Searcy v. Axley
| Decision Date | 19 October 2017 |
| Docket Number | No. W2017-00374-COA-R3-CV,W2017-00374-COA-R3-CV |
| Parties | COREY M. SEARCY, ET AL. v. WALTER AXLEY, ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Benton County
Parents filed suit against dog owners following their son's injury from a dog bite that occurred at the owners' home. The trial court granted the dog owners' motion for summary judgment, concluding that parents failed to show that owners knew or should have known of their dog's dangerous propensities as required by Tennessee Code Annotated section 44-8-413. Finding no error, we affirm the trial court's judgment.
Christopher V. Boiano and Stephanie A. Boiano, Hendersonville, Tennessee, for the appellants, Corey M. Searcy and Demetria Searcy.
Charles M. Purcell and Andrew V. Sellers, Jackson, Tennessee, for the appellees, Walter Axley, Irene Axley, and Melissa Axley.
OPINIONThis case arises from personal injuries incurred by a minor child from a dog bite. On July 24, 2013, Demetria Searcy and her minor son traveled to Walter and Irene Axley's (together, "the Axleys") home to visit with the Axleys' daughter, Melissa Axley.1 Demetria Searcy and Melissa Axley attended cosmetology school together andwere friends. After remaining outside to pet some goats and chickens upon their arrival, Mrs. Searcy, her son, and Melissa Axley ventured to the Axley home. The group approached the residence, and the Axleys' dog, an Australian Shepherd named Ruby, was lying on the front porch. As the group crossed the front porch, the child reached down and petted Ruby on the head and back without incident.
Later, inside the home, Mrs. Searcy sat in a recliner and her son sat in her lap. The Axleys were also sitting in the living room. While in the living room, the Axleys' dog approached Mrs. Searcy and her son, jumped up, and put her paws on their lap. The two petted the dog. At this point, Mr. Axley told the dog to get down a few times; however, after the dog did not listen, Mr. Axley struck the dog on its rear.2 The dog then got down from Mrs. Searcy and her son's lap and went into an adjoining room.
The dog returned to the living room a little while later.3 After returning to the living room, the dog immediately went back to Mrs. Searcy and her son and, again, put her paws on their laps. As they did before, the two petted the dog. This time, however, the dog suddenly bit the child in the face causing severe injuries. Due to the injuries, Mrs. Searcy and son left the Axleys' home immediately seeking medical attention.
On July 23, 2014, Corey M. Searcy and Demetria Searcy, as parents and next friend of their minor child (together "the Searcys"), filed a complaint against Mr. Axley, Mrs. Axley, and Melissa Axley.4 The complaint alleged two theories of liability: (1) negligence per se pursuant to Tennessee Code Annotated section 44-8-413 (the "Dog Bite Statute") and (2) common law negligence due to Mr. Axley striking and provoking the dog to bite the minor child.
On September 15, 2014, the Axleys filed an answer denying liability in both causes of action. Additionally, the Axleys filed a motion for summary judgment on February 17, 2016, arguing that the Searcys could not show that the Axleys knew or should have known of their dog's dangerous propensities. The Searcys submitted a response in opposition to the motion for summary judgment on May 4, 2016.
The trial court held a hearing on the Axleys' motion for summary judgment on May 12, 2016, and at its conclusion, the trial judge orally granted the Axleys' motion on the ground that the Axleys negated an essential element of the Searcys' claim. On June 27, 2016, an order was entered dismissing all counts in the complaint. The Searcys filed a motion to alter or amend judgment on July 21, 2016, arguing that the common law claim should have survived summary judgment. The court held a hearing on this issue on December 5, 2016. The trial judge entered an order denying the motion on January 10, 2017. The Searcys timely filed an appeal on January 30, 2017.5
The Searcys raise two issues on appeal. The issues, taken from the Searcys' brief, are whether the trial court erred in granting summary judgment regarding the Axleys' (1) "strict liability claim raised pursuant to Tennessee Code Annotated section 44-8-413 when it found no issue of material fact existed regarding whether the Axleys knew or should have known of the dog's dangerous propensities;" and (2) "common law negligence claim by incorrectly applying its reasoning for dismissal of the statutory cause of action as also requiring dismissal of the negligence claim."
