Allen By and Through Allen v. Whitehead

• Citation: 423 So.2d 835
• Parties: David Edward ALLEN, a minor who sues By & Through his father and next friend, Norman Earl ALLEN v. Joseph Daniell WHITEHEAD. 81-379.
• Decision Date: 10 December 1982
• Court: Supreme Court of Alabama

Page 835

423 So.2d 835

David Edward ALLEN, a minor who sues By & Through his father and next friend, Norman Earl ALLEN v. Joseph Daniell WHITEHEAD.

81-379.

Supreme Court of Alabama.

Dec. 10, 1982.

Don Beebe of Emond & Vines, Birmingham, for appellant.

Joel W. Ramsey of Ramsey & Baxley, Dothan, for appellee.

PER CURIAM.

On November 22, 1978, David Allen, then two years old, was playing on a porch at the Allen residence when a dog attacked him. The dog that bit David was later identified as the dog which had taken up at the home of Whitehead, the defendant and appellee herein, approximately one and a half years prior to the incident in question. As a result of the attack, David suffered facial cuts, a severed muscle in his left eye, a hole in his left ear, and scarring over his forehead.

After the attack, the dog was picked up by the Humane Society and placed in quarantine. Whitehead subsequently had the dog placed in a private veterinary clinic, from which the dog allegedly escaped. Following the dog's escape, David underwent rabies treatment. Whitehead later found the dog and placed it in another veterinary hospital for the duration of the quarantine period.

On July 10, 1981, David, through his father, appellant herein, filed a complaint against Whitehead, the alleged owner of the dog. The complaint alleged that "as a proximate result of defendant's negligence and violation of various state and municipal ordinances plaintiff's child was injured ...." On November 5, 1981, Whitehead filed an affidavit and a motion for summary judgment based on the ground that there was no genuine issue as to whether Whitehead had any reason to believe his dog had vicious propensities at the time of the attack.

A hearing on the motion for summary judgment was scheduled for December 10, 1981. Appellant filed no counter-affidavit, but joined issue on the basis of law and the sufficiency of appellee's affidavit. Appellant also filed an amended complaint. Appellant avers in the first claim of his amended complaint that the dog was trespassing on appellant's property. In his brief, appellant argues that Whitehead is liable for the trespassing activities of the dog and cites Code 1975, § 3-1-5, to support his proposition that Whitehead should have confined the dog. In his second claim, appellant avers that "after the attack the defendant removed said dog from quarantine at the humane society and said defendant negligently allowed said dog to escape and this negligence caused plaintiff to undergo rabies treatment." Appellant contends that Whitehead had a duty to comply with Code 1975, § 3-7-9, which deals with confinement of animals which have bitten humans. Appellant submits that this duty was breached and, as a proximate result, David was caused to undergo rabies treatment.

On December 22, 1981, the trial court granted Whitehead's motion for summary judgment and, further, dismissed plaintiff's amended complaint. We affirm the trial court's order granting summary judgment directed to the claim in appellant's original complaint and reverse the trial court's order dismissing the claims of Appellant's amended complaint.

This Court 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. In McCullar v. Williams, 217 Ala. 278, 116 So. 137 (1928), the Court stated, "[p]revious knowledge of the animal's vicious habits must be alleged and proved," although positive proof is not always necessary. 217 Ala. at 280, 116 So. at 138. 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 judicial notice and requires proof of the defendant's knowledge (actual or imputed) of the domestic animal's dangerous propensity as a sine qua non in the elements of the claimed negligence." 45 Ala.App. at 40, 222 So.2d at 370.

Appellant cites Code 1975, § 3-6-1, which creates liability for the owner of a dog for injuries to a person who is bitten by that dog while on the owner's premises, in support of its proposition that this Court should abandon the common law rule in favor of a rule imposing strict liability on the owner of a dog for its activities. Appellant questions the logic of a rule which imposes a greater burden on an owner whose dog attacks someone on the owner's premises than it does on an owner whose dog attacks someone while the dog is trespassing.

We can only answer that this is a policy decision that has been made by the Legislature, Johnson v. Republic Iron & Steel Co., 212 Ala. 149, 102 So. 44 (1924), and unless the Legislature acts to extend the owner's liability in situations such as the one before us, we are constrained to hold that the common law rule applies: that previous knowledge of the animal's dangerous propensity, whether it be shown by positive proof or inferred from the circumstances, must be alleged and proved.

Next, we consider the issue of whether there was sufficient evidence to authorize the granting of summary judgment on the issue of scienter. A motion for summary judgment may be granted only when there is no genuine issue as to a material fact and the moving party is entitled to a judgment as a matter of law. Fountain v. Phillips, 404 So.2d 614, 618 (Ala.1981). The moving party is required to establish the absence of a genuine issue as to any material fact. Gray v. WALA-TV, 384 So.2d 1062, 1066 (Ala.1980), and all reasonable inferences from the facts are to be viewed most favorably to the non-moving party. Chiniche v. Smith, 374 So.2d 872, 873 (Ala.1979).

Appellant Allen asserts that there is a genuine issue of material fact relating to the alleged vicious propensities of the dog and the knowledge of appellee as to such propensities. Our examination of...