Berg v. Nguyen

• Decision Date: 08 January 2016
• Docket Number: 2140774.
• Citation: 201 So.3d 1185
• Parties: Melissa BERG v. Than NGUYEN and Myanh NGUYEN.
• Court: Alabama Court of Civil Appeals

201 So.3d 1185

Melissa BERG

v.Than NGUYEN and Myanh NGUYEN.

2140774.

Court of Civil Appeals of Alabama.

Jan. 8, 2016.

William Heath Brooks and Will League of Siniard, Timberlake & League, P.C., Huntsville, for appellant.

M. Paul Killian and Robert C. Gammons of Harrison, Gammons & Rawlinson, PC, Huntsville, for appellee.

DONALDSON

, Judge.

Melissa Berg appeals from a summary judgment in favor of Than Nguyen and Myanh Nguyen. The Nguyens leased property to a tenant. Berg was injured by a dog owned by the tenant, but Berg was not on the leased property at the time of the injury. Berg sued the Nguyens, as landlords of the tenant. We affirm the summary judgment in favor of the Nguyens.

Facts and Procedural History

The Nguyens owned rental property (“the rental property”) in Madison County that was located adjacent to a retail store. In September 2009, the Nguyens leased the rental property to Joseph Sanchez. Sanchez owned six or seven pit-bull dogs, and, as a part of the rental agreement, he paid the Nguyens a pet deposit to provide compensation to the Nguyens for damages to the rental property caused by the dogs. Sanchez constructed chain-link kennels on the rental property to house some of the dogs, but he allowed other dogs to remain outside in the fenced backyard. Sanchez also chained the dogs in the front yard of the rental property. The Nguyens owned a convenience store located 100 to 200 feet from the rental property. The Nguyens viewed the rental property frequently, largely due to its close proximity to their convenience store, and they were aware of the dogs on the rental property.

On November 4, 2012, Berg parked her automobile in the parking lot of the retail store adjacent to the rental property. When she got out of her automobile to enter the store to shop, Berg noticed two dogs in the parking lot of the retail store. Berg attempted to “shoo” them away. When she turned to enter the store, one of the dogs knocked her down, bit her left leg near her calf, and dragged her into the grass. A bystander intervened and took Berg to safety. Berg's injuries required 19–20 stitches, and she eventually had surgery on her left knee.

According to deposition testimony, the Madison County Animal Control Department (“MCAC”) had received numerous complaints before the date of Berg's injury relating to Sanchez's pit-bull dogs, including allegations of mistreatment, reports of the dogs being off the rental property, and reports of the dogs biting other individuals. According to one report made the week before Berg was bitten, one of Sanchez's other dogs bit a deputy employed by the Madison County Sheriff's Department.

The Nguyens were aware that MCAC had been involved with Sanchez and his dogs.

On November 11, 2013, Berg filed a complaint against the Nguyens, Sanchez, and Pine Grove Enterprises, Inc. (“PGE”), a business operated by the Nguyens, asserting claims of negligence and wantonness. Berg alleged that the Nguyens “had a duty to exercise reasonable care to not allow large, vicious, and dangerous dogs to be kept on [the rental] property and/or maintain the rental property in such a manner as to safely contain large, vicious, and dangerous dogs.” Berg alleged that the Nguyens had breached this duty and that, as a result, Berg suffered severe bodily injury, permanent scars and disfigurement, and mental anguish, and had incurred lost wages, and past and future medical expenses. In support of her wantonness claim, Berg alleged that the Nguyens had the “duty to exercise reasonable care not to allow large, vicious, and dangerous dogs to be kept on [the rental] property and/or maintain the [rental] property in such a manner as to safely contain large, vicious, and dangerous dogs.” Berg asserted that the Nguyens recklessly, or with conscious disregard for the rights of others, breached that duty.