Here, the trial court granted summary judgment in favor of the Axleys. The Tennessee Rules of Civil Procedure provide that summary judgment is appropriate when the record establishes 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." Tenn. R. Civ. P. 56.04. According to our supreme court:
when the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production either (1) by affirmatively negating an essential element of the nonmoving party's claim or (2) by demonstrating that the nonmoving party's evidence at the summary judgment stage is insufficient to establish the nonmoving party's claim or defense.
Rye v. Women's Care Center of Memphis, MPLLC, 477 S.W.3d 253, 264 (Tenn. 2015) (italics omitted). Additionally, the party seeking summary judgment must do more than "make a conclusory assertion that summary judgment is appropriate on this basis." Id. Instead, the movant must support its motion with "'a separate concise statement of material facts as to which the moving party contends there is no genuine issue for trial.'" Id. (quoting Tenn. R. Civ. P 56.03). After a motion for summary judgment is made, the non-moving party must file a response to each fact presented by the moving party"'showing that there is a genuine issue for trial.'" Rye, 477 S.W.3d at 264 (quoting Tenn. R. Civ. P. 56.03). In other words, the non-moving party must "demonstrate the existence of specific facts in the record which could lead a rational trier of fact to find in favor of the nonmoving party." Rye, 477 S.W.3d at 264. Therefore, "'if there is a dispute as to any material fact or any doubt as to the conclusion to be drawn from that fact'" this Court must deny the motion for summary judgment. Meyers v. First Tennessee Bank, 503 S.W.3d 365, 373 (Tenn. Ct. App. 2016) (quoting Garner v. Coffee Cty. Bank, No. M2014-01956-COA-R3-CV, 2015 WL 6445601 at *4 (Tenn. Ct. App. Oct. 23, 2015) (quoting Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn.1993)).
To determine whether the trial court correctly granted summary judgment, this Court must "'view the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in the nonmoving party's favor.'" Meyers, 503 S.W.3d at 384-85 (quoting Thomas v. Carpenter, No. M2005-00993-COA-R9-CV, 2005 WL 1536218, at *3)(citing Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997)). Lastly, [w]e review the trial court's ruling on a motion for summary judgment de novo, without a presumption of correctness. Rye, 477 S.W.3d at 250 (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)).
The Tennessee Supreme Court generally described liability for dog bite cases under the common law stating:
[T]he general rule . . . [regarding] liability of owners or keepers of domestic animals for injuries to third persons is that the owner or keeper of domestic animals is not liable for such injuries, unless the animal was accustomed to injure persons, or had an inclination to do so, and the vicious disposition of the animal was known to the owner or keeper
Missio v. Williams, 167 S.W. 473, 474 (Tenn. 1914). In other words "where an animal is accustomed or disposed to injure persons, and the owner or keeper has notice or knowledge of that fact, he is liable for any injury which such animal may do to another person." Id. Additionally, "[k]nowledge of the owner or keeper that the dog is vicious is sufficient to sustain liability, without showing that it had ever bitten any one." Id. Therefore, dog owners "are liable for injuries done by [the dog], even without notice of their vicious propensities, if the animals are naturally mischievous; but, if they are of a tame and domestic nature, there must be notice of the vicious habits." Id. Although Missio was decided over a century ago, the common law in Tennessee has undergone little change. See Moore v. Gaut
, No. E2015-00340-COA-R3-CV, 2015 WL 9584389, at *3 (Tenn. Ct. App. Dec. 30, 2015) (); Thompson v. Thompson, 749 S.W.2d 468, 470 (Tenn. Ct. App. 1988) (); Fletcher v. Richardson, 603 S.W.2d 734, 734 (Tenn. 1980) (); Alex v. Armstrong, 385 S.W.2d 110, 114 (Tenn. 1964) (); Henry v. Roach, 293 S.W.2d 480, 481-82 (Tenn. Ct. App. 1956) (quoting Missio, 167 S.W. at 474). Although most dog bite claims under the common law have required that the claimant show the owner's knowledge of their dog's...
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