McCullough v. Bozarth

• Decision Date: 30 June 1989
• Docket Number: No. 87-954,87-954
• Citation: 442 N.W.2d 201,232 Neb. 714
• Parties: , 87 A.L.R.4th 991 Joyce McCULLOUGH, as Mother and Next Friend of Jamie McCullough, a Minor Child, Appellant, v. Richard BOZARTH and Sheron Bozarth, Appellees.
• Court: Nebraska Supreme Court

Page 201

442 N.W.2d 201

232 Neb. 714, 87 A.L.R.4th 991

Joyce McCULLOUGH, as Mother and Next Friend of Jamie McCullough, a Minor Child, Appellant, v. Richard BOZARTH and Sheron Bozarth, Appellees.

No. 87-954.

Supreme Court of Nebraska.

June 30, 1989.

Syllabus by the Court

1. Summary Judgment. Summary judgment is an extreme remedy and should be awarded only when an issue is clear beyond all doubt.

2. Summary Judgment. A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the moving party is entitled to judgment as a matter of law.

3. Summary Judgment: Appeal and Error. In reviewing an order granting a summary judgment, this court must take the view of the evidence most favorable to the party against whom it operates and give that party the benefit of all favorable inferences which may be drawn from the evidence.

4. Animals: Strict Liability: Proof. By statute in Nebraska, a dog's owner is strictly liable for injuries inflicted by the dog, without any proof that the owner knew of the dog's dangerous propensities.

5. Animals: Landlord and Tenant: Liability: Negligence. As a general rule, a landlord is liable for injuries caused by the attack of a tenant's dog only where the landlord had actual knowledge of the dangerous propensities of the dog and where the landlord, having that knowledge, nevertheless leased the premises to the dog's owner or, by the terms of the lease, had the power to control the harboring of a dog by the tenant and neglected to exercise that power.

6. Summary Judgment. Where the moving party on a motion for summary judgment shows that if the evidence were uncontroverted at trial such party would be entitled to judgment as a matter of law, that showing shifts the burden of producing evidence as to a factual issue to the party opposing the motion. Failure of the party against whom the motion has been made to meet that burden will result in summary judgment.

Thomas C. Lauritsen and Thomas M. Houston of Andersen, Berkshire, Lauritsen & Brower, Omaha, for appellant.

Richard C. Gordon and Susan Andersen Anderson of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellees.

HASTINGS, C.J., WHITE, SHANAHAN, and FAHRNBRUCH, JJ., and McGINN, District Judge.

HASTINGS, Chief Justice.

Joyce McCullough, mother and next friend of Jamie McCullough, a minor, brought this action against defendants-appellees, Richard and Sheron Bozarth, for injuries suffered by Jamie as the result of a dogbite which he sustained on March 20, 1985. At that time Jamie was approximately 7 years of age. Plaintiff alleged negligence and strict liability on the part of the defendants as owners and landlords of a residential property in failing to require the tenants to remove the dog, a pit bull terrier, after acquiring knowledge of the dog's vicious propensities; in failing to evict the tenants after acquiring such knowledge; and in failing to require the tenants to confine the dog in a secure place.

The district court sustained the defendants' motion for summary judgment and dismissed plaintiff's action. Plaintiff has appealed, alleging as error that there were disputed issues of fact as to (1) whether the dog was purchased as a pet or as a guard dog, (2) whether the tenants' house was used for the benefit of the defendants' adjacent business, (3) whether defendants had actual knowledge that a dangerous condition existed on the premises, (4) whether defendants had knowledge of the vicious propensities of a pit bull dog, (5) whether defendants had control over the pit bull dog and/or the premises, and (6) whether plaintiff had a cause of action against a landlord who failed to remedy a dangerous condition on the premises or who allowed it to continue. We affirm.

Summary judgment is an extreme remedy and should be awarded only when an issue is clear beyond all doubt. Schroer v. Synowiecki, 231 Neb. 168, 435 N.W.2d 875 (1989).

A summary judgment is properly granted when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue concerning any material fact or the ultimate inferences deducible from such fact or facts and that the moving party is entitled to judgment as a matter of law. Hall v. Phillips, 231 Neb. 269, 436 N.W.2d 139 (1989).

In reviewing an order granting a summary judgment, this court must take the view of the evidence most favorable to the party against whom it operates and give that party the benefit of all favorable inferences which may be drawn from the evidence. Pioneer Animal Clinic v. Garry, 231 Neb. 349, 436 N.W.2d 184 (1989).

