Hossenlopp By and Through Hossenlopp v. Cannon, 22303

• Decision Date: 26 April 1985
• Docket Number: No. 22303,22303
• Court: South Carolina Supreme Court
• Parties: , 51 A.L.R.4th 439 Eric John HOSSENLOPP, By and Through his Guardian ad Litem, John HOSSENLOPP, Respondent, v. William J. CANNON, Jr., and Yong H. Cannon, Appellants.

Page 438

329 S.E.2d 438

285 S.C. 367, 51 A.L.R.4th 439

Eric John HOSSENLOPP, By and Through his Guardian ad Litem, John HOSSENLOPP, Respondent, v. William J. CANNON, Jr., and Yong H. Cannon, Appellants.

No. 22303.

Supreme Court of South Carolina.

Submitted Jan. 23, 1985.

Decided April 26, 1985.

John W. Thomas of Thomas, Windham, Daniel & Dial, Columbia, for appellants.

Ellis Merritt, Jr., of Law Offices of Donald E. Rothwell, Columbia, for respondent.

LITTLEJOHN, Chief Justice.

Plaintiff-respondent, Eric John Hossenlopp, a four-year old child, brings this action to recover for injuries sustained when the dog of defendants-appellants, William J. Cannon, Jr. and Yong H. Cannon, attacked him causing personal injuries of nineteen puncture wounds requiring sutures, surgery and hospitalization. It is a tort action alleging negligence on the part of the owners in 1) keeping a dangerous animal with knowledge it had dangerous propensities; 2) allowing the dog to run at large in violation of statutory law; and 3) in failing to restrain the animal. Based on depositions and affidavits, the trial judge granted summary judgment in favor of the child as to liability, leaving the assessment of damages for trial by jury in the usual fashion. The dog owners have appealed contending that there is a genuine issue of fact as to whether they had previous notice of the propensity of their dog to bite people. We agree with the trial judge and affirm.

The showing made to the trial judge revealed that young Hossenlopp and another young boy were, on the afternoon of his injuries, at the home of a babysitter. They were playing outside the babysitter's residence watching her own dogs which were fenced in. The Cannons' dog charged toward them; to avoid the attack, both boys tried to climb over the fence. The plaintiff herein failed in his efforts and was attacked by the dog which dragged him by the ankle and leg causing the injuries which inspired this action.

Under Rule 44 of the Circuit Court, it is appropriate to grant summary judgment on all issues or on specified issues if there is no genuine issue of fact to be determined. The conventional dog-bite law in this state heretofore set forth in several cases is as follows:

... It is the rule in this State that domestic animals are not presumed to be dangerous to persons, and before recovery of damages may be had against the owner, the injured party must prove that the particular animals was of a dangerous, or vicious nature, and that his dangerous propensity was either known, or should have been known to the owner. The negligence that imposes liability upon the owner is the keeping of a dangerous animal with knowledge of its dangerous tendencies, or in the failure to restrain it from injuring persons ...

Giles v. Russell, 255 S.Ct. 513, 180 S.E.2d 201 (1971). Also see McQuaig v. Brown, 270 S.C. 512, 242 S.E.2d 688 (1978) and Conoley v. Riel, 279 S.C. 521, 309 S.E.2d 291 (1983).

There is no serious argument but that the dog of the Cannons proximately caused substantial damages to the child. Nor can it be seriously argued that the Cannons were not negligent. Section 47-3-50 of the South Carolina Code of Laws (1976) provides as follows:

It shall be unlawful in any county adopting penalty provisions pursuant to the provisions of this article for a dog owner or other keeper of a dog to:

(a) allow his dog to run at large off of property owned, rented or controlled by him;

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Pursuant to the above statutory provision, Section 11-6004, of the Richland County Code, was enacted and, its pertinent provisions read as follows:

(a) It shall be unlawful for any dog owner or other keeper of a dog to:

(1) allow his dog to run at large off of property owned, rented or controlled by him;

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Further, Section 47-7-110, South Carolina Code of Laws, as amended (1976), provides as follows:

It shall be unlawful for the owner or manager of any domestic animal of any description willfully or negligently to permit any such animal to run at large beyond the limits of his own lands or the lands leased, occupied or controlled by him.

The sole contention of the Cannons is that there is a contested issue as to their knowledge of the fact that their dog had, on previous occasions, harmed others or had dangerous propensities. The affidavit of Mr. and Mrs. Porter avers that on a previous occasion "... the big goldish-brown dog of the Cannons', which the deponents are informed and believe attacked Eric John Hossenlopp did, in fact, bite and substantially bruise the buttocks of their grandson, John Mark Porter on the property of the deponents and in the carport of the deponents." There is, however, no averment that this was within the knowledge of the Cannons.

The deposition of William J. Cannon, Jr. admits that he was aware of the fact that on a previous occasion this dog attacked a six-year old boy leaving what he describes as "... a little small scratch mark right here on the inside of his arm. I immediately took the child into my bathroom, I took a Q-tip, some alcohol and I attempted to clean--it was just a small amount of dry blood. I attempted to clean it. There was not enough blood to even pink the Q-tip." Mr. Cannon averred that he was unable to keep the dog in the fence because she was able to climb the fence even after he put an extension on it. When he wanted to truly restrain the dog, he kept her on a chain. We think that his own admission is sufficient to establish guilty knowledge.

We are of the opinion, under our established rule of law, that the trial judge correctly granted a...