Lead Opinion
ON MOTION FOR REHEARING
for the Court:
¶ 1. The motion for rehearing is granted. The original opinions of this Court are withdrawn and these opinions are substituted therefor.
¶ 2. Janet Olier was attacked and chased by a domestic goose in Donna Bailey’s yard. As she attempted to flee, she fell and broke her arm. Olier sued Bailey in
FACTS AND PROCEDURAL HISTORY
¶ B. Olier and Bailey became acquainted through a gardening website called “Dave’s Garden,” a message board of sorts for gardening enthusiasts to share their hobby. On the day of Olier’s injury, she visited Bailey at her home to view some of Bailey’s plants. Bailey, who has a “Beware-Attack Geese” sign in her yard, also informed Olier verbally that she kept geese in her yard. Bailey kept several five-gallon buckets of water in the yard lined along the edge of the porch to provide the geese drinking water and to act as a barrier so the birds could not walk onto the porch.
¶ 4. Olier wanted to see Bailey’s blooming banana plant in the yard, and she ventured beyond the buckets while Bailey remained on the front porch. As Olier stepped over the buckets, a goose squawked at her. Olier said the goose was large and that its neck reached out as if it meant to bite her chest. She stepped back onto the porch, within the safe confines of the bucket-fence, and told Bailey she could not go out into the yard because of the geese. Bailey assured Olier that the geese would not bite if Bailey was with her and offered Oiier a bamboo pole with which to fend off the birds. When the two women entered the yard, Bailey attempted to lead the geese away from Olier. However, the geese noticed Olier and approached her, squawking and hissing. Frightened by the geese, and thinking that the bamboo pole was useless, Olier threw it to the ground. At this point, a goose reached out and nipped her in the. “crotch area.” Olier turned to flee, tripped over one of the buckets lining the patio, and fell, breaking her arm.
¶ 5. Olier sued Bailey and her husband
¶ 6. The trial court granted summary judgment in favor of Bailey, finding that
BAILEY’S MOTION TO STRIKE PORTIONS OF OLIER’S BRIEF
¶ 7. In her Motion to Strike Portions of Olier’s Brief, Bailey argues that several of Olier’s arguments on appeal should be struck because they were not raised before the trial court. We find that the motion is not well taken and should be denied. We are not inclined to parse through the different arguments that may or may not have been made at the trial level for the purpose of determining whether to strike them from a brief. If the record reveals that an argument was not made before the trial court, we will address it. appropriately. Accordingly, Bailey’s Motion to Strike Portions of Olier’s Brief is denied.
Analysis
¶ 8. Olier’s issues on appeal are as follows:
I. Do genuine issues of material fact exist regarding whether Olier was an invitee or licensee, and, if Olier was a licensee, did Bailey nevertheless breach her duty of care to Olier?
II. Should the Hoffman affirmative negligence doctrine, which applies to business premises, be expanded to cover domiciles?
■ III. Do domestic fowl fall under the dangerous propensity rule, and did Bailey have knowledge of her geese’s dangerous propensity?
¶ 9. Our well-known standard of review from a trial court’s grant of summary judgment is de novo. Double Quick, Inc. v. Moore,
I. Janet Olier was a licensee as a matter of law.
¶ 10. In determining whether liability attaches to a landowner, this Court must determine (1) the status of the visitor, whether trespasser, licensee, or invitee; (2) the duty that the landowner owed to the visitor based on that status; and (3) whether the landowner breached his or her duty of care to the visitor. Hoffman v. Planters Gin Co.,
A. Olier’s Status
¶ 11. Olier argues that genuine issues of material fact exist regarding whether she was an invitee on the day that she visited Bailey’s home. Bailey argues that Olier was a licensee as a matter of law, and the trial court agreed.
¶ 12. A person is classified as a licensee if he or she enters the property for “his or her own convenience, pleasure or benefit pursuant to the license or implied permission of the owner.... ” Massey v. Tingle,
¶ 13. The trial court found that Olier was a licensee. Olier argues that the parties were friends, that they shared an interest in gardening, that they had visited each other’s yards and had gone to trade shows, and that they traded plants and flowers with each other. In other words, she argues that her visit with Bailey to discuss their shared hobby of gardening and to take a sample of Bailey’s plant was mutually beneficial, such that her status was that of an invitee. Bailey argues that she received no benefit from Olier that would confer upon Olier the status of invitee. Instead, Bailey argues the entire purpose of the visit was for Olier to see Bailey’s plants, and perhaps take a sample home, which would have benefitted only Olier.
