Frobig v. Gordon

• Decision Date: 29 September 1994
• Docket Number: No. 60700-1,60700-1
• Citation: 124 Wn.2d 732,881 P.2d 226
• Parties: Clara J. FROBIG, a single woman, Respondent, v. Anne GORDON and John Doe Gordon, wife and husband, and the marital community composed thereof; Animal Advocates, a Washington corporation, Defendants, Gerald W. Branch and Corliss Branch, husband and wife, and the marital community composed thereof, d/b/a The Branch Horse Ranch, Petitioners, and The Boeing Company, a Washington corporation; and Snohomish County, a county of the State of Washington, Defendants.
• Court: Washington Supreme Court

Page 732

124 Wn.2d 732

881 P.2d 226

Clara J. FROBIG, a single woman, Respondent, v. Anne GORDON and John Doe Gordon, wife and husband, and the marital community composed thereof; Animal Advocates, a Washington corporation, Defendants Gerald W. Branch and Corliss Branch, husband and wife, and the marital community composed thereof, d/b/a The Branch Horse Ranch, Petitioners and The Boeing Company, a Washington corporation; and Snohomish County, a county of the State of Washington, Defendants.

No. 60700-1.

Supreme Court of Washington En Banc.

Sept. 29, 1994.

Magnuson, Johnson & Lowell, P.S., Richard S. Lowell, Redmond, for petitioners

Reaugh, Fischnaller & Oettinger, Sylvia Luppert, Seattle, for respondent.

MADSEN, Justice.

Petitioners Gerald and Corliss Branch seek review of a Court of Appeals decision reversing the dismissal of a personal injury action brought against the Branches. This action arose out of an attack upon Respondent Clara Frobig by a Bengal tiger owned by a tenant on Petitioners' rental property. We granted review and now reverse the Court of Appeals.

FACTS

The Branches own a large piece of property in Bothell, Washington. In 1988, the Branches leased this property to Anne Gordon, owner of Animal Advocates, Inc., a business providing wild and domestic animals for demonstrations, film, and video projects. Among the animals to be kept on the premises was "Sultan", a Bengal tiger. The Branches had some reservations about the wild animals Gordon intended to house and maintain that Gordon verbally agreed to:

1. Purchase her own policy of liability insurance;

2. Keep a dart gun available;

3. Build appropriate cages;

4. Not do anything illegal;

5. Never permit the animals to be unrestrained out of the cages;

6. Not use the premises for business purposes;

7. Conduct no filming of the animals on the premises, nor permit any other commercial use of the animals on the premises; and most importantly,

8. Vacate the premises if the neighbors protested too much.

See Frobig v. Gordon, 69 Wash.App. 570, 572, 849 P.2d 676 (1993). The Branches then leased Gordon the property but did not include the above conditions in the written agreement.

After Gordon took possession of the property, neighbors began to complain about the wild animals to the Branches and to the Snohomish County Department of Planning and Community Development. The County investigated the complaints and found that although the keeping of wild animals violated no law, Gordon's activities violated Snohomish County zoning laws because she was operating a commercial business in an area not zoned for that type of activity. On June 29, 1988, the County issued to the Branches and to Gordon an Order To Cease and Desist a Commercial Business at that location within 30 days. The order provided a 10-day appeal period.

In response to the citation, the Branches notified Gordon that she must either cease operating her commercial business or vacate. However, on July 8, prior to the expiration of the 10-day appeal period, Gordon began filming a commercial video for The Boeing Company on the premises. "Sultan", the tiger, was part of the commercial and was unleashed during its filming. Clara Frobig agreed to assist in the filming and was attacked by Sultan. Frobig was seriously injured as a result of the attack.

Frobig brought suit for damages against the Branches, Gordon, Boeing, Snohomish County, and the director of the

commercial. We are concerned here only with Frobig's action against the Branches alleging negligence and strict liability. The trial court dismissed this action finding that, as landlords, the Branches had no liability. Frobig appealed and the Court of Appeals reversed and remanded for trial. In its decision, the court distinguished between the liability of a landlord for dog attacks on rented or leased premises and the liability for a tiger attack. See Frobig, at 576-77, 849 P.2d 676.

ANALYSIS

The rule in Washington is that the owner, keeper, or harborer of a dangerous or vicious animal is liable; the landlord of the owner, keeper, or harborer is not. Clemmons v. Fidler, 58 Wash.App. 32, 35-36, 791 P.2d 257, review denied, 115 Wash.2d 1019, 802 P.2d 125 (1990); Markwood v. McBroom, 110 Wash. 208, 211-12, 188 P. 521 (1920); Shafer v. Beyers, 26 Wash.App. 442, 446-47, 613 P.2d 554, review denied, 94 Wash.2d 1018 (1980). In short, liability flows from ownership or direct control. Clemmons, 58 Wash.App. at 37, 791 P.2d 257; Shafer, 26 Wash.App. at 446, 613 P.2d 554; see also RCW 16.08.040 (owner of dog liable for dog's attacks). ¹

As the Court of Appeals observed in Clemmons, this rule is consistent with the analogous law governing liability of landlords to third parties for defects on leased premises. Clemmons, 58 Wash.App. at 37, 791 P.2d 257. A landlord owes no greater duty to the invitees or guests of his tenant than he owes to the tenant himself. Regan v. Seattle, 76 Wash.2d 501, 504, 458 P.2d 12 (1969); Kimball v. Millett, 52 Wash.App. 512, 514, 762 P.2d 10 (1988), review denied, 111 Wash.2d 1036 (1989). Washington common law provides that a landlord will be liable to a tenant for harm caused by

(1) latent or hidden defects in the leasehold

(2) that existed at the commencement of the leasehold

(3) of which the landlord had actual knowledge

(4) and of which the landlord failed to inform the tenant.

