*1 Argued July January 31,1968 10, 1967, affirmed Appellant, v. CITY OF BORDEN, SALEM,
Respondent.
Ted respondent. him argued cause for With City Attorney, J. Salem. Juza, brief was William Chief Justice, Before and Perry, McAllister, Lusk, Jus- Holman and Goodwin, O’Connell, Sloan, tices.
McALLISTER, J. brought plaintiff this action to recover dam- allegedly when ages she was attacked sustained department City police Salem used judge granted work. The trial enforcement lawin ground being nonsuit on the used in performance aof function. Plain- appeals. tiff light plaintiff
Viewed most favorable to the prove following the evidence tends to facts. Plain- party tiff her husband relatives spending evening after at friends, a tavern, went early Sunday to the China Cafe Salem on a morn- ing April, manage- 1966. At about 3:00 a.m. the police plaintiff’s ment called the to evict husband and nephew his from the restaurant because their conduct way.” During was “out of the the arrest there awas commotion in front of the restaurant and a crowd gathered. plaintiff standing While the on the side- patrol walk in front of the restaurant near a car into police putting were her husband, dog leaped upon spun pinned her, her her around, against the tore her blouse wall, and bit her on the *3 right dog brought shoulder. The had been to the scene by police patrol on leash officer Ziebert from another parked vicinity. car in the plaintiff first contends that the court granting city
erred in the nonsuit because the governmental immunity by failing plead waived its appear plaintiff’s complaint it. did It from dog being used in law enforcement work at alleged plaintiff. the time of the attack on The defense immunity, could not therefore, only by city demurrer, raised but answer. The did by pleading the defense its answer raise the ultimate governmental immunity implied from facts municipality i.e., a matter of its status as law, and the dog alleged at the time of the attack use of as an governmental function of law aid in the enforcement. allege necessary legal was not conclusion It 42 was immune. ‹ city findWe no merit in the first
assignment of error. plaintiff also contends that the court erred granting the nonsuit because the use of a vicious knowledge propensities with of its vicious is a and the
nuisance, not immune person The law is well settled that nuisance. pro keeps a vicious of its vicious pensities dog, although for harm caused is liable prevent care he has exercised utmost it. Liabil ity public on the creation or maintenance of a is based depend negligence. Hunt v. does nuisance (1953); P2d Hazen, Adm., Or 254 210 637, 639, 197 (1944); P2d 174 Or 148 938 Baker, 198, Jaco v. 191, (1932); 1060, 312, 4 Am ALR 1062 Jur2d Anno. 79 (1962); § § 63 CJS Animals 151 1256, Animals (1936); f at Restatement Torts comment §509, true that this court held that even
It is also
has
acting
governmental capacity
are not
in a
cities
when
by the mainte
for harm caused
immune from
private
public
Levene
either a
nuisance.
nance of
(1951);
City
Assuming jury that the could infer from the dog’s jumping upon biting plaintiff conduct dog we are unable find in vicious, the record any evidence that defendant knew or should have dog propensities. known only that the had vicious The concerning prior dog evidence conduct of the testimony of Officer Ziebert. He testified that charge dog acquired he had been in since it was February, kept dog that he except at his home patrol, when it was with him on played that he had two children dog, with the dog injured anyone had never bitten or displayed any temper or propensities. or vicious dog officer testified that the had been trained to at tack on command, if his master was attacked or threatened. The officer admitted that he had not or dog dered the to attack on this but if occasion; propensity, was evidence of a vicious there is no in dog guilty dication that the had ever before been any discipline breach of any or unordered attack on one. training There is also no evidence that any work had danger imbued it with propensities. ous plaintiff prove
The burden was on the
both was vicious and that the defendant knew of
dog’s
propensities.
vicious
Butler v. Pantekoek,
plain
231
The why a nuisance or what characterizes told a nuisance exists. The when not entitled to municipality for the creation of a is liable idea that a “anomaly.” an Prosser as is described nuisance anomaly upon as follows: He comments “* * * origin to this seems be found private aof creation nuisance that the in the idea compensation, taking of land without to amounted or necessarily city, landowner, responsibilities subject proprietor, and to ex- was the If this other landowners. toward one prin- sight when the planation, lost to it was soon public neither ciple nuisances where to was extended nui- is involved. Since consideration nothing many more than cases rests sance theory municipality is negligence, for which hopeless a rather has been the result liable, ‹ 26C, 226 Or No. District v. School Vendrell attempt distinguish between the which has two, added confusion to the law of both nuisance corporations. municipal say seems It reasonable to argument is no there sound behind the dis- itself, tinction undefined and that resort the more or less concept merely of nuisance is method one by nonliability.” municipal courts have retreated from pp. § Prosser on Torts, 125, 1009-1010 1964). (3d ed majority opinion contributes this confusion *6 employing concept the nuisance to describe the conduct keeps dog knowing of one that it vicious or is dangerous propensities. that it has When the nuisance label removed are is we better prepared identify problem presented to which the is problem in this case. The be within the must examined relating liability framework the of rules to the keeping dangerous propensities an animal whose are possessor. known to the the If, within framework of these the actor is not it mil be unneces rules, liable, sary city to decide whether the would be entitled immunity if the facts were as such to make the rules liability applicable. majority opinion pro of strict upon holding ceeds this basis in that there sufficient evidence to establish one of the elements namely, liability, possessor’s of the strict rule of the knowledge dangerous propensities. of the animal’s But assumption this is done that if the officer knowledge dangerous propensities of the of the dog, city theory would be under the liable law of I have “nuisance,” as which, demonstrated, way simply describing well-recognized another of dangerous. › keeping tort of to be animals known I › relating keeping dangerous Since the rule of to the animals part larger body imposing liability is but law of of strict with, the that
