From the Desk of Kyle D. Riley: When a dog bites a person who is lawfully on the property, the case is normally analyzed under common law strict liability. However, many states have applied a premises liability theory to these cases. In a case of first impression, the Washington Court of Appeals followed these other states in determining that premises liability applies to dog bite cases and follows a separate analysis from strict liability.
Claims Pointer: In this case involving a dog’s biting of an invitee, the injured invitee sought to sue both the County and the landlord. The Washington Court of Appeals held dismissal of the invitee’s claims against the County was appropriate because the County did not owe the invitee a duty; however, the court also held that the invitee’s claims against the landlord could proceed because a premises liability theory was applicable and there were genuine issues of material fact as to whether the landlord had breached his duty to the invitee. This case effectively adds a theory of liability to future dog bite cases that must be analyzed to evaluate overall exposure.
Oliver v. Cook et al., No. 47645-2-II, Washington Court of Appeals (June 14, 2016).
Steven Oliver (Oliver) operated an automotive shop on property owned by Eugene Mero (Mero) in Grays Harbor County. Henry Cook (Cook), Mero’s friend, owned an eight-year-old male pit bull mix named “Scrappy.” Mero knew Scrappy could be aggressive; not only did Scrappy often bark at passing strangers, but Mero avoided approaching vehicles when he knew Scrappy was in them. On August 23, 2010, Cook arrived at the Mero property driving Mero’s flatbed truck. Cook and Mero left the property together in a different vehicle, leaving Scrappy in the cab of Mero’s truck with the window partially down. Oliver arrived at the property a short while later, and as he walked past the passenger side of Mero’s truck, Scrappy lunged out of the passenger window and bit Oliver in the face, ripping off a significant portion of his nose. Prior to this attack, Scrappy had a history of aggressive and violent behavior involving prior attacks on another dog and on a young boy, and Cook had twice been issued Potentially Dangerous Dog Notifications by the Grays Harbor County Sheriff’s Department.
Oliver sued to recover damages, alleging negligence on the part of multiple parties, including Grays Harbor County, Cook, and Mero. Grays Harbor County moved for summary judgment, arguing it was immune from liability under the public duty doctrine. Mero also moved for summary judgment, arguing he had breached no duties under either a premises liability theory or under common law rules about dangerous animals. The trial court granted both motions, dismissing Oliver’s claims against both parties. Oliver appealed.
The public duty doctrine requires a party to show the government breached a duty owed to the injured person as an individual rather than an obligation to the public at large. Oliver argued the “failure to enforce” exception to the public duty doctrine was applicable because the County failed to enforce its own sheriff’s department’s policy when it did not declare Scrappy a dangerous dog. However, the court pointed out that this exception required the governmental entity responsible for enforcing a statutory requirement to possess actual knowledge of a statutory violation and fail to take corrective action despite a statutory duty to do so. The department policy at issue was not a statute, did not have the force of law, and was promulgated by the sheriff alone. Because there was no statutory requirement at issue, the exception did not apply, and the County owed no duty to Oliver. Summary judgment was therefore appropriate.
Oliver also argued that Mero breached a duty to him under a premises liability theory, because he was Mero’s invitee and Mero failed to make the premises reasonably safe. The court noted that the scope of a landlord’s duties in a dog bite case under premises liability was a question of first impression in Washington, as prior Washington case law focused exclusively on the common law theory of strict liability; however, 18 other states had applied premises liability to dog bite cases. Under premises liability, a landowner is liable to an invitee’s physical harm caused by a “condition on the land” only if the landowner: 1) knows or by the exercise of reasonable care would discover the condition and should realize it involves an unreasonable risk of harm to such invitees; 2) should expect the invitee will not discover or realize the danger or will fail to protect themselves against it, and 3) fails to exercise reasonable care to protect them of the danger. The “condition on the land” in this case was Scrappy.
The court noted that Mero testified he knew Scrappy to bark at passing strangers and let them know they “shouldn’t go near that vehicle.” He also testified he avoided approaching vehicles when he knew Scrappy was in them, thus raising a question of material fact about whether Mero knew Scrappy posed an unreasonable risk of harm. Mero also testified it was unusual for Cook, and therefore Scrappy, to be present at the shop. Oliver had never seen Scrappy at the shop. Thus, there was also a question of material fact about whether Mero should have expected Oliver would not discover or realize the danger posed by Scrappy. Finally, the court noted Mero was aware he and Cook left Scrappy in the truck at the shop with the window down where Scrappy could lunge out to attack Oliver, thus raising a question of material fact about whether Mero failed to protect Oliver from the danger he knew Scrappy posed. Viewing these facts in the light most favorable to Oliver, the court held there was a genuine issue of material fact regarding whether Mero breached a duty of care to Oliver as an invitee, and therefore summary judgment was inappropriate.
View full opinion at: https://www.courts.wa.gov/opinions/pdf/D2%2047645-2-II%20Published%20Opinion.pdf
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