Arnold v. Laird

• Decision Date: 18 December 1980
• Docket Number: No. 46762,46762
• Citation: 94 Wn.2d 867,621 P.2d 138
• Court: Washington Supreme Court
• Parties: Robert L. & Judith ARNOLD, husband & wife; Debrah Arnold; Robert L. & Judith Arnold as Guardian for Debrah Arnold, Petitioners, v. Roy C. LAIRD & Jane Doe Laird, his wife, Respondents.

Page 867

94 Wn.2d 867

621 P.2d 138

Robert L. & Judith ARNOLD, husband & wife; Debrah Arnold;

Robert L. & Judith Arnold as Guardian for Debrah

Arnold, Petitioners, v. Roy C. LAIRD & Jane Doe Laird, his wife, Respondents.

No. 46762.

Supreme Court of Washington, En Banc.

Dec. 18, 1980.

Schroeter, Goldmark & Bender, James D. Hailey and Paul W. Whelan, Seattle, for petitioners.

Donald D. Skinner, Seattle, for respondents.

STAFFORD, Justice.

This case is concerned with common law liability of the owner of an animal which injures a person. The Court of Appeals held there was no negligence cause of action. We affirm.

The Arnolds, plaintiffs, and the Lairds, defendants, were neighbors. Debrah Arnold climbed on the cyclone fence which separated their yards. Blanket, the Lairds' Great Dane, ran to the fence and either bit or clawed at Debbie's face causing disfiguring injuries.

Insofar as pertinent, plaintiffs' complaint read: ¹

On or about the 17th day of May, 1976, the dog owned by the defendants attacked said Debrah Arnold. Such animal was known to have vicious propensities and the dog bite attack and resultant injuries were caused by the negligence of the defendants

As a result of the aforesaid negligent (sic) of the defendants, said Debrah Arnold suffered severe lacerations of the face and head requiring medical treatment and surgical procedures causing damages to the plaintiff parents and the plaintiff child ...

(Italics ours.) At the beginning of trial, both parties and the court agreed the real issue was whether the dog had "vicious propensities" and whether these were known or should have been known by her owners. Consequently, the cause proceeded to trial on the basis of "strict liability". No mention was made of a negligence cause of action. Defendants were thus prevented from attempting to prove contributory negligence by plaintiff parents. ²

The trial dealt mainly with whether Blanket had "dangerous" and "vicious tendencies". Plaintiffs point to several incidents in which Blanket was alleged to have jumped up on other children or "mouthed" them. Defendants, on the other hand, attempted to show the insubstantiality of the asserted incidents. Plaintiffs also produced evidence of what they claimed was inadequate housing and feeding of Blanket and of teasing by children due to inadequate supervision. Defendants also disputed this.

Near the end of the trial plaintiffs for the first time attempted to inject a negligence theory by means of supplemental jury instructions. The trial judge refused to instruct on the newly advanced theory on two alternate grounds: (1) the negligence theory was subsumed by the "strict liability" theory and did not exist independently; and (2) no actionable negligence was established. The jury found, by special verdict, that Blanket did not have dangerous tendencies and judgment was entered for defendants. ³

The starting place for any discussion of common law liability concerning dogs is Johnston v. Ohls, 76 Wash.2d 398, 457 P.2d 194 (1969). Johnston holds that one who keeps a dog and who knows or reasonably should know the dog has vicious or dangerous propensities likely to cause the injury complained of is liable for injuries caused by the dog regardless of negligence by either the keeper or the injured person. Regarding negligence, we quoted from Brewer v. Furtwangler, 171 Wash. 617, 620, 18 P.2d 837 (1933): "The ground of liability in an action for injuries caused by a vicious dog is not negligence in the ordinary sense; hence, in its ordinary meaning, contributory negligence is not a defense." Johnston v. Ohls, supra at 401, 457 P.2d 194.

