*1 his imposed as a result of uncounseled conviction.
RELIEF GRANTED. ROLL, P.J.,
LACAGNINA, C.J., and concur. SCHLEIER, for and on Behalf
Tod F. ALTER, minor, of Rachel Toba Plaintiffs-Appellants, Alter, Anderson, Ellen hus- Law- ALTER and P.C. William Lawrence O. wife, Defendants-Appellees. Phoenix, Anderson, plaintiffs- band and rence O. appellants. 9707. No. CA-CIV Robertshaw, Pozgay, Black, Copple & Appeals Court of L. O’Dan- Copple, D. David by Steven P.C. 1, Department C. Division Phoenix, Horne, Bis- iel, Kaplan and Rosenthal, Phoenix, for Amy L. trow 10, 1989. Jan. defendants-appelleеs. OPINION
FIDEL, Judge. dog severely A child bitten parents. To brings this lawsuit summary appeal from determine the child’s parents, must answer for her judgment questions: liability: When law 1. Common vicious with demonstrated owners of expose the children tendencies toward by the they shielded their own from common immunity doctrine dog inflicts? injuries the liability for law A.R.S. liability: Does Statutory bite Arizona’s statute, is a child apply when the victim as the same housеhold resides in the owners family home? follow, we affirm
For reasons for the defendants summary judgment reverse plaintiff’s *2 398
summary judgment injury scope order reinstate- and the one falls within the plaintiffs parental ment of the common law claim. care and control or the exer- cise parental and the ade- AND FACTS HISTORY PROCEDURAL care, quacy of child the doctrine of immunity applies, rental and the child Alter, plaintiff, Rachel When Toba the precluded recovering par- from the par- on her born December ents. ents, Alter, William and Ellen owned a pointer Misty, opinion
German named It is short-haired this Court’s a statute in bought puppy imposing liability (as had as a 1978 in this case birth, Shortly bite) or the dog change 1979. after Rachel’s does not the above dog began to chil- show resentment toward parental rulе and doctrine of immuni- the dren. first defendants’ three ty apply She bit the if the incident arose still in year gathering July old niece at a parental within the realm discretion August Approximately or one 1985. the or care and control of later, the bit at her month Rachel judgment with parental regard involved grandmother’s Rachel to the care of the child. again in October at the Alters’ own resi- permit- The Court determines that the were dence. The bites on each occasion ting dog kept of the child to be around a Despite the head face. these victim’s or parental in judg- the is an issue house episodes, the Alters remained fond regarding ment the and care control kept hope and her in the that such the minor child and therefore falls within Alter attacks would not recur. Williаm the immunity. doctrine recognized, Misty posed
significant
if
risk to Rachel
the
were
two
PARENTAL IMMUNITY IN ARIZONA
in
left alone
the same room.
doctrine,
Rachel,
par-
her
On November
George,
first
in
v.
articulated
Hewlett
ents,
some
visitors
break-
were
(1891), originally pro
Miss.
So.
Misty lay
the
fasting in
Alters’ kitchen.
suit
a child
hibited
common law tort
beneath the kitchen table. As Rachel
parent.
generally
See
W. Pros
dishwasher,
moved from a chair to the
Keeton,
ser,
122 at
W.
Law
Torts §
stood,
lunged,
face.
and bit her on the
(5th
1984).
904-10
ed.
old,
Rachel,
bleeding
fell
eleven months
applied
Arizona
immu-
first
required twenty-five
from a wound that
Frazer,
nity doctrine in Purcell
repair.
nothing
had done
stitches to
She
(1967). However,
App.
