Kara Kelly, V. Amanda Mayo

• Court: Court of Appeals of Washington
• Decided: July 26, 2021
• Docket: 81764-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KARA KELLY, No. 81764-7-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION AMANDA MAYO, a single person; SHANE DONOVAN MOORE-HAGGIN, a single person; KARRIE J. DUTTON and DONALD D. DUTTON, wife and husband, and the marital community composed thereof,

Respondents.

APPELWICK, J. — Kelly brought a premises liability action against Mayo’s

landlord, based on injuries her daughter received from a dog bite by Mayo’s dog

on the leased premises. The trial court granted summary judgment for the

landlord. We affirm.

FACTS

Amanda Mayo leased a condo from Karrie Dutton beginning on July 2,

2015. Despite a pet prohibition in the lease, she adopted a dog several months

later in December 2015. Dutton was aware that Mayo had adopted the dog.

Representatives of the condominium community informed Dutton that the dog had

displayed aggressive behavior towards another dog in the condominium

community. On January 30, 2016, the dog attacked five year old C.K., while he

was Mayo’s social guest in the condo. No. 81764-7-I/2

C.K.’s mother Kara Kelly brought suit against Mayo, Dutton, and Dutton’s

husband Donald Dutton, and Shane Moore-Haggin (corporately “Dutton”). She

asserted, inter alia, a premises liability claim that the Duttons had a duty to warn

those entering the premises of the danger posed by the dog.

Both sides moved for summary judgment. The trial court granted summary

judgment for Dutton, finding that landlords are generally not responsible for

animals on the leased premises, even if they know the animal may be dangerous.

Kelly appeals.

DISCUSSION

Kelly argues that the trial court erred in granting summary judgment

dismissing her claim against Dutton. She argues the court should have granted

summary judgment for her instead. The parties’ primary dispute is whether

landlords can be liable for a dog bite on their leased premises under a premises

liability theory.

Summary judgment is appropriate where there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. CR

56(c). We review summary judgment determinations de novo, engaging in the

same inquiry as the trial court. Durland v. San Juan County, 182 Wn.2d 55, 69,

340 P.3d 191 (2014).

Dutton argues that landlords generally cannot be liable when a tenant’s dog

bites someone. Pointing primarily to Frobig v. Gordon, 124 Wn.2d 732, 735, 881

P.2d 226 (1994), they argue that it is “‘settled law’” that “‘only the owner, keeper,

2 No. 81764-7-I/3

or harborer’” of a dog is liable for the injuries the dog causes. (quoting Clemmons

v. Fidler, 58 Wn. App. 21, 35-36, 791 P.2d 257 (1990)).

Kelly points to Oliver v. Cook, 194 Wn. App. 532, 544, 377 P.3d 265 (2016).

There, this court allowed a premises liability claim by a tenant against their landlord

for a dog bite the tenant sustained from a dog brought onto the leased premises

by the landlord’s invitee. Id. at 543-44. Kelly argues this case establishes a

“separate analysis” from other theories of dog bite liability through which landlords

can be held liable for their tenants’ dangerous dogs.

Since the briefing in this case, our Supreme Court decided Saralegui Blanco

v. Gonzales Sandoval, 197 Wn.2d 553, 485 P.3d 326 (2021). There, like here, a

plaintiff argued that a landlord was liable for injuries caused by their tenant’s dog

under a premises liability theory. Id. at 554. Our Supreme Court rejected the

claim, considering both Frobig and Oliver. Id. at 557-58, 564. It reasoned that

premises liability attached only to a possessor of land, who generally must occupy

and control the land. Id. at 559. Generally, in a landlord-tenant relationship,

possession and control are transferred to tenants. Id. at 560. The court recognized

that a claim could exist where a landlord retains control over a portion of the leased

premises. Id. But, it specifically rejected the notion that landlord liability can be

based on only knowledge and control through lease provisions. Id. at 560-61.

Kelly makes that very same argument. She argues that Dutton retained

control over whether animals were kept on the premises based on the “no pets”

clause in the lease. And, she argues that Dutton should have taken steps to

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correct the situation once she was informed that the dog was potentially

dangerous.

We follow the Saralegui Blanco court in declining to impose premises

liability on Dutton based on knowledge and control through lease terms. Because

Kelly cannot establish premises liability as a matter of law, dismissal of the claim

against Dutton at summary judgment was proper.

We affirm.

WE CONCUR: