Fouts ex rel. Jensen v. Mason

• Citation: 592 N.W.2d 33
• Decision Date: 28 April 1999
• Docket Number: No. 97-2230,97-2230
• Parties: Tiffany FOUTS, A Minor, By Her Parent and Next Friend, Tracy JENSEN, Appellant, v. Mary MASON, Defendant, Winifred Barker, Appellee.
• Court: United States State Supreme Court of Iowa

Page 33

592 N.W.2d 33

Tiffany FOUTS, A Minor, By Her Parent and Next Friend, Tracy JENSEN, Appellant, v. Mary MASON, Defendant, Winifred Barker, Appellee.

No. 97-2230.

Supreme Court of Iowa.

April 28, 1999.

As Amended on Denial of Rehearing May 17, 1999.

Rehearing Denied May 25, 1999.

Anthony F. Renzo of Babich, McConnell & Renzo, Des Moines, for appellant.

Joseph P. McLaughlin and Mark J. Wiedenfeld of Wiedenfeld Law Office, Des Moines, and Sharon Soorholtz Greer of Cartwright, Druker & Ryden, Marshalltown, for appellee.

Considered by HARRIS, P.J., and CARTER, LAVORATO, NEUMAN, and CADY, JJ.

LAVORATO, Justice.

The plaintiff, Tiffany Fouts, through her mother, Tracy Jensen, appeals from a summary judgment ruling dismissing her claim against the defendant, Winifred Barker. Fouts seeks damages against Barker for personal injuries she received from a dog bite on property Barker owned. Fouts alleges two theories: strict liability under the provisions of Iowa's dog bite statute, Iowa Code section 351.28 (1997), and premises liability. The district court held as a matter of law that Barker was not liable under either theory. We affirm as to strict liability and reverse as to premises liability. We remand for further proceedings consistent with this opinion.

We review a district court's ruling on a motion for summary judgment for corrections of errors at law. Iowa R. App. 4; See Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524, 528 (Iowa 1995). Summary judgment is proper only 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 the moving party is entitled to a judgment as a matter of law.

Iowa R. Civ. P. 237(c). The "genuine issue as to any material fact" requirement means the evidence is such that reasonable minds could differ on how the issue should be resolved. Thorp Credit, Inc. v. Gott, 387 N.W.2d 342, 343 (Iowa 1986). "An issue of fact is 'material' only when the dispute is over facts that might affect the outcome of the suit, given the applicable law." Fees v. Mutual Fire & Auto. Ins. Co., 490 N.W.2d 55, 57 (Iowa 1992).

A motion for summary judgment is functionally akin to a motion for directed verdict. Thorp Credit, 387 N.W.2d at 343. When ruling on a motion for a summary judgment, the district court must therefore (1) view the evidence in the light most favorable to the nonmoving party--in this instance Fouts--and (2) accord the nonmoving party every legitimate inference that can be deduced from the evidence. Id.

Accordingly, we must review the record as we would on a motion for directed verdict to determine whether Barker has shown no genuine issue of material fact. See Dickerson v. Mertz, 547 N.W.2d 208, 212 (Iowa 1996). On our review, we must, like the district court, view the evidence in the light most favorable to Fouts and accord her every legitimate inference that can be deduced from the evidence. See id. We, of course, must also determine whether the district court correctly applied the law. Lawlor, 528 N.W.2d at 528.

The record in this case consists of the pleadings, answers to interrogatories, and affidavits. Viewing the evidence in the light most favorable to Fouts, we glean the following facts from the record.

Barker lives in Marshalltown and owns two adjoining properties there. She lives in one of the houses (406 East Linn) and has rented the other house (404 East Linn) to her daughter, Mary Mason. In 1982, there was a fence at the back of the house where Barker lives. At that time, Barker joined this fence with a new fence around the back of 404 East Linn. There is no partition separating these two properties so, in effect, there is a single backyard with a common fence. In 1985, Mason moved into 404 East Linn.

Mason, with Barker's permission, has kept a chow/cocker spaniel mix--named Hank--in the single backyard since 1993. Hank was allowed to roam freely there. In 1994, the dog bit Mason's eight-year-old son, Trevor. The bite resulted in several stitches in Trevor's eye area. Barker was aware of this bite. Barker had at times fed, petted, and walked Hank when Mason was away or otherwise busy. When Barker summoned Hank, he would come to her.

Jensen and her two children moved into Mason's house in May 1995. Mason and Barker warned Jensen to be careful around Hank because he had bitten Trevor. Mason told Jensen that Hank had also bitten Mason's infant grandson, Alex, on the finger. On at least two occasions, Barker told Jensen that Hank was dangerous around children.

