Gross v. Turner

• Decision Date: 10 August 2018
• Docket Number: No. 2018-018,2018-018
• Citation: 2018 VT 80
• Parties: Eric Gross and Adrianne Gross v. Elizabeth Turner and Antonio Flores
• Court: Vermont Supreme Court

2018 VT 80

Eric Gross and Adrianne Gross v. Elizabeth Turner and Antonio Flores

No. 2018-018

Supreme Court of Vermont

May Term, 2018

August 10, 2018

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Rutland Unit, Civil Division

Samuel Hoar, Jr., J.

Thomas C. Bixby of Law Offices of Thomas C. Bixby, LLC, Rutland, for Plaintiffs-Appellants.

Daniel L. Burchard of McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, for Defendant-Appellee Turner.

Bruce Palmer of Downs Rachlin Martin PLLC, St. Johnsbury, for Defendant-Appellee Flores.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. REIBER, C.J. In this negligence action, we consider whether a landlord and a social guest of a tenant may be held liable for injuries caused by the tenant's dogs to a third person outside of the landlord's property. We conclude that plaintiffs failed to establish that either defendant owed a duty of care to the injured plaintiff in this case, and therefore affirm.

¶ 2. The following facts were undisputed for purposes of summary judgment. On January 15, 2016, Antonio Flores, his wife, and their two young children arrived at the residence of William and Charity Pearo in Fair Haven. The Pearos had invited the Floreses for dinner. The Pearos were not yet home but had told the Floreses that the door would be open so they could wait inside. Based on previous visits, Antonio Flores assumed the Pearos' three dogs would be near the front door, so the family decided to go in through the side door. The Floreses' son opened the side door. Without warning, the Pearos' three dogs ran out of the house. Mr. Flores called to the dogs to try to get them back inside.

¶ 3. At that moment, plaintiff Eric Gross was walking his dog down the sidewalk near the Pearos' home. The Pearos' three dogs ran over and attacked his dog. One of the dogs grabbed plaintiff's hand, which was covered by a glove, and pulled on his arm, dislocating his shoulder.

¶ 4. The Pearos leased their residence in October 2015 from defendant Elizabeth Turner, who lives in New York. When Turner rented the property to the Pearos, she was aware they had three pet dogs and permitted them to keep the dogs at the property. She was not aware of any prior incidents involving the dogs at the time the lease was signed. She had known the Pearos and their dogs for several years and had not observed any of the dogs to have aggressive tendencies. For this reason, she did not make any inquiries about the dogs or their temperament before renting to the Pearos.

¶ 5. Antonio Flores testified in a deposition that he had allowed the Pearos' dogs to be around his six- and seven-year-old children and they had never posed a threat to the children. He said that he would not have brought his children to the house or allowed them to go near the door if he felt the dogs were vicious. He described Buck, the largest dog, as "hyper," with high energy, but not aggressive. Jedi, the oldest and smallest dog, growled on occasion if someone got too close to her, but never bit at anyone. The third dog, Harley, was very intelligent and laid back.

¶ 6. In January 2017, Eric Gross and his wife Adrian filed a complaint alleging negligence against Elizabeth Turner and Antonio Flores.¹ Flores, in turn, filed a third-partycomplaint against the Pearos seeking indemnification for any judgment in favor of plaintiffs. The Pearos failed to respond, and default judgment was entered in favor of Flores.

¶ 7. After the parties conducted discovery, each defendant moved for summary judgment. In December 2017, the court granted summary judgment to defendants in separate orders. The court determined that plaintiffs had failed to establish that either defendant owed a duty to plaintiffs to control or restrain the Pearos' dogs. The court dismissed the third-party complaint against the Pearos as moot. Plaintiffs filed a motion to reconsider, which the court denied in January 2018. This appeal followed.

¶ 8. We review a decision granting summary judgment de novo, using the same standard as the trial court: summary judgment is appropriate if the moving party shows that the material facts are not genuinely disputed and that he or she is entitled to judgment as a matter of law. White v. Quechee Lakes Landowners' Ass'n, 170 Vt. 25, 28, 742 A.2d 734, 736 (1999); V.R.C.P. 56(a). In determining whether a genuine dispute of material fact exists, the nonmoving party "is entitled to the benefit of all reasonable doubts and inferences." Carr v. Peerless Ins. Co., 168 Vt. 465, 476, 724 A.2d 454, 461 (1998). Once a claim is challenged by a properly supported motion for summary judgment, the nonmoving party may not rest upon the allegations in the pleadings, but must come forward with admissible evidence to raise a dispute regarding the facts. Alpstetten Ass'n v. Kelly, 137 Vt. 508, 514, 408 A.2d 644, 647 (1979); V.R.C.P. 56(c) (requiring factual assertions at summary judgment stage to be supported by admissible evidence).

