Hampton By and Through Hampton v. Hammons
| Decision Date | 21 July 1987 |
| Docket Number | No. 64649,64649 |
| Citation | 1987 OK 77,743 P.2d 1053 |
| Parties | James Heath HAMPTON, a minor By and Through his mother and father and next friends, Vicky Rae HAMPTON and Harry Hampton, Appellants, v. Leroy HAMMONS, Appellee. |
| Court | Oklahoma Supreme Court |
Chapel, Wilkinson, Riggs, Abney & Henson by Bill V. Wilkinson, and M.D. Bedingfield, Tulsa, for appellants.
Church & Roberts by Donald Church, Tulsa, for appellee.
The issues presented concern the sufficiency of evidence to show: (1) negligence per se by violation of Tulsa Municipal Ordinance, Title 2, Ch. 1, § 2(d); (2) violation of the state dog-bite statute, Title 4 O.S.1981 § 42.1; (3) common law negligence; and (4) attractive nuisance. We find that: (1) there are material questions of fact necessitating jury resolution on the issues of negligence per se, statutory recovery, and common law negligence; (2) that although some evidence was excluded which should have been admitted, the exclusion in and of itself did not amount to reversible error; and (3) that the doctrine of attractive nuisance is inapplicable.
This case arises out of an attack by a pit bulldog known as Janie Sue on the appellant, James Hampton (Jamie). Jamie was five and one-half years old at the time of the incident and lived next door to the appellee, Leroy Hammons. The Hampton's and Hammons' backyards adjoined each other and were separated by a wire fence. A portion of the fence was in a state of disrepair and stood only approximately two and one-half feet in height although the rest of the fence was approximately five feet high.
Jamie and his friend, Michelle, were playing in Jamie's backyard when Jamie's puppy jumped the damaged portion of the fence and rolled into the Hammons' yard. Jamie and Michelle crossed the fence at the same point to rescue the puppy. Having rescued the puppy, Michelle safely crossed back over the fence into Jamie's yard. After several unsuccessful attempts by Jamie to follow his playmate and puppy, Jamie sought another route home. When he tried to pass Janie Sue, she ran around him, entangling his feet in her chain, causing Jamie to fall. The dog then bit him numerous times on the face, arms and torso. Mrs. Hammons rescued Jamie, who by that time was so entangled in the dog's chain, that she had to release Janie Sue in order to do so.
As a result of the attack, Jamie was hospitalized overnight where he had been taken by ambulance. He required many stitches. The bruises, cuts and scratches have healed; but Jamie still requires plastic surgery for removal of scar tissue. It is alleged that he suffers emotional distress because of the attack, and that his distress was amplified through a later encounter with Janie Sue. On that occasion, the dog jumped through a tear in the Hammons' screen door and chased Jamie across the street and into a neighbor's home. Jamie was so disturbed that the neighbor had to carry him home.
On the day Jamie was bitten, the dog had been chained in the Hammons' backyard along with another pit bulldog. Janie Sue was owned by the Hammons' son, Glen Michael, and Tara was owned by their daughter, Elizabeth Kay. Instead of chaining the dogs so that they could run together, Janie Sue and Tara were staked on chains approximately six to seven feet in length which when fully extended allowed the dogs to come within a foot or less of each other. The evidence produced at the trial identified this pattern of chaining as a training technique used to enhance the dogs' natural aggressiveness.
The suit was brought on behalf of Jamie by and through his parents as next friends. At the conclusion of the appellant's evidence, the defense demurred to the evidence. The trial court sustained the demurrer, and the Court of Appeals upheld the ruling, on the ground that no evidence had been presented to show that Jamie's injuries were caused by Mr. Hammons, as the keeper of the dog.
HARBORING A PIT BULLDOG MAY BE A VIOLATION OF TULSA
MUNICIPAL ORDINANCE, TITLE 2, CH. 1, § 2(d)
The determination of whether keeping a pit bulldog within the Tulsa city limits violates that city's municipal ordinance rests upon the construction of three sections of Title 2, Ch. 1: §§ 2(d), 1 (1)(d) 2 and § (1)(b). 3 Section 2(d) defines what constitutes an offense within the meaning of the ordinance and provides:
"It shall be an offense under the terms of this Chapter for any owner within the corporate limits of the City of Tulsa to: ... Harbor, keep or have possession of any vicious animal."
