Rhonda L. Rosenberry (“Mother”), acting individually and as parent and natural guardian of Alexander W. Prince, a minor, appeals from the trial court’s order granting summary judgment in favor of Robert Miller (“Landlord”)
The relevant facts underlying this appeal are as follows. On June 15, 2008, then ten-year-old Alexander accompanied his grandparents, Dale and Linda Cannon, to premises leased by Mitchell King frоm Landlord. The purpose of their visit was to choose a puppy from the litter of puppies born just hours before to Raven, a pit bull owned by Tanya Evans, Mr. King’s girlfriend. Ms. Evans placed a newborn puppy with part of its umbilical cord still attached in Alexander’s lap. Deposition of Linda Cannon, 9/17/09, at 16-17. First, Raven came near the child, licking his knee and hand. Id. They were face to face, each looking down at the puppy, and then they both looked up at the same time. At that point, Raven “had a hold of his nose.” Id. Ms. Evans grabbed the dog, the child pulled back, and “there was a piece missing out of Alex’s nose....” Id.
Mother commenced a civil action against Landlord, Mr. King, and Ms. Evans, alleging that their negligence resulted in serious bodily injury to Alexander. Mother averred that the dog had dangerous propensities, that Landlord was in control of the property where the injury occurred, and that he knew or should have known of the dog’s dangerous propensities. She asserted that he was negligent in permitting Mr. King and Ms. Evans to keep a viсious dog on the premises and in failing to warn others of the danger. Landlord denied that, at the time of the incident, he controlled, managed, or supervised the property. Miller’s Answer and New Matter and Cross-Claim, 10/28/10, at ¶ 7. Furthermore, he denied that the dog was kept on the property or that he permitted Ms. Evans and Mr. King to keep the dog on the premises. Id. at ¶¶ 10,12. Finally, he denied constructive or actual knowledge that the dog had any dangerous or vicious propensities. Id. at ¶ 14. He filed cross-claims against Ms. Evans and Mr. King seeking contribution and indemnification pursuant to Pa.R.C.P. 1031.1, and alleged that they were solely liable to Mother, or jointly and severally liable. Landlord joined Dale and Linda Cannon, the child’s grandparents, as additional defendants.
The parties engaged in discovery, and thereafter, on December 17, 2010, Landlord filed a motion for summary judgment. He alleged that Mother had failed to adduce evidence that the dog had dangerous propensities or that Landlord had actual knowledge of any dangerous propensities of the dog that would give rise to a duty on his part to control the animal or protect the minor child. Mother responded, filed a brief in opposition and a supplement to
Mother presents three questions for our review.
I. Whether the lower court erred and abused its discretion in finding that a genuine issue of material fact did not exist as to (A) the “dangerous propensities” of the pit-bull dog in question and (B) Defendant/Appel-lee, Robert Miller’s knowledge of the dangerous propensities of this animal, when such determination was based purely on oral testimony of non-adverse parties?
II. Whether the lower court erred and abused its discretion in finding that there was no evidence that the pit-bull dog in question was dangerous?
III. Whether the lower court erred and abused its discretion in finding that there was no evidenсe that defendant/Appellee, Robert Miller, was aware that the pit-bull dog in question was a dangerous animal?
Appellant’s brief at 6.
“In reviewing an order granting summary judgment, our scope of review is plenary, and our standard of review is the same as that applied by the trial court.” Brandon v. Ryder Truck Rental, Inc.,
Typically, in negligence actions arising from the conduct of animals, the animal’s owner is the person responsible for injuries to others caused by his or her pet. Pennsylvania, however, does not impose absolute liability upon dog owners for injuries occasioned by their dogs. McCloud v. McLaughlin,
In order to establish a cause of action in negligence against a landlord for injuries caused by his tenant’s dog, it must be proven that the landlord owed a duty of care, that he breached that duty, and that the injuries were proximately caused by the breach. Martin v. Evans,
In Palermo, tenant’s dog attacked and bit a seven-year-old child. The tenant was the landlord’s nephew and lived on her property rent-free. Eighteen months pri- or to the attack, a police officer had advised the landlord to keep the dog constrained because it had attacked and bitten a child. The parents filed a negligence action against the landlord and the tenant
Actual knowledge of a dog’s dangerous propensities is required before a duty is imposed upon a landlord to protect against or remove an animal housed on rental property. In Underwood, ex rel. Underwood v. Wind,
We first address the question of whether there was no genuine issue of material fact that Raven did not have any dangerous characteristics. Instantly, the trial court relied upon a record replete with testimonial evidence that Raven had a gentle disposition and wonderful temperament as the basis for its finding thаt the dog did not have a dangerous propensity. Ms. Evans and Mr. King both testified that Raven was not aggressive with people or animals and Mr. King offered that the dog “didn’t have a mean bone in its body.” King Deposition, 9/17/09, at 24. Dale Cannon, the minor’s grandfather, described the dog as friendly and obedient. It did not growl or bark. Linda Cannon played with the dog and it kissed her hands. Even after the dog had her puppies, her disposition did not change and she was not mean, nasty, or guarded. Ms. Evans denied that Raven had ever attacked or bitten anothеr dog or person. By all accounts, the bite herein was involuntary and nonaggressive.
