Slack v. Villari

• Decision Date: 01 September 1983
• Docket Number: No. 1771,1771
• Citation: 59 Md.App. 462,476 A.2d 227
• Parties: Roy A. SLACK, et ux. v. Dorothy VILLARI, et vir. ,
• Court: Court of Special Appeals of Maryland

Page 462

59 Md.App. 462

476 A.2d 227

Roy A. SLACK, et ux. v. Dorothy VILLARI, et vir.

No. 1771, Sept. Term, 1983.

Court of Special Appeals of Maryland.

June 11, 1984.

John A. Buchanan, Upper Marlboro, with whom were Una M. Perez and Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on the brief, for appellants

Patrick R. Duley, Upper Marlboro, with whom were Kevin C. Gale and Haskell & Duley, Upper Marlboro, on the brief, for appellees.

Argued before LISS, WEANT and ALPERT, JJ.

WEANT, Judge.

"When a dog runs at you, whistle for him." So advised Henry David Thoreau.

Roy and Winifred Slack, the owners of a dog named Gideon and the appellants in this case, have appealed the verdict of a Prince George's County jury which held them liable for personal injuries and a concurrent loss of consortium sustained by the appellees, Dorothy and Carl Villari. The injuries occurred when Dorothy Villari attempted to avoid an apparent confrontation with the appellants' dog. The jury returned a verdict for damages in the amount of $42,500 for Dorothy Villari's injuries and $2,500 for the accompanying privation of consortium.

The agreed statement of "Essential Facts" (sans transcript references) in this case appears as follows in this expedited appeal:

Between 8:30--9:00 p.m. on the night of June 12, 1979, Mr. and Mrs. Villari were taking their customary evening stroll along Caldran Drive in Clinton, Maryland. They were walking on a public sidewalk on Caldran Drive. As they were walking across a driveway, and while they were still on the public sidewalk, Mrs. Villari saw, out of the corner of her eye, something white. As they were walking she had a hold of her husband's arm. As she turned she saw a dog that was already in the air coming towards them. She heard a low growl and she saw teeth. At no time was the dog restrained by a leash.

In an attempt to protect herself from the dog, Mrs. Villari moved behind her husband. As she did so, her heel caught on something or in something which caused her body to twist. She lost her balance, and to keep from falling, she reached up to her husband to balance herself. As she did so, she felt a searing pain go from her back down through her leg all the way to her foot. At that time she was unable to move. She did not actually fall but had caught herself before she fell.

This incident occurred in front of the house owned by the appellants, Mr. and Mrs. Slack. Mrs. Slack was present in the carport area during the occurrence. The Villaris remained on the sidewalk prior to and during the occurrence and it occurred in the middle of the sidewalk. Mr. Edward V. Dorsey, Jr. from the Department of Public Works and Transportation testified that the sidewalk in front of the Slack's house was a dedicated right-of-way open for public use.

The dog did not touch or bite Mrs. Villari. Nor did it touch or bite Mr. Villari. The dog came down from the driveway towards the Villaris, got within a few inches of them, and was snarling and growling at them. Mr. Villari put his arm up to protect himself and the dog's mouth was right there next to his wrist where his watch was and he could feel the dog breath [sic ] on him, but the dog did not bite him. The dog started to return to the house and then it came back at them again. The entire time the dog was near them Mr. Villari was yelling, "No! No! No!" At the same time Mr. Villari was yelling at the dog, Mrs. Villari thought she heard the word "house" and then the dog turned around and went back up to the house. From that time Mrs. Villari first saw the dog until the time it went back into the house she estimated that between 30 seconds to one minute passed.

Although Mr. and Mrs. Villari had walked past the house on many occasions, they had never seen the dog before. They did not know of anyone the dog had bitten, growled or snapped at before this incident. Mr. Villari did not fall or injure himself.

