Toney v. Bouthillier, 1
| Decision Date | 19 May 1981 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 129 Ariz. 402,631 P.2d 557 |
| Parties | Cheryl TONEY, as Guardian ad Litem for Eugenia Toney, Plaintiff-Appellant, v. Harlean BOUTHILLIER, Defendant-Appellee. 4805. |
| Court | Arizona Court of Appeals |
Three main issues are raised in this appeal: (1) whether the actions of a three-and-one-half-year-old child can constitute provocation for purposes of a defense to liability for a dog bite pursuant to A.R.S. § 24-523; (2) whether there are disputed issues of material fact precluding summary judgment; and (3) whether A.R.S. § 24-378 imposes strict liability for injuries caused by dogs running at large and disallows provocation as a defense.
The pertinent facts of this case are as follows. On September 13, 1976, Eugenia Toney, then three years, and eight months of age, was playing on a public sidewalk in Phoenix, Arizona when she was bitten by a German Shepherd dog owned by Harlean Bouthillier. The dog was unleashed and roaming in the neighborhood at the time the incident occurred. As a result of the dog bite, Eugenia suffered a laceration of her nose which has required two surgical procedures and may require a third procedure. Eugenia's mother filed an action on behalf of her daughter against Ms. Bouthillier on February 18, 1977, seeking damages for the child's physical injuries and mental suffering. Following the taking of Eugenia's deposition, plaintiff filed a motion in limine asking the court to exclude Eugenia's deposition testimony that she had struck the dog prior to being bitten. The defendant filed a cross motion for summary judgment on the basis that Eugenia's testimony established the defense of provocation of attack pursuant to Arizona's dog bite liability statutes A.R.S. § 24-521 et seq. Plaintiff's motion was denied and defendant's motion was granted on November 30, 1978. However, since the plaintiff had insufficient time to respond to the motion for summary judgment, the trial court subsequently considered her response to that motion and a motion for rehearing. The trial court denied this motion on December 11, 1979. The plaintiff then filed a motion for a new trial, denominated a motion for reconsideration and rehearing, together with new affidavits on December 15, 1979. The trial court considered plaintiff's motion and affidavits and reconfirmed the granting of summary judgment.
Appellant/plaintiff Cheryl Toney, as guardian ad litem for Eugenia Toney, appealed the trial court's order granting summary judgment in favor of appellee/defendant Harlean Bouthillier. The statutes which are the basis for the plaintiff's first allegation of error are A.R.S. § 24-521 et seq. which provide in pertinent part:
A.R.S. § 24-521. Liability for dog bites
The owner of a dog which bites a person when the person is in or on a public place ... is liable for damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of its viciousness.
A.R.S. § 24-523. Provocation as defense
Proof of provocation of the attack by the person injured shall be a defense to the action for damages.
Based upon these statutes plaintiff first contends that Eugenia, at age three and one-half, was legally incapable of provoking the dog's attack and therefore, her deposition testimony should not have been considered. In support of this contention plaintiff cites numerous cases which stand for the proposition that a child of tender years cannot, as a matter of law, be either contributorily negligent or capable of assuming the risk of an attack by a domestic animal. See e. g. Beliak v. Plants, 84 Ariz. 211, 326 P.2d 36 (1958); Babin v. Zurich Ins. Co., 336 So.2d 900 (La.App.1976). While this is a correct statement of the law of contributory negligence, it has applicability to A.R.S. § 24-523 only if the defense of provocation is dependent upon fault of the injured party. If, on the contrary, provocation is defined in terms of an action that will cause an animal to react in a manner injurious to the actor, a child's capacity to be at fault is irrelevant.
Arizona has not addressed the availability of a provocation defense to A.R.S. § 24-523 where the injured party is a young child. However, this issue has been decided by the courts of Illinois, the jurisdiction from which Arizona originally adopted its "dog bite statutes." 1 In Nelson v. Lewis, 36 Ill.App.3d 130, 344 N.E.2d 268 (1976), the court noted that the adoption of the statute had substantially eased the burden imposed by the common law. At common law, a plaintiff had to demonstrate that the dog was vicious toward humans, and that the owner knew of this disposition. The court went on to say that although the legislature had made contributory negligence of the injured party irrelevant to the liability of the dog owner, the statute was not meant to impose strict liability on dog owners for all injuries caused by dogs. The court held:
The statute does not distinguish between intentional and unintentional acts of provocation.... Defendant's position, that the mental state of the actor who provokes a dog is irrelevant, is consistent with the commonly understood meaning of provocation. Provocation is defined as an act or process of provoking, stimulation or incitement. (Webster's Third New International Dictionary 1827 (1961).) Thus it would appear that an unintentional act would constitute provocation within the plain meaning of the statute.
