Eric Gross and Adrianne Gross v. Elizabeth Turner and Antonio Flores
No. 2018-018
Supreme Court of Vermont
May Term, 2018
2018 VT 80
Samuel Hoar, Jr., J.
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
Thomas C. Bixby of Law Offices of Thomas C. Bixby, LLC, Rutland, for Plaintiffs-Appellants.
Daniel L. Burchard of McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, for Defendant-Appellee Turner.
Bruce Palmer of Downs Rachlin Martin PLLC, St. Johnsbury, for Defendant-Appellee Flores.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 2. The following facts were undisputed for purposes of summary judgment. On January 15, 2016, Antonio Flores, his wife, and their two young children arrived at the residence of William and Charity Pearo in Fair Haven. The Pearos had invited the Floreses for dinner. The Pearos were
¶ 3. At that moment, plaintiff Eric Gross was walking his dog down the sidewalk near the Pearos’ home. The Pearos’ three dogs ran over and attacked his dog. One of the dogs grabbed plaintiff‘s hand, which was covered by a glove, and pulled on his arm, dislocating his shoulder.
¶ 4. The Pearos leased their residence in October 2015 from defendant Elizabeth Turner, who lives in New York. When Turner rented the property to the Pearos, she was aware they had three pet dogs and permitted them to keep the dogs at the property. She was not aware of any prior incidents involving the dogs at the time the lease was signed. She had known the Pearos and their dogs for several years and had not observed any of the dogs to have aggressive tendencies. For this reason, she did not make any inquiries about the dogs or their temperament before renting to the Pearos.
¶ 5. Antonio Flores testified in a deposition that he had allowed the Pearos’ dogs to be around his six- and seven-year-old children and they had never posed a threat to the children. He said that he would not have brought his children to the house or allowed them to go near the door if he felt the dogs were vicious. He described Buck, the largest dog, as “hyper,” with high energy, but not aggressive. Jedi, the oldest and smallest dog, growled on occasion if someone got too close to her, but never bit at anyone. The third dog, Harley, was very intelligent and laid back.
¶ 6. In January 2017, Eric Gross and his wife Adrian filed a complaint alleging negligence against Elizabeth Turner and Antonio Flores.1 Flores, in turn, filed a third-party complaint against the Pearos seeking indemnification for any judgment in favor of plaintiffs. The Pearos failed to respond, and default judgment was entered in favor of Flores.
¶ 7. After the parties conducted discovery, each defendant moved for summary judgment. In December 2017, the court granted summary judgment to defendants in separate orders. The court determined that plaintiffs had failed to establish that either defendant owed a duty to plaintiffs to control or restrain the Pearos’ dogs. The court dismissed the third-party complaint against the Pearos as moot. Plaintiffs filed a motion to reconsider, which the court denied in January 2018. This appeal followed.
¶ 8. We review a decision granting summary judgment de novo, using the same standard as the trial court: summary judgment is appropriate if the moving party shows that the material facts are not genuinely disputed and that he or she is entitled to judgment as a matter of law. White v. Quechee Lakes Landowners’ Ass‘n, 170 Vt. 25, 28, 742 A.2d 734, 736 (1999);
¶ 9. To prevail on their negligence claims, plaintiffs had to prove that each defendant breached a duty of care owed to plaintiffs, thereby causing them harm. O‘Connell v. Killington, Ltd., 164 Vt. 73, 76, 665 A.2d 39, 42 (1995). The only issue in this appeal is whether defendants owed a legal duty to plaintiffs. The existence of a duty “is primarily a question of law” for the court to decide. Langle v. Kurkul, 146 Vt. 513, 519, 510 A.2d 1301, 1305 (1986).
I. Liability of Landlord
¶ 10. We first consider whether the Pearos’ landlord, Elizabeth Turner, owed a duty to protect third persons outside of the leased premises from harm caused by the Pearos’ dogs. Plaintiffs argue that Turner is legally responsible for the injuries suffered by Eric Gross because she permitted the Pearos to keep aggressive dogs on her property without inquiring into the history of the dogs or causing a fence to be erected prior to the tenancy.2
¶ 11. Plaintiffs’ argument is based on the Restatement (Second) of Torts § 379A, which provides:
A lessor of land is subject to liability for physical harm to persons outside of the land caused by activities of the lessee or others on the land after the lessor transfers possession if, but only if,
(a) the lessor at the time of the lease consented to such activity or knew that it would be carried on, and
(b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken.