Mrs. Villari testified that the day after the occurrence she had a telephone conversation with Mrs. Slack. According to Mrs. Villari, Mrs. Slack said that had she known there was anyone in the driveway she would not have let the dog out of the backyard, and that she could not control the dog. Mrs. Slack could not recall all the details of the conversation but state[d], "... I am assuming she is not lying, so if I had said that it's--people are The Slacks had acquired the Doberman, "Gideon," as a five-week old puppy. They got him as a replacement for another Doberman who had been killed. Gideon was to serve as a special dog for the Slacks' first son, who was born with handicaps.

                normally afraid of large dogs and since he was a Doberman it was just the kind of thing you would just avoid."   Mrs. Slack testified that she would not have said that she could not control the dog, but stated that if given conflicting commands the dog would obey her husband
                

Mrs. Slack testified that Gideon had never previously behaved in the manner described by the Villaris. He had never bitten anyone; and had always been a calm dog. Although Mr. Slack principally trained the dog, Mrs. Slack never had any trouble controlling him. Mrs. Slack testified that on the night of the occurrence, she had let Gideon out in the backyard. She was preparing to let him in through the carport and Gideon heard or saw something. Instead of going into the kitchen door, the dog walked past Mrs. Slack. Mrs. Slack did not see anybody at the end of the driveway. When she called him, he came back. Mrs. Slack was not aware that anything had happened at the time. The next day she received a phone call from Mrs. Villari.

Mrs. Slack further testified that Gideon was normally kept in the house or fenced in the backyard. He did not bark at people, but would bark when the doorbell rang and at other dogs. Other children in the neighborhood came and played with him. Mr. and Mrs. Slack also testified that the dog had never growled at any person, and had chased other dogs three or four times in the nine to ten years the Slacks had owned him. According to a neighbor, John Szymkowicz, the dog did not cause problems in the neighborhood. Mr. Szymkowicz is a practicing attorney in the State of Maryland and stated that it was a good possibility that he did render an opinion to the Slacks as to what the dog law and dog attack laws were in the State of Maryland.

Gideon was described as a Doberman pinscher approximately 24 inches high at the shoulders and weighed at most five pounds heavier than as shown in Exhibit "1", ....

At no time during this incident was the dog under restraint by a leash. When Mrs. Slack moved the dog from the backyard to the house she did not hold the dog by the collar. Prince George's County, Maryland has adopted a leash law which was the law at the time of this occurrence.

As a result of the injuries sustained by Mrs. Villari, she saw her doctor the following day and was put on muscle relaxers and ordered to bed. She went in the hospital for traction from June 25, 1979 to July 12, 1979. Subsequent thereto she returned to the hospital on September 11, 1979 where she remained until October 31, 1979 and underwent a fusion on the 4th and 5th lumbar vertebrae in the lower part of her back.

That as a result of the injuries sustained by Mrs. Villari, she incurred medical bills in excess of $20,000 plus lost wages from July of 1979 until November of 1981. The issues of her losses and the amount of the judgment is not at issue in this case.

At the conclusion of the case the appellants moved for a directed verdict on the grounds that there had been no showing of any primary negligence on the part of the appellees. Mr. Buchanan [attorney for appellants] argued that there was certainly no showing of any prior vicious conduct on the part of the dog and that there was absolutely no showing that they knew or should have known that this particular incident or occurrence had ever taken place before or that they had any knowledge that it might take place as described. Mr. Buchanan further argued that the leash law did not apply to this case and that the court should not have instructed the jury on the leash law. For the final arguments on this issue see the attached copies of the argument from the trial.

The court denied Mr. Buchanan's motion for directed verdict at the conclusion of the case and proceeded to instruct the jury.

In this appeal the Slacks contend that the trial court erred in denying their motion for directed verdict because:

A. A violation of the Prince George's County leash law, if proven, was not evidence of the type of negligence required to impose liability for personal injuries on owners of domestic animals.

B. Appellees did not prove that Appellants knew, or in the exercise of reasonable care should have known, that the dog "Gideon" had the propensity to do the acts which that [sic ] caused injury.

Under current Maryland law, a dog owner may be responsible for the acts of his animal under two alternate theories of liability--negligence or strict liability, the latter arising from the owner's knowledge of the animal's propensities to cause harm. See McDonald v. Burgess, 254 Md. 452, 456, 255 A.2d 299, 301 (1969); Finneran v. Wood, 249 Md. 643, 241 A.2d 579 (1968); Herbert v. Ziegler, 216 Md. 212, 216, 139 A.2d 699, 702 (1958). We examine both.

-Negligence-

The type of negligence that exposes an animal owner who is unaware of the animal's dangerous propensities occurs in the failure to control the creature or prevent the harm caused by it. See Restatement (Second) of Torts, § 518 (1977). The degree of control required is generally held to be that which would be exercised by a "reasonable person," see discussion, Arnold v. Laird, 94 Wash.2d 867, 621 P.2d 138, 141 (1980) (en banc ).

Under Maryland law, the violation of a statutory duty establishes a prima facie case of negligence where the violation is the proximate cause of the accident or injury, but does not constitute...