¶ 14. There is case law establishing that a social guest can become an invitee if sufficient benefit is bestowed upon the landowner by nature of the guest’s visit. This Court has held that a visitor who went to the home of her mother to take the mother to a doctor was an invitee entitled to a higher degree of care. Minor v. Eng’g Serv. Co., Inc.,
¶ 15. We find the facts in this case distinguishable from those in which we found an issue of fact regarding the entrant’s status. In Minor, Hall, and Pin-nell, the plaintiff was performing a service for the landowner that conferred a genuine benefit on the landowner, whether that was helping take someone to a doctor, helping someone move in, or assisting with housework.
¶ 16. Accordingly, there is no issue of fact regarding Olier’s status. She came to Bailey’s home at Bailey’s invitation entirely for her own benefit. Olier was a licensee as a matter of law.
B. Bailey did not breach her duty of care as a landowner to Olier.
¶ 17. Olier argues that, even if she was a licensee at Bailey’s home, questions of material fact remain regarding whether Bailey breached her duty of care to her. Olier argues that the geese were a hidden danger, and that her being in the yard with them, with her access to the porch blocked by a wall of buckets, was tantamount to a trap. She argues that Bailey’s geese expertise and her knowledge of their aggressive propensity militate toward a finding that she willfully and wantonly injured Olier.
¶ 18. As Olier was a licensee, Bailey owed her the duty “to refrain from willfully or wantonly injuring” her. Little by Little,
Willfulness and wantonness connote knowingly and intentionally doing a thing or wrongful act.... The guest assumes the ordinary risks which are attached to the premises. No exception is made to the rule because of the fact that the guest enters on the host’s express invitation to enjoy his hospitality. A host merely offers his premises for the enjoyment of his guests with the same security which the host and members of his family who reside with him have.
Raney v. Jennings,
¶ 19. Here, the geese were not a hidden danger. Bailey had a sign warning visitors of their presence, and Olier saw them in the yard before she stepped onto it. The water buckets were plainly visible, and Olier was aware of them, as she had to step over them to enter the yard. Bailey offered a bamboo stick for Olier to use in protecting herself from the geese, an action that was at odds with any intent to injure. Bailey accompanied Olier into the yard, another factor which weighs against willful and wanton injury. There is no evidence in the record that Bailey either “knowingly or intentionally” allowed her domestic geese to roam the yard to bite Olier, or placed the buckets of water in such a manner that would constitute a hazard. We hold that Bailey did not breach her duty of care to Olier, a licensee, as a matter of law.
¶ 20. Presiding Justice Dickinson contends that Bailey’s duty of care toward licensees on her property is the same regardless of the nature of the negligent activity involved. This is unworkable for several reasons, the main one being that the presence of domestic animals cannot rightly be said to be a condition of the
¶ 21. Several of the examples cited by Presiding Justice Dickinson are inapposite to the situation before us, as they come from cases in which the only way the plaintiff could have sued the landowner was under a theory of premises liability because the landowner had no ownership or control over the person or thing that caused injury to the plaintiff. In Albert v. Scott’s Truck Plaza,
¶ 22. Similarly, in the cases involving landowner liability for injuries caused to invitees or licensees on premises, premises liability was the only way to file suit against the- landowner. In Kroger Co. v. Knox,
¶ 23. However, in the case of an animal or a group of animals owned by the landowner, the scenario is notably different. Premises liability then is no longer required as a means through which the land/animal owner may be brought into court. Presiding Justice Dickinson would render licensees and trespassers unable to
¶ 24. The question is not whether Bailey breached her duty of care toward Olier as a landowner, but as an animal owner. The geese were not a condition of the land to. which such a duty attached. The two torts exist independently of one another. One does not have to have been injured on another’s property to maintain a civil action for damages caused by a defendant’s animal. The dangerous-propensity theory of liability exists independently of premises liability, and Bailey’s duty of care as an animal owner is different than her duty of care as a landowner.
