Gentle v. Pine Valley Apartments

• Decision Date: 07 January 1994
• Citation: 631 So.2d 928
• Parties: Kathy GENTLE, as mother and next friend of Christopher Gentle, a minor v. PINE VALLEY APARTMENTS and Evans Realty Company. 1921024.
• Court: Alabama Supreme Court

Page 928

631 So.2d 928

Kathy GENTLE, as mother and next friend of Christopher Gentle, a minor v. PINE VALLEY APARTMENTS and Evans Realty Company.

1921024.

Supreme Court of Alabama.

Jan. 7, 1994.

William R. Lewis of Pate, Lewis & Lloyd, Birmingham, for appellant.

Wade S. Anderson of Joe C. Carroll and Associates, Birmingham, for appellees.

COOK, Justice.

Kathy Gentle appeals from a summary judgment in favor of the defendants Pine Valley Apartments and Evans Realty Company, in her action based on alleged personal injuries incurred by her son, Christopher Gentle, on the defendants' property. We affirm in part, reverse in part, and remand.

This action arose out of two separate incidents in which Ms. Gentle says Christopher was injured on these defendants' property by a dog. Christopher, at the times of these incidents, was 10 years old and was living in an apartment complex owned by Pine Valley Apartments ("Pine Valley") and managed by Evans Realty Company ("Evans").

In 1991, Ricky Roper and his family, like Christopher and his mother, resided in one of Pine Valley's apartments. Ms. Gentle's evidence indicated that on February 10, 1991, Mr. Ropers' dog, "Murphy," a chow-spitz crossbreed, was tied to a post on a stair rail outside Mr. Roper's apartment; that a group of children, including Christopher, was playing in a courtyard area of the apartments in the vicinity of the stair rail; that one of the children loosed the dog and it subsequently became frightened or agitated and began running around the courtyard; that Christopher attempted to capture the dog and that, while he was making that attempt, the dog bit him on the upper lip; and that the wound required reconstructive surgery.

Ms. Gentle's evidence indicated that a second incident occurred in July 1991, while Ricky Roper was leading the dog on a leash in the common area. Ms. Gentle said that on that occasion Roper and the dog approached Christopher and that when they did so the dog trampled Christopher and scratched him on the back.

On September 10, 1991, Ms. Gentle sued Roper, alleging that he had negligently or wantonly failed (1) to control the dog, and (2) to warn Ms. Gentle and Christopher of the dog's "dangerous propensities." On January 31, 1992, Ms. Gentle amended her complaint to add as defendants Pine Valley and Evans. On March 4, 1993, the trial court entered a summary judgment in favor of Pine Valley and Evans and certified the judgment as final, pursuant to Ala.R.Civ.P. 54(b). From that judgment Ms. Gentle appeals.

At the outset, we reiterate that Ms. Gentle's claims arise out of two separate alleged encounters with Roper's dog on the apartment premises, one occurring on February 10, 1991, and one occurring in July 1991. Because the incidents require different analyses, we shall address each incident separately. Moreover, the claims against Roper, the owner of the dog, are not involved in this appeal; therefore, Ala.Code 1975, § 3-6-1, setting out the liability of a dog owner, does not govern the disposition of this case. ¹

I. The February Encounter

Ms. Gentle's claims against Pine Valley and Evans are based on alleged violations of duties owed by owners or lessors of real estate. More specifically, her claims are based on alleged (1) negligent creation or maintenance of an artificial condition on land, as defined by Restatement (Second) of Torts § 339 (1977), and (2) negligent or wanton maintenance of the common areas of the apartment complex.

A. Section 339.

Section 339, Restatement, reads:

"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

"(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

"(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

"(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

"(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children."

See also Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976) (adopting § 339). Ms. Gentle contends that the facts surrounding the February encounter satisfy all elements of a cause of action pursuant to § 339. ² We disagree.

Section 339(b) requires admissible evidence that "the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to ... children." (Emphasis added.) Thus, to impose liability on Pine Valley or Evans would require their pre- incident knowledge, either actual or constructive, of the dog's dangerous propensities.

However, the only evidence produced by Ms. Gentle to demonstrate such knowledge consisted entirely of statements taken from her deposition referring to what other tenants told her about the dog. Typical of this evidence are statements contained in the following colloquy:

"Q. Did you have any knowledge whatsoever that Mr. Roper's dog, 'Murphy,' could be vicious?

