Harry v. Smith
| Decision Date | 27 April 1995 |
| Docket Number | No. 24010,24010 |
| Citation | 111 Nev. 528,893 P.2d 372 |
| Parties | Michaela HARRY, As Guardian ad Litem of Nicholas J. Harry, a Minor, and Nicholas J. Harry, Appellants, v. Otelia R. SMITH and Otelia A. Pollard, Respondents. |
| Court | Nevada Supreme Court |
Smith & Williams, Las Vegas, for appellants.
Edwards, Hunt, Hale & Hansen and Trevor L. Atkin, Las Vegas, for respondents.
FACTS
Appellant Michaela Harry brought this action on behalf of her son Nicholas who was bitten by a dog. The dog was owned by a couple who were staying at a home owned by respondent Otelia Smith and her daughter respondent Otelia Pollard. The district court granted Smith and Pollard's motion for summary judgment and concluded that they owed no duty to protect Nicholas. This appeal followed.
Smith and Pollard own the house in joint tenancy. Smith resided in the house until 1989. At that time, Smith moved in with her son James because she had suffered several small strokes and had contracted Alzheimer's disease. The record on appeal indicates that Pollard's only involvement in this case is that she jointly owns the house.
Smith's sons, James and Richard, had maintained the house for Smith since the 1970's. James was also in charge of retrieving Smith's mail and paying the regular bills on the house. James and Richard continued to maintain the premises and pay the bills following Smith's departure.
After the house sat vacant for several months, Richard suggested that his son Geoffrey move into the home. Geoffrey was unemployed and he needed an inexpensive place in which to live. Geoffrey eventually moved into the house around the beginning of 1990.
Geoffrey claimed in deposition testimony that he paid rent on a monthly basis to his grandmother Smith. He stated that he usually paid by check. No documentary evidence was presented below to support Geoffrey's claim that he paid rent.
Richard stated in a deposition that when Geoffrey occupied the house no specific agreement was made concerning rent. According to Richard, Geoffrey paid between two and three hundred dollars a month to cover the expenses on the home such as utilities, insurance and taxes. The mortgage on the house had been paid.
Richard asserted that Geoffrey did not execute a written lease agreement because "[i]t didn't seem very nice for a grandson" to do so. Richard testified concerning Geoffrey's status:
I spoke to my mother about it. I said, since a vacant house tends to be regarded as abandoned and subject to damage.
Richard stated further that he, James and Geoffrey shared the responsibility for maintaining the premises after Geoffrey occupied the house. The premises were surrounded by a poorly maintained three-foot high chain link fence. In one place, the fence bowed because the family frequently moved the fence to store used cars in the back yard.
A few months after Geoffrey occupied the house, he invited Robin Hemple and her boyfriend Robert Osborn to live in the house Geoffrey asserted in deposition testimony that he and Robin signed a written lease agreement before Robin and Robert moved into the house. Robin apparently signed on Robert's behalf. Robin and Geoffrey agreed to pay $225 each in rent. According to Geoffrey, Smith authorized Richard to sign the lease on her behalf. Geoffrey stated: No copy of the lease agreement was ever produced.
with him. Richard stated that he gave Robin and Robert permission to live in the house "on a temporary basis as houseguests." According to Richard, Robin and Robert sporadically paid part of the utilities but they did not formally agree to pay rent. Richard claimed in his deposition that he eventually "threw them out" because he believed that they were taking unfair advantage of Geoffrey's hospitality
Robin and Robert brought a couple of dogs to live with them at the house. One of the dogs was a pitbull. Richard knew of the dogs and gave Robin and Robert permission to keep them at the house. Geoffrey stated that he knew that the pitbull was potentially dangerous because it had bitten a house guest on the stomach without provocation.
On June 16, 1990, the dog escaped through the poorly maintained fence and bit Nicholas Harry. Nicholas' mother filed suit on behalf of Nicholas against Robin and Robert as owners of the dog and against Smith and Pollard as owners of the house. Smith and Pollard filed an answer and asserted a cross-claim against Robin and Robert for indemnification. On November 9, 1990, the district court entered a default judgment against Robin and Robert in favor of appellant. 1
Smith and Pollard moved the district court for summary judgment. They argued that they were not liable as landlords for the negligence of their tenants under this court's opinion in Wright v. Schum, 105 Nev. 611, 781 P.2d 1142 (1989). The district court agreed and granted the motion.
The district court may only enter summary judgment when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. NRCP 56; Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). In reviewing orders granting summary judgment, this court construes the record on appeal in a light most favorable to the non-moving party. Butler, 101 Nev. at 451, 705 P.2d at 663. The moving party has the burden of proving that no triable issues remain. Id.
The district court ruled that Smith and Pollard were not liable for the dog bite because they were not responsible as landlords for the negligent conduct of their tenants under Wright v. Schum, 105 Nev. 611, 781 P.2d 1142 (1989). This court ruled in Wright, based on general tort principles, that a landlord does not have a duty to protect third parties from injuries occurring off the premises if the landlord simply has knowledge of a dangerous condition or passively permits the condition to persist. Id. at 615-16 & n. 2, 781 P.2d at 1145. Appellant contends that genuine issues remain concerning whether a landlord-tenant relationship exists in this case.
The record on appeal contains conflicting evidence concerning this issue. The informal arrangement allowing Geoffrey to live at the house does not appear to be a landlord-tenant relationship. The modest amount Geoffrey paid to live in the house was well below market value. His presence at the house appears to be as much a cooperative effort to...
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