Grammer v. Lucking, 292 Neb. 475

On July 16, 2013, Joleen and Terry Grammer walked near Darren and Cory Lucking’s unfenced yard where two dogs were present (one chained, one unrestrained).
As the Grammers approached within ~20 feet, both dogs ran toward them barking and growling; the unrestrained dog ran past Terry toward Joleen.
Joleen backed up, stumbled, and fell, injuring her elbow; neither dog made physical contact or bit her; Darren then called the dogs inside.
The Grammers sued under Neb. Rev. Stat. § 54-601(1) (strict liability for dogs that kill, wound, injure, worry, or chase persons).
The district court granted summary judgment for the Luckings after concluding, under one definition from Donner, that the dogs were not “chasing” Joleen to catch or harm her.
The Nebraska Supreme Court granted bypass review, reversed the summary judgment, and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Donner and its rule excluding playful/mischievous conduct should be overruled	Donner’s rule should not bar recovery; the 1992 amendment adding “injuring” changes analysis	Donner remains controlling; dogs’ conduct was not actionable here	Court did not decide Donner’s continued validity; not dispositive to this appeal
Whether the district court erred by applying only one definition of “chase”	Grammer: court must consider all definitions of “chase” and whether dogs ‘injured’ Joleen	Lucking: applying Donner’s “to follow to catch or harm” test showed no chase	Court held the district court erred by considering only one definition; terms in statute are disjunctive and alternatives must be considered
Whether the dogs ‘chased’ the Grammers under any statutory definition	Dogs’ conduct (running, barking, causing fall) fits other definitions of chase or worry	Dogs did not act with intent to catch or harm; no contact occurred	Court found a genuine dispute remains whether conduct constituted chasing or worrying; summary judgment improper
Whether the dogs ‘injured’ Joleen under § 54-601	Joleen’s fall and elbow injury were caused by dogs’ conduct and thus satisfy “injure”	No physical contact; injury not caused by dog as a legal matter	Court held district court failed to consider whether dogs “injured” Joleen; issue must be considered on remand

Donner v. Plymate, 193 Neb. 647, 228 N.W.2d 612 (1975) (established rule excluding liability for playful/mischievous dog conduct and provided multiple definitions of “chase”)
Underhill v. Hobelman, 279 Neb. 30, 776 N.W.2d 786 (2009) (reaffirmed Donner’s interpretation of § 54-601)
Goodyear Tire & Rubber Co. v. State, 275 Neb. 594, 748 N.W.2d 42 (2008) (discussed disjunctive use of “or” in statutes)
DMK Biodiesel v. McCoy, 290 Neb. 286, 859 N.W.2d 867 (2015) (articulated standard of appellate review on statutory questions)
Hughes v. School Dist. of Aurora, 290 Neb. 47, 858 N.W.2d 590 (2015) (authority on summary judgment and appellate review)