Shafer v. Beyers, 7530-6-I
| Decision Date | 16 June 1980 |
| Docket Number | No. 7530-6-I,7530-6-I |
| Parties | Bertha SHAFER, Appellant, v. Peter BEYERS and Marlene Beyers; Michael Palmer; Richard Viau, Defendants, Hugh Ackmann and Sigrid Ackmann, his wife, Respondents. |
| Court | Washington Court of Appeals |
George R. Stege, III, Thomas W. Bingham, Benson, Chadwick, Stege & Wines, Seattle, for appellant.
Robert Ward Freedman, Michael R. Alfieri, Seattle, for respondents.
FACTS OF CASE
The plaintiff, Bertha Shafer, appeals from a summary judgment dismissing her personal injury action against the owners of premises on which the dog that injured her was kept.
The following material facts established by the affidavits and depositions in the record are not controverted.
The plaintiff was walking on the public sidewalk past a duplex in Seattle when a male Doberman pinscher named Nojo, which was chained in the front yard by a chain long enough for it to reach the sidewalk, knocked the plaintiff down and bit her causing the injuries and damages which are the subjects of this action.
The duplex was owned by Mr. and Mrs. Ackmann who do not live in Seattle. The lower portion of the duplex was rented at the time to Michael Palmer under a written rental agreement. The rental agreement provided in part: the tenancy was a month-to-month tenancy beginning the first of each month; rent was payable in advance; the tenant was not to sublet the apartment without the written consent of the owners; and the tenant would not keep any dog or other animal or pet without the owners' permission.
Sometime after the duplex unit was initially rented to Michael Palmer and his brother, the brother moved out and Mr. and Mrs. Peter Beyers moved in under a temporary arrangement with Michael Palmer. Mr. and Mrs. Beyers brought their two dogs with them, a female Doberman There are a number of other issues which are controverted. These include: when it was that the owners learned about the subletting to Mr. and Mrs. Beyers; whether Nojo was owned by the Beyers or merely being kept by them for Mr. Viau; whether the owners had ordered Mr. Palmer or the Beyers to vacate and/or get rid of the dogs prior to the event in question and, if so, when and in what terms did they so express themselves; and when it was that the landlords learned about the other two dogs, Tausha and the poodle, being on the premises and what they did about it. We do not, however, consider these other facts to be material to the issues on which our disposition of this case turns.
pinscher named Tausha and a toy poodle. These two dogs were not involved in the occurrence in any way. Between 1 and 3 weeks before the injury to the plaintiff occurred, the Beyers also acquired a male Doberman pinscher named Nojo from Richard Viau. It is Nojo that caused the plaintiff's injuries.
When the plaintiff filed her personal injury action, she named as parties defendant and served all of the foregoing persons; namely, Mr. and Mrs. Ackmann, Michael Palmer, Mr. and Mrs. Beyers and Richard Viau. All parties were represented by counsel at the taking of the depositions in this case on which the parties hereto rely.
The motion of Mr. and Mrs. Ackmann (the property owners) for a summary judgment of dismissal was granted by the trial court and the plaintiff appeals therefrom. None of the other named defendants are parties to this appeal.
One ultimate issue is presented.
Are the owners of rental property (who do not live on the rented premises) liable for injuries sustained by a pedestrian while passing by the premises on a public sidewalk, which injuries were caused by a dog kept on the premises by a subtenant of the tenant to whom the premises were rented?
CONCLUSION. Based on our review of the law applicable to dog bite cases, and the undisputed material facts presented in this case, we conclude that the trial court did not err in granting a summary judgment dismissing the plaintiff's action against the owners of the premises where the dog in question was being kept by a subtenant at the time the injuries were sustained by the plaintiff.
The plaintiff pleads and argues an array of legal bases on which it is claimed there is a right to recover from the property owners. We will discuss the pertinent theories seriatim.
RCW 16.08.040 imposes strict liability for dog bites sustained by persons in public and certain other places regardless of whether the dog is known to be vicious before the biting. That statute by its terms, however, applies only to "(t)he owner" of the dog. RCW 16.08.040. Since the property owners are not the owners of the dog in question, liability cannot be imposed on them on that basis.
A criminal statute, RCW 9.08.010, prohibits allowing any animal known to have vicious or dangerous tendencies to escape or run at large. Again, this statute by its terms applies only to a "person having the care or custody" of such animal. RCW 9.08.010. The property owners had neither care nor custody of the dog.
Turning to the City of Seattle leash law, Seattle City Code ch. 12.24, its provisions are also inapplicable to this case since that ordinance relates only to the "owner or custodian" of a dog, or to the "owner or custodian or other competent and authorized person; . . . ." Seattle City Code § 12.24.010.
Common-law liability for injuries caused by dangerous dogs is based upon a form of strict liability. One who keeps a dog, who knows or reasonably should know that the dog has vicious or dangerous propensities likely to cause the injury complained of, has a duty to kill the animal or confine it. Any injury caused by such an animal subjects its owner to prima facie liability without proof of negligence. Johnston v. Ohls, 76 Wash.2d 398, 400, 457 P.2d 194 (1969).
At common law, a person who is not the owner, keeper or harborer of a dog is not liable for an injury caused by the dog; in this context, " ' "(h) arboring" means protecting, and one who treats a dog as living at his house and undertakes to control his actions is the owner or harborer thereof, as affecting liability for injuries caused by it.' " Markwood v. McBroom, 110 Wash. 208, 211, 188 P. 521, 522 (1920). Here the property owners are not the owners, keepers or harborers of the dog that caused the injury; therefore, they cannot be held liable on that basis either.
So far as the rented premises are concerned, the owners' liability to third persons in connection therewith is based on the law applicable to "landlords" rather than that applicable to "occupiers." Sunde v. Tollett, 2 Wash.App. 640, 642, 469 P.2d 212, 41 A.L.R.3d 319 (1970). The landlords' ownership of the property does not in and of itself make them liable for persons thereon who own or possess, harbor or keep a dangerous dog. Harris v. Turner, 1 Wash.App. 1023, 1028, 466 P.2d 202 (1970).
The plaintiff vigorously contends that liability should be imposed on the landlords in this case based on what the plaintiff...
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