Borns ex rel. Gannon v. Voss

• Decision Date: 06 June 2003
• Docket Number: No. 02-139.,02-139.
• Parties: Carmen BORNS, a minor, by and through her next best friend and mother, Michelle GANNON, Appellant (Plaintiff), v. Clayton VOSS and Mitsy Voss, individually and d/b/a Lazy TX Outfitters, Appellees (Defendants).
• Court: Wyoming Supreme Court

70 P.3d 262

2003 WY 74

Carmen BORNS, a minor, by and through her next best friend and mother, Michelle GANNON, Appellant (Plaintiff), v. Clayton VOSS and Mitsy Voss, individually and d/b/a Lazy TX Outfitters, Appellees (Defendants).

No. 02-139.

Supreme Court of Wyoming.

June 6, 2003.

Representing Appellant: James L. Edwards and Patrick E. Carpenter of Stevens, Edwards & Hallock, P.C., Gillette, Wyoming.

Representing Appellees: Patrick J. Murphy and Jason A. Neville of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] This is an appeal from an order granting summary judgment to the defendants in a dog bite case. The district court concluded that there were no genuine issues of material fact, that the defendants had no prior knowledge that their dog was vicious or possessed other dangerous propensities, and that the defendants, therefore, owed no duty to the plaintiff.

[¶ 2] We reverse.

ISSUES

1. Was summary judgment improper because of the existence of genuine issues of material fact?

2. Were the appellees entitled to summary judgment as a matter of law?

3. Should the "one free bite" rule be abrogated?

STANDARD OF REVIEW

[¶ 3] Summary judgment motions are governed by W.R.C.P. 56. We review summary judgments under the following standard:

Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to judgment as a matter of law. Matlack v. Mountain West Farm Bureau Mutual Insurance Company, 2002 WY 60, ¶ 6, 44 P.3d 73, ¶ 6 (Wyo.2002). A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which the parties have asserted. Id. We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. Id. We evaluate the propriety of a summary judgment using the same standards and materials as the lower court used. Id. We do not accord deference to the district court's decisions on issues of law. Id.

T.M. ex rel. Cox v. Executive Risk Indem., Inc., 2002 WY 179, ¶ 7, 59 P.3d 721, 724 (Wyo.2002).

FACTS

[¶ 4] Clayton Voss and Mitsy Voss do business as Lazy TX Outfitters. Collectively, they are the appellees in this case. As part of their business, the Vosses had established the "Down's Fork" camp in the Wind River Mountains. Jim Borns (Borns) was employed by the Vosses. At the time of the incident that gave rise to this case, Borns had been camping with his children, Carmen and Sam, at Down's Fork for a week or two. Carmen, who was seven years old at the time, is the appellant herein.

[¶ 5] On July 18, 1999, the Vosses, along with their male Red Heeler dog, Tramp, arrived in camp. They were accompanied by another employee, Ron Penny (Penny). Clayton Voss testified that he had been in and out of the camp several times in the preceding days.¹ Both of the Vosses testified that on at least two prior occasions in the camp, they had seen Carmen mistreating Tramp. Clayton Voss testified that twice he had seen Carmen hitting Tramp on the back, at least once with a stick, and that on both occasions he had told her "not to do that." Mitsy Voss testified that she had seen Carmen both kick the dog "in the rear end" and hit him on the face, and that she had told Carmen "that was not something we do." Penny testified similarly, indicating that on five or six occasions he had seen Carmen slap the dog and "tell him no." He further testified that, while he had said something to Carmen at least once about her conduct, he doubted that he had mentioned the incidents to the Vosses.

[¶ 6] As proof that the Vosses had prior knowledge of Tramp's dangerous propensities, Carmen submitted the affidavit of her father, who described both an initial warning about Tramp from Clayton Voss and a later experience he had with Tramp:

3. That shortly after becoming employed by the defendants, Clayton Voss warned me to be careful around his dog, Tramp. Mr. Voss indicated that it might take his dog some time to become accustomed to me. I understood my conversation with Mr. Voss to mean that I should be careful around his dog until I get acquainted with the dog. It was also my understanding that until the dog became accustomed to me, there was a chance that the dog might act aggressively toward me.

4. That about August 1998, I was attempting to unload some gear from the bed of Clayton Voss' pickup truck. The defendants' dog was standing on my gear in the bed of the truck. When I attempted to move the dog so that I could retrieve my gear, the dog spun around toward me and tried to bite my hand. Fortunately, after my conversation with Mr. Voss, I was prepared for such an event and I was able to move my hand before the dog could bite me. Mr. Voss was present at the time this happened.

