Swain v. Gafford

• Citation: 497 P.3d 639 (Table)
• Decision Date: 26 October 2021
• Docket Number: No. 81743-COA,81743-COA
• Parties: Stevie K. SWAIN, Appellant, v. Mary GAFFORD, Respondent.
• Court: Court of Appeals of Nevada

497 P.3d 639 (Table)

Stevie K. SWAIN, Appellant,

v.Mary GAFFORD, Respondent.

No. 81743-COA

Court of Appeals of Nevada.

FILED OCTOBER 26, 2021

Thomas J. Tanksley, Settlement Judge

Isso & Associates Law Firm, PLLC

Anderton & Associates

ORDER OF AFFIRMANCE

In 2018, "Pompom," a Pomeranian dog owned by Michelle Gafford, bit Swain on the face.¹ Swain and her two-year old daughter had been residing with Michelle and other roommates for approximately two months at the time. The day before the incident, Michelle put up a baby gate to separate Pompom from Swain and her daughter. Michelle suggested Swain put Pompom behind it when feeding her daughter to prevent Pompom from begging for or stealing food. When Swain picked up Pompom to place him behind the gate, he bit her on the lip. Pompom had never attacked anyone or shown signs of aggression, but Swain indicated that Pompom has a food fixation and would steal it whenever possible.

Michelle's mother, respondent Mary Gafford, owned the home that Michelle and Swain were residing in and where the incident occurred. Mary² permitted Michelle to live in the house and Mary paid for the majority of maintenance and repairs on the property. Mary, however, did not live in the house and she rarely visited due to health issues.

After Swain sued Mary and Michelle for negligence, Mary moved for summary judgment, asserting that she was not liable to Swain as a matter of law. The motion included Mary's declaration, which was uncontroverted in Swain's opposition, that she had no knowledge that Pompom was aggressive or dangerous and, as such, had no reason to "do anything" to protect against the possibility of Pompom attacking someone. Swain filed an opposition and countermotion for attorney fees and costs. Her reply in support of this countermotion included, in the alternative, a request for additional time to conduct discovery under NRCP 56(d). The district court granted summary judgment in favor of Mary, determining that Swain failed to demonstrate that Mary assumed a duty, individually or through Michelle, to protect Swain from Pompom. The court also denied Swain's countermotion, NRCP 56(d) request, and subsequent motion for reconsideration.³ In addition, the district court certified its order granting summary judgment as final under NRCP 54(b). Swain now appeals the summary judgment decision.

Whether the district court erred in granting summary judgment

On appeal, Swain argues that summary judgment was improper because there is a genuine dispute of material fact as to whether Michelle is Mary's agent for matters regarding the property, and therefore, Mary is liable for Michelle's actions. Mary counters that, regardless of whether Mary and Michelle had an agency or landlord-tenant relationship, Swain cannot prove that Mary owed a duty to protect Swain from Pompom.⁴ We generally agree with Mary.

We review a district court's grant of summary judgment de novo. Wood v. Safeway Inc. , 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is appropriate when the pleadings and other evidence on file demonstrate that no genuine dispute as to any material fact remains and that the moving party is entitled to judgment as a matter of law. Id. When reviewing a motion for summary judgment, the evidence, and any reasonable inferences drawn from it, must be viewed in a light most favorable to the nonmoving party. Id. A defendant who moves for summary judgment on a negligence claim need only show that one of the elements—duty, breach, causation, or damages—is clearly lacking as a matter of law. Butler v. Bayer , 123 Nev. 450, 461, 168 P.3d 1055, 1063 (2007). And "[b]ecause the existence of a ‘duty’ is a question of law, if this court determines that no duty exists, it will affirm summary judgment for the defendant in a case involving negligence." Id.