II. The Hoffman Affirmative-Negligence Doctrine
¶ 25. Although Olier indisputably was a licensee when this incident occurred, this Court has provided an exception to the willful/wanton standard of care owed to licensees. In Hoffman, this Court held that the duty of care to a licensee could be elevated, and that a landowner could be “liable for injury proximately caused by his affirmative or active negligence in the operation or control of a business,” and that, in that event, “the standard of ordinary and reasonable care has application.” Hoffman,
III. The Dangerous-Propensity Rule
¶ 26. So, Olier cannot proceed under a theory of premises liability as a matter of law. However, while Bailey did not breach her duty of care toward Olier as a landowner, whether Bailey breached her duty of care toward Olier as an animal owner is a different question. Olier contends that the dangerous nature of Bailey’s geese, Bailey’s knowledge of their dangerous propensity, and her negligence in keeping them in the yard when Olier was injured, allow her to proceed with an action for negligence against Bailey. Under the dangerous-propensity rule, this Court has stated that an animal owner may be exposed to liability for an attack by his or her animal when:
(1) There is some proof that the animal has exhibited some dangerous propensity or disposition that the owner was aware of prior to the attack complained of; and,
(2) There is proof that the owner reasonably should have foreseen that the animal was likely to attack someone.
Poy v. Grayson,
¶27. In Poy, the plaintiff, a garbage collector, sued the owner of the premises when one of the defendant’s dogs reached through a fence and bit the plaintiff while he was collecting garbage. Id. at 492. The Court denied relief to the plaintiff, because, although he stated that the offending animal was a watch dog and the plaintiff believed the dog to be dangerous, the dog had not evidenced any aggressive behavior or dangerous propensity. Id. at 494. The Court found nothing “in the record capable of supporting a finding that this puppy had previously exhibited any such character or disposition as would reasonably have put [the defendant] on notice or enabled [him] reasonably to foresee that it might attack or bite someone.” Id. at 493-94. Based on the lack of evidence of a dangerous propensity, the Court held that the “jury should have been peremptorily instructed to find for” the defendant. Id. at 491-92.
¶ 28. In Mongeon v. A & V Enterprises, Inc.,
¶ 29. This Court reversed. In so doing, the Court looked to other jurisdictions, which had held that “ ‘[a]ny tendency of a dog to injure persons, whether the dog acts from a purpose to do bodily harm, from ill-temper, or only playfulness, is a dangerous propensity for which a keeper who has reason to know of such habit will be liable.’ ” Id. (¶ 11) (quoting Boosman v. Moudy,
¶ 30. Based upon the holdings of the Missouri Court of Appeals and Supreme Court of Hawaii, this Court held that “a reasonable jury could have found that the incident in which Brown’s dogs growled at Donna Nelson near the washateria constituted an exhibition of a dangerous or vicious propensity by Brian Brown’s black Labrador retrievers.” Mongeon,
¶31. In this case, we are not dealing with a dog, but with a young goose.
¶ 32. Bailey’s main argument is that the particular goose which bit Olier never had exhibited a dangerous propensity in the past, i.e., it never had bitten or chased anyone before. Although an adult goose of the same gaggle admittedly had run a police officer off the property previously, that goose was locked up when the attack upon Olier occurred. Bailey argues that, because there was no evidence that the particular goose in question had exhibited a dangerous propensity, she therefore had no actual or constructive knowledge of a dangerous propensity on its part, and therefore she cannot be held liable for its actions.
¶ 38. Olier argues first that it would be inherently unfair to require her to identify the particular goose that bit her and find evidence of that precise bird’s having exhibited a dangerous propensity. Further, she contends that the real issue is foreseeability. Was Bailey on notice of the dangerous propensity of her gaggle of geese as a whole? Olier contends that she was. Bailey saw her geese approach Olier aggressively, she saw Olier retreat to the porch, she armed Bailey with a stick and “instructed” her on how to “fend off’ aggressive geese, and even went so far as to act as a decoy in an attempt to distract the geese so that Olier could attempt to venture into the yard surreptitiously. Olier argues that these actions, along with Bailey’s expertise with geese, clearly evidenced that Bailey was aware of the dangerous propensities of her geese.