¶ 9. To prevail on their negligence claims, plaintiffs had to prove that each defendant breached a duty of care owed to plaintiffs, thereby causing them harm. O'Connell v. Killington, Ltd., 164 Vt. 73, 76, 665 A.2d 39, 42 (1995). The only issue in this appeal is whether defendants owed a legal duty to plaintiffs. The existence of a duty "is primarily a question of law" for the court to decide. Langle v. Kurkul, 146 Vt. 513, 519, 510 A.2d 1301, 1305 (1986).

I. Liability of Landlord

¶ 10. We first consider whether the Pearos' landlord, Elizabeth Turner, owed a duty to protect third persons outside of the leased premises from harm caused by the Pearos' dogs. Plaintiffs argue that Turner is legally responsible for the injuries suffered by Eric Gross because she permitted the Pearos to keep aggressive dogs on her property without inquiring into the history of the dogs or causing a fence to be erected prior to the tenancy.²

¶ 11. Plaintiffs' argument is based on the Restatement (Second) of Torts § 379A, which provides:

A lessor of land is subject to liability for physical harm to persons outside of the land caused by activities of the lessee or others on the land after the lessor transfers possession if, but only if,

(a) the lessor at the time of the lease consented to such activity or knew that it would be carried on, and

(b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken.

Restatement (Second) of Torts § 379A (1965). "In other words, if a landowner leases property to another knowing that the tenant is going to carry on an activity that involves an unreasonable risk, and the landowner consents to that conduct, then the landlord has a duty to third parties to exercise reasonable care." Deveneau v. Wielt, 2016 VT 21, ¶ 23, 201 Vt. 396, 144 A.3d 324 (Robinson, J., dissenting).

¶ 12. Dog ownership is a common activity that is "usually safe and generally beneficial." Martin v. Christman, 2014 VT 55, ¶ 12, 196 Vt. 536, 99 A.3d 1008. Under Vermont law, ordinary domestic dogs are not considered to be an unreasonable risk to the public. See id. ¶ 13 ("[A]part from animals that trespass and wild animals that pose an inherent risk of personal injury, most animals normally are safe, or at least are not abnormally unsafe in a way that would justify the imposition of strict liability." (quotation omitted)). For this reason, we reject plaintiffs' broader argument that a landlord assumes a duty to protect all persons outside the property from physical harm by simply permitting a tenant to keep a domestic dog on unfenced premises, even if there is a risk that the dog might travel beyond the property line.

¶ 13. We agree, however, that under § 379A a landlord owes a duty to take reasonable steps to protect persons outside the land from injuries caused by a tenant's dog if the landlord knew or had reason to know at the time of entering the lease that the dog in question posed an unreasonable risk of harm to such persons. Restatement (Second) of Torts § 379A. The duty arises from the fact that the landlord has some control over the activities of the tenant, in that the landlord decides whether to rent to the tenant in the first place, renew or terminate the tenancy, or to impose conditions in the lease. See Park v. Hoffard, 847 P.2d 852, 855 (Or. 1993) (explaining that landlord-tenant relationship "has implications for a landlord's tort liability to persons injured off the rental property by some action or inaction of the tenant to the extent that a landlord has control over the tenant"). By permitting a tenant to keep a dog that the landlord knows to be vicious, the landlord could be viewed as having created the risk that led to the third person's injuries. See Strunk v. Zoltanski, 468 N.E.2d 13, 15 (N.Y. 1984) (explaining that by knowingly leasing premises to owner of vicious dog, landlord could be found to have created risk that injured plaintiff). Requiring the landlord to exercise due care to protect the public in such a situation is consistent with the general duty of care owed to the public by a landowner who personally carries on unreasonably dangerous activities on his or her land. See Restatement (Second) of Torts § 371(stating that possessor of land may be held liable for physical harm to others outside of land caused by unreasonably dangerous activities of possessor).

¶ 14. Many jurisdictions have applied § 379A in negligence actions against landlords for injuries to third parties caused by vicious dogs owned by tenants. As in ...