King v. Breen

• Decision Date: 09 March 1990
• Docket Number: No. 88-1288,88-1288
• Citation: King v. Breen, 560 So.2d 186 (Ala. 1990)
• Parties: Nina KING, individually and as mother and next friend of Kevin David King, a minor v. John BREEN and Holly Breen.
• Court: Alabama Supreme Court

Page 186

560 So.2d 186

Nina KING, individually and as mother and next friend of Kevin David King, a minor v.John BREEN and Holly Breen.

No. 88-1288.

Supreme Court of Alabama.

March 9, 1990.

James G. Curenton, Jr. and Thack H. Dyson of Foster, Dyson & Curenton, Foley, for appellant.

Deborah Davidson of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for appellees.

SHORES, Justice.

This is an appeal by Kevin David King and Nina King from a judgment made final pursuant to A.R.Civ.P. 54(b).

Kevin King, at age two and one-half, was bitten on the face by a dog belonging to neighbors, defendants John and Holly Breen.Kevin and his mother sued the Breens on June 9, 1987.The complaint contained a count alleging that the Breens had negligently kept a dog with known vicious propensities and had negligently allowed the dog to come into contact with Kevin, and a second count alleging that the Breens had mistreated and negligently cared for the dog, and had thereby caused it to have vicious and dangerous propensities.They filed an amended complaint on April 20, 1988, adding a claim based on strict liability under Alabama Code 1975, § 3-6-1.

On February 22, 1989, the parties stipulated that the pleadings were complete, that discovery was not yet completed, and that certain motions were pending.On March 1, 1989, a summary judgment was entered for the defendants as to counts 1 and 2, but it was denied as to count 3, the strict liability claim of the amended complaint.On March 24, 1989, the Kings filed a second amended complaint, adding count 4, a dangerous instrumentality claim, and count 5, an attractive nuisance claim.The trial court struck this second amended complaint, denied the Kings' motion to alter or amend its ruling, and entered judgment against the Kings on counts 1, 2, 4, and 5.The court made the summary judgment on counts 1 and 2 final and also made final the striking of the second amended complaint.

The defendants had chained their dog to an old automobile in their yard and allowed neighborhood children to come over and play with the dog.There was evidence that the area was overgrown with weeds and that the defendants did not feed the dog properly.Veterinarian records revealed that the chain collar had become embedded in the dog's neck, that there was pus under the collar, and that the neck emitted a foul odor.On the day of the attack, Kevin was playing in his yard and wandered over to the defendants' yard before his mother could stop him.Mrs. King testified that Kevin hugged the dog's neck because he had mistaken it for a dog he had once had.When Kevin hugged the dog, it bit him on the face and shoulder; the injuries left permanent scars on his face.

The issues on appeal are whether there was a factual dispute with respect to the claim of negligently keeping a dog with known vicious propensities; whether there is a cause of action for negligently caring for and mistreating a dog, so as to cause it to have dangerous propensities that led to someone's injury; and whether the trial court erred in striking the second amended complaint.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.Rule 56(c), A.R.Civ.P.;Fountain v. Phillips, 404 So.2d 614(Ala.1981).Because this action was filed on June 9, 1987, the "scintilla rule" applies (seeAla.Code 1975 § 12-21-12), and, thus, the summary judgment would have been proper only if there was not a scintilla of evidence to support the plaintiffs' allegations.To determine whether a scintilla of evidence exists, all reasonable inferences from the facts presented are to be construed most favorably to the nonmoving party.Chiniche v. Smith, 374 So.2d 872(Ala.1979).

Under the traditional common law concerning injuries inflicted by domestic animals, the plaintiff had to allege and prove that the animal's owner had prior knowledge of the animal's vicious propensities.Rucker v. Goldstein, 497 So.2d 491(Ala.1986).The Kings argue that a prior incident between the dog and another neighborhood child, Chad Peed, furnishes a scintilla of evidence of a factual dispute with respect to the defendants' knowledge.On this prior occasion, the dog had escaped from a fenced area and jumped on Chad, who was three years old at the time, leaving a red mark on his face.The Breens submitted the affidavit of Chad's mother, who claimed that the dog was merely trying to get a sandwich that the child was holding.The boy's father, however, had considered the incident serious enough to report it to the police.Chad's parents informed the Breens of the incident and of the fact that the police had been contacted.