A conservator commenced this lawsuit on tially abrogated doctrine August Rachel On behalf of (1970). Ariz. summary judgment, cross-motions unemancipated There an minor child sued defendants, trial ruled for the reason- damages resulting from a ing as follows: accident which the mother was one-car driver. The court stated:
The issue boils down resulting in alleged incident whether principal factors un- feel that injury an to the minor child from tranquility” ... dermine “domestic [the] paren- within doctrine Frazer, bite comes expressed rationale Purcell v. alternatively tal falls compel overruling supra, and exception to such doctrine. case. ... is that the common One factor permitted exceptions long law has sue or contract. It is not automobile accident ent clearly not limited to However, say that ap- doctrine still unsafe to some most cases. disputes inter-family proper- involv- arise over plies activities bitter ty, yet parental does not ing discipline, care and control. Therefore, resulting limit of action in this area. Is if the causes incident services, care.” N.W. say law should tal reasonable to that our rights 2d at 198. protect and contract rights zealously of a minor more than the fully more ex These were ig- person? Secondly, of his cannot *3 subsequent in a Wisconsin deci plained almost existence of nore the universal Servais, sion, Lemmen v. 39 Wis.2d insurance, particularly in the (1968): 158 N.W.2d automobile accident realm. Where such immunity granted by these “The two exists, tranquility the insurance domestic parent, is the not accorded hollow, reality the argument is in is a because as parent, because he but sought litigation not after is between pursues parent he a course and parent but сhild between society which the constellation parent’s insurance carrier. him is exacts of and which beneficial parental non-liability state. The
the reward, as granted as compen- not insurance is available to Where parents to enabling means of the dis- possi- his the injuries, sate the child for society charge the ex- duties which bility disruption family unity at 344. hand, acts.” N.W.2d peace nеgligible. the other On nonexistent, insurance is doubt persuaded parental where we While we are by unemancipated minor chil- that suits from an uneman- tort action parents against dren their be fre- cipated will child should be retained limit- quently Overwhelmingly purposes entertained. set down ed as those court, weighted against the of such the unneces- possibility Wisconsin find scope the this time the disruptive sary suits is the interest of to delineate vital parental protecting in in which rule its members applied. holding, permitting will be Our negligence. loss caused another’s parents in Sharon Streenz to sue her 106 Ariz. at P.2d at tort, is limited to the factual situation enough This stated rationale had breadth before us. abrogation total the doctrine. Yet 106 Ariz. at our supreme court in followed Wisconsin expressing pоlicy reasons to leave it delineation The found tially intact: to intrafamilial activities App. [W]e should not be tal [ sented important in these and held that Court, (1969) discipline, care and N.W.2d agree [10] in Goller v. in the Court of ]. ] that “the “ought aspect with The Wisconsin usurped by 13, 461 situations: (1963)] recognized to be abrogated White, role of parental Appeals opinion control.” Howard involving parеn- [20 paterfamilias [186] judiciary Wis.2d discretion, [who Supreme at 189 except dis- Streenz into the uninsured Sandoval, brought homeowner’s gate immune (1981), issue of court’s determination that home. His Sandoval, where the fenced street, from the child’s suit. parental negligence a father four-year-old motorist. The supplied 128 Ariz. insurance, where he was struck court affirmed supervisory front facts neglected aсtion yard son presented part rode a of the neglect. to latch the their Sandoval tricycle by an them. were pure trial had son Streenz, (1) alleged negligent distinguished act in- Where the parent duty exercise of driver owed volves an child; carefully only to her child but to drive over large: alleged in- (2) negligent act Where ordinary parental an exercise of If an accident rеsulted because volves any passen- provision negligent driving, parent’s with discretion food, been in- clothing, housing, ger and den- in the vehicle could have medical
jured, and the driver should be liable to
The trial court viewed the behavior of
passenger
regardless
properly super-
of the fact
defendants as a failure to
passenger
daughter
keep
is the
vise their
safely
child of thе
dis-
tant from a
driver.
We do not
duty
narrowly.
view their
so
The defend-
Sandoval,
In
applied
Sandoval
parental immunity
parent
when a
a
violated
COMMON LAW CLAIM
duty
familial
opposed
to the child alone as
Cox,
In James v.
we summarized the
duty
large.
to
Id.