A property owner may assume a duty to protect third parties from dog bites if she takes affirmative steps to assume such a duty. Harry v. Smith , 111 Nev. 528, 534, 893 P.2d 372, 375 (1995) ; Wright v. Schum , 105 Nev. 611, 615-16, 781 P.2d 1142, 1144-45 (1989). However, the dog bite must be foreseeable. See generally Sparks v. Alpha Tau Omega Fraternity , 127 Nev. 287, 296-97, 255 P.3d 238, 244 (2011) (explaining that there is no duty to control the dangerous conduct of another unless (1) a special relationship exists between the parties and (2) the harm created by the defendant's conduct is foreseeable). Mere knowledge that a tenant owns a dog does not impose any type of duty upon the property owner to investigate the dog's nature. See Georgianna v. Gizzy , 483 N.Y.S.2d 892, 894 (N.Y. Sup. Ct. 1984) ; Robison v. Stokes , 882 P.2d 1105, 1106 (Okla. Civ. App. 1994).

Here, Swain presented no evidence that Mary took affirmative steps to assume a duty of care regarding Pompom. Foremost, Swain in her opposition to summary judgment below did not refute Mary's argument that Mary did not owe a duty to Swain and Swain failed to argue the same on appeal even though the district court granted summary judgment based on the duty issue and Mary argued it again to this court. See Spencer v. Klementi , 136 Nev., Adv. Op. 35, 466 P.3d 1241, 1249 (2020) (concluding that a failure to oppose a motion constitutes a concession); Old Aztec Mine, Inc. v. Brown , 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (explaining that issues not argued below are "deemed to have been waived and will not be considered on appeal").

Regardless, Mary's sworn declaration indicates she did not protect against the possibility of Pompom attacking someone because she had no reason to believe that Pompom would attack anyone. Indeed, Mary asserts that she had never known or suspected Pompom to be aggressive. Swain produced no admissible evidence to rebut Mary's assertions.⁵ And Mary's mere knowledge that Michelle owned a dog did not impose a duty upon her to investigate his nature. See Georgianna , 483 N.Y.S.2d at 894 ; Robison , 882 P.2d at 1106. Therefore, the record supports that Mary did not assume an independent duty of care regarding Pompom.

However, a property owner or landlord may also assume a duty to protect third parties through an agency relationship with her tenant if the tenant herself owes a duty of care. See Harry , 111 Nev. at 534, 893 P.2d at 375. A property owner or landlord does not owe a duty of care unless there is a special relationship with the tenant or occupant and the harm created by her conduct is foreseeable. See Sparks , 125 Nev. at 297, 255 P.3d at 244; Harry , 111 Nev. at 534, 893 P.2d at 375.

Here, Swain also points to no evidence in the record to create a genuine dispute as to whether Mary delegated a duty to Michelle regarding Pompom, particularly in light of Mary's uncontroverted declaration.⁶ See Harry , 111 Nev. at 533-34, 893 P.2d at 375. Foremost, although Swain points to Michelle's placement of a baby gate, she points to no evidence in the record to demonstrate that Mary directed Michelle to put up that gate or do anything else with regard to Pompom. Further, Swain did not demonstrate that Mary knew or had reason to know that Pompom was dangerous such that delegating the duty of placing the gate to Michelle would have been to keep Swain safe from Pompom. Swain asserts that Mary's knowledge of vicious propensities is "entirely irrelevant," contrary to our jurisprudence, which supports otherwise. And the record shows that Michelle put up the gate to relieve Michelle and Swain from the "monotonous" task of chasing away the dog when Swain's daughter was eating, not because Pompom had dangerous propensities.⁷ Thus, the district court did not err in granting Mary summary judgment.⁸

Whether the district court abused its discretion by denying Swain's NRCP 56(d) request for additional time to conduct discovery

Swain argues that the district court abused its discretion by refusing to grant her additional time for discovery under NRCP 56(d). We disagree.

We review the denial of a request for a continuance in the face of a motion for summary judgment for abuse of discretion. Aviation Ventures, Inc. v. Joan Morris, Inc. , 121 Nev. 113, 117-18, 110 P.3d 59, 62 (2005). NRCP 56(d) provides that a district court may allow additional time to conduct discovery if the nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition. A request for a...