Restatement (Second) of Torts § 379A (1965). “In other words, if a landowner leases property to another knowing that the tenant is going to carry on an activity that involves an unreasonable risk, and the landowner consents to that conduct, then the landlord has a duty to third parties to exercise reasonable care.” Deveneau v. Wielt, 2016 VT 21, ¶ 23, 201 Vt. 396, 144 A.3d 324 (Robinson, J., dissenting).
¶ 12. Dog ownership is a common activity that is “usually safe and generally beneficial.” Martin v. Christman, 2014 VT 55, ¶ 12, 196 Vt. 536, 99 A.3d 1008. Under Vermont law, ordinary domestic dogs are not considered to be an unreasonable risk to the public. See id. ¶ 13 (“[A]part from animals that trespass and wild animals that pose an inherent risk of personal injury, most animals normally are safe, or at least are not abnormally unsafe in a way that would justify the imposition of strict liability.” (quotation omitted)). For this reason, we reject plaintiffs’ broader argument that a landlord assumes a duty to protect all persons outside the property from physical harm by simply permitting a tenant to keep a domestic dog on unfenced
¶ 13. We agree, however, that under § 379A a landlord owes a duty to take reasonable steps to protect persons outside the land from injuries caused by a tenant‘s dog if the landlord knew or had reason to know at the time of entering the lease that the dog in question posed an unreasonable risk of harm to such persons. Restatement (Second) of Torts § 379A. The duty arises from the fact that the landlord has some control over the activities of the tenant, in that the landlord decides whether to rent to the tenant in the first place, renew or terminate the tenancy, or to impose conditions in the lease. See Park v. Hoffard, 847 P.2d 852, 855 (Or. 1993) (explaining that landlord-tenant relationship “has implications for a landlord‘s tort liability to persons injured off the rental property by some action or inaction of the tenant to the extent that a landlord has control over the tenant“). By permitting a tenant to keep a dog that the landlord knows to be vicious, the landlord could be viewed as having created the risk that led to the third person‘s injuries. See Strunk v. Zoltanski, 468 N.E.2d 13, 15 (N.Y. 1984) (explaining that by knowingly leasing premises to owner of vicious dog, landlord could be found to have created risk that injured plaintiff). Requiring the landlord to exercise due care to protect the public in such a situation is consistent with the general duty of care owed to the public by a landowner who personally carries on unreasonably dangerous activities on his or her land. See Restatement (Second) of Torts § 371 (stating that possessor of land may be held liable for physical harm to others outside of land caused by unreasonably dangerous activities of possessor).
¶ 14. Many jurisdictions have applied § 379A in negligence actions against landlords for injuries to third parties caused by vicious dogs owned by tenants. As in this case, these decisions frequently turn on whether the landlord knew of the tenant‘s dog and its dangerous tendencies. See, e.g., Uccello v. Laudenslayer, 118 Cal. Rptr. 741, 748 (Ct. App. 1975) (reversing judgment in favor of landlord where jury could infer from evidence presented that landlord knew of dog‘s vicious propensities); Strunk, 468 N.E.2d at 16 (affirming denial of landlord‘s motion for summary judgment where parties disputed whether, “at the time of the initial leasing of the premises to the tenant, the landlord knew both of the prospective presence of the dog and of its vicious propensities“); Park, 847 P.2d at 854-55 (reversing summary judgment on similar grounds). Where the plaintiff offers no evidence that the landlord knew the tenant‘s dog was dangerous, the landlord is not liable for the plaintiff‘s injures. Stokes v. Lyddy, 815 A.2d 263, 273 (Conn. App. Ct. 2003) (affirming judgment in favor of landlord in negligence action where undisputed evidence showed that landlord was unaware of tenant‘s dog or its vicious propensities).3
¶ 16. Plaintiffs argue, however, that the dogs were pit bulls and that Turner therefore owed a duty to investigate their history and propensities before allowing them on the premises. Accordingly, it is their assertion that if Turner had contacted the police in the town where the Pearos previously resided, she would have learned of prior aggressive behavior by the dogs. This argument falls short for several reasons.
