Butler v. Frieden

• Decision Date: 04 December 1967
• Citation: 158 S.E.2d 121,208 Va. 352
• Parties: Robert T. BUTLER et al. v. Cathy Sue FRIEDEN, an infant, etc.
• Court: Virginia Supreme Court

Page 121

158 S.E.2d 121

208 Va. 352

Robert T. BUTLER et al. v. Cathy Sue FRIEDEN, an infant, etc.

Supreme Court of Appeals of Virginia.

Dec. 4, 1967.

William C. Walker, Norfolk (James A. Howard, Breeden, Howard & MacMillan, Norfolk, on brief), for plaintiffs in error.

Eli S. Chovitz, Norfolk (Albert C. Selkin, Steingold, Steingold & Chovitz, Norfolk, on brief), for defendant in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON and GORDON, JJ.

GORDON, Justice.

The four-year-old plaintiff, Cathy Sue Frieden, sustained injuries when she was attacked on a public sidewalk in the City of Norfolk by an unattended and unleashed collie dog named Laddie. A Norfolk ordinance subjects an owner to a fine if his dog 'shall go at large upon any public street * * * of the city, unless such dog is accompanied by an attendant or held in leash by a responsible person'. ¹ Relying upon that ordinance, Cathy (by her next friend) brought this action against Laddie's owners, Robert T. and Edith Butler, to recover damages for her personal injuries.

The trial court instructed the jury that the defendants' violation of the Norfolk ordinance constituted negligence, and that the jury should return a verdict for the plaintiff, Cathy, if it believed such negligence proximately caused or contributed to her injuries. The jury returned a $1,500 verdict for the plaintiff, upon which the court entered judgment. The defendants appeal, contending the court erred in instructing the jury that violation of the ordinance constituted negligence.

Under Virginia law violation of a statute or ordinance constitutes negligence per se. See Gough v. Shaner, Adm'r, 197 Va. 572, 576, 90 S.E.2d 171, 174 (1955); Standard Oil Co. of New Jersey v. Roberts, 130 Va. 532, 107 S.E. 838 (1921). So Virginia has adopted the requirements of a legislative enactment as the standard of conduct of a reasonable man. See Moore v. Virginia Transit Co., 188 Va. 493, 497--498, 50 S.E.2d 268, 271 (1948). See generally Restatement (Second) of Torts §§ 286, 288 B (1965). But failure to comply with the requirements of a legislative enactment does not constitute actionable negligence unless the injured person is a member of a class for whose benefit the legislation was enacted. Smith v. Virginia Transit Co., 206 Va. 951, 957, 147 S.E.2d 110, 114--115 (1966).

Since the defendants' violation of the Norfolk ordinance is not controverted, the single issue presented on this appeal is whether the ordinance was designed to protect the public from personal injuries inflicted by dogs. If so, the trial court did not err in its instruction to the jury or in entering judgment on the verdict for the plaintiff.

Defendants' counsel says that the Norfolk ordinance is penal in nature and was designed to aid the city in resolving 'the problems caused by strays, both to motorists and horticulturists'. In our opinion counsel reads the ordinance too narrowly. While we must construe a penal ordinance strictly, we must at the same time avoid an interpretation that would impair the purpose of the ordinance. Gough v. Shaner, Adm'r, 197 Va. 572, 575, 90 S.E.2d 171, 174 (1955).

The purpose of the ordinance, as we read it, is to protect the public against hazards created by dogs running at large, including the most obvious hazard, dogbite. Persons such as Cathy Sue Frieden, who might be bitten by dogs running at large, were therefore within the class intended to be protected by the ordinance. ²

In addition to arguing that the Norfolk ordinance was designed to aid the city, defendants' counsel argues that the city council did not intend that violation of the ordinance, which does not mention civil liability, should give rise to civil liability. Counsel relies primarily on Johnson v. J. S. Bell, Jr. & Co., 202 Va. 274, 117 S.E.2d 85, 82 A.L.R.2d 995 (1960), which involved a city ordinance requiring abutting landowners to clear public sidewalk of accumulated snow and ice.

Johnson, who was injured when she slipped and fell on the snow and ice that had accumulated on a public sidewalk, sued the landowner who had violated the ordinance by failing to remove the snow and ice. We held that the ordinance was enacted for the benefit of the city and, therefore, Johnson was not within the class for whose benefit or protection the ordinance was enacted.

Before the passage of the ordinance involved in the Johnson case, the city, and not the landowner, was responsible for removing snow and ice from its sidewalks and was subject to liability if it breached its duty to exercising ordinary care to keep the sidewalks safe for use by the public. The ordinance shifted to the abutting landowner the responsibility for removing snow and ice, but did not relieve the city from liability for breach of its duty. Id. at 277, 117 S.E.2d at 88. The purpose of the ordinance, as we interpreted it, was to require the abutting...