Dargen v. King
Dargen v. King
Opinion of the Court
Plaintiff brought this action as guardian ad litem for his minor dáughter to recover damages for injuries sustained when she was bitten by defendants’ dog. The trial court granted defendants’ motion for summary judgment and entered judgment accordingly. We reverse.
In his complaint, plaintiff alleges that defendants were negligent in failing properly to supervise and control their dog, that the dog attacked his daughter when she was a visitor in defendants’ home, that defendants were aware of their dog’s vicious propensities and that, as a result of the attack, his daughter suffered a severe laceration of the right upper lip and cheek, requiring 25 sutures and causing permanent scarring. Defendants moved for summary judgment under ORCP 47 on the ground that no genuine issue of material fact exists with respect to whether they knew of the dog’s vicious propensities and that they were entitled to summary judgment as a matter of law.
Plaintiff contends that a “beware of dog” sign supports an inference that the dog’s owners were aware that a dog is vicious. He contends, therefore, that the existence of the “beware of dog” sign on the gate raises a genuine issue of material fact with respect to whether defendants knew that their dog was vicious. In his supplemental affidavit, defendant asserts that the sign was in place to alert representatives of the public utilities that a dog was present and that the gate should be closed immediately after entering.
Before it is appropriate to grant a summary judgment, the moving party must show that there are no genuine
We agree with plaintiff that the existence of the “beware of dog” sign supports an inference that defendants knew that their dog might bite an unsuspecting visitor. Accordingly, because the opposing party is entitled to the benefit of all inferences that can be drawn from the evidence before the court, even though the record indicates that plaintiff did not submit counter-affidavits or other materials in opposition to defendants’ motion for summary judgment, we conclude that a genuine issue of material fact does exist with respect to defendants’ knowledge of their dog’s vicious propensities. Because plaintiff is entitled to have that issue of fact resolved by a jury, we hold that the trial court erred in granting defendants’ motion for summary judgment.
Reversed and remanded.
Plaintiff does not contend that defendants are liable for his daughter’s injuries, regardless of whether they were aware of their dog’s vicious propensities. See generally Westberry v. Blackwell, 282 Or 129, 577 P2d 75 (1978).
Defendants also submitted a portion of a deposition in which defendant Alphonso King asserts that the sign said “keep gate closed” in addition to “beware of dog.”
It is the duty of the jury and not, as the dissent suggests, the duty of this court, to determine whether defendants knew of their dog’s dangerous propensities. The existence of a “beware of dog” sign permits an inference that a dog’s owners know that their dog is vicious. In this case, that inference is contravened by defendants’ assertions to the contrary. A genuine issue of material fact thus exists, the resolution of which lies within the exclusive province of the jury. As tempting as it might be to decide that issue, we would be trespassing on the jury’s domain by doing so.
Dissenting Opinion
dissenting.
Plaintiffs complaint alleges that “defendants were the owners of a dog while knowing him to be ferocious, vicious and mischievous” and that defendants were negligent, because each of them knew of the vicious propensity of the dog and his inclination to attack and bite people.
On defendants’ motion for summary judgment, the only evidence is that defendant Alphonso King, in 1974 when
Plaintiff did not counter any of that evidence; she relies solely on the sign. In Seeborg v. General Motors Corporation, 284 Or 695, 703, 588 P2d 1100 (1978), the court quoted with approval from 2 Harper and James, Law of Torts § 19.4, to determine whether there is a genuine issue of a material fact:
“The test is often expressed in this way: where from the facts most favorable to the plaintiff the nonexistence of the fact to be inferred is just as probable as its existence (or more probable than its existence), the conclusion that it exists is a matter of speculation, surmise, and conjecture, and a jury will not be permitted to draw it.”
The majority apparently holds that, because of the sign, a jury could infer that the dog had dangerous propensities and that those propensities were known to the defendants. However, the presence of the sign is explained without contradiction, and its mere presence does not, on those uncontradicted facts, make it any more probable that defendants were aware of the dog’s dangerous propensities than that they were not.
Accordingly, I would affirm the summary judgment and, therefore, dissent.
Reference
- Full Case Name
- DARGEN, Appellant, v. KING Et Al, Respondents
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- 5 cases
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- Published