Further, the evidence submitted by the Breens in support of their summary judgment motion presents credibility issues requiring a jury determination.The Breens did not produce all their veterinarian records or mention a second veterinarian in their answers to interrogatories.The second veterinarian was the one who had discovered that the chain collar was embedded in the dog's neck.The affidavit of Vickie Marsh, a neighbor of the Breens, is also suspect.She testified that she was very familiar with the dog and that her four young children had played very aggressively with it, without the dog's ever reacting in a dangerous manner.However, she also testified that she talked to Mrs. King immediately after the incident and that Mrs. King stated that the dog was a nice dog, that Kevin would be fine, and that the incident was just an accident.This testimony conflicts with that of John and Dianne Freeman, who drove the Kings to the hospital.They testified that Mrs. King was emotionally upset and that she almost fainted.Due to the credibility issues and the factual dispute concerning the Peed incident, summary judgment was therefore incorrectly entered with respect to count 1.

With respect to count 2, the plaintiffs argue that the defendants' negligent mistreatment of the dog caused the dog pain and caused it to be abnormally sensitive.The plaintiffs claim that the dog's neck was painful and sensitive due to the defendants' neglect and that this had caused the dog to bite Kevin when he hugged the dog's neck.

The plaintiffs argue that there is a cause of action for injuries resulting from negligent care or mistreatment of animals, separate from and independent of the cause of action for injuries caused by negligently keeping an animal with known vicious propensities.They base this claim on Durden v. Barnett & Harris, 7 Ala. 169(1844), Rucker v. Goldstein, 497 So.2d 491(Ala.1986), Orr v. Turney, 535 So.2d 150(Ala.1988), and on § 518, Restatement (Second) of Torts (1977).They claim that this tort of negligent care or mistreatment would not require a showing of the scienter required by the tort of negligently keeping an animal with known vicious propensities or even require that the animal have dangerous propensities.

This Court in Rucker cited Durden for the applicable common law rule.The plaintiff in Durden had alleged that "the animals causing [the] injury, were accustomed to bite mankind; that this propensity was known to the defendants; and that, notwithstanding, they so negligently kept them that the injury resulted."Durden, 7 Ala. at 170.This Court held:

" 'It is said the owner of domestic animals, not necessarily inclined to commit mischief, such as dogs, horses, etc., is not liable for an injury committed by them, unless it can be shown that he previously had notice of the animal's mischievous propensity; or, that the injury was attributable to some neglect on his part.[Smith v. Pelah, 3 Strange 1265;Beck v. Dyson, 4 Camp. 198.]From this it would seem to follow that it was necessary to allege and prove a scienter.' "

497 So.2d at 493(quotingDurden v. Barnett & Harris, 7 Ala. 169, 170(1844)).

The plaintiffs claim that the language "or, that the injury was attributable to some neglect on his part" provides a separate cause of action that does not require proof of the owner's knowledge of the dog's dangerous propensities or that the animal have such propensities.This language, however, was clarified in Scott v. Dunn, 419 So.2d 1340, 1343(Ala.1982), in which this Court noted that the above phrase concerned "neglect in allowing animals with known dangerous propensities to run at large."Moreover, the English cases referred to in Durden provide that the owner must have knowledge that the dog was accustomed to bite.Smith v. Pelah and Beck v. Dyson, both cited supra in Durden.Citing these cases and Durden, this Court has held:

"At common law, where an injury to another arises from carelessness in keeping domestic animals, which are not necessarily inclined to do mischief, ... no recovery can be had against the owner, for an injury done by them, unless it is averred and proved that he knew their vicious propensities, and so carelessly and negligently kept them, that injury resulted to the plaintiff therefrom."

Smith v. Causey, 22 Ala. 568, 571(1853)(citingBeck v. Dyson, supra;Smith v. Pelah, supra;Durden v. Barnett & Harris, supra).

Thus, traditionally in Alabama, a person injured by a domestic animal has had to allege and prove that the animal's owner had knowledge of the animal's dangerous propensities that caused the harm.The language in Durden relied on by the plaintiffs does not provide a cause of action for injuries inflicted by animals negligently cared for by their owners if the owners do not have knowledge of any dangerous propensity of the animal.

The question remaining under count 2 is whether the plaintiffs have stated a cause of action under Orr v. Turney, supra, or § 518, Restatement (Second) of Torts.Section 518 reads as follows:

"Except for animal trespass, 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...