Younger v. United States, 662 F.2d 580, 582 (9th Cir.1981) (citing William B. Stoebuck, The Law Between Landlord and Tenant in Washington: Part I, 49 Wash.L.Rev. 291, 342 (1974)). With regard to conditions on the land that develop or are created after the property has been leased, the general rule is that a landlord is not responsible, either to persons injured on or off the land, for conditions which develop or are created by the tenant after possession has been transferred. W. Page Keeton et al., Prosser and Keeton on Torts § 63, at 434 (5th ed. 1984); see also Danny R. Veilleux, Annotation, Landlord's Liability to Third Person for Injury Resulting from Attack on Leased Premises by Dangerous or Vicious Animal Kept by Tenant, 87 A.L.R.4th 1004, 1012 (1991). In the words of the Washington Court of Appeals, " 'The duty and liability of the invitor-lessor do not, as a rule, extend to matters having to do merely with the lessee's management or operation of premises which would be safe except for such management or operation, at least where the lessee is in sole actual control' ". Peterick v. State, 22 Wash.App. 163, 170-71, 589 P.2d 250 (1977) (citing 49 Am.Jur.2d Landlord and Tenant § 763 (1970)), review denied, 90 Wash.2d 1024 (1978), overruled on other grounds by, Stenberg v. Pacific Power & Light Co., 104 Wash.2d 710, 709 P.2d 793 (1985).

These common law principles have statutory parallels in Washington. The Residential Landlord-Tenant Act of 1973, RCW 59.18.060, provides that a landlord has no duty to repair a defective condition caused by a tenant, and RCW 59.18.130(5) states that it is the tenant's duty not to permit a nuisance on the rental premises.

While Washington courts have most often applied these principles of liability in cases dealing with a tenant's vicious dog (though Kimball did involve a bull), other jurisdictions have applied similar principles in cases concerning wild animals. See Theobald v. Grey Pub. Relations, Inc., 39 A.D.2d 902, 334 N.Y.S.2d 281 (no lessor liability resulting from lion attack at car show) appeal denied, 31 N.Y.2d 644, 339 N.Y.S.2d 1025, 291 N.E.2d 589 (1972); Sharp v. Levine, 528 So.2d 1369 (Fla.Dist.Ct.App.1988) (landlord-tenant relationship insufficient to impose "keeper" liability for elephant attack); Collins v. Otto, 149 Colo. 489, 369 P.2d 564 (1962) (no case against landlord where tenant's coyote attacked child).

We do not believe that a separate rule of law for cases involving wild animal attacks is necessary. Courts have long recognized that a vicious dog and a wild animal are equally dangerous, as the following observation from Laverone v. Mangianti, 41 Cal. 138 (1871) illustrates. In referring to the defendants' insistence that a person may lawfully keep a ferocious dog, the chief justice wrote, "That position may be conceded, and it may also be conceded that he has the same right to keep a tiger. The danger to mankind and the injury, if any is suffered, comes from the same source--the ferocity of the animal." Laverone, at 139. Vicious dogs and tigers are both dangerous, and if a tenant bears sole responsibility for the consequences of owning a dog, then she should be solely responsible for the consequences of owning a tiger.

The Court of Appeals found that the landlords here might be liable for third party injuries because they knew their tenant would have a dangerous animal on the premises before they rented their property to her. This prior knowledge of the landlords, however, has no significance. Under Washington law, the landlords would not be liable to the tenant for the tiger's attack so should not be liable to third parties for injuries inflicted by the animal. See Regan, 76 Wash.2d at 504, 458 P.2d 12. The wild animals were Anne Gordon's alone, and under Washington law liability resulting from the ownership and management of those animals rests with Anne Gordon alone.

We recognize that some courts have held a landlord liable for injuries inflicted by a tenant's dangerous animal where the landlord knows of the potential danger and has some sort of control, either by virtue of provisions in the lease or previous dealings with the tenant, over the animal's presence. See Veilleux, at 1012; 4 Stuart M. Speiser et al., Law of Torts § 14:76, 257-58 (1987). The principal case espousing this view is the opinion on which the Court of Appeals relies. In Strunk v. Zoltanski, 62 N.Y.2d 572, 468 N.E.2d 13, 479 N.Y.S.2d 175 (1984), the court found a landlord liable where a child approached the tenant's tied-up German Shepherd dog and was bitten. The court...