Had the legislature intended only intentional provocation to be a bar to recovery we think it would have so specified. Its conclusion apparently was that an owner or keeper of a dog who would attack or injure someone without provocation should be liable. This implies that the intent of the plaintiff is immaterial. Nor do we think that the plaintiff's status as a child of tender years should relieve her of all responsibility for a provoking act.
(A) young child is not exempted from responsibility for his or her acts which provoke a dog under this statute. (Emphasis added.)
36 Ill.App.3d at 131, 133, 344 N.E.2d at 270-272.
The Illinois court held that even though the provocation was unintentional and the child involved was only two-and-one-half-years old, provocation was a complete defense. The Illinois courts recently reaffirmed this position in Stehl v. Dose, 83 Ill.App.3d 440, 443, 38 Ill.Dec. 697, 699, 403 N.E.2d 1301, 1303 (1980), wherein the court held, "(T)he question of what conduct constitutes provocation is primarily a question of whether plaintiff's actions would be provocative to the dog."
Like Arizona and Illinois, Michigan has a dog bite statute providing for the defense of provocation. 2 In Nicholes v. Lorenz, 396 Mich. 53, 237 N.W.2d 468 (1976), the Michigan Supreme Court held that statutory liability required a determination whether a six-year-old child's inadvertent stepping on a dog's tail constituted provocation. While not directly addressing whether the child's age and capacity for contributory negligence have any bearing under the statute, the court's analysis appears to indicate that they do not. The court described the statute stating:
It creates an almost absolute liability. However, the Legislature excepted the consequences which might reasonably result from provoking an animal.
396 Mich. at 59-60, 237 N.W.2d at 470.
Thus, like Illinois, Michigan has held that provocation is a matter of whether particular actions are likely to cause a dog to react by biting and to disregard whether the actor intended to provoke.
We find the reasoning of the Illinois and Michigan courts to be persuasive. A.R.S. § 24-521 imposes liability on dog owners irrespective of the fault of the dog owner. Consequently, we believe that the corresponding statutory defense must be construed without reference to fault of the individual committing the provocation. 3 The statutory language does not expressly exempt from this defense young children who are bitten. To add such an exemption would be engaging in judicial legislation of a statute which is in derogation of the common law and thus subject to literal construction. See Richardson v. Ainsa, 11 Ariz. 359, 95 P. 103 (1908), aff'd 218 U.S. 289, 31 S.Ct. 23, 54 L.Ed. 1044 (1910); Kilmer v. Hicks, 22 Ariz.App. 552, 529 P.2d 706 (1974). We therefore hold that the actions of a child of tender years may constitute provocation within the meaning of A.R.S. § 24-523.
Plaintiff next contends that there are disputed issues of material fact precluding summary judgment. Specifically, she argues that an issue exists whether Eugenia struck the dog and even assuming she struck the dog, whether her action constitutes provocation. 4
In reviewing the granting of summary judgment, this court must view the facts and inferences to be drawn therefrom in a light most favorable to the party opposing the motion. Kiser v. A. J. Bayless Markets, Inc., 9 Ariz.App. 103, 449 P.2d 637 (1969). Viewed in this manner, the record reveals disputed issues of material fact.
The motion for summary judgment was based upon deposition testimony by Eugenia that she hit the dog prior to being bitten. At the time her deposition was taken, Eugenia was five years old. Her testimony with respect to the sequence of events leading to her injuries is both ambiguous and contradictory. For example:
(Cross Examination)
Question: Had you ever seen that dog before?
Answer: No.
Question: Tell me what happened right before you got bit.
Answer: I ran home.
Question: Before you got bit. Not after, but before.
Answer: We were walking to get a drink.
Question: Did you stop to get the drink of water?
Answer: Yes.
Question: And then what happened?
Answer: We were walking home and the dog bit me.
Question: Were you touching the dog when he...
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