¶ 34. This Court has never confronted the issue of an aggressive bird under the dangerous-propensity rule, and, it seems, few other jurisdictions have either. In an unpublished opinion, the Michigan Court of Appeals analyzed a goose attack on a delivery person. Schisler v. Argenbright, Inc.,
¶ 35. So, at least one court has recognized that bird attacks may be analyzed under the propensity rule. In Schisler, the court held that a goose attack may have been compensable but for the fact that the tenant defendant had no control over the common area in which the attack had occurred. Here, Bailey had total control over the area, as it was her yard, and, more importantly, she owned the goose that attacked Olier as well as the entire gaggle of geese of which the successful attacker was a member.
¶ 36.- In this case, foreseeability is the fulcrum upon which liability turns. This Court first promulgated the propensity rule in Poy, holding that there had to have been some proof that the animal had exhibited some dangerous propensity prior to the attack complained of, and the owner had actual or constructive knowledge of that dangerous propensity. Poy,
¶ 37. Generally, if the owner knows, or has reason to know, that the animal will be aggressive, or exhibits a dangerous propensity, that owner may be liable in tort. In that sense, it is possible for the dangerous-propensity rule, as articulated in Poy and Mongeon, to be unnecessary for the finding of foreseeability of the injury, and, consequently, liability for the injury. Instead, where an injury is a result of an animal’s having behaved consistently with its general nature, it is irrelevant whether that particular animal had exhibited an unusually dangerous propensity previously, as its own inherent propensity precipitated the injury. This ease also differs from both Poy and Mongeon because it involves a group of potentially dangerous animals, rather than the individual dog in Poy or the pair of dogs in Mongeon. Here, Olier was scared of all of the geese, Bailey instructed Olier how to defend herself from all of the geese, and Bailey attempted to distract all of the geese. Bailey arguably understood that all of her geese were potentially aggressive and acted accordingly. Therefore, a jury could find that what happened to Olier was foreseeable to Bailey.
¶ 38. This concept perhaps was best expressed by the Supreme Court of South Dakota, which held that a plaintiff can establish foreseeability by arguing “to the jury that the owner knew or should have known of the dog’s dangerous propensities or that, under the totality of the circumstances, injury to the plaintiff was reason
¶ 39. However, Presiding Justice Dickinson’s dire predictions of successful suits against homeowners by burglars are defeated by the longstanding rule in this state that “[o]ne has a right to defend his home and the members of his family ... and to protect his property from intruders and trespassers.” Anderson v. Jenkins,
¶ 40. Justice Coleman’s dissent takes issue with our expansion of the dangerous-propensity doctrine to an ani-malwhich had not exhibited a dangerous propensity in the past. Indeed, here, no evidence was adduced that the goose in question ever before had bitten anyone. A different, older goose had, at a time previous, chased a police officer out of the yard. So, under a strict reading of Roy, Olier’s suit cannot be maintained. However, the entire purpose of the dangerous-propensity rule is to hold owners liable for the actions of their animals where the owners reasonably could foresee the injury complained of, or where they should have known that any or all of their animals were likely to exhibit behavior that could lead to an injury. The fact that the particular goose in question had not exhibited a dangerous propensity before does not necessarily matter when Bailey may have known that her geese were aggressive and possibly dangerous in general. When a person keeps a large group of essentially indistinguishable animals, some of which have exhibited dangerous propensities in the past, we find that such person can be liable for injuries attributable to characteristics that the animals have exhibited collectively. Here, Bailey’s geese were known to have chased a visitor without warning, and this Bailey* clearly knew. Additionally, as stated above, it is the group of geese collectively that concerned Olier and Bailey. Accordingly, although one goose actually bit Olier and caused her to fall, the analysis of that particular individual goose’s history is unnecessary.