Shortly after Jensen and her two children moved in with Mason, Hank attacked Tiffany, biting off a portion of her cheek. The incident happened halfway between the houses in the single backyard. At the time of the attack, Tiffany was two-and-one-half years old. Tiffany spent four days in the hospital. Among other significant injuries, she suffered permanent facial disfigurement. She also had bites on her right shoulder and hand.

I. Strict Liability Under Iowa Code Section 351.28.

Iowa Code section 351.28 imposes strict liability for damages done by a dog:

The owner of a dog shall be liable to an injured party for all damages done by the dog, when the dog is caught in the action of worrying, maiming, or killing a domestic animal, or the dog is attacking or attempting to bite a person, except when the party damaged is doing an unlawful act, directly contributing to the injury. This section does not apply to damage done by a dog affected with hydrophobia unless the owner of the dog had reasonable grounds to know that the dog was afflicted with hydrophobia and by reasonable effort might have prevented the injury.

Id.

At common law, one who harbored a dog knowing it to be vicious, as well as the owner in possession, was liable for the injuries committed by the dog. Alexander v. Crosby, 143 Iowa 50, 51, 119 N.W. 717, 717 (1909). At the time this court decided Alexander, there was a statutory provision similar to our present dog-bite statute, section 351.28. See Iowa Code § 2340 (1907).

In Alexander, this court concluded that section 2340 changed the common law by (1) dispensing with proof of scienter, and (2) imposing liability only on the owner in possession of the dog and not on one who simply harbors it. In interpreting the statute, the court observed:

It will be noted that two changes from the common law are involved in this statute: (1) The "owner" alone is made liable, and (2) proof of scienter is dispensed with. The word "owner" is not of technical significance and is to be construed according to the context and approved usage of the language. As employed in this statute it evidently signifies the person to whom the dog legally belongs, for under the modern decisions the dog is recognized as a species of property.

Alexander, 143 Iowa at 53, 119 N.W. at 718 (emphasis added) (citation omitted). The court held that while liability is imposed on the legal owner, ownership could be shown by establishing that "the defendant had the dog in his possession, and was harboring [it] on his premises as owners usually do with their dogs." Id. (quoting O'Hara v. Miller, 64 Iowa 462, 463-64, 20 N.W. 760, 761 (1884)).

The court attempted to explain why the legislature based liability on "ownership" alone:

The owner may be assumed to be familiar with the nature of his animal, and, if he elects to retain a dog whose manners are such as are likely to be corrupted by listening to the "call from the wild," this may well be at his own risk; but to charge one who does no more than furnish shelter to a wanderer and food to the stranger at his gate without knowledge of the bad character of his guest and render him liable might well be thought an ungracious recompense for kindness to "man's best friend."

Alexander, 143 Iowa at 54-55, 119 N.W. at 718.

At the time this court decided Alexander, there were taxation and licensing provisions of dogs which were not part of the chapter that imposed liability on a dog owner. See Iowa Code §§ 457, 458 (1897). For the purposes of these provisions, any person "keeping or harboring a dog" was deemed to be an owner. See Iowa Code § 457.

In 1924, the legislature combined the taxation and licensing provisions (sections 457 and 458) and the liability provision (section 2340) into one chapter, Iowa Code chapter 276 (1927). Several years thereafter, this court held that the definition of "owner" ("[a]ny person keeping or harboring a dog") in the licensing and taxation provisions also defined an "owner" under the liability provision. Bigelow v. Saylor, 209 Iowa 294, 296, 228 N.W. 279, 280 (1929).

Bigelow did not define "keeping" or "harboring." We defined those terms in Collins v. Kenealy to apply to any person who keeps "permanent possession and custody of dogs on their premises with or without a showing of legal title." 492 N.W.2d 679, 682 (Iowa 1992) (interpreting Iowa Code section 351.2 (1989), which defined owner of a dog to include "in addition to its ordinary meaning ... any person who keeps or harbors a dog") (emphasis added).

In Collins, the defendants brought their dog to the plaintiff to be groomed. The dog bit the groomer, and the groomer sued the owners. The district court sustained the defendants' motion for summary judgment. The district court concluded that the groomer, who had exclusive control of the dog, became an owner by statutory definition and could not recover from the dog's real owner. We reversed, concluding that the term " 'any person who keeps or harbors a dog' does not apply to a temporary custodian such as the plaintiff dog groomer in this case." Id. at 682. In short, because the dog groomer did not have permanent possession of the dog, we did not consider the groomer an "owner."

In 1994, the legislature repealed Iowa Code sections 351.1 through 351.24, the licensing and taxation provisions. That repeal carried with it the definition...