liability
basis fоr
injury
at common law for
cised the utmost care to it from Misty’s history equiv- revealed her as the doing the harm. “dangerous alent of a instrumentality” to 152, 154, Keeton, 130 Ariz. children. (App. supra, See Prosser & 1981)(quoting Manhart, (liability 122 at 909 clearly justified Jones v. (App.1978).) parent 585 P.2d “where the himself maintains a dan- gerous dynamite caps instrument such as acknowledge, The defendants Alter home.”) or a vicious The de- must, they knew the dog-own- fendants —not as but as propensities dog. their a three to large ers—owed the to the world span Misty four month had bitten their instrumentality isolate that from all chil- three-year-old niece once and the toddler including dren their To own. the violation risk, recognition Rachel twice. duty, no attached. the Alters strove not to leave Rachel аnd alone the same room. That acknowledge, effort We Shelley com- concurrence, failed to alleviate the harm. ments that this record lacks sume, however, arguendo, children other than evidence whether Ra- might extinguish purely statu exposed Misty after the chel were liability. accept If we were to tory evidence, first bit a child. Such Rachel, assumption further extent demonstrate would family dog in the member bitten general duty met their which defendants home, per the class of came within general dutyA is no less isolate the by A.R.S. protected sons being performed.1 partially immunity inapplicable hold the trial court erred in We conclude that expressed the reasons in this case for granting summary judgment to the preceding of this decision. The section on Rachel’s common law claim.2 upon dog duty imposed owners a familial confined 24-521 is not STATUTORY STRICT child, but rather a the care of one’s own LIABILITY CLAIM large protected class. general viability of We next consider the attach in Ari immunity does not Parental duty, claim. Rachel’s of so zona violation may disposed though of this like of the breach The trial court even the victim *5 pa grounds her common law on of child. be one’s immunity. affirm on a different rental We Accordingly, uphold do not the trial ground. ruling grounds of liability on court’s strict it rather parental immunity. uphold We provides: 24-521 A.R.S. § find Rachel excluded from the because we per- a The owner of a which bites designated for persons class of limited public person son when the is in or on a protection under A.R.S. liability place lawfully private place, or in or on a 24-521. § including property of the owner dog, damages is for suffered liable held that 24-521 previously haveWe §§ bitten, person regardless of the by the derogate the common law and thus seq. et dog or the former viciousness of the narrowly literally construed. See are knowledge of owner’s its viciousness. 232; Murdock, 144 at 696 P.2d at Ariz. 156-57, James, P.2d at 634 observing pur begin by We that a claim Bouthillier, 968-69, Ariz. 129 Toney seq. legally is suant to A.R.S. 24-521 et § 402, 406, (App.1981). 561 We 631 P.2d distinct from a common law bite claim. in that the statute’s restrictions consider Balle, 136, 138, Murdock v. Ariz. light. im (App.1985). P.2d munity abrogated part—in by doctrine—now liability remedy established The strict shield policy arose for reasons to bit- 24-521 is limited to bite victims § public place from tort at common law. “in or ten when or on lawful- necessarily private place, including that the doc ly It does follow in or on a (Em- unabrogated dog.” property trine —to the extent it remains the owner added.) The issue we address special phasis lia —applies to shield “lawfully in or on ... as Rachel was by statute. We will whether bilities created ruling for us to Shelley makes it in the result because he 2. Our concurs the defendants' failure did not argument application concludes that Rachel’s address ordinary parеntal discre- involve the exercise violates Ariz. of Const, reject Although employ nor we neither tion. right provides, "The § art. rationale, distinction be- we fear that the damages injuries shall nev- action to recover ordinary extra-ordinary acts of tween abrogated, shall and the amount recovered er be impressionistic may be too rental discretion statutory subject We limitatiоn." not be predictable supply useful or basis additionally this Rachel failed to raise note inquire immunity. prefer under Sando- not consider an in the trial court. We will issue operative duty is a val whether the appeal. argument raised for the first time or a more owed to the child alone Warren, Campbell See owed not to the child world (App.1986). large. at invitees, dog” guests, owner of the рersons per- include meaning statutory within the duties, forming legal residents, family phrase. among others lawfully present those private places. By limiting explicit statutory Undefined terms are construed categorization lawfully present according usage. to common A.R.S. dog-owner’s alone, legisla- Unquestionably, by 1-213. common purpose ture made its restrictive clear. usage, lawfully present Rachel was at her parents’ and her own home. Common us- holding Our is narrow. This is not a age yields, statutory when terms case, example, rent-paying of a member specially “pe- defined or otherwise hold of the owner’s member household— culiar meaning ... in the law.” Id. or protected not—who asserts the status phrase question demonstrates the invitee. Nor a case of a member of rule, sрecially latter narrowly for it is the owner’s and household who is by defined A.R.S. the definitional family dog public place at a or companion to 24-521. Section 24-522 private property. someone else’s Such provides: cases, variations, and their multiple must person