Johnston makes it clear it is irrelevant how a dog becomes abnormally dangerous, i. e., whether it happens intentionally, through negligence, or merely through a dog's heredity. Johnston also makes it clear that evidence of contributory negligence (in its ordinary sense) is also irrelevant in an action based upon "strict liability". This is not to say, however, that negligence is never an issue in an action pertaining to injury by an animal. Johnston did not hold there cannot be both an action based upon negligence and one based upon common law "strict liability". They are not mutually exclusive. See Ulmer v. Ford Motor Co., 75 Wash.2d 522, 531, 452 P.2d 729 (1969) (product liability).

The Restatement (Second) of Torts (1977) recognizes two separate causes of action regarding injury caused by animals. First, according to section 509, if the dog has known dangerous propensities abnormal to its class, the owner is strictly liable. Second, section 518 provides that if there are no known abnormally dangerous propensities, the owner is liable only if he is negligent in failing to prevent the harm. The amount of care required is commensurate with the character of the animal. Comment (f), section 518.

Plaintiffs cite three cases which apply the latter theory: Westberry v. Blackwell, 282 Or. 129, 577 P.2d 75 (1978); Nelson v. Hansen, 10 Wis.2d 107, 102 N.W.2d 251 (1960); and Baley v. J. F. Hink & Son, 133 Cal.App.2d 102, 283 P.2d 349 (1955). These cases as well as the Restatement (Second) of Torts, cited above, make it clear a negligence cause of action arises when there is ineffective control of an animal in a situation where it would reasonably be expected that injury could occur, and injury does proximately result from the negligence. The amount of control required is that which would be exercised by a reasonable person based upon the total situation at the time, including the past behavior of the animal and the injuries that could have been reasonably foreseen.

In this case, however, the only alleged negligence demonstrated by plaintiffs was confined to claimed deficiencies in maintenance and control which allegedly resulted in a dangerous animal. It cannot be said, however, that the inadequate housing, the feeding of Blanket, or prior teasing by children who ran sticks along the fence, proximately caused the injury to Debrah. Insofar as negligence is concerned, plaintiffs did not show that the owners failed to assert the type of control which a reasonable person would exercise under the attendant circumstances. Further, it is not per se unreasonable to keep a dog in a fenced backyard if the animal has not exhibited dangerous tendencies. Since plaintiffs did not present substantial evidence of negligence which proximately caused the claimed injuries, the trial court correctly refused to instruct on that theory. ⁴ Cf. Shasky v. Burden, 78 Wash.2d 193, 195, 470 P.2d 544 (1970).

Plaintiffs next assign error to the jury's observation of Blanket during the trial. Defendants provided a foundation for the observation by introducing testimony that her feeding and care had not been altered, that she had not received any obedience training, and that she looked much the same. The parties' expert witnesses disagreed over how much the passage of time and having had a litter of puppies would have altered her appearance and disposition. The question of change or lack thereof thus became a question for the jury based upon conflicting evidence.

The jury members were permitted to see the dog on the courthouse lawn after the trial judge had instructed them concerning their expected conduct. Blanket was on a leash held by her master, defendant Sgt. Laird. Initially she was being petted by a stranger. She then approached the jurors, eventually getting within a few feet of some of them. Throughout this time she was apparently well behaved.

When the issue in dispute is the dog's condition and demeanor, i. e., whether it is "dangerous" or not, showing the dog to the jury could, in some cases, be the most probative evidence available. It would be similar to exhibiting a plaintiff's scar and an observation of her demeanor as she testified to the pain and suffering it caused her. Given a proper foundation to support the assertion that there was a similarity of conditions on the date of the incident and the date of observation, there is no reason why observation of the animal necessarily should have been forbidden.

Inasmuch as the trial court initially determined there was a substantial similarity of conditions, it was within the trial court's sound discretion to allow the observation. We find no abuse.

The observation in this case was not, strictly speaking, a jury "view". Cf. Sauls v. Scheppler, 57 Wash.2d 273, 278, 356 P.2d 714 (1960); Riblet v. Ideal Cement Co., 54 Wash.2d 779, 345 P.2d 173 (1959). Views are generally of real property and are authorized by statute. See e. g., RCW 4.44.270 (view of premises whenever in the opinion of the...