Smith v. Village of Ruidoso

• Decision Date: 05 November 1999
• Docket Number: No. 19,476.,19,476.
• Citation: 128 N.M. 470,994 P.2d 50
• Parties: Deborah SMITH, Individually and as Next Friend of her Daughter, Kristyn Smith, Plaintiff-Appellee, v. VILLAGE OF RUIDOSO, a Municipal Corporation, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

994 P.2d 50

128 N.M. 470

Deborah SMITH, Individually and as Next Friend of her Daughter, Kristyn Smith, Plaintiff-Appellee, v. VILLAGE OF RUIDOSO, a Municipal Corporation, Defendant-Appellant.

No. 19,476.

Court of Appeals of New Mexico.

November 5, 1999.

Charles E. Hawthorne, Charles E. Hawthorne, Ltd., Ruidoso, for Appellee.

Richard E. Olson, Karolyn King Nelson, Hinkle, Cox, Eaton, Coffield & Hensley, L.L.P., Roswell, for Appellant.

OPINION

SUTIN, Judge.

{1} The Village of Ruidoso appeals the general jury verdict awarding damages in favor of Plaintiff's minor daughter, Kristyn, for dog-bite injuries inflicted by a narcotics-detection dog owned by the Village Police Department. The Village raises four issues: whether the trial court erred (1) in instructing the jury under UJI 13-506 NMRA 1999, a strict liability dog-bite instruction; (2) in submitting Plaintiff's contract claim to the jury; (3) in submitting Plaintiff's claims for future pain and suffering; and (4) awarding mediation fees as costs. We conclude that the trial court erred in instructing the jury under UJI 13-506, because that instruction does not state a negligence theory of recovery as required under the Tort Claims Act; in submitting Plaintiff's contract claim to the jury; and in awarding mediation fees as costs. We reverse and remand for a new trial in negligence.

BACKGROUND

{2} As Kristyn Smith walked down the block after school, Fanta attacked and bit her in the face. The resulting lacerations required stitches, a scar revision, and two dermabrasion procedures that were performed by a plastic surgeon, leaving a scar.

{3} Fanta, a German Shepard, was owned by the Department. When the Department acquired Fanta, the Department issued a press release announcing the addition of Fanta "to the staff" of the Department. The release also said that Fanta was "a Commissioned member of the Department," who would be seen with her "human partner," Officer Layher.

{4} Fanta lived with Officer Layher. The Layher property was posted with a sign that read, "Caution/Police Dog." On the afternoon of the accident, the officer was getting ready to go to work. When he heard his wife come in the house, he hollered something to her about putting Fanta in the car. Apparently, when Fanta heard the word "car," she reacted with her typical enthusiasm for work and dashed to the front door. Eluding Mrs. Layher's attempt to grab her collar, Fanta ran out of the house and into the street, where she proceeded to attack Kristyn, who happened to be walking by at that moment.

{5} Officer Layher contacted Kristyn's mother, Deborah Smith (Plaintiff), who then took Kristyn to the hospital for treatment. The Police Chief went to the hospital and indicated to Plaintiff and the hospital administrator that the Department would pay Kristyn's medical bills, saying that the Department would "take care of it." The Chief's written report of the incident states that he "advise[d] that medical costs would be assumed by the Ruidoso Police Department." In a letter to a third party, the Chief wrote: "arrangements have been made to assume Kristyn's total medical expenses." The Department paid for Kristyn's medications and her initial treatment at the hospital, but did not pay any of the other medical bills incurred in Kristyn's treatment.

{6} Plaintiff sued the Village, claiming that the Department's negligent training, handling, control, and storing of Fanta constituted negligent maintenance and operation of police equipment under the Act; that the Department breached its contract with Plaintiff when it failed to pay Kristyn's medical bills; and that the Chief misrepresented that the Department would pay Kristyn's medical bills. Plaintiff sought damages for medical expenses, as well as for past and future pain and suffering, and disfigurement.

{7} The trial court granted summary judgment in the Village's favor on the misrepresentation claim and denied the motion as to Plaintiff's negligence and contract claims. At trial, the court gave UJI 13-506 (liability of dog owner) together with an ordinary care instruction, but did not give any instruction on negligence. The jury returned a general verdict awarding $50,000 to Plaintiff. Plaintiff filed a motion to recover her costs, including the cost of a voluntary pretrial mediation. Over the Village's objection, the trial court awarded $708.91 for the pretrial mediation. The Village appeals.

