Ellis v. WhittEllis v. Whitt
According to the Amended Motion for Judgment, the plaintiff in this case, Fred Ellis, was a customer of the defendant, Whitt Motor Company. On September 2, 2002, Mr. Ellis was in the Whitt Motor Company body shop waiting room while his truck was being repaired. While waiting on Whitt Motor Company premises, a cat climbed onto Mr. Ellis’ lap, without invitation. The cat then bit Mr. Ellis on his middle finger (right hand) and scratched his right leg. Authorities were unable to confirm the rabies vaccination status of the cat. Therefore, Mr. Ellis has undergone a series of rabies vaccinations and incurred expenses for his medical treatment.
A demurrer “tests the sufficiency of factual allegations to determine whether the motion for judgment states a cause of action.” Fun v. Virginia Military Inst.,
Having reviewed the pleadings, briefs, authorities, and arguments of counsel, the Court overrules the defendant’s demurrer as to Count I and sustains the defendant’s demurrer as to Count II. The Court’s decision is based upon the findings of fact and conclusions of law that follow.
Count I of the plaintiffs Amended Motion for Judgment states a valid cause of action under the theory of negligence per se. While the requirements for establishing an action based upon negligence per se are well settled, the application of the theory to the facts at hand is not as obvious. To establish a negligence per se action, a plaintiff must prove (1) the defendant violated a statute enacted for the public safety, (2) the defendant belongs to the class of persons for whose benefit the statute was enacted, and (3) the statutory violation by the plaintiff was a proximate cause of the defendant’s injuries. Robinson v. Matt Mary Moran, Inc., 259 Va. 412, 418,
The Amended Motion for Judgment alleges that Whitt Motor Company employees, acting within the scope of their employment, were the owners or custodians of the offending cat, and as such were under a statutory duty, pursuant to Virginia Code § 3.1 -796.97, to have this cat vaccinated against the rabies virus. The pleading further alleges that these employees failed to have the cat vaccinated, thereby violating the statute and breaching their duty of reasonable care owed to Mr. Ellis, the plaintiff. Finally, the pleading alleges that, after being bitten and scratched by the cat, Mr. Ellis was forced to endure painful rabies vaccination shots and he incurred medical expenses and other losses proximately caused by the failure of defendant’s employees to vaccinate the cat.
By demurrer, defendant contends that Mr. Ellis does not fall within the class of citizens that the vaccination statute was designed to protect. Defendant argues that Virginia Code § 3.1-796.97 creates no cause of action for the plaintiff, but can at most define a standard of care, there being no common law duty to vaccinate against rabies. I disagree with both contentions. First, the Court finds that Virginia Code § 3.1-796.97 is unquestionably a public safety statute at least partially aimed at protecting humans against rabies. In Stout v. Bartholomew,
In Stout, the court instructed that such an ordinance must be construed in conjunction with other ordinances having the same purpose. Id. at 555, citing Prillman v. Commonwealth,
Secondly, Whitt Motor Company contends that there is no common law duty to vaccinate and, therefore, § 3.1-796.97 cannot be the basis for a cause of action in this case. Without deciding whether there exists at common law a duty to vaccinate domesticated animals, the Court finds that § 3.1-796.97, and indeed the entirety of Article 4, is predicated on the common law duty of animal owners to use reasonable care to protect the public from foreseeable dangers associated with such animals.
Such owners, therefore, are subject to civil liability for breach of that duty if the breach results in a member of the public being required to undergo vaccinations for rabies, which the Court finds to be a reasonably foreseeable harm. Thus, as in Butler, § 3.1-796.97 does not create a cause of action against a pet owner, but rather, the statute provides a standard for determining whether the pet owner has met the duty of ordinary care required to protect the public from foreseeable harms. Whitt Motor Company’s demurrer as to Count I is overruled.
Pleading in the alternative, Mr. Ellis alleges in Court II that Whitt Motor Company employees, again acting within the scope of their employment, took actions to attract stray cats into the waiting room. Mr. Ellis alleges that such actions negligently subjected him and other invitees to an unreasonable and unnecessary risk of being injured and possibly infected with rabies or other diseases. Mr. Ellis also alleges these negligent actions proximately caused the cat bite and attendant rabies vaccinations.
Whether a claim such as this is based upon premises liability or the common law negligence of an owner, a plaintiff is required to plead and prove notice of the dangerous propensities of the animal. Business owners owe a duty to exercise ordinary care to keep in a reasonably safe condition the entire premises in which customers may be reasonably expected to visit. See Stein v. Powell,
Owners of domesticated animals have a common law duty to exercise ordinary care to prevent such animals from injuring others. Stout,