Endresen v. Allen

• Citation: 574 P.2d 1219
• Decision Date: 17 February 1978
• Docket Number: No. 4797,4797
• Parties: Jerry L. ENDRESEN, Appellant (Plaintiff below), v. David G. ALLEN and Marilyn Allen, Appellees (Defendants below).
• Court: United States State Supreme Court of Wyoming

Page 1219

574 P.2d 1219

Jerry L. ENDRESEN, Appellant (Plaintiff below), v. David G. ALLEN and Marilyn Allen, Appellees (Defendants below).

No. 4797.

Supreme Court of Wyoming.

Feb. 17, 1978.

Robert Jerry Hand, Hand, Hand & Hand, P. C., Casper, for appellant.

Cameron Walker and William S. Bon, Schwartz, Bon & McCrary, Casper, for appellees.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

McCLINTOCK, Justice.

Jerry L. Endresen, hereinafter referred to as plaintiff or by name, appeals from summary judgment entered in the district court of Natrona County, Wyoming, dismissing his action against David G. Allen and Marilyn Allen, hereinafter referred to as defendants or by name. Plaintiff claimed that defendants had negligently allowed a dog owned by them to be at large upon the streets of Casper, in violation of the applicable city ordinance, and through negligence the animal ran into the public street on which plaintiff was lawfully operating a motor vehicle, and caused an accident, resulting in injury to plaintiff and damage to his vehicle. In holding that summary judgment should be granted the trial court took the view that the accident was not foreseeable and that plaintiff was not a member of the class sought to be protected by the Casper leash law ordinance. We hold that defendants were not entitled to judgment as a matter of law and therefore reverse and remand the proceedings for trial upon the factual issues.

The pertinent facts were developed through depositions of the plaintiff and Mrs. Allen and are as follows:

Defendants owned a two-year-old dog, a mixed golden retriever and springer spaniel, gold in color and weighing between 80 and 90 pounds. Prior to the accident they had knowledge that the dog could and would escape from the back yard of their house by jumping over the gate and had observed their dog chasing cars on several occasions. There was no evidence that the dog had been observed chasing motorcycles or bicycles. After defendants were advised by a city dog catcher that they should keep their dog tied up, they developed the habit of tying the animal up in the back yard.

On the morning of the accident, David Allen tied up the dog and left for work. Later that morning, Allen's wife, Marilyn Allen, untied the dog so that she could water part of the yard, but took no steps to secure the animal. At or about 11:00 a. m. that day, plaintiff was riding his motorcycle (a trail bike) in a northerly direction on Lincoln Street on his way to work when he hit a blondish-brown golden retriever which was chasing him. The dog got in front of the motorcycle and caused it to flip over. At the time of the accident, Mrs. Allen was working inside the house, and upon hearing a screech and a yelp from an animal, she immediately ran outside where she saw plaintiff lying in the middle of the street with his left leg pinned under a motorcycle. The dog could not be found immediately after the accident and did not return home until approximately two hours later. Marilyn Allen stated in her deposition that another golden retriever ran loose in the neighborhood.

Plaintiff advances two theories in support of his claim for recovery: first, the common-law liability for negligence or failure to control defendants' dog, known by them to have a propensity to chase vehicles in an urban area; and second, violation of defendants' duty under the ordinance to keep their dog off a public street.

Liability for Common Law Negligence

As said in 57 Am.Jur.2d, Negligence § 58, pp. 408-409:

"The probability of injury by one to the legally protected interests of another is the basis for the law's creation of a duty to avoid such injury, and foresight of harm lies at the foundation of the duty to use care and therefore of negligence. The broad test of negligence is what a reasonably prudent person would foresee and would do in the light of this foresight under the circumstances. Negligence is clearly relative in reference to the knowledge of the risk of injury to be apprehended. * * * The most common test of negligence, therefore, is whether the consequences of the alleged wrongful act were reasonably to be foreseen as injurious to others coming within the range of such acts."

