Williams v. Johnson

• Decision Date: 31 October 1989
• Docket Number: No. 89-31,89-31
• Citation: 781 P.2d 922
• Parties: Thomas R. WILLIAMS, Appellant (Plaintiff), v. Daniel L. JOHNSON and Jennifer Johnson, husband and wife, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 922

781 P.2d 922

Thomas R. WILLIAMS, Appellant (Plaintiff), v. Daniel L. JOHNSON and Jennifer Johnson, husband and wife, Appellees (Defendants).

No. 89-31.

Supreme Court of Wyoming.

Oct. 31, 1989.

James H. Barrett, Cheyenne, for appellant.

Julie Nye Tiedeken of McDaniel and Tiedeken, Cheyenne, for appellees.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

CARDINE, Chief Justice.

Appellant, Thomas Williams, was delivering mail in a Cheyenne neighborhood when he was attacked by two dogs owned by appellees, Daniel and Jennifer Johnson. The dogs attacked appellant while he was We affirm.

standing on the porch of a house next door to appellees' house. Although the dogs inflicted no direct injury on appellant, they frightened him and he injured his knee in an attempt to avoid the attack. Williams sued to recover compensation for his injury. The trial court entered summary judgment in favor of the Johnsons. Williams now appeals, asserting that the district court erred in its determination that, in order to defeat the summary judgment motion, he must raise an issue of fact concerning Johnsons' knowledge of the dangerous propensities of their dogs.

The only issue raised by appellant is this:

"The court below erred in ruling that as a matter of law, appellants must have had notice of the dangerous propensities of their dogs."

Appellant's complaint, filed in June 19, 1987, generally alleged appellees' liability based on the facts outlined above, but omitted reference to any particular theory of recovery. His "Pre-trial Memorandum," however, limited the factual and legal issues which he considered material to appellees' liability to the following:

1. Was appellant attacked by dogs owned by appellee?

2. Was such an attack the proximate cause of his injury?

3. Could appellees be held liable for that injury if they had no notice of the vicious nature of their dogs?

4. Could appellant obtain compensation for injury sustained as a result of a dog attack, during which there was no physical contact by the attacking dogs?

In opposition to the summary judgment motion, appellant argued that he need not prove appellees' knowledge of the vicious propensities of their dogs. That contention was consistent with the position he advanced at the pretrial conference, at which time appellant considered himself entitled to recover upon proof of: (1) injury, (2) proximately caused, (3) by attacking dogs owned by appellees. Appellees' summary judgment motion asserts that because of absence of any knowledge of dangerous propensities, appellees are entitled to judgment as a matter of law. We agree.

This court has recognized three distinct theories of recovery under which appellant could have argued the particular facts of this case. The first is the common law theory of strict liability of an owner who keeps an animal knowing of its dangerous propensities as articulated in Restatement, Second, Torts § 509 (1977); Abelseth v. City of Gillette, 752 P.2d 430, 433-34 (Wyo.1988). The second is also a common law cause of action, for negligence in the care and control of domestic animals. Endresen v. Allen, 574 P.2d 1219, 1221-22 (Wyo.1978). Finally, we have recognized a theory of negligence premised on duties created by state statutes or municipal ordinances which alter the duties imposed by common law by making it unlawful for owners of domestic animals to permit them to run at large. Id. at 1222-25; see also Nylen v. Dayton, 770 P.2d 1112, 1116 (Wyo.1989).

Under the common law, the owner of a vicious dog, if he had knowledge of a dangerous propensity, was held strictly liable for any harm proximately caused by the animal's vicious behavior. Such liability attached despite the owner's exercise of utmost care to control the animal. Restatement, Second, Torts § 509 (1977); Abelseth, 752 P.2d at 433-34; Larsen v. City of Cheyenne, 626 P.2d 558, 560 (Wyo.1981). The common law also provided that the owner of an animal which was not vicious or not known to be vicious, but which was prone to some other potentially harmful behavior, could be held liable under a theory of negligence for any injury proximately caused by such behavior. In such cases the owner was only liable if, having knowledge of the particular propensities which created a foreseeable risk of harm, he failed to exercise reasonable care in his control of the animal. Thus, if the owner of a dog knew of its proclivity for leaping fences and chasing cars, he could be held liable for failure to take reasonable measures to confine the animal should it escape from his property and cause an accident. Restatement, Second, Torts § 518 (1977); Endresen, 574 P.2d at 1221-22.

