Jackson v. Mateus, 20010387.

• Citation: 2003 UT 18,70 P.3d 78
• Decision Date: 06 May 2003
• Docket Number: No. 20010387.,20010387.
• Parties: Judith Campbell JACKSON, Plaintiff and Appellant, v. Robert MATEUS and Kris Mateus, Defendants and Appellees.
• Court: Supreme Court of Utah

70 P.3d 78

2003 UT 18

Judith Campbell JACKSON, Plaintiff and Appellant, v. Robert MATEUS and Kris Mateus, Defendants and Appellees.

No. 20010387.

Supreme Court of Utah.

May 6, 2003.

Roger H. Bullock, Peter H. Barlow, Salt Lake City, for plaintiff.

Lynn S. Davies, Melinda A. Morgan, Salt Lake City, for defendants.

DURRANT, Associate Chief Justice:

¶ 1 This appeal concerns the liability of a cat owner for injuries caused by the actions of a domestic cat. Judith Campbell Jackson, who was bitten by the cat, appeals the district court's grant of summary judgment in favor of Robert and Kris Mateus, the cat's owners. The district court held that the Mateuses had no duty to prevent their cat from attacking Jackson and therefore could not be held liable for negligence. We affirm.

BACKGROUND

¶ 2 "In reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party .... We state the facts in this case accordingly." Tretheway v. Miracle Mortgage, Inc., 2000 UT 12, ¶ 2, 995 P.2d 599 (citations omitted).

¶ 3 On the morning of January 15, 1996, Jackson noticed what she described as a "yellow tiger tabby house cat" sitting outside on the second-story deck of her home. Mistaking it for one of her own four cats, Jackson opened the sliding glass door and called to the cat. When the cat came to Jackson, she began petting it, but she quickly realized that it was not one of her own. The cat then bit Jackson's right hand. Prior to the incident, Jackson had a medically stable autoimmune disorder. As a result of the bite and subsequent infection, Jackson's preexisting autoimmune disorder was aggravated, causing her to undergo multiple surgeries and incur medical expenses in excess of $40,000.

¶ 4 The Mateuses concede for purposes of the summary judgment motion and this appeal that they own the cat that attacked Jackson. They have been the sole owners of the ten-year-old cat since it was a kitten. According to the undisputed facts, the cat had never bitten anyone, nor exhibited vicious or aggressive tendencies prior to the incident with Jackson.

¶ 5 Jackson brought this suit against the Mateuses alleging that they acted negligently in allowing their cat to roam freely and to attack her. The Mateuses filed a motion for summary judgment arguing that they were not liable for Jackson's injuries. The district court granted summary judgment in favor of the Mateuses, holding that they were not liable as a matter of law because they had no duty to restrain their cat. Jackson appeals.

ANALYSIS

I. STANDARD OF REVIEW

¶ 6 Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). On appeal, we review the district court's ruling on summary judgment for correctness. Kessler v. Mortenson, 2000 UT 95, ¶ 5, 16 P.3d 1225 (citations omitted).

II. CAT OWNER LIABILITY

¶ 7 Jackson appeals the district court's order granting summary judgment to the Mateuses, contending that they were negligent in failing to restrain their cat at the time it injured her. To prevail on a negligence claim, a plaintiff must establish that the defendant owed a duty of reasonable care to him or her. Williams v. Melby, 699 P.2d 723, 726 (Utah 1985). "Absent a showing of duty, [the plaintiff] cannot recover." Slisze v. Stanley-Bostitch, 1999 UT 20, ¶ 9, 979 P.2d 317 (quotation and citations omitted). Jackson advances three bases for imposing a duty on the Mateuses: (1) the common law, as articulated in the Restatement (Second) of Torts § 518 (1977); (2) municipal law, as outlined in Salt Lake County, Utah, Ordinances §§ 8.04.210 and 8.24.030; and (3) state law, as enacted in the dog bite statute, Utah Code Ann. § 18-1-1 (1998). We will address each of these bases in turn.

A. The Common Law: Restatement (Second) of Torts § 518

¶ 8 Jackson contends that the Mateuses had a duty under the common law, as articulated in the Restatement (Second) of Torts § 518, to exercise reasonable care in controlling their cat. She notes that in Pullan ex rel. Pullan v. Steinmetz, 2000 UT 103, ¶ 13, 16 P.3d 1245, we declined to adopt section 518, leaving that decision for another day. Contending that section 518 directly applies to this case, she argues that the day has now come to adopt the section. Additionally, she argues that our holding in Pullan supports her claim because the cat was not rightfully at the place where the injury occurred. The Mateuses argue that they had no duty under either the common law or section 518 to restrain their cat because the harm was not foreseeable.