¶ 17. First, this Court has never held that a dog‘s breed alone is sufficient to put its owners or others on notice that it poses an unreasonable risk of harm, or that pit bulls or other breeds are dangerous per se. In Vermont, liability in dog-bite cases has always depended on the propensities of the individual animal. See, e.g., Martin, 2014 VT 55, ¶ 8; Hillier v. Noble, 142 Vt. 552, 556-57, 458 A.2d 1101, 1104 (1983); Carr v. Case, 135 Vt. 524, 525, 380 A.2d 91, 93 (1977); Godeau v. Blood, 52 Vt. 251, 254 (1880). Even if we were to consider departing from this longstanding precedent, plaintiffs’ sweeping claim that pit bulls are an inherently dangerous breed lacks any evidentiary support whatsoever. They therefore have failed to establish the underlying premise for their argument that Turner owed a duty based solely on the dogs’ breed.4
¶ 18. Moreover, the Restatement itself makes clear that landlords are not obligated to conduct background checks on tenants’ pets. Liability under § 379A turns on whether a landlord “knew or had reason to know” at the time of the lease that the particular animal in question is abnormally dangerous. A separate section of the Restatement explains that the phrase “reason to know” does not imply a duty to investigate:
Both the expression “reason to know” and “should know” are used with respect to existent facts. These two phrases, however, differ in that “reason to know” implies no duty of knowledge on the part of the actor whereas “should know” implies
that the actor owes another the duty of ascertaining the fact in question. “Reason to know” means that the actor has knowledge of facts from which a reasonable [person] of ordinary intelligence or one of the superior intelligence of the actor would either infer the existence of the fact in question or would regard its existence as so highly probable that his [or her] conduct would be predicated upon the assumption that the fact did exist. “Should know” indicates that the actor is under a duty to another to use reasonable diligence to ascertain the existence or nonexistence of the fact in question and that he would ascertain the existence thereof in the proper performance of that duty.
Restatement (Second) of Torts § 12, cmt. a. The use of “reason to know” in § 379A means that the plaintiff must show that the landlord had actual knowledge of facts that would alert a reasonable person to the dog‘s vicious propensities.5 It does not create an obligation on the part of the landlord to actively inquire into the dog‘s history before permitting it to reside on the premises. See Knapton ex rel. E.K. v. Monk, 347 P.3d 1257, 1262 (Mont. 2015) (explaining that § 379A did not impose a duty on landlord to investigate potential danger posed by tenant‘s pit bulls; rather, issue was whether landlord had knowledge of facts from which she could infer that dogs were vicious); see also Uccello, 118 Cal. Rptr. at 748 (holding that landlord has no duty of care to third persons harmed by tenant‘s dog on premises unless landlord has “actual knowledge” of dog‘s dangerous propensities).6
¶ 19. Plaintiffs also argue Turner is liable for negligently permitting her tenants to create a public nuisance on her land.7 Section 837 of the Restatement (Second) of Torts, which is closely related to
¶ 20. Plaintiffs failed to make the showing that Turner knew or had reason to know that the Pearos’ dogs were unreasonably dangerous as required to hold her liable under § 379A. They likewise failed to establish a claim under § 837 because they have not demonstrated that Turner knew or should have known that the dogs posed an unreasonable risk to public safety.8 We therefore affirm the trial court‘s decision granting summary judgment in favor of Turner.
II. Liability of Guest
¶ 21. We next consider whether Antonio Flores, the Pearos’ guest, may be held liable for the injuries caused by the Pearos’ dogs. Plaintiffs argue that Flores was acting as the dogs’ caretaker and therefore owed the same duty as their owners to control the animals.
¶ 22. Under Vermont common law, a dog‘s owner “is not liable for injuries to persons and property unless the owner had some reason to know the animal was a probable source of danger.” Davis v. Bedell, 123 Vt. 441, 442-43, 194 A.2d 67, 68 (1963). Where the owner knows that the dog is dangerous, he or she has a duty “to exercise reasonable control and restraint” of the dog to avoid injury to others. Id. at 443.
