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11th District affirms Portage County horse death dispute
TRACEY BLAIR
Legal News Reporter
Published: March 19, 2018
A Portage County trial judge did not err by granting summary judgment in favor of a Streetsboro couple who was sued after a renter’s foals died on their horse farm, the 11th District recently ruled.
Timothy and Maren Morgan own a large horse farm that includes a pasture, the Morgan’s home and a seven-stall horse barn.
They rent the majority of stalls to others and provide boarding services. The renters may visit their horses at any time, but Tim Morgan regularly feeds the horses, provides their bedding and “turns them out to pasture,” according to case summary.
Denise Paolucci owned three horses, two mares and one gelding in early 2010. One of her mares was pregnant.
Paolucci entered into an oral contract with the Morgans to board her horses.
Timothy Morgan agreed not to place her gelding in the pasture with any stallions to avoid the risk of injury.
He told her he would not help deliver the foal but agreed to let Paolucci and a veterinarian know when her mare began to give birth. Paolucci said she would handle the delivery.
Paolucci sued the couple based on three separate incidents.
On a March 31, 2010 visit to the farm, Paolucci saw that her gelding had a puncture and stifle injury. She claimed that injury could only have been caused by severe trauma.
Timothy Morgan in an affidavit did not deny putting a stallion in the pasture with the gelding, but claimed he did not see the stallion harm the gelding.
Ten days later, Paolucci said she went to the barn one night to see her pregnant mare. She asked Timothy Morgan to watch the mare closely and call the veterinarian if anything changed.
He claimed he went to the barn four hours later to feed the horses and found that the mare had given birth, but the foal was dead. Paolucci was unable to revive the foal.
The third incident related to how the foal’s remains were disposed. The appellant was upset, stating the Morgans buried the foal on their property without her consent.
Paolucci sued for breach of contract and negligence, and sought damages for the wrongful disposal of the dead foal.
The Morgans argued the appellant could not prove that the gelding’s injury or foal’s death were caused by their actions or inactions.
The trial court granted the Morgans’ motion for partial summary judgment on the breach of contract and negligence claims.
The couple later filed a separate motion for summary judgment on the wrongful disposal claim. They claimed Paolucci could not recover for emotional distress because the foal is considered personal property and had no economic value.
Paolucci argued she could recover the cost to exhume and transport the foal’s remains to a proper resting place, but the trial court granted summary judgment for the Morgans on the wrongful disposal claim as well.
On appeal, she said the trial court’s decisions were flawed because there were genuine issues about the boarding contract terms and extent of the couple’s duty, as well as whether she allowed Timothy Morgan to dispose of the remains.
The trial court found no evidence the Morgans caused harm to the gelding or foal, and noted that Paolucci gave no evidence as to duty or breach.
“Injury to a gelding and death of a foal are things that can happen in any number of ways, with or without negligence,” 11th District Judge Thomas R. Wright stated in his 2-1 opinion. “Appellant did not establish that the gelding’s injury or the foal’s death occurred under such circumstances that in the ordinary course of events would not have occurred but for negligence. Accordingly, the trial court did not err.”
In addition, Judge Wright said the trial court did not err in granting summary judgment on the wrongful disposal claim either because Paolucci did not comply with R.C. 2737.03.
Appellate Judge Cynthia Westcott Rice concurred.
Eleventh District Judge Diane V. Grendell wrote a dissenting opinion regarding the injury to the appellant’s gelding.
“… The majority claims that the issue of bailment has been waived because it was not raised by Paolucci,” Judge Grendell stated. “But it is a matter of law, not argument, that the Morgans bore the burden of explaining their failure to redeliver the property undamaged.”
The case is cited Paolucci v. Morgan, 2018-Ohio-793.