Bruce v. Durney

Decision Date03 July 2000
Docket NumberNo. 3208.,3208.
Citation534 S.E.2d 720,341 S.C. 563
CourtSouth Carolina Court of Appeals
PartiesKinsli Jaid BRUCE and Jodie Bruce, Appellants, v. Lisa M. DURNEY, Walter J. Durney, Jr. and Xen K. Motsinger, Respondents.

Jonathan R. Hendrix, of Williams, Hendrix, Steigner & Brink, of Lexington, for appellant.

David C. Slough and John T. Lay, both of Ellis, Lawhorn & Sims, of Columbia; and Patrick J. Frawley, of Nicholson, Davis, Frawley, Anderson & Ayer, of Lexington, for respondents.


Jodie Bruce brought this action on behalf of her minor daughter, Kinsli Jaid Bruce, after Kinsli was allegedly bitten by a dog owned by Lisa M. Durney and Walter J. Durney, Jr. Lisa's father, Xen K. Motsinger, was also named as a defendant because the Durneys lived on property owned by Motsinger. The alleged incident occurred off the premises of the Durneys. The circuit court granted Motsinger's motion for summary judgment, finding as a matter of law that he was not liable for the minor's alleged injuries. We affirm.


On January 2, 1998, Kinsli was visiting a neighbor next door to the Durneys' residence at 212 Sausage Lane in West Columbia when she was allegedly bitten by the Durneys' black Chow named "Buffalo" while in the neighbor's yard.1 There were no witnesses to the incident. The Durneys have owned the Chow since it was a puppy. The Durneys are the sole owners and caregivers of the dog.

Bruce and her daughter live next door to the Durneys. The Durneys have resided in the home since 1988. The property is approximately three quarters of an acre. Motsinger is the father of Lisa Durney, and he has been the record owner of the property since approximately 1995. The Durneys originally owned the property but transferred it to Motsinger after they experienced financial difficulties. Motsinger did not charge his daughter any rent and the parties had no lease. Motsinger does not live on the property; rather, he has resided for forty years in his own home in Cayce. However, he visits his daughter and grandchildren an average of once a week. Motsinger was not present when the child was allegedly bitten.

Bruce brought this action on behalf of her daughter against the Durneys as the dog's owners and against Motsinger because he was the record owner of the property. Bruce alleged Motsinger knew or reasonably should have known of the dangerous condition created by the Durneys allowing their dog to be unrestrained and that he failed to take action as the landowner to remedy the condition. She alleged Motsinger had the right to control the activities of the Durneys because they lived on property owned by him and he negligently failed to do so.

Motsinger answered, denying the allegations, and subsequently moved for summary judgment. The circuit court granted Motsinger's motion for summary judgment. The court held, as a matter of law, that a landlord or property owner cannot be held liable to a third person for the attack of an animal owned by the tenant or resident living on the owner's property. The court held that even if Motsinger was not considered to be a landlord to the Durneys, (because of the absence of a lease and rental payments), its ruling would be the same because S.C.Code Ann. § 47-3-110 (1987) provides a dog owner or a person caring for or keeping a dog is liable if the dog bites or otherwise attacks someone. The court found the statute evidences a legislative intent for liability to rest with the dog owner or caregiver.

I. Did the circuit court err in finding a landlord and tenant relationship existed between Motsinger and the Durneys?
II. Did the circuit court err in finding Motsinger, regardless of whether he was a landlord, has no liability for the injuries sustained by Kinsli when she was bitten by a dog kept on the property he owned?

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP. See also Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997).

In determining whether any triable issues of fact exist, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the party opposing summary judgment. Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997); Hamiter v. Retirement Div. of South Carolina, 326 S.C. 93, 484 S.E.2d 586 (1997); City of Columbia v. American Civil Liberties Union, 323 S.C. 384, 475 S.E.2d 747 (1996).

I. Status as Landlord
A. South Carolina Residential Landlord Tenant Act

Bruce argues there was no landlord/tenant relationship created between Motsinger and the Durneys. Essentially, Bruce contends there was no rent paid and no rental agreement between the Durneys and Motsinger; therefore, Motsinger could not be a landlord under the South Carolina Residential Landlord and Tenant Act (RLTA), S.C.Code Ann. § 27-40-10 et seq. We disagree.

