Plаintiff Rebecca Rubin appeals the Rutland Superior Court’s grant of summary judgment in favor of defendants Town of Poultney, Poultney’s town constable, Douglas Bishop, and Poultney’s town manager, Jonas Rosenthal, on her negligent failure to protect claim. 1 We affirm.
*625 The parties do not dispute the facts. Richard and Sheila Fleury’s dog, Ben, bit plaintiff when she jogged past their home in the Town of Poultney. Two days prior to the incident, the tоwn manager received reports that the dog had been roaming the streets frightening people. The reports did not allege that the dog had bitten anyone. In response to the reports, the town manager and the town constable visited the Fleurys’ residence to advise them to keep their dog tied up. The next day, the town manager sent a letter to the Fleurys again advising them of the complaints and giving them notice that the town selectmen would take action in the event the dog bit someone. The day after the town manager sent the letter, the dog bit and injured plaintiff. The dog was not tied up at the time of the incident.
Plaintiff brought suit against defendants, claiming negligent failure to proteсt her from the Fleurys’ dog. The court granted defendants’ motion for summary judgment, holding that this case did not trigger defendants’ statutorily prescribed duty to takе action to protect the general public from dogs that bite. See 20 VS.A. § 3546. 2 The court further held that defendants were not negligent under plаintiff’s alternative theories of common law negligence liability.
In reviewing a grant of summary judgment, this Court applies the same standard as the triаl court. See
Madden v. Omega Optical, Inc.,
By statute, town officials have a duty to investigate if the town receives three written complaints that a dog, while off the premises of the owner, has bitten a person. 20 VS.A. § 3546(a), (b). If the town finds the animal bit the person without provocation, the town has a duty to protect people by ordering the animal muzzled, chained, confined, or disposed of in a humane way. Id. § 3546(c). On appeal, plaintiff relies, not on the Town’s statutorily-imposed duty, but on common law negligence.
To prevail in a commоn law negligence action, a plaintiff must demonstrate that the defendant owed a legal duty to the plaintiff, the duty was breached, the breach constituted the proximate cause of plaintiff’s harm, and plaintiff suffered actual loss or damage as a result.
O’Connell v. Killington, Ltd.,
Plaintiff first contends that defendants assumed a duty to her by undertaking actions not otherwise required of them. She relies on the Restatement sections stating that one who negligently performs a voluntarily assumed undertaking to render services may incur liаbility if his or her actions result in harm to the intended direct recipient of such services or to some foreseeable third person. Seе generally Restatement (Second) of Torts §§ 323,324A (1965); see also 2 S. Speiser, et al., The American Law of Torts § 9:22 (1985) (discussing Restatement rule). More specifically, she refers to § 324A(b) to argue that, in responding to the complaints, defendants undertook to control the Fleurys’ dog and therеby voluntarily assumed a duty to her above and beyond their duty under the dog-bite statute.
*626 The trial court did not directly address whether, by warning the Fleurys to cоnfine their dog to their premises, defendants had assumed the Fleurys’ duty to control their dog for the protection of the public generally, or plaintiff individually. Rather, the court held that, even if defendants voluntarily assumed a duty, they acted with reasonable care. Our affirmance rests on different grounds.
Plaintiff asserts that it takes very little beyond a gratuitous promise for courts to find an assumption of a duty. See W. Keeton, Prosser and Keeton on Torts § 56 (5th ed. 1984). Here, however, defendants merely promised to perform their statutory duty should the triggering event occur. Seе Restatement (Second) of Torts § 324A, cmt. d (proffering illustrations of undertaking liability to third persons that either involve promise or contract to perform specific service, or concern employee’s assumption of employer’s duty). They made no promise to сonfine the dog absent the statutory prerequisites. Defendants’ verbal and written warnings simply served to put the Fleurys on notice of their dog’s reported behavior and its potential consequences. See
Wright v. Schum,
Despitе the general principle that duty is a question of law, plaintiff alternatively claims that the trial court erred because the existenсe and scope of a voluntarily undertaken duty is a question of fact that must be submitted to a jury.
Pratt v. Liberty Mut Ins. Co.,
Plaintiff next contends that thе town’s right to control vicious dogs gives rise to a general legal duty to protect her from vicious dogs. In support, she cites cases in whiсh a specific contractual provision gives one party, a landlord for example, a general right to control the othеr party’s pets. Her argument depends, however, on a mischaracterization of the rights defined and the duties imposed by the statute. Desрite the statute’s general title, “investigation of vicious dogs,” it deals specifically with investigation of dogs that bite rather than any general right tо control dogs. In this case, defendants’ ability to exercise control over dogs exists in narrowly circumscribed conditions and is statutory, not сontractual, in nature.
Finally, plaintiff cites to cases in which we have found a duty exists by virtue of a special relationship. We note thаt she fails to allege any such special relationship between town officials and residents that would require protection before the statutorily-imposed duty to investigate and control takes effect. The town’s right to control dogs that bite does not give rise to a gеneralized duty to control vicious dogs.
Affirmed.
Notes
Although the trial court also granted summary judgment on plaintiff’s claim of intentional infliction of emotional distress, plaintiff does not appeal this ruling.
We refer throughout to the statute in effect at the time of the incident, but the statute has since undergone general amendment.