[¶ 7] Witness accounts of the biting incident, itself, differ. Carmen testified that she was standing at Tramp's side and was leaning down and petting him. She had just told Tramp that he could not go into the cook's tent when he suddenly growled, lunged at her, and bit her on the face. Carmen's father had to pry Tramp's jaws open to release his grip on her face. Penny testified that he saw the kids playing with a Frisbee and saw Tramp trying to play with them.² Carmen was slapping Tramp on the head and telling him no when Tramp bit her. A third witness, Marette Nagel, who was also employed by the Vosses, testified that she saw Carmen scolding or reprimanding Tramp for about two full minutes before Tramp bit Carmen. Nagel described watching Carmen lean down and shake her finger in Tramp's face, but she did not see Carmen hit Tramp.

WYOMING'S DOG BITE LAW

[¶ 8] This Court has applied Wyoming's dog bite law several times in the past. In doing so, we have recognized three distinct theories of recovery: (1) the common law theory of strict liability of an owner who keeps an animal knowing of its dangerous propensities as articulated in Restatement (Second) Torts § 509 (1977);³ (2) the common law theory of negligence in the care and control of a domestic animal; and (3) a theory of negligence based on the violation of a duty created by statute or ordinance not to allow a domestic animal to run at large. Williams v. Johnson, 781 P.2d 922, 923 (Wyo.1989). Because we have not always been careful to maintain the distinctions among these causes of action, especially as to the scienter element, and because we are being asked to modify the existing law, we will address each major case, so that we may first establish what the existing law is.

[¶ 9] In McCarthy v. Croker, 549 P.2d 323, 325 (Wyo.1976), dismissal was granted at the end of the plaintiff's case on the ground that the defendant's knowledge that his dog had nipped at a neighbor's horse did not create an inference that the plaintiff knew the dog had a propensity to bite humans. The allegation in the complaint had been that the defendant "`wrongfully kept a dog, well knowing him to be of a ferocious, vicious and mischievous disposition and accustomed to attach [sic] and bite man kind [sic].'" Id. at 324. In affirming the dismissal, this Court agreed with the statement that "`[t]he determinative factor in the present case is knowledge of vicious propensities....'" Id. While we did not, in support of that statement, specify the particular cause of action to which it applied, it is clear that the theory to which it applies is strict liability. In discussing the knowledge or scienter requirement, we cited to Prosser, Torts, § 76 at 501 (4th ed.1971), which contains a discussion of animals within a chapter entitled "Strict Liability." McCarthy, 549 P.2d at 325. In that discussion, Professor Prosser clearly states the difference between the two torts in this context: "And scienter is of course not required where any negligence can be shown in the keeping or control of the animal." Prosser, Torts, supra, § 76 at 502.

[¶ 10] A second case in the 1970's, if not read carefully, may seem to blur the line between the strict liability and negligence causes of action. The plaintiff in Endresen v. Allen, 574 P.2d 1219, 1220-21 (Wyo.1978), was injured when his motorcycle struck the defendants' dog while the dog chased the motorcycle down the street. The plaintiff sought to recover under theories of common-law negligence and violation of an ordinance forbidding dogs running at large. The opinion reversing summary judgment in favor of the defendants was based on the negligence theory, but a discussion of the defendants' prior knowledge of their dog's propensity to escape from their yard sounds much like a discussion of the scienter element under strict liability. Id. at 1221-22.⁴ Indeed, the defendants cited McCarthy in support of their argument, causing us to comment that this "misses the point that we are not concerned with the vicious propensities of the dog but only whether defendants" could have foreseen the plaintiff's injury. Endresen, 574 P.2d at 1222. Unfortunately, the confusion among causes of action is heightened by the fact that, while later discussing whether both defendants could be liable when only one of them left the dog untied, we did state that "the common-law duty to protect against harmful propensities of the animal is one that is imposed upon the owners or keepers of the animal without regard to negligence except that there must be knowledge of the propensities." Id. at 1226. That, of course, is a statement of the strict liability cause of action. Since that cause of action was not raised in Endresen, the statement is, at most, obiter dictum.

[¶ 11] Three years after Endresen, we decided Larsen v. City of Cheyenne, 626 P.2d 558 (Wyo.1981). The primary issue in Larsen was whether a city dog pound...