Eric Gross and Adrianne Gross v. Elizabeth Turner and Antonio Flores
Eric Gross and Adrianne Gross v. Elizabeth Turner and Antonio Flores
Opinion
¶ 1. In this negligence action, we consider whether a landlord and a social guest of a tenant may be held liable for injuries caused by the tenant's dogs to a third person outside of the landlord's property. We conclude that plaintiffs failed to establish that either defendant owed a duty of care to the injured plaintiff in this case, and therefore affirm.
¶ 2. The following facts were undisputed for purposes of summary judgment. On January 15, 2016, Antonio Flores, his wife, and their two young children arrived at the residence of William and Charity Pearo in Fair Haven. The Pearos had invited the Floreses for dinner. The Pearos were *656 not yet home but had told the Floreses that the door would be open so they could wait inside. Based on previous visits, Antonio Flores assumed the Pearos' three dogs would be near the front door, so the family decided to go in through the side door. The Floreses' son opened the side door. Without warning, the Pearos' three dogs ran out of the house. Mr. Flores called to the dogs to try to get them back inside.
¶ 3. At that moment, plaintiff Eric Gross was walking his dog down the sidewalk near the Pearos' home. The Pearos' three dogs ran over and attacked his dog. One of the dogs grabbed plaintiff's hand, which was covered by a glove, and pulled on his arm, dislocating his shoulder.
¶ 4. The Pearos leased their residence in October 2015 from defendant Elizabeth Turner, who lives in New York. When Turner rented the property to the Pearos, she was aware they had three pet dogs and permitted them to keep the dogs at the property. She was not aware of any prior incidents involving the dogs at the time the lease was signed. She had known the Pearos and their dogs for several years and had not observed any of the dogs to have aggressive tendencies. For this reason, she did not make any inquiries about the dogs or their temperament before renting to the Pearos.
¶ 5. Antonio Flores testified in a deposition that he had allowed the Pearos' dogs to be around his six- and seven-year-old children and they had never posed a threat to the children. He said that he would not have brought his children to the house or allowed them to go near the door if he felt the dogs were vicious. He described Buck, the largest dog, as "hyper," with high energy, but not aggressive. Jedi, the oldest and smallest dog, growled on occasion if someone got too close to her, but never bit at anyone. The third dog, Harley, was very intelligent and laid back.
¶ 6. In January 2017, Eric Gross and his wife Adrianne filed a complaint alleging negligence against Elizabeth Turner and Antonio Flores. 1 Flores, in turn, filed a third-party complaint against the Pearos seeking indemnification for any judgment in favor of plaintiffs. The Pearos failed to respond, and default judgment was entered in favor of Flores.
¶ 7. After the parties conducted discovery, each defendant moved for summary judgment. In December 2017, the court granted summary judgment to defendants in separate orders. The court determined that plaintiffs had failed to establish that either defendant owed a duty to plaintiffs to control or restrain the Pearos' dogs. The court dismissed the third-party complaint against the Pearos as moot. Plaintiffs filed a motion to reconsider, which the court denied in January 2018. This appeal followed.
¶ 8. We review a decision granting summary judgment de novo, using the same standard as the trial court: summary judgment is appropriate if the moving party shows that the material facts are not genuinely disputed and that he or she is entitled to judgment as a matter of law.
White v. Quechee Lakes Landowners' Ass'n
,
¶ 9. To prevail on their negligence claims, plaintiffs had to prove that each defendant breached a duty of care owed to plaintiffs, thereby causing them harm.
O'Connell v. Killington, Ltd.
,
I. Liability of Landlord
¶ 10. We first consider whether the Pearos' landlord, Elizabeth Turner, owed a duty to protect third persons outside of the leased premises from harm caused by the Pearos' dogs. Plaintiffs argue that Turner is legally responsible for the injuries suffered by Eric Gross because she permitted the Pearos to keep aggressive dogs on her property without inquiring into the history of the dogs or causing a fence to be erected prior to the tenancy. 2
¶ 11. Plaintiffs' argument is based on the Restatement (Second) of Torts § 379A, which provides:
A lessor of land is subject to liability for physical harm to persons outside of the land caused by activities of the lessee or others on the land after the lessor transfers possession if, but only if,
(a) the lessor at the time of the lease consented to such activity or knew that it would be carried on, and
(b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken.
Restatement (Second) of Torts § 379A (1965). "In other words, if a landowner leases property to another knowing that the tenant is going to carry on an activity that involves an unreasonable risk, and the landowner consents to that conduct, then the landlord has a duty to third parties to exercise reasonable care."
Deveneau v. Wielt
,
¶ 12. Dog ownership is a common activity that is "usually safe and generally beneficial."
Martin v. Christman
,
¶ 13. We agree, however, that under § 379A a landlord owes a duty to take reasonable steps to protect persons outside the land from injuries caused by a tenant's dog if the landlord knew or had reason to know at the time of entering the lease that the dog in question posed an unreasonable risk of harm to such persons. Restatement (Second) of Torts § 379A. The duty arises from the fact that the landlord has some control over the activities of the tenant, in that the landlord decides whether to rent to the tenant in the first place, renew or terminate the tenancy, or to impose conditions in the lease. See
Park v. Hoffard
,
¶ 14. Many jurisdictions have applied § 379A in negligence actions against landlords for injuries to third parties caused by vicious dogs owned by tenants. As in this case, these decisions frequently turn on whether the landlord knew of the tenant's dog and its dangerous tendencies. See, e.g.,
Uccello v. Laudenslayer
,
*659 ¶ 15. Thus, to survive summary judgment on their negligence claim against Turner under the above rule, plaintiffs had to present admissible evidence from which a jury could conclude that at the time of entering the lease, Turner knew or had reason to know the Pearos' dogs posed an unreasonable risk to persons outside the land. Plaintiffs did not meet this burden. They did not show that Turner knew of any prior aggressive behavior by the dogs. Nor did they demonstrate that she was aware of facts that would lead a reasonable person to believe that the dogs were vicious. To the contrary, the undisputed facts showed that Turner had known the Pearos' dogs for several years, had never personally observed them to exhibit any aggressive tendencies, and did not know whether they had been involved in any previous incidents. In the absence of any evidence that Turner knew or had reason to know of the dogs' vicious propensities at the time she entered into the lease with the Pearos, she owed no duty to plaintiffs under § 379A.
¶ 16. Plaintiffs argue, however, that the dogs were pit bulls and that Turner therefore owed a duty to investigate their history and propensities before allowing them on the premises. Accordingly, it is their assertion that if Turner had contacted the police in the town where the Pearos previously resided, she would have learned of prior aggressive behavior by the dogs. This argument falls short for several reasons.
¶ 17. First, this Court has never held that a dog's breed alone is sufficient to put its owners or others on notice that it poses an unreasonable risk of harm, or that pit bulls or other breeds are dangerous per se. In Vermont, liability in dog-bite cases has always depended on the propensities of the individual animal. See, e.g.,
Martin
,
¶ 18. Moreover, the Restatement itself makes clear that landlords are not obligated to conduct background checks on tenants' pets. Liability under § 379A turns on whether a landlord "knew or had reason to know" at the time of the lease that the particular animal in question is abnormally dangerous. A separate section of the Restatement explains that the phrase "reason to know" does not imply a duty to investigate:
Both the expression "reason to know" and "should know" are used with respect to existent facts. These two phrases, however, differ in that "reason to know" implies no duty of knowledge on the part of the actor whereas "should know" implies *660 that the actor owes another the duty of ascertaining the fact in question. "Reason to know" means that the actor has knowledge of facts from which a reasonable [person] of ordinary intelligence or one of the superior intelligence of the actor would either infer the existence of the fact in question or would regard its existence as so highly probable that his [or her] conduct would be predicated upon the assumption that the fact did exist. "Should know" indicates that the actor is under a duty to another to use reasonable diligence to ascertain the existence or non-existence of the fact in question and that he would ascertain the existence thereof in the proper performance of that duty.
