NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1625-07T31625-07T3

MICHAEL R. LaPLACE,

Plaintiff-Appellant,

v.

PIERRE BRIERE, individually and

trading as PIERRE BRIERE QUARTER

HORSES, and PIERRE BRIERE QUARTER

HORSES, LLC, CHARLENE BRIDGWOOD,

DOUGLAS GULTZ and SHERRY GULTZ,

husband and wife,

Defendants-Respondents,

and

PIERRE BRIERE, individually and

trading as PIERRE BRIERE QUARTER HORSES,

and PIERRE BRIERE QUARTER HORSES, LLC,

Defendants/Third-Party Plaintiffs-

Respondents,

v.

CHARLENE BRIDGWOOD,

Third-Party Defendant-Respondent.

______________________________________________________

Argued September 16, 2008 - Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Hunterdon County, Law Division, L-380-06.

Frank D. Rivellini argued the cause for appellant (Francis J. DeVito, P.A., attorneys; Michael Natiello, on the brief).

Marc B. Schuley argued the cause for respondents Pierre Briere, Pierre Briere Quarter Horses, Pierre Briere Quarter Horses, LLC, Douglas Gultz and Sherry Gultz (Barrett Lazar, L.L.C., attorneys; Virginia M. Barrett, of counsel and on the brief).

Jon Robinson argued the cause for respondent Charlene Bridgwood (Law Offices of Craig M. Terkowitz, attorneys; Mr. Robinson, on the brief).

The opinion of the court was delivered by

CHAMBERS, J.A.D.

The unusual facts of this case require us to visit the common law principles governing bailment and conversion, not often encountered today.

Plaintiff Michael R. LaPlace brought this suit to recover for the loss of his horse which died while boarding at a stable owned by defendants Pierre Briere, trading as Pierre Briere Quarter Horses, and Pierre Briere Quarter Horses, LLC ("Briere stable") and while being exercised by defendant Charlene Bridgwood. The trial court granted summary judgment for the defendants and denied plaintiff's motion for partial summary judgment on the issue of liability. Plaintiff now appeals.

The first question presented by this appeal is whether a person who exercises a horse without permission to do so is liable under the tort of conversion when the horse dies during the exercise and there is no evidence of the cause of the horse's death nor is there evidence that the exercising was done negligently. The second question is whether the stable where the horse was boarded and where the death occurred may be liable under the law of bailment under these circumstances. We answer both of these questions in the negative, and we affirm the granting of summary judgment to defendants and the denial of partial summary judgment to plaintiff.

I

In reviewing an appeal from a decision on motions for summary judgment, we employ the same standard applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment will be granted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). When determining whether a genuine issue of material fact is present, we must look at the competent evidence "in the light most favorable to the non-moving party" and determine whether that evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). If the evidence is sufficient to meet that standard, the motion will be denied. Ibid.

Plaintiff was the owner of a horse named Park Me In First. In 2000, plaintiff entered into a verbal agreement with Briere stable for the care, maintenance, and training of his horses, which, beginning in 2002, also included Park Me in First. He paid Briere stable a monthly fee. Briere stable was responsible for providing shelter, food, water, training, and grooming to the horses when they were there. With the consent of a horse's owner, Briere stable would also arrange for shoeing and medical care for horses at the stable. Since Park Me In First was a trained quarter horse who participated in horse shows and competitions around the country, plaintiff and his daughter would from time to time remove the horse from Briere stable in order to take it to these events.

On February 12, 2006, plaintiff and defendant Pierre Briere were at a horse show in North Carolina, when they learned that Park Me In First had died while being exercised by Bridgwood at Briere stable. According to Bridgwood, whose horse was also kept at Briere stable, she had gone to the stable that day to help out. She thought that the stable might be shorthanded because Pierre Briere was away and the staff might not be able to get to work due to snow that had fallen the night before. She asked Douglas Gultz, whom she described as a person who oversaw the stable when Pierre Briere was away, if there was anything she could do to help. She testified that he replied that she could "lunge" the horses, although he denies saying so.