South Carolina Code Ann. § 27-33-10 (Supp.1999) provides the general definitions for landlord and tenant. It reads:

(7) Landlord.—"Landlord" shall be construed to include the owner or person in possession or entitled to possession of the real estate used or occupied by the tenant....
(8) Tenant.—"Tenant" shall be construed to mean tenant at will, tenant for a term, tenant for years, domestic servant, farm laborer, sharecropper, and agricultural renter.
The terms are more specifically defined by the RLTA.
(6) "landlord" means the owner, lessor, or sublessor of the premises, and it also means a manager of the premises who fails to disclose as required by § 27-40-240.

S.C.Code Ann. § 27-40-210(6) (Supp.1999). Under the RLTA, we need to further define owner to determine if Motsinger is capable of being a landlord under the act.

(8) "owner" means one or more persons, jointly or severally, in whom is vested (i) all or part of the legal title to property or (ii) all or part of the beneficial ownership and a right to present use and enjoyment of the premises.

S.C.Code Ann. § 27-40-210(8) (Supp.1999).

It is agreed that Motsinger is the owner of the property. It was transferred to him by the Durneys when they were in financial difficulties. Bruce relies on Motsinger's ownership as the basis of his liability. The main question is whether the Durneys come under the definition of a tenant, thus giving rise to the relationship proposed by Motsinger as grounds for his defense.

The RLTA defines tenant:

(15) "tenant" means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.

S.C.Code Ann. § 27-40-210(15) (Supp.1999). Bruce maintains there is no written rental agreement and, therefore, the Durneys cannot be tenants under the RLTA. However, under the RLTA a written rental agreement is not necessary.

(12) "rental agreement" means all agreements, written or oral, and valid rules and regulations adopted under § 27-40-520 embodying the terms and conditions concerning the use and occupancy of a dwelling unit and premises.

S.C.Code Ann. § 27-40-210(12) (Supp.1999).

By its express terms, the RLTA does not require written rental agreements, but allows for a tenancy to be created by an oral agreement. This does not eliminate the requirement that a tenancy for more than one year be in writing to be valid under the Statute of Frauds. See S.C.Code Ann. § 27-35-20 (Supp.1999) ("Any agreement for the use or occupation of real estate for more than one year shall be void unless in writing.")

Testimony by Motsinger establishes he allowed the Durneys to live on the property.

Q. What is your arrangement with your daughter and sonin-law as far as them living there? What exactly is the arrangement between you and your—
A. There's no written arrangement, verbally that they can live there.
Q. Do they pay you rent?
A. No.
Q. As I understand it then, there's not—you're saying that there's not a formal landlord/tenant relationship between you and your daughter?
A. That's right.
Q. You verbally have told them they can live there and have taken no action to get them off?
A. That's right.

(Emphasis added.)

While Motsinger acknowledged there was no formal landlord/tenant relationship in the form of a written contract, he did indicate there was a "verbal" arrangement whereby his daughter and her husband were allowed to live on the property.

Bruce avers there was no landlord/tenant relationship, because the Durneys did not pay rent. The payment of rent is not required by the RLTA to constitute a valid landlord/tenant relationship. South Carolina Code Ann. § 27-40-310 states:

(a) A landlord and a tenant may include in a rental agreement terms and conditions not prohibited by this chapter or other rule of law, including rent, term of the agreement, and other provisions governing the rights and obligations of the parties.

There is no mandate under S.C.Code Ann. § 27-40-310 for a rental agreement to include the payment of rent. In this case, the agreement provides for no rent in the form of money paid to Motsinger. Lisa Durney explained her father allowed her and her husband to live on the property: "Out of the goodness of his heart." Bruce did not point out any rule of law which prohibits someone from renting their property for free if that is the intent of the parties. "Rent is a normal, but not an essential, incident of the relationship of landlord and tenant." 49 Am.Jur.2d Landlord and Tenant § 676 (1995). We agree the Durneys are not common tenants, but under the RLTA, all requirements for a landlord/tenant relationship have been met.

B. Tenant at Will

Even if no formal agreement was reached between the parties, the Durneys would still be tenants at will. South Carolina Code Ann. § 27-33-10(3) (1976) ex...

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