Newport v. Moran

• Jurisdiction: Oregon
• Parties: Hazel NEWPORT, Respondent, Lawrence Newport, Plaintiff, v. Joseph R. MORAN, Defendant, Patricia Moran, Appellant. ; CA A34323.
• Citation: 80 Or.App. 71,721 P.2d 465
• Docket Number: No. 16-83-05041,16-83-05041
• Court: Oregon Court of Appeals
• Decision Date: 18 June 1986

Page 465

721 P.2d 465

80 Or.App. 71

Hazel NEWPORT, Respondent Lawrence Newport, Plaintiff, v. Joseph R. MORAN, Defendant Patricia Moran, Appellant.

No. 16-83-05041; CA A34323.

Court of Appeals of Oregon.

Argued and Submitted Nov. 26, 1985.

Decided June 18, 1986.

Dennis W. Percell, Eugene, for appellant. With him on briefs was Luvaas, Cobb, Richards & Fraser, Eugene.

Brian D. Green, Lincoln City, for respondent. With him on brief was Lovejoy & Green, Lincoln City.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

WARDEN, Judge.

This is an action to recover damages for personal injuries sustained when defendants' dog ran into plaintiff and knocked her down. The jury returned a verdict against defendant Patricia Moran (defendant). ¹ She argues that plaintiff failed to introduce sufficient evidence to present a jury question on the allegation of common law negligence. She also argues that a Lane County ordinance prohibiting owners from allowing dogs to run at large is not applicable and will not support a finding of liability on a theory of negligence per se.

Plaintiff and defendant are next door neighbors. In mid-1982 a stray dog wandering the neighborhood was taken in by plaintiff and her husband. They tried to find a home for the dog, because they could not keep it confined. They offered it to defendants, who first declined, but later accepted it. The dog, named Rowdy, was apparently very friendly and energetic and often engaged in rough play with plaintiff's dog. There is no evidence in the record that Rowdy was vicious. He would run toward people in a friendly, playful manner, but there is no evidence that he had ever run into or injured any person before plaintiff was injured.

Plaintiff testified that she was nervous around the energetic Rowdy and began carrying a stick to ward him off when she was outside. She did not tell defendant of her fear or ask that Rowdy be restrained. However, she did, on one occasion, tell defendant that Rowdy was bothering her dog and would have to "quiet down."

On January 12, 1983, plaintiff left her house to get her mail from the box across the street. Earlier, Rowdy had pushed his way past defendant to get out of the house and was roaming unattended in the yard. He followed plaintiff across the street and back. Plaintiff tried to "shoo" him home, but he responded by sitting down at the street end of plaintiff's driveway. Plaintiff walked down the driveway, looking around once to see that Rowdy was still sitting there. As she was walking and glancing at her mail, she heard a noise and, as she turned around, was struck on her right knee by Rowdy's shoulder, causing her to fall and suffer a badly fractured leg. She initiated this action, relying on two theories of liability--common law negligence for failing to restrain Rowdy ² and negligence per se, relying on a claimed violation of Lane County Code § 5.255(1), which provides that no dog owner shall permit a dog to be at large.

In Westberry v. Blackwell, 282 Or. 129, 133, 577 P.2d 75 (1978), the court recognized that failure to confine or control a dog can give rise to a cause of action in negligence. The court relied on Restatement (Second) Torts, § 518, which states:

"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 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."

See Kathren v. Olenik, 46 Or.App. 713, 719, 613 P.2d 69 (1980). As this court noted in Kathren:

"[N]egligent failure to control or confine a dog must be analyzed in terms of the knowledge on the part of the owner that the dog will cause the injury actually incurred by plaintiff if it is not controlled or confined." 46 Or.App. at 719, 613 P.2d 69.

Therefore, for plaintiff to prevail on her common law negligence claim, she must show that it was foreseeable that, if defendant failed to restrain Rowdy, he would charge and knock someone down, causing an injury.

Reviewing the evidence in the light most favorable to plaintiff, we find no evidence that would put defendant on notice that Rowdy had a potentially dangerous propensity to run into people. Dogs, as a class, are not considered dangerous to humans, and defendant is not charged with any general knowledge that dogs will bite--or, in this case, run into--a person. Kathren v. Olenik, supra, 46 Or.App. at 720, 613 P.2d 69. In Rowdy's particular case, no evidence was presented that the dog would, or had, ever purposely run into a person. At most, the evidence showed that Rowdy was friendly and playful and that he engaged in rough play with other dogs while near human beings. ³

Plaintiff testified that she was nervous around Rowdy but admitted that she had never mentioned that to defendant. It was defendant's understanding that Rowdy was welcome in plaintiff's yard. Neither defendant nor plaintiff expected that he would behave as he did. Without some reason to foresee that he was likely to run into people, there was no common law duty to confine the dog, and the issue should not have been presented to the jury.

Plaintiff alleged that defendant was negligent per se for allowing Rowdy to run at large, in violation of Lane County Code § 5.255, which provides, in relevant part:

"(1) No dog owner shall permit a dog to be at large.

"(2) A dog owner, whose dog runs at large, commits a Class B infraction."

The Lane County ordinance defines a dog being at large as,

"(5) A dog off the premises of the owner and not under the owner's immediate control."

Violation of an ordinance may be negligence per se if the violation is the cause of the injury, the plaintiff is within the class of persons intended to be protected by the legislation and the injury is within the area of risk intended to be avoided by the ordinance. Smith v. Portland Traction Co., 226 Or. 221, 359 P.2d 899 (1961).

The Lane County ordinance is substantively equivalent to the Washington County ordinance considered in Kathren v. Olenik, supra, which involved a dog bite. We held that the Washington County ordinance operated against a dog's owners only if they knew or should have known that the dog had a propensity to bite, saying:

"This evinces concurrence with the general knowledge that dogs as a class of animal do not normally attack human beings. Because it is not reasonably foreseeable that dogs will attack persons, injury from dog bites is not within the area of risk the running at large provision was designed to avoid." 46 Or App at 724, 613 P.2d 69.

The trial judge ruled that, although Kathren held that dog bites were not within the area of risk that the dog-at-large ordinance was designed to avoid, that decision did not explain what risks were contemplated by the ordinance. Therefore, the trial judge submitted the issue to the jury on the basis that dogs knocking people down could be...