Lunging is a way of exercising a horse by having it walk, trot, or canter in a circle while it is secured to a lunge line handled by a person standing in the center of the circle. Lunging is generally part of a horse's daily routine and is not considered dangerous. Bridgwood had owned horses for thirty-five to forty-five years and had trained, lunged, and cared for horses at her former husband's facility for twenty years. Ten to fifteen years earlier, she had lunged plaintiff's horses dozens of times over a period of three or four years when they were located at her former husband's farm, and she had lunged at least one of plaintiff's horses at a horse show. Pierre Briere, who had seen Bridgwood lunge horses fifty to one hundred times before February 12, 2006, testified at his deposition that he found her to be "very capable" of handling and lunging a horse.

Bridgwood explained that on February 12, 2006, she first lunged her horse for about fifteen minutes without incident and then proceeded to lunge Park Me In First. She selected him for exercising because she knew he was a well trained, well mannered horse, and she thought that plaintiff, who was a friend of hers, would appreciate her doing so. She testified that the horse was well behaved for the first five minutes. He then suddenly reared up on his hind legs and collapsed on his side with blood pumping from his nose and died.

The veterinarian was unable to determine the cause of death without performing a necropsy upon the horse. According to Pierre Briere, on the day of the horse's death, plaintiff declined to authorize further examination to determine the cause of death, saying that he did not want to spend any more money on the horse. Plaintiff, however, does not recall having any conversation about a necropsy on the day the horse died. While Bridgwood offered to pay for a necropsy, the veterinarian would not do so without the consent of the owner, and Bridgwood did not ask plaintiff for such permission. Pierre Briere also asked the veterinarian to conduct an examination to determine the cause of death at his expense, but she would not do so without the owner's authorization. Plaintiff testified that when he requested a necropsy a couple of days later, he was told it was too late because the horse's remains had been removed. As a result, the record has no expert proofs on the cause of death. It is unknown whether the horse had any underlying medical condition that caused its death, unrelated to Bridgwood's conduct in exercising the horse. There are no proofs that the lunging caused the horse's death.

Plaintiff maintains that the only people authorized to handle his horses at Briere's stable were Briere's employees and that he never gave Bridgwood permission to handle his horses outside of his presence. He acknowledged that he had once allowed her to ride Park Me In First for a few moments in his presence, which she did without incident.

Plaintiff filed this lawsuit against Briere stable, asserting breach of the bailment agreement, breach of contract, conversion, and negligence. He also asserted claims in conversion and negligence against Bridgwood. On October 10, 2007, the trial court granted defendants' cross-motion for summary judgment and denied plaintiff's motions for partial summary judgment on liability. Plaintiff's motion for reconsideration was denied on November 16, 2007.

On appeal, plaintiff contends that the trial court erred in denying his request for partial summary judgment. He argues that Bridgwood is liable for conversion of the horse. He maintains that Briere stable, as the bailee for the horse, is liable in conversion and in negligence for the loss of the horse. He further asserts that due to the bailment relationship, Briere stable bore the burden of coming forward with evidence that the horse did not die as a result of its negligence, and that it failed to do so.

II

We will first address plaintiff's claim that the trial court erred in denying his request for partial summary judgment as to Bridgwood. According to plaintiff, Bridgwood committed a conversion when she lunged the horse without authorization to do so, and that as a result, she is liable for the loss of the horse. For purposes of this analysis, we will assume that Bridgwood was not authorized to exercise the horse since we must give plaintiff all of the favorable inferences that may be drawn from the evidence. See R. 4:46-2(c).

Conversion has been defined as "an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights." Barco Auto Leasing Corp. v. Holt, 228 N.J. Super. 77, 83 (App. Div. 1988) (quoting McGlynn v. Schultz, 90 N.J. Super. 505, 526 (Ch. Div. 1966), certif. denied, 50 N.J. 409 (1967)). Conversion is an intentional tort in that the defendant must have intended "to exercise a dominion or control over the goods which is in fact inconsistent with the plaintiff's rights." Prosser and Keeton on Torts