Common to both of these causes of action are certain facts which must be put in issue to defeat defendant's summary judgment motion, i.e., (1) the owner, (2) of an animal with a propensity for potentially harmful behavior, (3) must know of that propensity, and (4) such behavior must be the proximate cause of injury to the plaintiff. In this case, appellees denied knowledge of harmful propensities. Appellant claimed knowledge of dangerous propensities was unnecessary to a common law cause of action. Appellant therefore failed to assert facts, by affidavit or otherwise, which would place in issue appellees' knowledge of the vicious nature of their dogs. This was fatal to his maintaining a cause of action under these common law theories. His suit was premised on these theories, and the district court, therefore, correctly granted appellees' summary judgment motion.

Appellant's argument on appeal, however, characterizes his suit as one based on appellees' duties under Cheyenne's municipal ordinances. He asserts that these ordinances alter the elements necessary to the common law actions and render appellees liable, despite their lack of knowledge concerning the dangerous propensities of their animals. Appellant bases that argument on our discussion in Endresen v. Allen, in which we explained that a dog owner's common law duty may be altered by a municipal ordinance that prohibits owners from permitting animals to run at large. We noted that, while the unconditional prohibition of such an ordinance creates a duty to restrain animals from running at large without reference to the owner's knowledge of their propensities to escape or cause harm, the ordinance does not relieve a plaintiff from the obligation of establishing that a failure to restrain was a result of the owner's negligence. Thus, we rejected the notion that a prima facie case of negligence could result from the mere fact that an animal was at large. Endresen, 574 P.2d at 1222-25. See also Nylen, 770 P.2d at 1116; Hinkle v. Siltamaki, 361 P.2d 37, 40-41 (Wyo.1961).

Appellant presented his claim of a cause of action under the ordinances for the first time on appeal. Parties seeking reversal of a summary judgment may not, on appeal, assert issues or theories of recovery which were not presented to the trial court. This court will not consider such issues or theories unless it is apparent or reasonably discernable from the pleadings, affidavits and exhibits that they were raised below. Teton Plumbing and Heating, Inc. v. Board of Trustees, Laramie County School District No. One, 763 P.2d 843, 848 (Wyo.1988); Minnehoma Financial Company v. Pauli, 565 P.2d 835, 838-39 (Wyo.1977).

We conclude from our examination of the record that appellant never presented the trial court with a theory of recovery grounded in the duty which may have been created by the "running at large" ordinance. Instead, he proceeded solely upon a common law cause of action, arguing merely that the animal control ordinances taken as a whole created a presumption that the Johnsons' dogs were vicious.

Nowhere in his pleadings, affidavits, exhibits, or in his pretrial memorandum does appellant so much as mention any of these city ordinances. Appellees called this fact to the attention of the trial court in a brief supporting their summary judgment motion, which noted:

"The Plaintiff has not alleged that a state statute or city ordinance posed a duty upon the Defendants and the complaint basically alleges a negligence cause of action.

"Clearly, the Plaintiff is required to show that the Defendants had knowledge of the dangerous propensities of the animals or they are barred from recovery."

Appellant first mentioned the ordinances in his memorandum in opposition to the summary judgment motion, where he briefly quotes from a number of definitional provisions and the section prohibiting owners from permitting animals to run at large, and then relied upon the provisions to establish that the Johnsons' dogs, running at large, were presumed vicious because of the attack. Appellant summarizes his position with respect to the ordinances by stating The district court correctly concluded that Cheyenne's animal control ordinances did not provide appellant with presumptive proof that the Johnson's knew of the vicious nature of their dogs. The district court correctly determined that, under the common law theory of recovery advanced, appellant was required to present as an issue the fact appellees had knowledge of the dangerous propensities of their dogs. Accordingly, the summary judgment is affirmed.

"It is clear, however, that the Cheyenne Municipal Ordinance has by definition abrogated the Common Law Rule and has created a presumption that an animal is vicious if it engages in an unprovoked attack."

URBIGKIT, J., files a dissenting opinion.

URBIGKIT, Justice, dissenting.

In December 1985, two dogs allegedly owned by appellees, ¹ being where they should not have been and doing what they should not have done, caused injury to appellant Thomas R. Williams, the local postal carrier, while he was engaged in mail delivery at an adjoining house. Upon return from the grocery store, while unloading her purchases in the garage, appellee Jennifer Johnson released the family's two...