Mother contends first that the trial court violated the Nanty-Glo rule in relying solely upon the oral testimony of Ms. Evans, Mr. King and the Cannons to find that the dog did not have a dangerous propensity. In Borough of Nanty-Glo v. American Surety Co. of New York,
The rule provides that, “[hjowever clear and indisputable may be the proof when it depends on oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts[.]” Nanty-Glo, supra at 524. An exception to the rule has been recognized where the moving party relies upon the uncontradicted testimony of another party, even a co-defendant, who is an adverse party and equally liable to the plaintiff. Askew By
Mother alleges that Ms. Evans, Mr. King, and the Cannons are not adverse parties as to the Landlord. Despite the fact that Landlord filed cross claims against Ms. Evans and Mr. King, and joined the Cannons as additional defendants, Mother insists that the parties’ interests align with Landlord’s as all would be exculpated by a finding that the dog did not have dangerous propensities. She contends that the credibility and potential bias of these witnesses must be submitted to the jury under the Nanty-Glo rule.
Mother relies upon our decision in Johnson v. Johnson,
We find Mother’s reliance upon Johnson persuasive with regard to the issue of the vicious or dangerous propensities of the dog. As a finding of the dog’s dangerous propensities was a prerequisite to liability against Landlord as well as his co-defendants and the additional dеfendants, the parties had identical aligned interests. The trial court relied upon the uncontradicted oral testimony of Ms. Evans, Mr. King, and the Cannons in concluding that the dog did not have violent tendencies. “Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury.” Penn Center House, Inc. v. Hoffman, supra at 903 (quoting Goodrich-Amram, 2d, § 1035(b):4 at 434-35). As this was not the testimony of parties adverse to Landlord on this issue, we find that the Nanty-Glo rule applies and the trial court erred in finding no issue of material fact based solely on this testimony.
Furthermore, we also find merit in Mother’s alternative argument that there was sufficient evidence of the dangerous propensities of the dog to raise genuine issues of material fact and preclude summary judgment on this issue. It was undisputed that the dog had a tic, or an involuntary spasm, which intermittently caused it to clench its teeth in a biting motion. The dog’s mouth would open and close quickly and one could hear a clicking of the dog’s teеth as they came together. Raven had displayed this characteristic since she was a puppy. In light of the fact that the eyewitnesses to the events of June 15, 2008, saw no agitation or aggressiveness on the part of the dog prior to it
Our High Court has defined a dangerous or vicious propensity broadly. A dangerous propensity includes “a propensity or tendency of an animal to do any act that might endanger the safety of the person and property of others in a given situation.” Groner v. Hedrick,
In the instant case, while there is no evidence that Raven was vicious, it was undisputed that she had a tic that caused her to clench her teeth in a biting motion. The parties disagree about the reasonable inferences to be drawn from this undisputed fact. Mother draws the inference that the clenching motion rendered the ■ dog dangerous as evidenced by the fact that it resulted in a disfiguring injury to Alexander. The other parties characterize the behavior as an involuntary muscle spasm in a gentle dog. As this was summary judgment, the inferences should have been drawn in favor of Mother, the party opposing the motion. Thus, there was sufficient evidence from which a jury could reasonably infer that the dog displayed a characteristic, even though non-aggressive, that rendered it dangerous. Summary judgment on this basis, therefore, was inapproрriate. Weaver v. Lancaster Newspapers, Inc.,
Despite our conclusion that there are genuine issues of fact regarding whether Raven had a dangerous propensity, our inquiry does not end there. In order to establish that Landlord had a duty, Mother had the burden of offering some evidence that he had actual knowledge of the dog’s muscle spasm or other dangerous propensity and sufficient control over the leased premises to prevent the injury.
Again, Mother challengеs the trial court’s reliance upon the testimony of Landlord, Ms. Evans, Mr. King, and the Cannons in finding that Landlord had no knowledge as a violation of Nanty-Glo. Mother insists that these parties are not adverse because they are all tenants of Landlord, and notes Mr. King and Dale Cannon also occasionally performed odd jobs for Landlord.
Contrary to our disposition of the dangerous propensity issue under Nanty-Glo, we find no application of the rule to the issue involving Landlord’s knowledge. As to that issue, Landlord’s legal interest is adversе to that of the co-defendants and additional defendants. A finding that Landlord did not know of the dog’s allegedly dangerous propensity increases the potential exposure of the co-defendants
In addition, based upon our review of the record, the trial court did not rely solely upon oral testimony in support of summary judgment on the issue of Landlord’s knowledge and thus, did not trigger Nanty-Glo. Instead, Landlord maintained, and the trial court agreed, that Mother failed to adduce facts sufficient to create a genuine issue of material fact as to his knowledge of the dog’s dangеrous propensities. Mother contends that the court erred in this regard as Landlord’s knowledge can be inferred from the knowledge of Dale Cannon, or from Landlord’s own direct observations of the dog, or rumors of the dog’s reputation in the community. Appellant’s brief at 26-27.