Restatement (Second) of Torts § 12 cmt. a. The use of "reason to know" in § 379A means that the plaintiff must show that the landlord had actual knowledge of facts that would alert a reasonable person to the dog's vicious propensities.
5
It does not create an obligation on the part of the landlord to actively inquire into the dog's history before permitting it to reside on the premises. See
Knapton ex rel. E.K. v. Monk
,
¶ 19. Plaintiffs also argue Turner is liable for negligently permitting her tenants to create a public nuisance on her land.
7
Section 837 of the Restatement (Second) of Torts, which is closely related to
*661
§ 379A, states that a landlord may be held liable for a nuisance caused by an activity carried out by a tenant if at the time of the lease the landlord consents to the activity or knows it will be carried on, and "knows or should know that it will necessarily involve or is already causing the nuisance." Restatement (Second) of Torts § 837 (1979) ;
ibr.US_Case_Law.Schema.Case_Body:v1">id
¶ 20. Plaintiffs failed to make the showing that Turner knew or had reason to know that the Pearos' dogs were unreasonably dangerous as required to hold her liable under § 379A. They likewise failed to establish a claim under § 837 because they have not demonstrated that Turner knew or should have known that the dogs posed an unreasonable risk to public safety. 8 We therefore affirm the trial court's decision granting summary judgment in favor of Turner.
II. Liability of Guest
¶ 21. We next consider whether Antonio Flores, the Pearos' guest, may be held liable for the injuries caused by the Pearos' dogs. Plaintiffs argue that Flores was acting as the dogs' caretaker and therefore owed the same duty as their owners to control the animals.
¶ 22. Under Vermont common law, a dog's owner "is not liable for injuries to persons and property unless the owner had some reason to know the animal was a probable source of danger."
Davis v. Bedell
,
¶ 23. We have recognized that in addition to owners, "keepers" of dogs may be held liable under the above rule. See
Crowley v. Groonell
,
¶ 24. According to plaintiffs, Flores voluntarily assumed the role of the dogs' keeper because he testified that he would have let the dogs out if they needed to relieve themselves and would have given them water if necessary. They argue that Flores therefore owed a duty to restrain the dogs and breached this duty by permitting his minor son to open the door of the house without first ascertaining where the dogs were.
¶ 25. Assuming for the purpose of summary judgment that the above facts were sufficient for the jury to find Flores was acting as the dogs' keeper, plaintiffs' negligence claim against him still fails, for the same reason as their claim against Turner: they have not shown that Flores knew that the dogs posed a threat to anyone. See
Davis
,
¶ 26. Plaintiffs argue that it is genuinely disputed whether Flores knew that the dogs were likely to be aggressive because the dogs were pit bulls and pit bulls are generally known to be dangerous. We reiterate that this Court has never adopted a breed-wide dangerousness standard for dogs, and there is no evidence in this case to support such a departure from longstanding caselaw. See supra , ¶17. The relevant issue here is whether Flores knew or had reason to know that these particular animals were dangerous. Even if Flores qualified as the dogs' keeper, plaintiffs have failed to demonstrate that he had such knowledge, as required to support their negligence claim. 10 Id .
*663
¶ 27. In the alternative, plaintiffs argue that Flores owed a duty to Eric Gross because he voluntarily undertook to restrain the dogs after they ran out of the house. They rely upon the Restatement sections providing that one who negligently performs a voluntarily assumed undertaking to render services to another is subject to liability for physical harm resulting to the intended recipient of the services or a foreseeable third person. See Restatement (Second) of Torts §§ 323, 324A ;
Langlois v. Town of Proctor
,
¶ 28. Plaintiffs' claim is based on Eric Gross's testimony that he heard an unidentified person say "come, get back, get them in the backyard," and waited with his dog until the Pearos' dogs were out of view. He waited for about twenty or thirty seconds, and "[e]ventually the dogs were gone. I thought they had a fence. So we continued walking." The Pearos' dogs then ran over and attacked his dog. From this testimony, plaintiffs infer that after letting the dogs out of the house, Flores "corralled" the dogs in the Pearos' backyard, but then negligently let them escape his control.