On March 24, 2015, the Nguyens and PGE filed a motion for a summary judgment asserting that, as a matter of law, the Nguyens and PGE did not owe a duty of care to Berg to prevent the actions of Sanchez's dog that occurred on a third party's property. In support of their summary-judgment motion, the Nguyens and PGE attached excerpts from the deposition testimony of Sanchez, Than Nguyen, and Berg; the Nguyens' responses to interrogatory requests; and other documents. On April 14, 2015, Berg filed her response to the summary-judgment motion and asserted that the Nguyens knew that Sanchez's dogs were dangerous and that they had a duty and the authority to remove the dogs from the rental property. Berg attached to her response excerpts from her deposition and the depositions of the Nguyens and Sanchez, interrogatory responses, an “Incident and Offense Report” prepared by a deputy of the Madison County Sheriff's Department, and other documents.

Following a hearing, the trial court entered a summary judgment on May 1, 2015, in favor of the Nguyens, stating, in part, as follows:

“[T]he Court finds that Alabama case law does not provide for landlord liability in the context of this case, particularly since the Plaintiff has no relationship with either the tenant or landlord at issue and she was injured on another third party's property. See Gentle v. Pine Valley Apartments, 631 So.2d 928 (Ala.1994)

, and Scott v. Donkel, 671 So.2d 741 (Ala.Civ.App.1995).”

Berg filed a notice of appeal to our supreme court on June 4, 2015. The supreme court transferred the appeal to this court pursuant to § 12–2–7(6), Ala.Code 1975

.¹

Standard of Review

“This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala.2003)

. We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952–53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797–98 (Ala.1989) ; Ala.Code 1975, § 12–21–12. ‘[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala.1989).”

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038–39 (Ala.2004)

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Discussion

“The elements of a negligence claim are a duty, a breach of that duty, causation, and damage.” Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala.2001)

. “[T]he existence of a duty is a question of law to be determined by the trial judge. Simply stated, the question of duty is a judgment whether the law will impose responsibility on a party for its conduct toward another.” State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834, 839 (Ala.1998). “ ‘Where the facts upon which the existence of a duty depends, are disputed, the factual dispute is for resolution by the jury.’ ” Alabama Power Co. v. Brooks, 479 So.2d 1169, 1175 (Ala.1985) (quoting Alabama Power Co. v. Alexander, 370 So.2d 252, 254 (Ala.1979) ). “Conversely, when the facts upon which the existence of a duty depends are not genuinely disputed, the task remaining is simply for the court to determine whether the alleged duty arises from those facts.” Ex parte BASF Constr. Chems., LLC, 153 So.3d 793, 804 (Ala.2013).

On appeal, Berg contends that the trial court erred in entering a summary judgment in favor of the Nguyens because, she asserts, as landlords of the rental property, the Nguyens had the authority and the duty to remove the dogs from the rental property to prevent her injury. Berg also asserts that the Nguyens knew of the dangerous nature of Sanchez's dogs and knew that the dogs had gotten out of their kennels before the incident in which she was injured occurred. The Nguyens contend that they owed no duty to Berg because they did not own the dog that attacked her, they did not retain control over the rental property, and the injury did not occur on the rental property.

Although it does not appear that an Alabama court has directly addressed the duty of a landlord to prevent an injury to a person who is injured while not on the leased premises by a dog owned by a tenant, certain cases are helpful in the review of the question presented by this case.

In Humphries v. Rice, 600 So.2d 975 (Ala.1992)

, the plaintiff was injured by a dog that was owned by the son of Humphries. The son lived in a separate residence on land owned by Humphries, and the injury occurred on that land. Our supreme court held that, “[i]n order for [Humphries] to be liable under the theory of common law negligence, [Humphries] not only must have known of the vicious propensities of the dog, but also must be considered the owner or keeper of the dog in question.” 600 So.2d at 977

. The court further held that “an owner or keeper of an animal [is] charged with knowledge of the propensities of the breed of animal he or she owns.” Id. at 978.

Two years later, in Gentle v. Pine Valley Apartments, 631 So.2d 928 (Ala.1994)

, our supreme court addressed a landlord's duty to use reasonable care to protect tenants from dog attacks in the common areas of leased premises. That court determined that

“the presence of a tenant's vicious dog in areas shared by other tenants constitutes a ‘dangerous condition’ and that a landlord must exercise reasonable care to prevent injuries from such a dangerous condition. In so holding, we do no more than apply ordinary negligence principles, analogizing

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