¶ 9 Generally, absent some foreseeability of possible harm, the common law does not impose a duty on pet owners to restrain their animals. Under the common law, a pet owner is typically only "liable for the injuries caused by a domesticated animal where the owner knew or should have known of the animal's vicious or dangerous propensity." 4 Am.Jur.2d Animals § 96 (1995). However, some jurisdictions have held that an owner may be liable for failure to restrain their pets under certain limited circumstances. According to the Restatement (Second) of Torts § 518,

one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if,

(a) he intentionally causes the animal to do the harm, or

(b) he is negligent in failing to prevent the harm.

¶ 10 We have never before addressed the liability of a cat owner. Jackson suggests that we should look to section 518 and our previous cases concerning liability of horse owners or keepers to extend liability to cat owners who allow their domestic cats to roam free.

¶ 11 In Pullan, we declined to adopt the standards of liability contained in section 518, but noted that even under those standards, the plaintiff would have failed because she did not provide any evidence to demonstrate that the harm was foreseeable. 2000 UT 103 at ¶ 13, 16 P.3d 1245. Pullan involved injury to a twelve-year-old child who was bitten by a horse while hand feeding it in its stable. Id. at ¶ 2. The child was not a member of the association that maintained the horse stables, but accompanied a friend who was a member and had access to the stables. Id. We held that the defendants were not negligent in failing to prevent the harm to the child because they did not know or have reason to know that children who were not members of the association were entering the stables and hand feeding the horses without permission. Id. at ¶ 13. As in Pullan, the plaintiff in this case has failed to provide any evidence that the injury she sustained was foreseeable. Therefore, as in Pullan, we conclude it is unnecessary to adopt section 518 in order to decide this matter.

¶ 12 While we are not presently inclined to adopt section 518, even under that standard, the Mateuses would not have had a duty to protect Jackson from their cat due to the absence of foreseeable harm. Jackson contends, however, that comment h to section 518 identifies a situation that would impose liability on the Mateuses given the facts of this case. According to comment h,

[o]ne who keeps a domestic animal that possesses only those dangerous propensities that are normal to its class is required to know its normal habits and tendencies. He is therefore required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm.

Restatement (Second) of Torts § 518 cmt. h.

¶ 13 The comment goes on to describe particular circumstances that might fit within its meaning, such as when an animal is protecting its young or is injured. See id. Because of the owner's unique knowledge of the animal, an animal owner is placed on notice that he or she may be liable under these limited circumstances where it is foreseeable that an ordinarily gentle animal may attack. Jackson has not alleged that any particular circumstances existed that should have put the Mateuses on notice that their cat would be violent or that they needed to prevent it from coming into contact with Jackson. Rather, Jackson argues that any contact between a cat and a human being is fraught with danger. The chance meeting between a cat and a human stranger, where the human stranger initiates the contact with the cat, does not fall within the circumstances described by comment h. Such contacts occur frequently, are not normally dangerous, and, absent an owner's knowledge of particular facts that would render an injury foreseeable, do not present circumstances for which liability arises under comment h ¶ 14 This view is supported by comment j of section 518. Comment j clearly indicates that the Restatement will not impose a general duty on pet owners who allow certain domestic animals to "run at large" if the animals are "unlikely to do harm."¹ Restatement (Second) of Torts § 518 cmt. j. Indeed, the comment specifically refers to cats as one of those domestic animals that owners are not required to restrain because they are unlikely to do harm if allowed to roam at large.

¶ 15 Not only has Jackson failed to present any evidence that the Mateuses' cat was vicious, she has also failed to show that the bite was foreseeable under any of the circumstances listed in section 518. Therefore, even if we were to adopt section 518, doing so would not impose a duty on the Mateuses because they had no knowledge or reason to know that their ten-year-old cat, who had never exhibited anything other than a docile disposition, might attack someone.

¶ 16 Jackson also argues that we should look to our previous holding in Looney v. Bingham Dairy, which was favorably cited in Pullan, wherein we stated that when an animal is "rightly at the place where the injury occurs" the owner is not liable...