Clemmons v. Fidler

• Decision Date: 24 May 1990
• Docket Number: No. 12774-1-II,12774-1-II
• Court: Washington Court of Appeals
• Parties: Marci J. CLEMMONS, Appellant, v. Clarence FIDLER, et al., Respondents.

Page 32

58 Wn.App. 32

791 P.2d 257

Marci J. CLEMMONS, Appellant, v. Clarence FIDLER, et al., Respondents.

No. 12774-1-II.

Court of Appeals of Washington Division 2.

May 24, 1990.

Lane J. Wolfley, Wolfley, Kogut & Herdt, Port Angeles, for appellant.

D. Michael Reilly, Lane, Powell, Moss & Miller, Seattle, for respondents.

WORSWICK, Judge.

We are asked to extend the common law rule concerning liability for dog bites by holding that a landlord is liable for harm caused by his tenant's dog if the landlord knows that the dog has vicious tendencies. We decline, and we affirm a summary judgment dismissing Marci Clemmons' claim against Clarence Fidler.

Terry Calhoun had no pets when she rented a single family house in Forks from Clarence Fidler on an oral month-to-month tenancy. Later, she married Mike Philbrook and the Philbrooks acquired a pit bull named Popeye, which they kept chained to a truck axle in the yard of the Fidler house. Whether Popeye could reach walkways to the house while chained is disputed. The Philbrooks posted warning signs in the yard, but the animal nevertheless apparently attacked several neighborhood children before the incident that brought about this suit. Several neighbors claim that they complained to Fidler about the dog. Fidler acknowledges that he knew the Philbrooks kept a dog, but he denies that he knew the dog was vicious.

On April 16, 1987, the Philbrooks had a beer party. Marci Clemmons came, bringing her then two-year-old son Anthony, and David Pope, an adult friend. Terry Philbrook says that she warned Clemmons ten to twenty times during the course of the afternoon to keep Anthony away from the dog. Clemmons rejoins, however, that she was warned only to keep the Philbrooks' pit bull puppy from getting out of the house. The record is silent as to whether Pope was warned.

As Clemmons and Pope were preparing to leave the party about 4 p.m., Pope carried Anthony outside and into the area where Popeye was chained. As he did so, the puppy escaped from the house and ran toward Popeye. The two dogs began to scuffle, and Pope put Anthony down within Popeye's reach so he could separate the dogs. Popeye lunged for the baby and bit his face, causing serious permanent injuries.

Apparently sensing from earlier Washington cases that, on these facts, a landlord might possibly be held liable, Clemmons asks that we now adopt a firm rule of law to this effect and remand this case for trial of the several obvious factual disputes. We accept the invitation to adopt--or reaffirm--a rule, but not the one for which Clemmons contends, and, as will be seen, none of the factual disputes is material in view of the principle governing this case. See Hackler v. Hackler, 37 Wash.App. 791, 794, 683 P.2d 241, review denied, 102 Wash.2d 1021 (1984) (summary judgment proper when, although some facts are in dispute, there are no material facts at issue under the legal principle that disposes of the controversy).

Relying on dicta in Markwood v. McBroom, 110 Wash. 208, 188 P. 521 (1920), and Shafer v. Beyers, 26 Wash.App. 442, 613 P.2d 554, review denied, 94 Wash.2d 1018 (1980), Clemmons contends that because landlord Fidler knew or had reason to know of the dog's vicious tendencies, he is liable for the harm to Anthony. We disagree; the landlord's knowledge is immaterial. We hold that the common law rule applies: only the owner, keeper, or harborer of the dog is liable for such harm. This rule is consistent with our case law, with our former criminal and present civil statutes on dogs, and with the analogous law governing landlord liability for defective conditions on leased premises.

The rule that we announce here has actually been with us for years. Markwood v. McBroom, supra; Johnston v. Ohls, 76 Wash.2d 398, 457 P.2d 194 (1969) (owner who knows or reasonably should know of a dog's dangerous propensities is subject to a form of strict liability for injuries caused by the dog); Shafer v. Beyers, supra. Markwood held that the receiver of the assets of a motion picture company could not be held liable for a child's death resulting from an attack by a dog that had been kept on property owned by the company, because liability is imposed only on the owner, keeper, or harborer of the dog, and the receiver did not fit any of those categories. Markwood, 110 Wash. at 211-212, 188 P. 521. Shafer held that absentee property owners were not the owners, keepers, or harborers, as defined in applicable statutes, of a dog that injured a pedestrian passing by a duplex that they had leased to tenants. Shafer, 26 Wash.App. at 446-47, 613 P.2d 554. Mere ownership of property, the court held, does not in and of itself make a landlord "liable for persons thereon who own or possess, harbor or keep a dangerous dog." Shafer, 26 Wash.App. at 447, 613 P.2d 554 (quoting Harris v. Turner, 1 Wash.App. 1023, 1028, 466 P.2d 202, review denied, 78 Wash.2d 993 (1970)).

However, both Markwood and Shafer mentioned that there was no evidence that the property owners in question had knowledge or reason to know that the dogs were on the property or had vicious tendencies, and observed in dicta that had the defendant property owners known of the dog and its tendencies, a different question might have been presented. These dicta fostered the impression that if the property owners or landlords knew of the dog's tendencies, liability would attach. Markwood, 110 Wash. at 213, 188 P. 521; Shafer, 26 Wash.App. 448, 613 P.2d 554. This impression should be dispelled. The common law rule, which is the settled law of Washington, is clear: only the owner, keeper or harborer of such a dog is liable. The landlord of an owner, keeper or harborer is not.

The legislature is presumed to know this common law rule. See Woodson v. State, 95 Wash.2d 257, 262, 623 P.2d 683 (1980) (legislature presumed to know existing state of case law in areas of legislation). It could have changed the rule had it chosen to do so. See Fain v. Chapman, 89 Wash.2d 48, 53, 569 P.2d 1135 (1977) (legislature possess all general legislative power not specifically or by fair inference precluded by the constitution). However, in limiting liability to the dog's owner for dog bite injuries, the acts of our legislature have always been consistent with the common law rule and, in fact, have reinforced it. A former criminal statute made it a misdemeanor for "[e]very person having the care or custody " of an animal known to be vicious to allow that animal to escape or run at large. RCW 9.08.010 (emphasis added; repealed by Laws of 1987, ch. 94, § 5, p. 292. Sections 1 through 4 of ch. 94 enacted statutes concerning dangerous dogs). In addition, RCW 16.08.040, Liability for Dog Bites, states:

The owner of any dog which shall bite any person while such person is in or on a public place or lawfully in or on a private place including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness. ¹

(Emphasis added.)

Further, recent legislation makes it unlawful to own a dangerous dog without a certificate of registration that issues only if the animal is properly enclosed and the owner has evidence of a $50,000 surety bond payable to a person injured by the dog or liability insurance in the amount of $50,000 insuring the owner for any personal injuries inflicted by the dog. RCW 16.08.080 (enacted by Laws of 1987, ch. 94, § 2). ² For the purposes of these particular dangerous dog statutes (RCW 16.08.070-.100), "owner" is...