. 20-19-202 Although he first stated the cat’s current, vaccinations were Mr. Van Houten admitted the cat had been vaccinated years ago as a kitten. It is also material that the subdivision’s bill of assurance provides: “All household on the pets property shall be on a kept leash at all times when are outside of they a residence constructed on a lot.” Finally, from the upon returning doctor’s office the day after he was bit- ten, Mr. Pritchard informed Mr. Van Houten the cat needed to for ten quarantined days. Although the cat was sitting time, window at that Mr. Van Houten turned the cat loose that and it evening has not been seen since. evidence, it, as I view was entirely sufficient to sup-
port jury’s conclusion that Mr. Van Houten failed to exercise care.
Holt, C.J., joins this dissent.