¶ 29. This is not a reasonable inference to draw from the record. See
Carr
,
¶ 30. Assuming without deciding that a "negligent undertaking" theory could apply in this context, plaintiffs have failed to present evidence from which a reasonable jury could conclude that defendant Flores knew or had reason to know that the dogs were a probable source of danger, such that he owed a duty to third persons to restrain them. Nor have they demonstrated that he voluntarily undertook to restrain the dogs. Accordingly, we see no reason to disturb the trial court's award of summary judgment to Flores.
Affirmed .
Plaintiffs state in their brief that they settled with the Pearos for an unspecified amount prior to filing suit against defendants.
According to plaintiffs, the Town of Fair Haven ordered Turner to construct a fence around the property after the incident that is the subject of this case. Plaintiffs suggest that this fact could be used to demonstrate Turner's knowledge of the dogs' dangerous propensities. They are incorrect. Under Vermont Rule of Evidence 407, evidence of subsequent remedial measures is not admissible to prove negligence. Moreover, the fact that the Town ordered Turner to build a fence after the incident does not tend to prove that she knew the dogs were dangerous before the incident.
Some courts have gone so far as to hold that a landlord owes no duty whatsoever to a person injured by a tenant's dog outside the landlord's property, regardless of whether the landlord knew the dog was dangerous, because the landlord did not control the area where the injury occurred. See
Solorio v. Rodriguez
,
In addition to the lack of evidence that pit bulls are a dangerous breed, there is also no evidence in the summary judgment record that Turner knew or believed the dogs were pit bulls. When asked if the dogs were pit bulls, Turner stated, "I don't know. They're mutts." She testified at her deposition that her sister had a pit bull and that the Pearos' dogs did not look like pit bulls to her. As the factual premise upon which plaintiffs' argument rests, the evidence is simply not there. See
Charles v. Mitchell
,
To accept plaintiffs' argument that Turner had a duty to investigate would be to impose a form of strict liability on landlords who rent to pit bull owners. We have consistently declined to adopt strict liability for dog owners, reasoning that such a change in the law is better left to the Legislature.
Martin
,
None of the other cases cited by plaintiffs support their argument that a landlord who permits a tenant to keep dogs in a rental property is obliged to investigate whether the dogs have exhibited aggressive behavior in the past. Instead, these cases hold-consistent with the Restatement-that a landlord may be held liable for injuries caused by a tenant's dog if the landlord had actual knowledge of the dog's vicious propensities. See
Donchin v. Guerrero
,
Although not specifically identified as such, plaintiffs' claim could only be for public nuisance, as they do not allege that the dogs caused a nontrespassory invasion of their private use and enjoyment of land. See Restatement (Second) of Torts § 821D (1979) (defining private nuisance).
For this reason, plaintiffs' arguments regarding the evidence of other alleged incidents they submitted with their motion to reconsider are not helpful to their claims because no evidence shows that Turner knew of these incidents. They are therefore not material to plaintiffs' negligence claim against her.
As we explained in footnote 8, supra , the evidence of alleged prior incidents involving the Pearos' dogs does not create a material dispute of fact where there was no indication that Flores knew about these incidents.
As with Turner, there is no evidence in the record that Flores knew or had reason to know that these dogs were pit bulls.
Reference
- Full Case Name
- Eric GROSS and Adrianne Gross v. Elizabeth TURNER and Antonio Flores
- Cited By
- 30 cases
- Status
- Published