¶ 23. We have recognized that in addition to owners, “keepers” of dogs may be held liable under the above rule. See Crowley v. Groonell, 73 Vt. 45, 47 50 A. 546, 546-47 (1901) (“The owner or keeper [of a dog], having knowledge of its disposition to commit such injuries must restrain it at his peril . . . .“). The term keeper is not clearly defined anywhere in our caselaw. However, we have held that where a dog was owned by the defendant‘s minor son, but the defendant “housed, harbored
¶ 24. According to plaintiffs, Flores voluntarily assumed the role of the dogs’ keeper because he testified that he would have let the dogs out if they needed to relieve themselves and would have given them water if necessary. They argue that Flores therefore owed a duty to restrain the dogs and breached this duty by permitting his minor son to open the door of the house without first ascertaining where the dogs were.
¶ 25. Assuming for the purpose of summary judgment that the above facts were sufficient for the jury to find Flores was acting as the dogs’ keeper, plaintiffs’ negligence claim against him still fails, for the same reason as their claim against Turner: they have not shown that Flores knew that the dogs posed a threat to anyone. See Davis, 123 Vt. at 442-43, 194 A.2d at 68 (stating rule that liability for injuries does not attach unless owner or keeper knew or had reason to know animal was likely dangerous). There is no evidence that Flores knew of any prior incidents involving the dogs or that they were likely to attack other dogs or humans.9 He described one of the dogs as “hyper” and said that another occasionally growled if someone got too close to her but never bit at anyone. He also stated that he allowed his six- and seven-year-old children to play with the dogs and had never feared for their safety. No reasonable jury could conclude from this evidence that Flores knew the dogs posed an abnormal danger to the public.
¶ 26. Plaintiffs argue that it is genuinely disputed whether Flores knew that the dogs were likely to be aggressive because the dogs were pit bulls and pit bulls are generally known to be dangerous. We reiterate that this Court has never adopted a breed-wide dangerousness standard for dogs, and there is no evidence in this case to support such a departure from longstanding caselaw. See supra, ¶ 17. The relevant issue here is whether Flores knew or had reason to know that these particular animals were dangerous. Even if Flores qualified as the dogs’ keeper, plaintiffs have failed to demonstrate that he had such knowledge, as required to support their negligence claim.10 Id.
¶ 28. Plaintiffs’ claim is based on Eric Gross‘s testimony that he heard an unidentified person say “come, get back, get them in the backyard,” and waited with his dog until the Pearos’ dogs were out of view. He waited for about twenty or thirty seconds, and “[e]ventually the dogs were gone. I thought they had a fence. So we continued walking.” The Pearos’ dogs then ran over and attacked his dog. From this testimony, plaintiffs infer that after letting the dogs out of the house, Flores “corralled” the dogs in the Pearos’ backyard, but then negligently let them escape his control.
¶ 29. This is not a reasonable inference to draw from the record. See Carr, 168 Vt. at 476, 724 A.2d at 461 (explaining nonmoving party entitled to benefit of reasonable doubts and inferences). There is no evidence of what happened during the twenty or thirty seconds when the dogs were out of plaintiff‘s view, and there is no evidence that Flores had the dogs under effective control at any point between when they exited the house and attacked plaintiffs’ dog or that he behaved negligently in any way. The record is simply insufficient for a jury to find that Flores undertook to control the dogs after they exited the house. See Rubin v. Town of Poultney, 168 Vt. 624, 626, 721 A.2d 504, 506 (1998) (mem.) (holding town officers’ warnings to dog owners to confine their dog was insufficient basis to prove that officers voluntarily assumed owners’ duty to control the dog).
¶ 30. Assuming without deciding that a “negligent undertaking” theory could apply in this context, plaintiffs have failed to present evidence from which a reasonable jury could conclude that defendant Flores knew or had reason to know that the dogs were a probable source of danger, such that he owed a duty to third persons to restrain them. Nor have they demonstrated that he voluntarily undertook to restrain the dogs. Accordingly, we see no reason to disturb the trial court‘s award of summary judgment to Flores.
Affirmed.
FOR THE COURT:
Chief Justice