In Prosser, Law of Torts, § 31, p. 146, it is said:

" * * * The idea of risk necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may follow. A risk is a danger which is apparent, or should be apparent, to one in the position of the actor. * * * "

Defendants cite 4 Am.Jur.2d, Animals § 114, p. 364 to the effect that at common law the owner had no absolute duty to keep a domestic animal from being loose and unattended on a highway

"unless he has knowledge of vicious propensities of the animal or unless he should reasonably have anticipated that injury would result from such a situation. However, the later cases show a tendency, in the light of modern conditions of congested motor vehicle traffic on the highways, to stress the exception rather than the rule that is, that the owner of the animal is liable if he could reasonably have anticipated that injury would result from the animal's being at large on the highway." (Emphasis added)

This statement and essentially the same statement in annotations in 140 A.L.R. 742, 743, and 59 A.L.R.2d 1328, 1333, are well supported by citation of case authority.

Defendants contend that the Allens could not be responsible unless Mrs. Allen could reasonably have foreseen that the dog would escape from the back yard, chase a vehicle (which it had been known to do), which vehicle was a motorcycle (which it had not been known to chase), and become involved in an accident, a process which they describe as tortured reasoning, stretching foreseeability beyond its breaking point. Citing McCarthy v. Croker, Wyo., 549 P.2d 323, 325 (1976), in which this court held that knowledge that defendant's dog had barked at and nipped at a neighbor's horses was not knowledge or notice that the dog would bite a man approaching the defendant's house, ¹ it is argued that similarly knowledge that the dog would chase cars was not sufficient notice that it would chase motorcycles.

The argument misses the point that we are not concerned with the vicious propensities of the dog but only whether defendants "could reasonably have anticipated that injury would result from the animal's being at large on the highway." The Allens knew of their dog's ability and proclivity to escape from the yard; they knew that it chased cars; they had been told by the animal warden that they should keep it tied. It is common knowledge that the mere presence of a dog or other animal upon a highway or street can be a serious distraction to, and even interference with, traffic; that they sometimes dart and sometimes amble into the traveled portion of the street, creating unwelcome and dangerous diversions. The statement in Swearngin v. Sears Roebuck & Company, 376 F.2d 637, 642 (10 Cir. 1967) is then pertinent:

" ' * * * (I)t is generally held, regardless of whether the question of " foreseeability" is treated as a problem of "duty," "negligence," or "proximate cause," that it is not necessary that the defendant might or should have foreseen the likelihood of the particular injury or harm, the extent of the harm, or the manner in which it occurred, but that it is only necessary that he should have anticipated that some injury or harm might result from his conduct.' 100 A.L.R.2d 980; Rowell v. City of Wichita, 162 Kan. 294, 176 P.2d 590 (1947) and Atherton v. Goodwin, 163 Kan. 22, 180 P.2d 296 (1947) cited as authority."

"It is not a necessary element of negligence that one charged therewith should have been able to anticipate the precise injury sustained. Nor is it necessary that the injury to the plaintiff himself be foreseeable; it is sufficient that the act in question may in human probability produce harm to persons similarly situated." 57 Am.Jur.2d, Negligence § 59, p. 411.

It is said in Thomas v. Williams, 105 Ga.App. 321, 124 S.E.2d 409, 413 (1962) that,

" * * * what is reasonably to be foreseen is generally a question for the jury. * * * The question for the jury is whether danger should have been recognized by common experience, or by the special experience of the alleged wrongdoer, or by a person of ordinary prudence and foresight."

In Darnold v. Voges, 143 Cal.App.2d 230, 300 P.2d 255, 265 (1956), reh.den., hrg.den., it is said that "whether an event was foreseeable and whether it was the proximate cause of the injury are factual issues."

As said in 57 Am.Jur.2d, Negligence § 58, p. 411,

" * * * Negligence must be determined upon the facts as they appeared at the time, and not by a judgment from actual consequences which were not then to be apprehended by a prudent and competent man. What was reasonably to be foreseen is generally a question for the jury." (Emphasis added)

We think that there was sufficient evidence of negligence to justify submission to the finder of the facts the question whether defendants should reasonably have anticipated that injury would result from their failure properly to secure the dog and whether they negligently failed properly to secure the dog.

Liability Under the City Ordinance

We also believe that the city ordinance is pertinent and eliminates any requirement of scienter, or knowledge of the propensities of the dog. It has been said in 4 Am.Jur.2d, Animals § 116, p. 367:

"To cope with the danger of animals running at large or unattended on public streets and highways, many states have enacted statutes, and many municipalities ordinances, making it unlawful for livestock or other animals to run at large generally or on the public streets or highways."

Such statutes or ordinances vary, some of them expressly imposing liability upon the owner of the offending animal which has been allowed to escape from control, while others...