Mother characterizes Dale Cannon as an employee of Landlord and argues that his knowledge of the dog’s dangerous propensities acquired while he was acting on behalf of Landlord must be imputed to Landlord. She asserts that Mr. Cаnnon first became aware of Ms. Evans’ dog and its teeth clenching when he went to the King residence on Landlord’s behalf to inspect the new door and floor that he had previously installed, and that knowledge was acquired within the scope of his agency.
Before a landlord will be charged with a duty, he must have actual knowledge that his tenant harbors a dog with dangerous propensities. Palermo, supra. Pennsylvania courts have not addressed whether imputed knowledge of an agent is sufficient to satisfy this actual knowledge requirеment. Generally, the language of imputed knowledge is used in those situations involving the principal’s liability for the conduct of the agent, which is not the case herein. See Restatement (Second) of Agency, § Scope.
We acknowledge that “[i]t is well settled in the law of this jurisdiction that knowledge of an agent, acting within the scope of his authority, real or apparent, may be imputed to the principal, and therefore, knowledge of the agent is knowledge of the principal.” W.C.A.B. v. The Evening Bulletin,
Presently, we are not dealing with a corporate principal that can only act through its agents. Additionally, Mr. Cannon only did odd jobs for Landlord; he was not a property manager and, arguably, an independent contractor rather than an employee. Moreover, Mr. Cannon’s awareness that Ms. Evans’ dog had a spasm, knowledge acquired while he was performing a maintenance chorе on the tenant’s property, was not material to his duties for Landlord. Given the limited scope of his agency, we find it unreasonable to hold that Mr. Cannon had a duty to report to Landlord that a tenant’s dog had a tic.
Moreover, knowledge of a dog’s clenching issue is not equivalent to actual knowledge of a dangerous propensity. Even Mr. Cannon did not perceive the tic
Mother directs our attention to other jurisdictions where an agent’s knowledge of a vicious dog was imputed to landlord. In Rosseau v. Fintz,
Furthermore, in Rosseau, the knowledge that was imputed to the landlord was that of the landlord’s father who acted as manager of the property, frequently visited the duplex where numerous “Bad Dog” signs were posted to collect the rent, and often visited the specific area where the dogs were kept. This is in stark contrast to an occasional handyman such as Mr. Cаnnon who had no managerial duties with regard to the properties and whose work took him to the property on one occasion when the dog was present.
Nor is the instant factual situation comparable to the New York authorities relied upon by Mother. Therein, the tenants were the owners of the allegedly dangerous dogs and landlords provided their apartments free or at reduced rent in exchange for tenants’ maintenance of landlords’ property. The tenants’ knowledge of thеir dogs’ dangerous proclivities was imputable to landlords for purposes of establishing vicarious liability on the part of the landlords. See Wilson v. Livingston,
Next, Mother points to Ms. Evans’s testimony that Landlord came to collect the rent around the first of the month and “maybe two to three times” to speak to Mr. King when the dog was on the premises as support for the inference that he knew of the dog’s tic. Deposition of Tanya Evans, 3/31/10, at 23, 25. While we agree that a landlord’s knowledge of a dog’s violent propensities may be inferred from the facts and circumstances, we find no reasonable basis for such an inference on the facts herein.
Such evidence of knowledge falls far short of the proof in Palermo where, prior to the incident, the landlord was apprised by police that the dog had attacked and bitten a child and where the landlord visited the property frequently and could observe the dog’s viciousness. Also cf. Dick v. Detwiler,
Mother testified that after her son was injured, she heard rumors from Dale Cannon that the dog had previously attacked and killed a poodle. Deposition of Rhonda Rosenberry, 10/12/10, at 21-22. She contends that the fact that Landlord lived in the community should permit the inference that he also heard the rumors and, thus, knew the dog had violent propensities.
Landlord counters that such testimony constitutes inadmissible hearsay and cannot be used to defeat summary judgment. Samarin v. GAF Corp.,
Thus, viewing the evidence in the light most favorable to the nonmoving party, as we are obligated to do, we conclude that there are genuinе issues of material fact regarding the dog’s dangerous propensities. However, there was no evidence from which one could reasonably infer that Landlord had actual knowledge of the dog’s alleged dangerous propensities to impose a duty of care. Zator v. Coachi,
Order affirmed.
Judge PLATT Concurs in the Result.
Notes
. We have jurisdiction of this appeal from an interlocutory order because the trial court made an express determination pursuant to Pa.R.A.P. 341(c), that an immediate appeal would facilitate resolution of the entire case.
. This issue-by-issue approach to the Nanty-Glo analysis seems appropriate in the summary judgment setting, which is calculated to dispose of some or all of the issues or some or all of the parties.
. Landlord's control over the leased premises was not an issue on summary judgment.
. Mother testified at her deposition that her stepfather, Dale Cannon, told her several days after Alexander was bitten that while thе dog resided at another location with Ms. Evans' former boyfriend, it had killed a neighbor's poodle. According to Mother, Mr. Cannon did not have this information prior to the events herein.
. In Vasques By and Through Rocha v. Lopez,
. Ironically, Mother seeks to use rumors she heard only after her son was bitten as the basis for an inference that Landlord would have heard them prior to this incident.