"A. [By Kathy Gentle] No.

"Q. Since then, have you learned of any prior attacks by Mr. Roper's dog, Murphy, or by any other dog?

"A. Yes.

"Q. Tell me what you have learned since then.

"A. After my son was taken to the hospital, some of the area children that lived there came to my apartment and knocked on the door to see him and explained that the dog had been vicious and growled at them or lunged at them.

"....

"Q. Do you know who these children were?

"A. One was Scott LaFrance.

"....

"Q. Do you remember the identity of any of the other children?

"A. One child's name was Kyle.

"....

"Q. Did any other children indicate to you that the dog had growled or lunged at them?

"A. An adult.

"Q. Who would that have been?

"A. Cindy Bradshaw.

"Q. What did Cindy Bradshaw tell you?

"A. That the dog was vicious--that the Ropers acquired the dog from a previous owner whom the dog attacked, thus causing him to give the dog away, and that that is how the Ropers got the dog.

"Q. Did Cindy Bradshaw indicate that she had ever been growled at?

"A. Yes.

"....

"Q. Have any of these people ever actually been bitten by the dog?

"A. Not at that time.

"Q. Was this because the dog was on a leash or inside?

"A. I have no idea. Scott LaFrance indicated that the dog mauled him and he had scratches that were treated by a nurse that was on the premises.

"....

"Q. Ms. Gentle, are you aware of any evidence that before February 10, 1991, that the Pine Valley Apartments or anybody at Evans Realty knew about this dog, this Murphy, that it was vicious or that it could attack somebody or that it had snarled at anybody or anything like that?

"A. I was told that the dog had been reported to Betty Flick [Evans's resident manager] on a prior occasion. I don't remember who told me that or whom the dog was supposed to have attacked.

"Q. Did you ask Betty Flick about--

"A. I did ask Betty Flick when I reported the dog bite to her and later understood that it had been turned in to her previously that someone else had been bitten by the dog and she denied any knowledge of it."

(Emphasis added.)

Ms. Gentle offered these statements regarding the dog's alleged aggressive behavior to show that the dog had, in fact, misbehaved before February 1991 and, consequently, that the dog's propensity for violence had come, or should have come, to the attention of these two defendants. Thus, the assertions in Ms. Gentle's deposition were "out of court statement[s], being offered to show the truth of the matter asserted," Lavett v. Lavett, 414 So.2d 907, 910 (Ala.1982), and, consequently, constituted hearsay. Id.

"Hearsay cannot create an issue of fact." Black v. Reynolds, 528 So.2d 848, 849 (Ala.1988). Evidence consisting of inadmissible hearsay statements does not constitute "substantial evidence" and is insufficient to overcome a motion for a summary judgment. Welch v. Houston County Hospital Board, 502 So.2d 340, 342 (Ala.1987). Consequently the hearsay statements contained in Gentle's deposition cannot serve to rebut the defendants' prima facie showing that there was no genuine issue of material fact. Rule 56(c), Ala.R.Civ.P.

Alternatively, Ms. Gentle attempts to base liability upon what she alleges to be the inherently dangerous nature of the breed of dog involved. More specifically, she says of Murphy: "A dog of this size, bred from spitz and chow, presents a clear danger to children." Brief of Appellant, at 20. For this proposition, she relies implicitly on Humphries v. Rice, 600 So.2d 975 (Ala.1992), in which this Court adopted the rule that "an owner or keeper of an animal [is] charged with knowledge of the propensities of the breed of animal he or she owns." 600 So.2d at 978.

Assuming, arguendo, that the Humphries rule somehow applies to defendants such as those involved in this appeal--the owner of the apartment complex and the management company--we note that Ms. Gentle produced no evidence that would bring her case within the rule. Indeed, some uncertainty remains in the wake of Humphries as to the quantity and quality of proof necessary to invoke its rule. This uncertainty results, in part, from the fact that the inherent propensity of the dog involved in Humphries was "not determinative of the result reached" in that case. 600 So.2d at 978.

Notably, Humphries involved a pit bull--a breed of dog that has achieved a remarkable notoriety for aggressiveness. In this case, however, nothing in the record indicates that a chow-spitz crossbreed is...