Roberts v. Klinkosh, 98-179.
| Decision Date | 27 July 1999 |
| Docket Number | No. 98-179.,98-179. |
| Citation | 986 P.2d 153 |
| Parties | Patrick C. ROBERTS, Appellant (Plaintiff), v. J. Keith KLINKOSH, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Representing Appellant: Hardy H. Tate, Sheridan, Wyoming; Fredric A. Bremseth and Thomas W. Geng of Doshan & Bremseth, Wayzata, Minnesota.
Representing Appellee: Jay A. Gilbertz of Yonkee & Toner, Sheridan, Wyoming.
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR,1 JJ.
A social guest of landlord's tenant was bitten and seriously injured by another tenant's pit bull dog, and the guest sued landlord for damages. The landlord, Appellee J. Keith Klinkosh (Klinkosh), was granted summary judgment when the district court determined that he owed no duty to the guest, Appellant Patrick C. Roberts (Roberts). Roberts appealed, presenting this Court with the primary issue of whether any facts exist which would impose a duty on a landlord who allowed a tenant to keep a pit bull dog that bit and seriously injured another tenant's guest.
In general, Wyoming does not impose a duty of reasonable care upon landlords, although it has recognized several exceptions to the general rule of landlord immunity. In this particular case, the landlord did not have any knowledge of this dog's dangerous propensities, the attack did not occur in an area under the landlord's control, and we hold that knowledge of a breed's dangerous propensities will not impose a duty of reasonable care upon a landlord unless the landlord had the ability to eliminate the danger by having the animal removed or confined. The grant of summary judgment is affirmed.
Roberts presents these issues for review:
Klinkosh rephrases the issues as:
Klinkosh owned an apartment building containing four units. Although he occupied one, Klinkosh worked in Montana and was away from the apartment a great deal. He rented the other three units under verbal agreements that did not prohibit pets of any kind. Each unit of the building had a separate entrance that opened to a step serving only that apartment. A sidewalk ran the entire length in between the front of the building and a graveled parking lot. One of Klinkosh's tenants, Rocky Maronik, lived in an end unit. He acquired a pit bull dog that was kept chained on the side of the building with enough length to allow it on the grounds of the apartment building. Although the exact length of the chain was disputed, the dog was able to sit on Maronick's front step and go on to the sidewalk in front of Maronick's apartment. The chain was attached to at least one tire and rim, and sometimes the dog would drag the tire to the parking lot area. The dog attacked and bit a child sometime before the attack on Roberts; however, there is no evidence that Klinkosh knew of this attack. Klinkosh testified that he had made a point of observing the dog when he was home and never saw it act aggressively, growl, or even bark. He testified that, after the attack, he learned that the dog had lunged at passersby, but before the attack he had one complaint from another tenant that the dog had growled at her and frightened her.
Roberts was a guest of another tenant. Over a seven week period, he also observed that the dog did not bark or act aggressively towards him, and he petted the dog on approximately twenty-five occasions. On September 28, 1995, he noticed that the dog was entangled in the chain and approached it to assist it. The dog attacked him and seriously injured him. He brought suit against Maronick and Klinkosh under negligence and strict liability theories.
Klinkosh moved for summary judgment alleging that the attack occurred on the step of Maronick's apartment and that the separate entrances of the apartments were not under his control as landlord. He contended that he had no knowledge that the dog had attacked anyone else and that he had personally observed the dog and did not see any threatening behavior. Based on these facts, he argued that he did not owe Roberts a duty of care because, in Wyoming, landlords do not owe a duty to a tenant's guest when the harm does not occur in an area under the landlord's control. He also contended that any arguable duty of care had not been breached or was not the proximate cause of the injuries. Maronick also moved for summary judgment.
Roberts opposed the motions. The district court found insufficient evidence existed to show that Klinkosh knew of the pit bull's propensity for violent behavior and concluded that a landlord does not owe duty of care when he does not know of violent propensities. The court granted Klinkosh's motion for summary judgment, denied Maronick's, and entered a Rule 54(b) certification allowing Roberts to appeal the grant of summary judgment to Klinkosh.
Summary judgment will be sustained only if there is no genuine issue of material fact and the prevailing party is entitled to judgment as a matter of law. Lyden v. Winer, 878 P.2d 516, 518 (Wyo.1994). A material fact is one that establishes or refutes an essential element of a cause of action or a defense asserted by a party. Id. If the moving party presents supporting summary judgment materials demonstrating no genuine issue of material fact exists, the burden is shifted to the non-moving party to present appropriate supporting materials posing a genuine issue of a material fact for trial. Downen v. Sinclair Oil Corp., 887 P.2d 515, 519 (Wyo.1994). On appeal, this court examines the entire record in the light most favorable to the party who opposed the motion, affording to that party all favorable inferences which may be drawn from the materials either supporting or opposing the motion. Lyden, 878 P.2d at 518. If a dispute exists over a material fact which leads to conflicting interpretations or if reasonable minds might differ, then summary judgment is improper. Id. Summary judgment serves the purpose of eliminating formal trials where only questions of law are involved. Blagrove v. JB Mechanical, Inc., 934 P.2d 1273, 1275 (Wyo. 1997). We review a grant of summary judgment deciding a question of law de novo and afford no deference to the district court's ruling. Id.
In order to state a claim in negligence, the plaintiff must prove the defendant was under a duty of care to protect the plaintiff from injury; the defendant breached that duty; the plaintiff suffered actual injury or loss; and the defendant's breach of the duty proximately caused the injury or loss. Downen, 887 P.2d at 520. The dispositive issue in this case is whether any facts exist which would impose a duty of care upon Klinkosh to protect Roberts from a foreseeable risk of injury.
In this appeal, Roberts contends that the dog was kept near a common area; argues that there was a genuine issue of material fact that Klinkosh knew the dog was dangerous; and asserts that Klinkosh's admission that he knew this breed of dog was dangerous is sufficient to impose a duty. Klinkosh contends that a duty should be owed when a two prong test is met: 1) the injury occurred in a common area under the control of the landlord; and 2) the landlord must have had actual knowledge of the particular dog's vicious propensities. We decide the existence of a duty as a matter of law; if a duty has not been established, there is no actionable negligence. Davis v. Black Hills Trucking, Inc., 929 P.2d 532, 534 (Wyo.1996); Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303, 1307 (Wyo.1985).
Wyoming follows the common law rules in landlord...
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