¶ 41. The Coleman dissent would send the plaintiff on a wild-goose chase to find and identify a single offending fowl and determine its particular history of dangerous propensity. As has been said before, “[i]t is common knowledge that horses buck, cattle roam, cats stray and dogs bite.” Blaha v. Stuard,
¶ 42. The Coleman dissent seems to recognize this point, as it remarks that the plaintiff failed to produce evidence that showed that the goose in question did not exhibit a propensity that was not natural to geese as a class of animal. This contention belies an understanding of the purpose of the dangerous-propensity rule. The rule is necessary to impose liability on animal owners who, without the occurrence of a prior incident involving an outside party, would not have actual or constructive knowledge of any dangerous propensity of their otherwise tame and predictable animal. If the animal in question belongs to a class that exhibits a dangerous propensity that is natural to its class, the need for the propensity rule falls away because the natural propensity of the animal is known or should be known to its owner. See Poy,
¶ 43. Where, as here, the goose is just being a goose, and being a goose includes biting and chasing people, then there need not have been a prior incident to put its owner on notice of that propensity, as the owner knew or should have known that its animal naturally engaged in that kind of behavior. See Williams v. Tysinger,
¶ 44. Finally, the Coleman dissent argues that Olier has not demonstrated that Bailey had superior knowledge of her geese’s dangerous propensity, and that both were fully aware of the propensity of the geese. With respect, that is an issue for the jury. Olier claimed that Bailey held herself out as a goose expert. Bailey tutored Olier in how to defend herself from geese and assured her that she would be safe in the yard. Olier admittedly was hesitant to enter the yard again but did so with faith in Bailey’s confident assurances. If this case is tried, the jury will be free to distribute fault as it sees fit. If it finds that no reasonable person would have reentered the yard, then it will not find for Olier. Several questions are left unanswered regarding the relative fault of the two parties, but those are not for our decision. Only a trial can settle those questions.
¶ 45. In that context, we find that, viewing the facts in the light most favorable to the plaintiff, there exists an issue of fact regarding whether Bailey was on notice of her geese’s alleged dangerous propensity. Although Bailey had locked up the adult geese, including the only one that specifically could be identified as having chased a person in a previous incident, an issue of fact remains as to whether she was on notice of her younger goslings’ aggressive proclivities. She witnessed Olier’s going into the yard and quickly retreating from the squawking, hissing, approaching geese. Bailey then went out into the yard to distract the geese, clearly with the knowledge that if she did not do so, the geese would aggressively approach Olier again. Furthermore, she gave Olier a long bamboo stick with which to fend off the geese and instructed her in its use, plainly indicating that she knew that the
¶ 46. While our holding today may seem to be either a departure from or an expansion of our longstanding dangerous-propensity rule, the situation before us simply is not conducive to that test because it heretofore has been restricted to a single animal. The dogs in Pqy and Mon-geon were individual animals, or a pair of animals. Here, Olier was not fearful of one particular animal, or a pair, but an entire group. That is why Bailey may be held liable for her geese’s behavior without determining whether the particular goose that attacked Olier had exhibited a dangerous propensity in the past. Whether a pack of dogs, a herd of rodeo cattle, a swarm of honey bees, or a gaggle of geese — when analyzing the behavior of any grouping of nonhuman creatures with a dangerous propensity collectively, it is- unnecessary and counterintuitive to analyze the unique history of each and every creature in the unit. This has been a truth accepted by mankind since we drew on cave walls. We fear not the wolf, but the pack; not the bee, but the swarm; not the buffalo, but the herd. Janet Olier feared not the goose, but the gaggle. The bamboo stick was provided for her defense against all of the geese, not just one. Bailey attempted to distract all of the geese, not just one. A jury could find that, under the totality of the circumstances, this incident could have been foreseeable to Bailey, and therefore summary judgment was inappropriate.
CONCLUSION
¶ 47. The trial court properly granted summary judgment to Donna Bailey on the theory of premises liability. Janet Olier was a licensee as a matter of law, and Donna Bailey did not willfully or wantonly injure her. However, a question of fact remains regarding whether Donna Bailey was on notice of the, alleged dangerous propensity of her geese, and whether Janet Olier’s injury was reasonably foreseeable under the totality of the circumstances. Accordingly, there is a genuine issue of material fact regarding whether Donna Bailey breached her duty of care to Janet Olier as an animal owner. We reverse the grant of summary judgment on that basis and remand this case to the County Court of Jackson County for further proceedings consistent with this opinion.
¶ 48. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
RANDOLPH, P.J., JOINS THIS OPINION IN PART II ONLY.
Notes
. Bailey’s husband later was dismissed from the suit with prejudice.
