This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Richard Kryzer,


Jeff Passow, et al.,


Filed July 11, 2000

Klaphake, Judge


Fillmore County District Court

File No. C2-99-146


James M. Sherburne, Sherburne Law Office, P.A., 735 Northstar West, 625 Marquette Avenue, Minneapolis, MN  55402 (for appellant)


Robert G. Benner, Goodman & Guzinski, 300 First Avenue N.W., Suite 221, P.O. Box 1448, Rochester, MN  55903 (for respondents)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            After he was thrown from a horse owned by respondent Sylvia Passow, appellant Richard Kryzer brought this action seeking damages for his injuries.  Kryzer now appeals from the district court’s grant of summary judgment to Passow.  The court concluded that Passow owed no duty to Kryzer and had no knowledge of any actual, vicious propensities of the horse.  Because there are no genuine issues of material fact and the district court did not err in its interpretation of the law, we affirm.


            1.         Negligence

            “On an appeal from summary judgment, we must examine two questions, whether there are any genuine issues of material fact and whether the lower courts erred in their application of the law.”  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997) (citation omitted).  For purposes of this appeal, Passow has adopted the facts as set forth by Kryzer.  We therefore determine only if the district court properly applied the law.

            In order to sustain a negligence action, one must demonstrate that (1) the responsible party owed the complaining party a duty; (2) the duty was breached; (3) the breach was the proximate cause of injury; and (4) the complaining party was indeed injured.  Nickelson v. Mall of Am. Co., 593 N.W.2d 723, 725 (Minn. App. 1999).

            In general, even when a person realizes or should realize that action on his or her part is necessary, there is no duty to act for the protection of another.  Donaldson v. Young Women’s Christian Ass’n, 539 N.W.2d 789, 792 (Minn. 1995).  “The existence of a legal duty depends on the relationship of the parties and the foreseeability of the risk involved.”   Id. (citation omitted).

            Kryzer alleges that a special duty existed because Passow had expert knowledge about horses and the potential dangers involved in riding a mare in the company of her unweaned foal.  However, “superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection, is insufficient to establish liability in negligence.”  Harper v. Herman, 499 N.W.2d 472, 475 (Minn. 1993).  In Harper, the supreme court determined that a social host owed no duty to a guest who dove into shallow water off the host’s boat.  Id.  The court reasoned that although the host knew of the dangerously shallow water around the boat, the guest was an able-bodied adult who should have been aware of the dangers of diving into unknown water; thus, despite the host’s superior knowledge, he owed no special duty to the guest, who was not in need of protection.  Id.

            Where a risk of harm is sufficiently foreseeable, a duty to warn may be imposed.  Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985) (risk of arson fire not sufficiently foreseeable to raise duty to warn, despite prior vague threat).  The risk of harm must be one that a person could reasonably anticipate and may not be based on what actually happened.  Austin v. Metropolitan Life Ins. Co., 277 Minn. 214, 217, 152 N.W.2d 136, 138 (1967) (risk of harm to cleaning lady because of tenant’s placement of wastepaper not foreseeable; therefore, no duty exists); Boitz v. Preblich, 405 N.W.2d 907, 912 (Minn. App. 1987) (no negligence where tenant let dog out to run and dog knocked over pedestrian; harm not foreseeable).

            Kryzer was an able-bodied adult who had ridden this particular horse many times.  He knew of the common risks of horseback riding and was aware of the bond between a mother animal and her offspring.  The dangers of riding a mare with an unweaned foal are perhaps heightened, but are no different from the usual risks associated with riding.  Under these circumstances, Passow owed Kryzer no special duty of care.  The district court did not err in granting summary judgment.

            2.         Scienter

            Scienter is a common law action by which a person injured by a domestic animal may recover damages for injuries if the animal has vicious propensities and the animal’s keeper has knowledge of these propensities.  Ryman v. Alt, 266 N.W.2d 504, 506 (Minn. 1978).  A dangerous or vicious propensity is

a propensity or tendency of an animal to do any act that might endanger the safety of the persons and property of others in a given situation; and any propensity on the part of a domestic animal, which is likely to cause injury to human beings under the circumstances in which the party controlling the animal places him, is a dangerous or vicious propensity.


Macho v. Mahowald, 374 N.W.2d 312, 315 (Minn. App. 1985) (citation omitted), review denied (Minn.  Nov. 4, 1985).  The danger must be actual, not just potential.  Id.

            The undisputed evidence was that the horse was “gentle.”  There were no incidents of dangerous behavior attributed to the horse, even after the birth of her foal.  The unpredictability of the mother horse was a potential, not an actual, danger and was insufficient to sustain an action in scienter.  See id.

            Because we conclude that Passow owed no duty of care to Kryzer and that Kryzer failed to establish one of the necessary elements for an action in scienter, we affirm the district court’s grant of summary judgment.  We need not address the remaining issue involving application of the doctrine of primary assumption of the risk.  See Baber v. Dill, 531 N.W.2d 493, 495 (Minn. 1995) (“[i]f no duty exists there is no need to determine whether a person assumed the risk thus relieving the defendant of the duty”).