Farrior v. Payton
Decision Date | 30 March 1977 |
Docket Number | No. 5828,5828 |
Citation | 562 P.2d 779,57 Haw. 620 |
Parties | Ruth FARRIOR and Jean Laubenfels, Plaintiffs-Appellants, v. Glen I. PAYTON, Jr., et al., Defendants-Appellees. |
Court | Hawaii Supreme Court |
Syllabus by the Court
1. On motions for a directed verdict, the evidence and the inferences which may be fairly drawn from the evidence must be considered in the light most favorable to the party against whom the motion is directed and if the evidence and the inferences viewed in that manner are of such character that reasonable persons in the exercise of fair and impartial judgment may reach different conclusions upon the crucial issue then the motion should be denied and the issue should be submitted to the jury; and where there is no such conflict from the evidence and but one inference can be drawn from the facts, it is the duty of the court to pass upon the question of negligence and proximate cause as questions of law.
2. In an action against an owner or harborer of a dog for injury inflicted by such animal, defendant's scienter (i. e. actual or constructive knowledge) of the vicious or dangerous propensities of the dog is (except where removed by statute) an essential element of the cause of action and a necessary prerequisite to recovery. The gist of the action is the keeping of a vicious dog after knowledge of his vicious propensities.
3. The terms 'vicious propensities' and 'dangerous propensities' have been defined as any propensity on the part of the dog, which is likely to cause injury under the circumstances in which the person controlling the dog places it and a vicious propensity does not mean only the type of malignancy exhibited by a biting dog, that is, a propensity to attack human beings. It includes as well a natural fierceness or disposition to mischief as might occasionally lead him to attack human beings without provocation.
4. A possessor of land who is in immediate control of a force, and knows or has reason to know of the presence of trespassers in dangerous proximity to it, is subject to liability for physical harm thereby caused to them by his failure to exercise reasonable care so to control the force as to prevent it from doing harm to them, or to give a warning which is reasonably adequate to enable them to protect themselves.
5. An occupier of land has a duty to use reasonable care for the safety of all persons reasonably anticipated to be upon the premises, regardless of the legal status of the individual.
6. The owner or keeper of a domestic animal is bound to take notice of the general propensities of the class to which it belongs, and also of any particular propensities peculiar to the animal itself of which he has knowledge or is put on notice; and insofar as such propensities are of a nature likely to cause injury he must exercise reasonable care to guard against then and to prevent injuries which are reasonably to be anticipated from them. In this respect, a vicious or dangerous disposition or propensity may consist of mere mischievousness or playfulness of the animal, which, because of its size or nature, might lead to injury, for it is the act of the animal, rather than its state of mind, which charges the owner or keeper with liability.
7. There is an obligation to refrain from the negligent infliction of serious mental distress, which duty is owed to those who are foreseeably endangered by a defendant's conduct and is owed with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous.
8. Where joint ownership in a vicious animal exists, one joint owner ordinarily owes to third persons the same degree of care to protect them from its attacks as does the other, unless the peculiar circumstances of the given case should relieve one or the other from that duty.
9. When a statute, such as HRS § 622-13 (Supp.1975), provides the method of proof of an ordinance to make it admissible as evidence, that method must be strictly followed.
10. The trial court properly excluded appellants' exhibits 9 and 10 for lack of a Joseph M. Gedan, Honolulu, for plaintiffs-appellants.
proper foundation, and in particular, for lack of relevancy.
Stephen H. Brandt, Honolulu (Kenneth S. Robbins, Honolulu, with him on the brief), for defendants-appellees.
Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.
This case is the result of a suit initiated by Ruth Farrior (Mrs. Farrior) and Jean Laubenfels (Miss Laubenfels) (hereinafter collectively called appellants) against Glen I. Payton, Jr. (Mr. Payton), Betty June Payton (Mrs. Payton), wife of Glen Payton and Kim Payton (Kim), son of Mr. and Mrs. Payton, (hereinafter collectively called the Payton family or appellees) for personal injuries sustained when, in an attempt to avoid what was believed to be an imminent attack by a German shepherd dog, they fell off a natural rock wall onto rocks some ten feet below. At the close of the evidence, appellee's motion for directed verdict was granted, It is from this judgment that appellants appeal.