. The Court has deemed these types of visits mutually beneficial, although in fact the benefit to the landowner clearly is unilateral. No benefit, other than the pleasure of assisting a friend, inures to the visitor who assists the landowner without compensation. This confusion about mutual benefit probably is a result of the classical definition of an invitee as a customer of a business who receives the benefit of purchasing goods from the premises owner. In a social context, the benefit to the visitor disappears, except for a vague altruistic benefit which this Court never has recognized as one deserving of invitee status. Accordingly, our rule for classifying such social guests as invitees is more properly deemed one of unilateral benefit to the landowner. If a social visitor’s purpose is to confer a benefit upon the landowner, then that visitor is classified as an invitee. Of
. This much was admitted by Bailey in her memorandum in support of her motion to strike portions of Olier’s brief, in which counsel for Bailey stated, “Candidly, counsel would assert that the animal law would appear to apply because the incident was not one involving a defect or issue with the premises.”
. However, if the plaintiff had been attacked by a dog owned by the premises owner while not on the premises, suddenly animal-ownér law would have applied and the premises owner, now being sued as an animal owner, still could have been sued in tort.
. Double Quick, Inc. v. Moore,
. Doe v. Jameson Inn, Inc.,
. Thomas v. Columbia Grp., LLC,
. Bailey maintains that all of the adult geese were restrained when the incident happened, and that only goslings were in the yard.
. The Court also relied on language stating that an animal owner usually would not be liable for an injury caused by an animal acting in a way "not natural to the class of animals to which the offending animal belongs....” Poy v. Grayson,
Dissenting Opinion
dissenting:
¶ 49. The plurality — as a matter of first impression in Mississippi — finds that civil claims resulting from injuries caused by animals on a homeowner’s property may not be analyzed under premises-liability law. The plurality abandons the trespasser and licensee classifications for purposes of determining the homeowner’s duty of care, leaving homeowners wide open to claims of ordinary negligence by trespassers who come on their property — unwelcome and uninvited. Because I believe this to be unwise, I respectfully dissent.
¶ 50. The traditional rule in Mississippi has been that an invited social guest provides no benefit to the landowner, and therefore is a mere licensee. And landowners owe no more to licensees than a duty to refrain from willfully or wantonly injuring invited social guests.
¶ 51. The plurality rejects this view and chooses to leave homeowners open to claims of negligence to everyone, including trespassers. This requires that I apply the law that I firmly believe controls this case — premises-liability law. In this negligence case, Olier charges that, by maintaining geese with dangerous propensities on her property, Bailey did not maintain her premises in a reasonably safe condition. Her allegations of negligence concerning the geese in the yard are no different from allegations of negligence concerning spills on the floor, cracks in the sidewalk, improperly stacked shelves in a store, or exposed electrical wiring. All such negligence claims associated with maintaining dangerous conditions on the property first must be filtered through the premises— liability classifications for determination of the degree of negligence necessary for liability.
¶ 52. When a person enters onto another’s land and suffers personal injuries due to the landowner’s negligence for failure to keep the premises in a reasonably safe condition — for instance, failing to repair a faulty electrical appliance or keeping a flock of attack geese — the claim must be analyzed under premises-liability law.
¶ 54. While the plurality’s label may apply to dangerous spills that fall on the floor or dangerously stacked boxes that fall on a customer, it certainly does not explain why, in Cade v. Beard, this Court used premises-liability law to analyze a hunter’s death in an ATV accident.
¶ 55. In attempting to distinguish the above cases, the plurality states that “premises liability was the only avenue through which the premises owner could have been brought into the litigation.” This concession agrees with my only point in citing these cases, and that is to refute the plurality’s assertion that premises-liability cases must be limited to negligence associated with “stationary conditions of the property,” and that these stationary conditions must “remain in place unless moved or changed by the landowner.”
¶ 56. Simply stated, I believe uninvited licensees and trespassers who go onto another’s property should not be allowed to make an ordinary negligence claim and recover for attacks by a homeowner’s animal — whether a dog, cat, or goose. This unwise approach exposes homeowners to liability, even for guard dogs kept inside the house. While I would reclassify invited social guests as invitees owed a duty of reasonable care, a majority of this Court has not adopted that view and I am constrained to analyze this case under our existing premises-liability law. Because Olier is a licensee under our existing law and because Bailey’s conduct cannot rise to the level of willful and wanton negligence, summary judgment was proper. For these reasons, I respectfully dissent.
COLEMAN, J., JOINS THIS OPINION IN PART.