A is lawfully pri- in or on the be decided when arise careful ex- vate property the owner amination of the inclusions аnd meaning article when today only exclusions. We hold that Ra- guest, per- invitee or or when in the invitee, chel was guest, neither an nor a duty imposed upon formance of a him person performing duty imposed by law States, law of the state or United parents’ when she was bitten at her municipality ordinances of a in which there, As a resident she was exclud- *6 is located. group persons ed from the limited of (Emphasis added.) could statutory avail themselves of liability protection, and she was left to her Excluded from this definition are common law remedies alone. residing members and bitten at the owner’s We believe that this exclusion legislature was deliberate. CONCLUSION argues Plaintiff otherwise. con- She For the opinion, reasons stated this tends that only 24-522 was intended judgment with clarify applicatiоn poten- of 24-521 in affirmed, judgment claim with re- tially situations, uncertain not to limit its reversed, spect to the common law claim is scope. disagree. We In the absence and this case is remanded to the trial court 24-522, there would have been no uncer- proceedings opin- consistent with tainty concerning presence lawful ion. invitees, guests, present persons per- duty imposed by persons form a law. Such regarded lawfully present by be CORCORAN, P.J., concurs. understanding
common of the term. No SHELLEY, Judge, specially definitional statute was needed to accom- concurring: plish their inclusion. Section 24-522 is meaningful only interpreted if to accom- any The record is devoid of evidence that plish the exclusion of all others. small children visited the Alter home. Also, there was no evidence that the reading
This is enhanced the observa- anyone but small chil- legislature tion that the chose to de- dren. The of the driver of persons “lawfully in a motor private fine or on the vehicle on a street is much different dog.” (Empha- the owner added.) parents in than the their own home sis It found to de- present entry may only by wherein lawful made lawfully fine those be Therefore, private place. legislature appar- I invitation. do not think the ently rely upon usage world-at-large content to common theory applies Sandoval, our this ease. court, Streenz, regard stated: HANLEY, Petitioner, Ray Streenz, did not delineate supra, im- precisely the areas in which COMMISSION OF INDUSTRIAL to suit munity would continue to be a bar ARIZONA, Respondent, negligence of his by a minor for the parents, though apparent it is that аuto- Saffrahn, Allen & Kim cases are ones in which the doc- mobile Respondent Employer, trine of is abolished. This, however, is not automobile Insurance, Respondent Carrier. No parent’s in that the usual sense obligation driving did arise of his not out HANLEY, Petitioner, Ray cause of of an automobile. The direct injuries impact Ramero’s was the automobile, leaving act of Perez OF The INDUSTRIAL COMMISSION gate open. disinguish this act ARIZONA, Respondent, the act driver, supra, parent, in which the as a Auto, Tire & Western States large to had a Respondent Employer, carefully. resulted drive an accident If parent’s negligent because driv- Company, Travelers Insurance ing, any passenger the vehicle could Respondent Carrier. injured, have been and the driver No. 1 CA-IC 88-003. passenger liable re- should be to that passenger gardless fact Appeals of Court of the driver. is the 1, Department Division C. Sandoval, 128 Ariz. at Jan. I concur in the result because the
ents were on notice that constituted *7 grave danger They to Rachel. had a danger to remove that from the home. abroga- The two Goller to the parental immunity tion of the doctrine of applicable set forth Streenz are not the facts this case. failure parents to act did exercise of not involve an over the child. Neither ordinary
did it involve the exercise of provi- rental discretion with food, clothing, housing, medical and sion of services, Keeping dental and other care. certainly home was not an ordinary parental discretion. exercise of immunity cannot The doctrine of from the protect used to be Misty, an obvious and to remove home, danger, from the at least known time. Rachel for the third before bit