disagree majority’s assumption city be simply would liable because it had animal’s dangerous propensities. an animal Even in though dangerous, utility him that may so strict great is not keeping liability possessor. fi is the imposed upon This import Torts, e §509, (1933) Restatement comment that such it is some animals as explained which bulls “their having dangerous tendencies, useful although their function in the ness es performing socially the risk livestock, justifies sential involved breeding in their keeping.” fl utility may principle outweigh been in a number of cases has applied involving
risk danger creating community (e.g., an unusual to the conduct collecting handling high bringing explosives, and use of the upon holding dangerous etc.), present substances, the land necessarily does not have would ex- case strict tend imposed. the other situations which has been fi In this class of cases, in all cases in which strict necessary only asserted, at the risk is defendant’s and the latter must be of of follows: it is look utility conduct, at the conduct creates but also *7 against process balanced the former. The Topics balancing Prosser, the Law is Selected on described Rylands p. Principle Fletcher), (1953), (the 185 as of Torts risk be determined on “The of is to unreasonableness negligence by balancing cases, the the as in
much the same basis against gravity probability harm threatened utility self to conduct, the defendant him- both to of the defendant’s community. is, however, left The decision and to the always jury, made the court.” is but fl The danger a amount certain of comment adds that “while socially keeping inseparable essential or of these from is keeping animals, animals which no value there is social useful dangerous propensities which are in or have other are vicious necessary utility as such are ab their for those excess of 509, e, Torts, of comment Restatement .§ to their class.” normal p. 21
47 animals. (cid:176) keeping present of I believe brought principle. my opinion case is within that In utility police dog important of a in the work of community law enforcement with its benefit to the outweighs the risk harm. I can no Therefore, find justifiable treating reason for the conduct of defend liability. – city giving ant in this case as rise to strict liability Whether the would be immune from if utility outweigh of its conduct did not the risk, required we now are not to decide. judgment I would
Therefore, affirm for rea- majority opin- those sons different than stated ion. specially concurring. J.,
GOODWIN,
agree
I
that the nomenclature of nuisance should
personal-injury
damages
be discarded in
for
actions
allegedly
by a
caused
vicious animal. The Restate-
liability
language
ment
of strict
more
accurate.
theory,
keeps
an
Under either
individual
however,
acquired
having
animal
vicious
after
propensities
strictly
resulting
its
liable for
harms.
(cid:176)
inapplicable
The rule of absolute
held
to a
kept
park
defendant
animals
“where the animals were
public enterprise
legislative authority
maintained as
educational
under
purposes
public.”
and to entertain
Guzzi v. New
App
Zoological Soc.,
York
192
Div
182 NYS
259
Theatre,
Rep 466,
In Connor v. Princess
Ont
DLR
1914A,
Ann
the rule
absolute
Cas
was not
applied
monkey
damage.
where
trained
caused
court bal
against
anced
of harm
fact
risk
trained animals
purpose
quoted
“serve some
use man.” The
court
(3d
kept
Cooley
ed):
Torts
animals are
“When wild
§411
purpose recognized
censurable,
all
de
for some
we can
keeper
superior precaution
mand of the
is that he shall
take
prevent
doing
propensities
their
in that
their
mischief which
justly
(>1930).
demand
him.”
Hunt v. in this that the There is no evidence case any keepers reason know that animal bystander. allegedly might harm an innocent it any theory. accordingly, was correct on nonsnit, given the reason however, I for affirm, would governmental judge in order nonsuit: the trial alleged immunity. activity gave that rise maintaining injury police that officer order. of a upon plaintiff can muster Even another if, trial, support might an that action evidence city government ought against to be an a individual, tort in connection from vicarious immune employed police work. force reasonable gov- purposes deciding For whether or immunity ought apply, it ernmental should make using dog, no whether the officer difference night tear-gas Police work neces- missile, or stick. required. sarily the risk force will be involves seriously Any police weapon, improperly, used can if area harm who finds himself the citizen taking may place. truism action This development part of the rule of account in immunity. Characterizing sovereign the use of certain weapons an as nuisances amounts to end-run around immunity in situations where is intended to function. inquiry upon is to be
If the focus o£ animals, context of their use of their outside the custodians, theory possible to construct this case within it is precedent of our earlier framework some cases dealing on the If, with nuisances. other hand, the city government inquiry focus of controversy activity arose, of which out fact instrumentality causing the harm was an *9 animal does not of im- appear transcending portance.
The denial of
government
in cases
under
properly brought
the law of nuisance does not
offend the principles
im
underlying
governmental
A
nuisance that
munity.
private
inter
substantially
feres with the enjoyment of
must be
property
stopped,
or paid for, under well-known constitutional principles.
v. Port
Portland,
Thornburg
See, e.g.,
233
Or
of
Whether individual ought dangerous instrumentalities to be who uses negli- predicated notions of strict or of properly gence, case held that trial court body, city, liable was not as a under any theory. joins opinion. in this
Holman, J.,