. Wright v. Coffey,
. See, e.g., Rowland v. Christian,
.See, e.g., Burrell v. Meads,
. See Mayfield, v. The Hairbender,
. Cade v. Beard,
. Albert v. Scott’s Truck Plaza, Inc.,
.See Kroger Co. v. Knox,
Dissenting Opinion
dissenting:
¶57. I agree with Presiding Justice Dickinson that the instant case is a premises liability case and that the law will not allow us to consider the applicability of the dog-bite rule, or dangerous propensity rule as it is otherwise called, without considering our law on premises liability. However, rather than changing our longstanding premises liability law and classifications of plaintiffs attendant thereto, I believe Mississippi law as it stands provides that the usual standard for negligence against a licensee, as all agree the plaintiff was in the instant case, does not apply to the plaintiff here. I would apply the exception to the invitee/licensee dichotomy created by the Court in Hoffman v. Planters Gin Co., Inc.,
¶ 58. However, even under such a standard of care, for three reasons the plaintiff has failed to adduce sufficient evidence, even taking all evidence in the record in a light favorable to her, to create an issue of material fact. What I will herein refer to as the dangerous propensity rule governs the defendant’s claim under the reasonable care standard, and the plaintiff has failed to create an issue for the jury under it. First, the plaintiff failed to produce any evidence that'the goose that attacked her had ever displayed a propensity for dangerous behavior prior to her injury. Second, the plaintiff failed to produce any evidence that the aggressive behavior of the goose was anything other than natural behavior for geese as a class of animals. Finally, I would hold that because the plaintiffs knowledge of the relevant behavior of the defendant’s geese equaled that of the defendant, the defendant cannot be liable. Accordingly, I am of the opinion that, as a matter of law. the defendant cannot be1 held liable for the plaintiffs injuries.
I. The case sub judice must be analyzed as a premises liability case, but a reasonable standard of care nevertheless applies to the defendant.
¶ 59. When a plaintiff receives injuries as a result of the conditions present or activities conducted on premises belonging to the defendant, premises liability law applies. Double Quick, Inc. v. Moore,
¶ 60. All parties agree that the plaintiff entered upon the defendant’s property as a social guest and licensee, and I have nothing to add to the plurality’s explication of the standard of care normally owed a licensee. However, the normal standard of care does not apply to the plaintiff in the
The legal distinctions between a licensee and invitee have little significance once the presence of a person upon the possessor’s premises is known and there are affirmative actions involving him. Status relates largely to negligence for the condition of premises, that is, passive negligence and not to active or affirmative negligence emanating from action or inaction by the possessor with knowledge of an individual’s presence.
Id. In closing and after discussing several other secondary sources, the Hoffman Court quoted with approval Prosser, Law of Torts 379 (4th ed.1971), which read, “It is now generally held that as to any active operations which the occupier carries on, there is an obligation to exercise reasonable care for the protection of a licensee .... ”
¶ 61. There have been limited opportunities for the Court to address what has come to be known as the Hoffman exception in the more than three-and-a-half decades of its existence. However, I would be remiss if I failed to address one aspect of its development that runs counter to my position. In the opinion, the Hoffman Court wrote:
We think the premises owner is liable for injury proximately caused by his affirmative or active, negligence in the operation or control of a business which subjects either licensee or invitee to unusual danger, or increases the hazard to him, when his presence is known and that the standard of ordinary and reasonable care has application.
Hoffman,
¶ 62. In the context of the opinion as a whole, the Hoffman Court’s use of the clause, “affirmative or active negligence in the operation or control of a business,” did nothing more than describe the conduct at issue in the case. I do not read it to express an intent on the part of the Court to limit the exception to business invitees, nor am I able to appreciate any difference between business premises and nonbusiness premises that would explain such a limitation. However, I acknowledge that subsequent opinions read the language as a limit of the exception to business premises, see, e.g., Little v. Bell,
In one case, Hoffman v. Planters Gin Co., Inc.,358 So.2d 1008 (Miss.1978), we applied the standard of ordinary and reasonable care rather than the standard of intentional or wanton negligence due a licensee. In that case we held that the owner of premises is liable for injury proximately caused by the owner’s affirmative or active negligence in the operation or control of activities which subjects a licensee to unusual danger or increases the hazard to the licensee when the presence of the licensee is known. In Hoffman, we changed the standard of care owing to a licensee but carefully limited the new standard of care to those cases involving injury resulting from active conduct as distinguished from conditions of the premises, or passive negligence.
