Humphries v. Rice

• Decision Date: 24 January 1992
• Citation: 600 So.2d 975
• Parties: Louise HUMPHRIES v. Clarence RICE and Lois Rice. 1900719.
• Court: Alabama Supreme Court

Page 975

600 So.2d 975

Louise HUMPHRIES v. Clarence RICE and Lois Rice.

1900719.

Supreme Court of Alabama.

Jan. 24, 1992.

Rehearing Denied June 19, 1992.

Bert S. Nettles and J. Mark Hart of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for appellant.

Clifford W. Hardy, Jr., Bessemer, for appellees.

ADAMS, Justice.

This case arises out of an attack by a dog--a pit bull--on Clarence Rice. The dog belonged to Carl Humphries, who, at the time of the incident, resided in a mobile home located on property owned by his parents, Herbert and Louise Humphries. Mr. and Mrs. Humphries's house was also located on the property. On the date of the attack, Mr. Rice, who worked for Suburban Gas Company, was making a requested delivery to Carl's mobile home, when the dog attacked him. Rice stated that he knew that the dog lived at the mobile home and he said he had checked the doghouse to see if the dog was there. Not seeing the dog anywhere on the premises, Rice delivered the gas and was going to the front door to leave the bill when the dog jumped out of a chair on the porch and knocked him backward. As Rice fell, one of his legs buckled under him and he suffered a fractured leg. He also broke one of his wrists in the fall. He testified that the dog was on a cable, which he was able to grab following his fall, and that his grabbing the cable kept the dog from biting him.

He sued Carl Humphries and Carl's parents, pursuant to § 3-6-1, Code of Alabama 1975; he also claimed that they were guilty of negligence. Mr. Rice's wife also sued, alleging loss of consortium. The trial court dismissed Carl's father; however, the claims against Carl and his mother were sent to the jury on both theories. The jury returned verdicts in the amount of $350,000 in favor of Mr. Rice and $40,000 in favor of Mrs. Rice for loss of consortium. Carl Humphries did not appeal; however, Mrs. Humphries appeals the verdict against her, arguing that the trial court erred in denying her motion for a directed verdict and her motion for j.n.o.v.

Section 3-6-1, Code of Alabama (1975), reads as follows:

"If any dog shall, without provocation, bite or injure any person who is at the time at a place where he or she has a legal right to be, the owner of such dog shall be liable in damages to the person so bitten or injured, but such liability shall arise only when the person so bitten or injured is upon property owned or controlled by the owner of such dog at the time such bite or injury occurs or when such person has been immediately prior to such time on such property and has been pursued therefrom by such dog."

(Emphasis added). The language of the statute clearly indicates that the owner of the dog can be held liable for injuries caused by the dog. Nothing in the statute indicates that anyone other than the owner can be held liable pursuant to the statute. It is clear from the record in this case that Mrs. Humphries was not the owner of the dog that attacked Mr. Rice. Carl Humphries, although he lived on his parents' property, maintained a separate residence. He paid his own bills and he had the responsibility for feeding and maintaining his dog. None of the evidence offered showed that Mrs. Humphries had assumed any ownership responsibilities regarding the dog.

The Rices argue that while Mrs. Humphries was not the owner of the dog, she was the "keeper" of the dog and that, therefore, the statute should apply to her. First, the statute is unambiguous in its meaning. It does not state that the "owner or keeper" of a dog that attacks someone will be held liable pursuant to the statute. The legislature could easily have inserted the words "or keeper" had it intended to extend the statutory liability beyond the boundaries of actual ownership. It chose not to do so.

"There has been no marked change in the law in this area over the years. Since 1953, however, Alabama victims of dog attacks, in certain instances, have had the option of proceeding under a statute imposing liability on owners of dogs biting or injuring persons. Code 1975, §§ 3-6-1 to 3-6-4. Under those statutes, the injury must occur upon the property owned or controlled by the dog's master, or after the victim leaves this property and is immediately pursued therefrom by the dog. Additionally, the statute shifts the burden of proof of scienter. If the defendant is able to prove that he had no knowledge of his dog's vicious propensities, he will be liable only to the extent of the expenses actually incurred by the person so injured."

Rucker v. Goldstein, 497 So.2d 491, 493 (Ala.1986). (Emphasis added.) We refuse to extend the statute to encompass anyone other than the owner of the dog. Therefore, in our opinion, the only theory under which Mrs. Humphries could have been found liable would be the common law theory of negligence.

We have stated:

"As noted previously, ... under the common law, scienter on the part of the owner must be alleged and proved by the plaintiff. The crucial issue is 'whether the owner knows, or had reason to know, of the animal's dangerous propensities.' Allen v. Whitehead, 423 So.2d 835 (Ala.1982). If the plaintiff fails to meet the burden of proof, the defendant is not liable."

Id. The record indicates that the dog in this case had been known to fight with other dogs and had killed one dog during a fight. The only other evidence of the alleged "dangerous propensities" of the dog was the fact that the dog could, with his jaw, grasp a part of a tire hanging from a tree and hang there for approximately five minutes. All other evidence offered by the Rices concerned the propensities of the particular breed of American pit bull and the fact that it was generally bred to be a fighting dog. There was no evidence offered tending to show that the dog in question had seriously attacked or attempted to attack a human; however, there was evidence indicating that Mrs. Humphries had petted the dog on occasions and that her grandchildren had been around the dog and had suffered no harm from the dog.

With regard to a common law negligence case such as this one, we have written the following:

"Recently, this court summarized the elements necessary to impose liability in dogbite cases:

" ' "[The Court of Appeals] in Kershaw v. McKown, 12 Ala.App. 485, 68 So. 559 (1915), reiterated the common law rule that the owner of a dog is not liable for acts of the dog unless the owner had knowledge of the vicious propensities of the dog that resulted in the injury complained of.... This Court held in Owen v. Hampson, 258 Ala. 228, 62 So.2d 245 (1952), that the common law rule was still applicable in Alabama. The most recent case is Reddett v. Mosley, 45 Ala.App. 38, 222 So.2d 369 (1969), wherein the Court of Civil Appeals stated: 'The rule is one of ... notice and requires proof of the defendant's knowledge (actual...