The defendants are husband and wife and are the owners of a house at 6612 North 60th Street in Omaha. Their daughter, Lynn Snoza, and her husband, Don, were living in the house and renting it from the defendants. Apparently, there was a written lease for 12 months at a time, but a copy of the lease was not in evidence. The rental was $450 per month.

The defendant Richard Bozarth is a self-employed mechanic, and he worked in a garage beneath another house on the premises, approximately 50 feet from the house leased by the Snozas. Occasionally, although not on a regular basis, the defendant had his business calls forwarded to the Snoza residence. Also occasionally, the defendant's business customers would drop off or pick up their keys at the Snozas', and on rare occasions, customers would pay their bills at the Snozas'. However, neither of the Snozas worked for the defendant's business.

The Snozas obtained a pit bull terrier in early spring 1984. The defendant would see the dog on a near-daily basis when he would visit his daughter in the morning upon coming to work. It was his understanding that Don Snoza bought the dog as a pet for his children.

Deposition testimony disclosed that the Snozas' main concern upon purchasing the dog was whether it would make a suitable house pet, and there was no intention to use it as a watchdog. However, Harry McCullough, who is Jamie's father and was a "best friend" of Don Snoza's, in his deposition stated Snoza had told him that because of the neighborhood, he wanted a dog that could protect his family. There is no indication that the defendants knew of this statement.

On March 20, 1985, Harry McCullough and Jamie were visiting at the Snozas' after Jamie and two of the Snoza children had been flying kites together. Jamie, Lynn Snoza, and the Snoza children went inside the Snoza house to get a drink of water. The dog was penned up in the "mud room," with a retractable child's gate and two folding chairs to keep it in. The purpose of this arrangement, according to the Snozas, was to keep the dog from coming out in the living room and sleeping on the couch. The dog got loose from the mud room, ran toward Jamie, and bit him on the hand and face.

Richard Bozarth testified by deposition that he had never seen the dog snarl or growl and that before the biting incident, "there was not hint of any kind of a mean or vicious action from that dog." He also testified that on many occasions the dog would come down to his garage. He was not aware of any reputation of pit bull dogs. The only evidence of any nature as to the dangerous propensities of the pit bull terrier breed was an excerpt from a newspaper article published on March 17, 1986, almost 1 year after this incident.

Lynn Snoza stated that although the dog occasionally barked, she had never seen it growl or bother anybody. She also stated that before the biting incident, she was not aware of any vicious propensities of the pit bull breed, nor had she ever discussed pit bulls or her dog in particular with her father before the biting incident. She admitted that she had placed a sign on the back door, which she herself had made, stating, "Beware of Dog; Use Front Door." She also agreed that her father had seen the sign and asked about it, and she told him she was tired of people coming to the back door and opening the door, allowing the dog to get out, so that she would have to go retrieve it.

In Don Snoza's deposition he stated that when he bought the dog, he asked the seller if the dog would be vicious, and he was assured that if he "treat[ed] it with respect," it would be a docile house dog. He did not discuss the pit bull breed per se with the seller, nor did he ever discuss pit bulls with Richard Bozarth. He said that until the biting incident, the dog was a "lap dog," a "[v]ery calm animal" that never growled or barked in a menacing manner.

However, Harry McCullough stated by deposition that Don Snoza had related an incident to him in which the dog had gotten loose and scared a little girl in the neighborhood. However, the record contains no details of that incident, what the dog did, or what the little girl did. McCullough did agree that he had had contact with the dog before, when, as he said, "the dog figured you were there to pet it, because it would just come up and just light on your leg. It would sit on your foot. You know, this dog wanted to be petted, and until you did that, this dog wasn't going to give up." In answer to a question as to whether he would call the dog a friendly dog, he answered, "If you know the dog and it knew you, yeah."

The record is not entirely clear as to whether and under what circumstances the dog was kept on a chain. Richard Bozarth himself stated that the dog was allowed to run loose, although when it was first being trained to stay in its own yard, it was tethered by a 1/4-inch chain. Don Snoza conceded that when it was outside it was usually chained to a post with a 1/4-inch chain. Harry McCullough testified in his deposition that when the dog was outside on its chain, it would bark and lunge at anyone who knocked on the Snozas' back door.

There was...