Hughes,
¶ 63. Because the remainder of the Hoffman opinion cannot be read to support the business-premises limitation; the Court expressly stated its “view” to be that statement of the rule written by Pros-ser, quoted above, which makes no mention of such a limitation; and the Hughes opinion does not support the Little Court’s reliance upon it, I am of the opinion that it would be correct for the Court to clarify that the Hoffman exception does not apply only to business premises.
¶ 64. Turning to the case sub judice, the evidence clearly shows that the defendant knew the plaintiff was present on the premises. Moreover, an allegation of negligence relying on the dangerous propensity rule is an allegation of active, rather than passive negligence. As I develop further below, a claim under the dangerous propensity rule is at its heart a claim based on the superior knowledge of the animal owner and failure of the animal owner to warn or protect others from a dangerous propensity in the animal that, because the class of animal to which it belongs does not share the propensity, the other person cannot be expected to know of it. If the Hoffman Court considered the failure to lock doors, place warning signs, and cover the augers to be active negligence, so too is a dangerous-propensity claim. Moreover, a dangerous-propensity claim, as it is based on the superior knowledge of the defendant, is similar in nature to a failure-to-warn claim. Failure to warn constitutes active negligence. Long Term Care, Inc. v. Jesco, Inc.,
II. The plaintiff has failed to create a triable issue of fact under the dangerous propensity rule.
¶ 65. Having set forth why I believe an ordinary care standard should apply, I now turn to what the standard is in a case involving allegations that an owner is liable for injuries caused by an animal. In Poy v.
There is a considerable diversity among the Courts of the several states as to the conditions under which liability may be imposed in cases of this kind. However, we believe the sounder rule requires that there be some proof that the animal has exhibited some dangerous propensity or disposition prior to the attack complained of, and, moreover, it must be shown that the owner knew or reasonably should have known of this propensity or disposition and reasonably should have foreseen that the animal was likely to attack someone.
Id. at 494. Regarding the dog attack in Poy, which the Court held resulted in no liability attributable to the owner, the Court wrote, “There is nothing whatever in the record capable of supporting a finding that this puppy had previously exhibited any such character or disposition as would reasonably have put Poy on notice or enabled Poy reasonably to foresee that it might attack or bite someone.” Id. at 493-494.
¶ 66. In Mongeon v. A & V Enter., Inc.,
¶ 67. By contrast, in the case sub judi-ce, neither the plurality nor the plaintiff identifies any evidence of record that showed any sort of dangerous propensity or disposition on the part of the young goose prior to the incident which resulted in the attack on the plaintiff. At best, the plaintiff points to aggressive behavior of the goose during the attack itself but identifies nothing that occurred beforehand that could fairly be said to have put the defendant on notice that the goose was dangerous or had any tendency to injure persons. Both the Poy and Mongeon Courts looked for evidence of dangerous behavior that preceded the underlying attacks — not that occurred as part of the same series of events that included the attack as occurred in the instant case. Poy,
¶ 68. Second, the Poy Court, quoting 3 C.J.S. Animals 148a (1936), wrote that for liability to attach, the vicious propensity in question must be “not natural to the class of animals to which the offending animal belongs.” Poy,
¶ 69. Finally, the plaintiff has failed to demonstrate that the defendant had superior knowledge of any dangerous propensity of the goose. In the case sub judice, all evidence of any danger posed by the goose, or gaggle of geese, was known equally to the plaintiff and defendant. The defendant entered the domain of the geese once alone and retreated. Armed with a bamboo stick, the plaintiff soldiered once more into the geese. Because the plaintiff’s knowledge equaled that of the defendant, I would hold she cannot recover. See Durham v. Mason,
“ ‘The gist of the action has been characterized as the keeping of the animal with knowledge of its vicious disposition.’ ” Poy,
¶ 70. I would hold that the defendant in the case sub judice was subject to the Hoffman exception and a reasonable care standard, that the standard of reasonable care applicable to the defendant is established by the dangerous propensity rule, and that, even taking the evidence of record in a light most favorable to the plaintiff, she has failed to make a prima facie case. Accordingly, summary judgment was appropriate, and I respectfully dissent.
PIERCE, J, JOINS THIS OPINION. DICKINSON, P.J., JOINS THIS OPINION IN PART. RANDOLPH, P.J., JOINS THIS OPINION IN PART II ONLY.