Hillier v. Noble, 376-81
| Decision Date | 15 February 1983 |
| Docket Number | No. 376-81,376-81 |
| Citation | 458 A.2d 1101,142 Vt. 552 |
| Parties | Richard HILLIER v. Steven T. NOBLE and Beatrice Noble. |
| Court | Vermont Supreme Court |
Stephen L. Klein, Rutland, for plaintiff-appellee.
Christopher A. Webber, Jr., and S. Stacy Chapman, III, of Webber & Costello, Rutland, for defendants-appellants.
Before BARNEY, C.J., HILL, UNDERWOOD and PECK, JJ., and LARROW, J. (Ret.), Specially Assigned.
This is a dog bite case. Plaintiff, a minor, instituted this action in negligence against defendants, through his mother as next friend. Defendants were the owners of a dog which, although secured by a relatively short chain, had bitten plaintiff when he went on their land to retrieve his family cat. The case was tried by jury with verdict and judgment for the plaintiff. Defendants filed various motions at the close of all the evidence: for a directed verdict, and subsequently for a new trial, to set aside the verdict, for judgment notwithstanding the verdict, and for a remittitur. These motions were denied by the trial court. However, it should be noted that the presiding judge indicated in a dissent for which, unfortunately for purposes of review, he gave no specific reason, that he would have granted the motion for a new trial, but he was overruled by the assistant judges. Defendants appealed to this Court, raising several issues for our consideration. We reverse and enter judgment for the defendants.
The evidence in the case at bar, elicited through the various witnesses and exhibits, was squarely in conflict on several points. Nevertheless, taking that evidence in the light most favorable to the plaintiff as the prevailing party, the following significant facts emerge.
Plaintiff was eleven years old at the time of the incident which gave rise to this proceeding. He lived with his mother in an apartment as backyard neighbors to defendants. The latter, husband and wife, were both employed and consequently absent from their home much of the time. They had purchased a dog which they called Sam, a mixture of English Bull and Boxer, to serve as a watchdog for their property but not, as defendant testified without contradiction, as an "attack" dog.
The defendants restrained Sam in their backyard by means of a chain, estimated to be approximately ten to twelve feet in length, attached to his collar at one end, and fastened at the other end to a metal stake driven into the ground to a depth of four feet. The chain was long enough to permit the animal to go into defendants' garage. There was no evidence that he had ever escaped from the chain, although he had managed to break away from an earlier, less secure restraint. On that occasion, while it happened some time before the biting accident, another neighbor returned the dog without incident; the animal had never bitten anyone prior to its attack on the plaintiff.
Consistent with its purpose as a watchdog, Sam customarily barked, growled, and jumped against the end of the chain when anyone entered the defendants' property. Plaintiff was well aware of this propensity; he had witnessed it several times. He testified that he was afraid of the dog; that, to him, it appeared to want to attack him. Plaintiff was, moreover, fully aware from observation of the length of the chain by which it was secured.
On August 6, 1978, the day prior to the biting incident, plaintiff and a companion were playing with a soccer ball in the former's yard when the ball was accidentally kicked into the defendants' yard. According to the testimony of both boys, defendant Beatrice Noble returned the ball to them, telling plaintiff that thereafter he need not wait for her, but if the ball came into her yard again he could come for it himself. They testified also that she told plaintiff he need not be afraid of the dog; it would not bite him.
Beatrice Noble denied firmly that she gave even this limited permission. For purposes of review, however, we must assume she did; that is the evidence most favorable to the plaintiff. Apparently the jury chose to accept the testimony of the boys.
The following day, August 7th, while defendants were absent, plaintiff went into their yard to get his cat which had strayed there. He was alone, and there was no suggestion that his entry was motivated by a misplaced ball. He did not see the dog who was presumably in the garage. Nevertheless, notwithstanding his claim that he feared Sam, he entered the limits of the area within which the animal's chain permitted it freedom of action. As he turned to pick up his cat, the dog appeared, rushed at him, and bit him on the left arm near the elbow. This proceeding was subsequently instituted to recover damages for the pain and suffering experienced by the plaintiff as a result of the dog's attack. It is probable that the injury was more painful than serious. His total medical expenses, for which no claim was made, did not exceed a hundred dollars; his physician was not called as a witness. The record does not disclose that any permanent injury or disability resulted.
Plaintiff argues that his right of entry on August 7 should be implied from the permission given him to enter in order to retrieve his ball. We are not persuaded by this argument. It is clear from a reading of the transcript that the permission to enter was granted for the sole purpose of recovering a ball if and when it should again go on defendants' land.
The only evidence that any permission at all was given is contained in the testimony of the plaintiff and his friend. Mrs. Noble denied she had given him permission for any purpose. Nevertheless, the testimony of the two boys cannot be construed fairly or reasonably to expand her consent, by implication or otherwise, beyond its expressed limitation, to include either a general license to enter for any purpose, or for another more limited or specific purpose.
A person, including a child, who has permission to enter the property of...
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...except to avoid willful or wanton misconduct. See Buzzell v. Jones, 151 Vt. 4, 6, 556 A.2d 106, 108 (1989); Hillier v. Noble, 142 Vt. 552, 556, 458 A.2d 1101, 1103 (1983). We have not adopted the doctrine of attractive nuisance, so the absence of duty applies to both adult and child trespas......
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