Scott v. Donkel

• Decision Date: 01 December 1995
• Citation: 671 So.2d 741
• Parties: Jonathan C. SCOTT, et al. v. William J. DONKEL III. 2940694.
• Court: Alabama Court of Civil Appeals

Page 741

671 So.2d 741

Jonathan C. SCOTT, et al. v. William J. DONKEL III.

2940694.

Court of Civil Appeals of Alabama.

Dec. 1, 1995.

Kent D. McPhail, Mobile, for Appellants.

Mark A. Newell and Susan Gunnells Smith of Janecky, Newell, Potts, Hare & Wells, P.C., Mobile, for Appellee.

THIGPEN, Judge.

This case involves the entry of a summary judgment in favor of a landlord.

In August 1994, Jonathan C. Scott, individually and as the father and next friend of Danielle Scott, a minor (hereinafter collectively referred to as Scott), sued William J. Donkel III and others (Donkel), alleging negligence. Scott sought damages for injuries to Danielle Scott resulting from an attack by a dog that was kept on property owned by Donkel and leased to William Beasley. Scott alleged, among other things, that Danielle was attacked by a dog at or near Donkel's property, and that, as a result of the attack, she had suffered severe personal injuries and medical expenses, and that she would continue to incur medical expenses in the future. Scott alleged that Donkel, as the landlord, had the right to inspect the premises and terminate Beasley's lease agreement, and that Donkel had known, or should have known, that the dog had vicious propensities. Donkel denied the allegations and asserted numerous affirmative defenses.

In December 1994, Donkel filed a motion for a summary judgment with supporting documentation, contending that there was no genuine issue of material fact and that he was entitled to a judgment as a matter of law. Donkel contended, among other things, that he had had no prior knowledge of the dog's propensity to cause harm. Thereafter, Scott filed a brief, with supporting documentation, to oppose Donkel's motion. In January 1995, the trial court entered a summary judgment in favor of Donkel. Scott appealed to the Supreme Court, which transferred the case to this court pursuant to Ala.Code 1975, § 12-2-7.

A motion for summary judgment tests the sufficiency of the evidence and should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), A.R.Civ.P. The moving party bears the burden of negating the existence of a genuine issue of material fact. Melton v. Perry County Board of Education, 562 So.2d 1341 (Ala.Civ.App.1990).

"In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present 'substantial evidence' creating a genuine issue of material fact--'evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' "

Capital Alliance Insurance Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994) (citations omitted). Additionally, in reviewing the disposition of a summary judgment motion, this court utilizes the same standard as the trial court. ANCO TV Cable Co. v. Vista Communications Limited Partnership I, 631 So.2d 860 (Ala.1993).

The record reveals the following pertinent facts. In November 1993, Danielle was attacked by a dog while walking down the street in front of a house owned by Donkel, and rented on a month-to-month basis to Beasley, who allowed others to reside with him and to keep the dog there. The dog was ordinarily kept in a fenced enclosure; however, at the time of the attack, the dog was roaming freely on the street in front of Donkel's rental house.

Donkel testified by deposition that he had had no knowledge of any prior attacks or bites by the dog, and that he was not aware that a dog was kept on the property. He stated that he had not received any complaints about a dog, and that Beasley, the tenant, had not requested his permission to have a dog on the premises.

William Carmichael, who was staying in the house with Beasley and others during this time, was the one who kept the dog. Carmichael testified that he had never requested Donkel's permission to keep the dog at the house, and that he did not think that Donkel even knew the dog was on the property. Carmichael testified that ordinarily the dog was kept chained inside the fenced enclosure. Carmichael also testified that his mother and his sister, the dog's owner, knew that the dog had previously bitten someone.

We have found no Alabama case specifically addressing a landlord's duty of care that is owed to a nontenant for a dog attack that occurs off of the landlord's premises. In a factually similar case, however, our Supreme Court has held that a property owner, who had not assumed any responsibility for a dog that he or she did not own, was not the dog's keeper and could not be held liable under a negligence theory for an attack by the dog. Humphries v. Rice...