Sections (1)(d) and (1)(b), respectively, set forth the definitions of "owner" and "vicious animal" for purposes of the ordinance. An owner within § (1)(d) is not limited to a person with legal right to possession but also includes anyone who cares for, has custody of, keeps or maintains any dog, cat or domestic animal. 4 The definition of a vicious animal is found in § (1)(b) and, like the definition of an owner, is broad, encompassing more than vicious propensities attributable to a specific animal including breeds of animals known to be naturally fierce or to attack either humans or animals without provocation. 5
Tulsa is not the only municipality which is so troubled with the vicious characteristics of certain animals that ordinances have been passed banning or severely restricting their freedom. Some jurisdictions have become so concerned, particularly with the pit bulldog, that restrictive ordinances have been enacted specifically aimed at the breed. 6 Other jurisdictions have dealt with the problem, as has Tulsa, by expanding the definition of "vicious animal" to include animals with natural dispositions leading to unprovoked attacks. 7
Because at least one expert witness testified as to the vicious propensities of the pit bulldog breed in general, we do not find that the exclusion or admission of any piece of evidence or combination thereof was sufficient to constitute a miscarriage of justice. 8 Because we have determined that there are important issues of fact requiring jury resolution under both the statutory and common law theories of recovery, a new trial is necessary. There are issues relating to both the Tulsa ordinance and the theory of common law negligence on which evidence of vicious characteristics of the breed of pit bulls in general has bearing; therefore, evidence relating to the nature of pit bulldogs as a breed is properly admissible.
We find that Title 2, § 2(d) of the Tulsa ordinance was intended to ban animals with vicious propensities from the Tulsa city limits, and that pit bulldogs as a breed arguably possess those propensities. Therefore, we conclude that harboring of pit bulldogs within the Tulsa city limits may violate the Tulsa ordinance.
SUFFICIENT EVIDENCE WAS PRODUCED AT TRIAL TO RAISE A JURY
Having determined that keeping a pit bulldog within Tulsa city limits may violate § 2(d), 9 we must necessarily determine whether the violation amounted to negligence per se. It is undisputed in Oklahoma that violation of a municipal ordinance constitutes negligence per se if the other elements of actionable negligence are present. 10 When a city ordinance is violated, the elements of actionable negligence are: (1) the injury must have been caused by the violation; (2) the injury must be of a type intended to be prevented by the ordinance; and (3) the injured party must be one of the class meant to be protected by the ordinance. 11
It is undisputed that the dog, Janie Sue, was kept in the backyard of the owner's father, Leroy Hammons, from the time the dog was purchased by Glen Michael Hammons until some months after the dog bite incident. Here lies the alleged violation of the ordinance. Having found a possible violation, it is necessary to determine whether the three elements of actionable negligence outlined are also present. Undoubtedly, elements two and three are satisfied. Jamie's mauling is precisely the type of injury intended to be prevented by the ordinance; and Jamie, a child of five and one-half years, most certainly fell within the class the ordinance was passed to protect. The first element, however, requires a determination that the alleged violation caused the injury.
The question of proximate cause is one of law for the trial court only if no evidence has been produced from which a jury could reasonably find a causal link between the negligent act and the injury or where the facts are undisputed. 12 Otherwise, the proximate or contributing cause of a plaintiff's injury is a question of fact for the jury. 13
The disputed issues for which there was sufficient evidence produced at trial to raise questions of fact on the issue of proximate cause for the jury included: (1) the state of disrepair of the fence separating the Hampton's and Hammons' backyards; (2) ownership of the fence; (3) whether the manner in which the dog, Janie Sue, was chained did in fact keep her agitated and excited; (4) Mr. Hammons' knowledge of Jamie's frequent trips over the fence to retrieve toys; and (5) whether Mr. Hammons impliedly consented to Jamie's presence on his property. All of these factors bear upon the first element of actionable negligence, proximate cause. There was sufficient evidence produced at trial from which a jury of reasonable persons could have concluded that but for Mr. Hammons' harboring of a vicious dog, Jamie would not have been injured when he crossed the fence to rescue his puppy.
In ruling upon a defendant's demurrer to the plaintiff's evidence, both the trial court and the reviewing tribunal consider every fact favorable to the party against whom the demurrer is directed along with any reasonable inferences which may be drawn therefrom. All conflicting evidence favorable to the defendant is disregarded. 14 A demurrer to the plaintiff's evidence should be sustained only when there is an entire absence of proof to show any right...
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