For reasons stated below, we reverse and remand this case for proceedings not inconsistent with this opinion.
ISSUES
(1) Whether the trial court erred in granting appellees' motion for directed verdict.
(2) Whether the trial court erred in refusing to admit appellants' exhibits 9 and 10.
STATEMENT OF THE CASE
This case arises out of an incident which occurred on February 21, 1972, on or near the Payton family residential property. The appellees' property is uniquely situated on an elevated beach front between the Lanikai beach area and the Bellows Air Force Base beach area, Kailua, Oahu, Hawaii. It is bordered on the mauka 1 side by a steep hill. Access from the beach is inhibited by a ten-foot high man-made seawall which extends along the shoreline from the Lanikai side of the beach to a point near the Bellows side where it connects with a natural rock wall that extends upward approximately ten feet high from the water to a sandy area fronting the Payton property.
On the Bellows side of the Payton property is a six to eight-foot high man-made rock wall which runs mauka from the water's edge. This man-made rock wall separates the Bellows beach area from the Lanikai beach area and also blocks access to the Payton property and the sandy area fronting it. A gate is inset in the mauka end of the rock wall with an 'Off Limits' sign 2 posted on it. Adjacent to the Payton property on the Bellows side of the rock wall is the General's Quarters. Between the General's Quarters and the Payton property is a picturesque, rocky peninsula which juts out into the ocean.
On the day of the incident, the Payton family owned a dachshund which was kept in their house and a 3-4 year old German shepherd dog which was given the general run of the Payton property. Aside from the above rock wall and seawall, the makai 3 portion of the property had no fencing. However, there was testimony that the remaining portion of the property was fenced.
The German shepherd dog attended obedience training school and was trained by The Payton family knew that the German shepherd dog 'patrolled' their property and would run and bark at strangers. The Payton family claims, however, that the dog would stop short of any intruder and continue barking. One of the reasons the Payton family kept the dog was to deal with the occasional 'problem of trespassers'. 4 However, there was no evidence that the German shepherd dog had ever bitten anyone.
Mr. Payton and Kim to respond to various commands. There was testimony to the effect that Kim had a relationship with the German shepherd dog so that the dog would respond to Kim's verbal command to stay or stop.
On February 21, 1972, Mrs. Farrior and her husband, their son Owen, Miss Laubenfels and three other friends went picnicking at Bellows Beach. Mrs. Farrior, Owen, and Miss Laubenfels subsequently went for a walk along the beach in the Lanikai direction. With Mrs. Farrior leading, the trio walked around in the rocky peninsula between the General's Quarters and the Payton property. Mrs. Farrior was somewhat familiar with the area as she had explored this area eight years earlier. Although she could not recall the exact path to take, it was Mrs. Farrior's intention to lead the group to the Lanikai beach area.
The trio then proceeded downward off the rocky peninsula onto a beach area at the base of the natural rock wall and the man-made rock wall. The tide, however, began to flow, thereby making access to the Lanikai beach area via the water's edge extremely difficult. Mrs. Farrior decided to lead Owen and Miss Laubenfels up the natural rock wall. The natural rock wall was fairly steep, requiring care in negotiating the climb. Mrs. Farrior, followed by Miss Laubenfels and Owen, made her way over the natural rock wall and around the man-made rock wall. She advanced ten to twelve feet towards the Payton residence and was admiring the improvements made in the garden since she had been there last. Although Mrs. Farrior knew the Payton residence was there, she had 'no thought about whether it was private property or anything else.'
As she was advancing and admiring the improvements, Mrs. Farrior saw and heard a German shepherd dog barking approximately fifty yards away by the Payton house lanai. She, however, disregarded the barking because she saw a young man standing with the German shepherd dog. The dog continued to bark for approximately ten minutes during which time Mrs. Farrior continued to admire the garden and tried to get her bearings.
Mrs. Farrior first noticed the dog barking and running towards her in an attack position 5 when it was half way between the house and her position. There was no evidence of any intentional provocation or aggravation towards the dog on the part of the appellants. After realizing that a command to stop from its master was not forthcoming, she turned and called out a...
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