DISCUSSION

I. DOG-BITE LIABILITY

{8} The instruction at issue in this case, UJI 13-506, embodies New Mexico's doctrine of liability of dog owners for injuries caused by vicious dogs. The instruction reads:

An owner of a dog is liable for damages proximately caused by the dog if the owner knew, or should have known, that the dog was vicious or had a tendency or natural inclination to be vicious.

[The owner of such a dog is not liable to the person injured, if the injured person had knowledge of the propensities of the dog and wantonly excited it or voluntarily and unnecessarily put himself in the way of the dog.]

{9} The Village argues that UJI 13-506 includes elements of strict liability and that under the Tort Claims Act, NMSA 1978, Section 41-4-2(B) (1976), the state and governmental entities are immune from claims grounded on strict liability. Thus, the Village asserts that reversal of the judgment against it is required as a matter of law. To overcome governmental immunity, Plaintiff relies on NMSA 1978, Section 41-4-6 (1977) of the Tort Claims Act, which waives immunity for negligence in the operation or maintenance of equipment. It reads:

The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any building, public park, machinery, equipment or furnishings. Nothing in this section shall be construed as granting waiver of immunity for any damages arising out of the operation or maintenance of works used for diversion or storage of water.

Under Section 41-4-6, Plaintiff must assert and prove a negligence theory of recovery.

{10} To prevent Plaintiff's claim, the Village relies on both the Act's bar to strict-liability claims and on the State's immunity from claims not sounding in negligence. New Mexico has not waived its immunity to permit claims in strict liability. "The Tort Claims Act in no way imposes a strict liability for injuries upon governmental entities or public employees." Section 41-4-2(B); see also Saiz v. Belen Sch. Dist., 113 N.M. 387, 402, 827 P.2d 102, 117 (1992). We must decide whether UJI 13-506 is a negligence theory. If UJI 13-506 is not a negligence theory, we must then decide whether that resolves the liability issue before us.

A. UJI 13-506 Is Not a Negligence Instruction

{11} The language of UJI 13-506 contains aspects of both negligence and strict liability. The instruction imposes liability on a dog owner without regard to the owner's exercise of ordinary care in taking precautions to prevent the harm. In this way, the instruction resembles strict liability. See Saiz, 113 N.M. at 402, 827 P.2d at 117 ("The feature of strict liability that distinguishes it from negligence is that the reasonableness of acts or omissions of the party to be charged... is not a consideration."). On the other hand, the instruction also requires proof that the owner knew or should have known that the dog had vicious propensities before the owner may be held liable for any injuries the dog causes. This language is often used in considering negligent conduct.

{12} The trial court also instructed the jury on ordinary care. It appears that the parties drew upon language in Perkins v. Drury, 57 N.M. 269, 258 P.2d 379 (1953). Relying on the common law dog-bite doctrine, Perkins held an owner's knowledge of his dog's vicious propensity in its relationship with another dog sufficient to render the owner liable for injuries inflicted on a child. Id. at 274, 258 P.2d at 382. The appellate court in Perkins referred to the trial court's finding that conflated ordinary care and strict liability. Id. at 272, 258 P.2d at 380 ("[T]he defendant had actual knowledge, or in the exercise of reasonable care as an ordinarily prudent person, he should have known of the propensity toward viciousness on the part of the animal."). Thus, in the present case, dog-bite liability went to the jury on only UJI 13-506 with an ordinary care instruction.

{13} The record is unclear as to how the trial court or the parties understood the theory or theories of recovery on which this case was to be decided. On appeal, the Village argues that the ordinary care instruction was a stray instruction, yet purposeful in that it "explained the context in which an owner would know or should know of a dog's dangerous or vicious propensities." Plaintiff views the combination of instructions as consistent with her negligence theory of the case.

{14} We are convinced that UJI 13-506 is not a negligence instruction. We reach this decision from an analysis of decisions in other jurisdictions, the Restatement (Second) of Torts (1977) (the Restatement), and our Uniform Jury Instructions. See generally Ward Miller, Annotation, Modern Status of Rule of Absolute or Strict Liability for Dogbite, 51 A.L.R.4th 446 (1987). Likewise, we are persuaded that UJI 13-506 is a strict-liability instruction.

{15} Other jurisdictions considering this issue conclude that dog-bite instructions requiring knowledge before imposing liability are strict-liability instructions. See, e.g., DeRobertis v. Randazzo, 94 N.J. 144, 462 A.2d 1260, 1266-67 (1983) (explaining that under the common law, if a plaintiff proves scienter, a dog owner is absolutely liable); Westberry v. Blackwell, 282 Or. 129, 577 P.2d 75, 76 (1978) (en banc); Arnold v. Laird, 94 Wash.2d...