Slack v. Villari

476 A.2d 227, 59 Md. App. 462, 1984 Md. App. LEXIS 378

• Court: Court of Special Appeals of Maryland
• Decided: June 11, 1984
• Docket: 1771, September Term, 1983
• Status: Published

Opinions

WEANT, Judge.

“When a dog runs at you, whistle for him.” So advised Henry David Thoreau.

Roy and Winifred Slack, the owners of a dog named Gideon and the appellants in this case, have appealed the verdict of a Prince George’s County jury which held them liable for personal injuries and a concurrent loss of consortium sustained by the appellees, Dorothy and Carl Villari. The injuries occurred when Dorothy Villari attempted to avoid an apparent confrontation with the appellants’ dog. The jury returned a verdict for damages in the amount of $42,500 for Dorothy Villari’s injuries and $2,500 for the accompanying privation of consortium.

The agreed statement of “Essential Facts” {sans transcript references) in this case appears as follows in this expedited appeal:

Between 8:30 — 9:00 p.m. on the night of June 12, 1979, Mr. and Mrs. Villari were taking their customary evening stroll along Caldran Drive in Clinton, Maryland. They were walking on a public sidewalk on Caldran Drive. As they were walking across a driveway, and while they were still on the public sidewalk, Mrs. Villari saw, out of the corner of her eye, something white. As they were walking she had a hold of. her husband’s arm. As she turned she saw a dog that was already in the air coming towards them. She heard a low growl and she saw teeth. At no time was the dog restrained by a leash.

In an attempt to protect herself from the dog, Mrs. Villari moved behind her husband. As she did so, her heel caught on something or in something which caused her body to twist. She lost her balance, and to keep from falling, she reached up to her husband to balance herself. As she did so, she felt a searing pain go from her back down through her leg all the way to her foot. At that' time she was unable to move. She did not actually fall but had caught herself before she fell.

This incident occurred in front of the house owned by the appellants, Mr. and Mrs. Slack. Mrs. Slack was present in the carport area during the occurrence. The Villaris remained on the sidewalk prior to and during the occurrence and it occurred in the middle of the sidewalk. Mr. Edward V. Dorsey, Jr. from the Department of Public Works and Transportation testified that the sidewalk in front of the Slack’s house was a dedicated right-of-way open for public use.

The dog did not touch or bite Mrs. Villari. Nor did it touch or bite Mr. Villari. The dog came down from the driveway towards the Villaris, got within a few inches of them, and was snarling and growling at them. Mr. Villari put his arm up to protect himself and the dog’s mouth was right there next to his wrist where his watch was and he could feel the dog breath [sic ] on him, but the dog did not bite him. The dog started to return to the house and then it came back at them again. The entire time the dog was near them Mr. Villari was yelling, “No! No! No!” At the same time Mr. Villari was yelling at the dog, Mrs. Villari thought she heard the word “house” and then the dog turned around and went back up to the house. From that time Mrs. Villari first saw the dog until the time it went back into the house she estimated that between 30 seconds to one minute passed.

Although Mr. and Mrs. Villari had walked past the house on many occasions, they had never seen the dog before. They did not know of anyone the dog had bitten, growled or snapped at before this incident. Mr. Villari did not fall or injure himself.

Mrs. Villari testified that the day after the occurrence she had a telephone conversation with Mrs. Slack. According to Mrs. Villari, Mrs. Slack said that had she known there was anyone in the driveway she would not have let the dog out of the backyard, and that she could not control the dog. Mrs. Slack could not recall all the details of the conversation but state[d], "... I am assuming she is not lying, so if I had said that it’s — people are normally afraid of large dogs and since he was a Doberman it was just the kind of thing you would just avoid.” Mrs. Slack testified that she would not have said that she could not control the dog, but stated that if given conflicting commands the dog would obey her husband.

The Slacks had acquired the Doberman, “Gideon,” as a five-week old puppy. They got him as a replacement for another Doberman who had been killed. Gideon was to serve as a special dog for the Slacks’ first son, who was born with handicaps.

Mrs. Slack testified that Gideon had never previously behaved in the manner described by the Villaris. He had never bitten anyone; and had always been a calm dog. Although Mr. Slack principally trained the dog, Mrs. Slack never had any trouble controlling him. Mrs. Slack testified that on the night of the occurrence, she had let Gideon out in the backyard. She was preparing to let him in through the carport and Gideon heard or saw something. Instead of going into the kitchen door, the dog walked past Mrs. Slack. Mrs. Slack did not see anybody at the end of the driveway. When she called him, he came back. Mrs. Slack was not aware that anything had happened at the time. The next day she received a phone call from Mrs. Villari.

Mrs. Slack further testified that Gideon was normally kept in the house or fenced in the backyard. He did not bark at people, but would bark when the doorbell rang and at other dogs. Other children in the neighborhood came and played with him. Mr. and Mrs. Slack also testified that the dog had never growled at any person, and had chased other dogs three or four times in the nine to ten years the Slacks had owned him. According to a neighbor, John Szymkowicz, the dog did not cause problems in the neighborhood. Mr. Szymkowicz is a practicing attorney in the State of Maryland and stated that it was a good possibility that he did render an opinion to the Slacks as to what the dog law and dog attack laws were in the State of Maryland.

Gideon was described as a Doberman pinscher approximately 24 inches high at the shoulders and weighed at most five pounds heavier than as shown in Exhibit “1”,

At no time during this incident was the dog under restraint by a leash. When Mrs. Slack moved the dog from the backyard to the house she did not hold the dog by the collar. Prince George’s County, Maryland has adopted a leash law which was the law at the time of this occurrence.

As a result of the injuries sustained by Mrs. Villari, she saw her doctor the following day and was put on muscle relaxers and ordered to bed. She went in the hospital for traction from June 25, 1979 to July 12, 1979. Subsequent thereto she returned to the hospital on September 11, 1979 where she remained until October 31, 1979 and underwent a fusion on the 4th and 5th lumbar vertebrae in the lower part of her back.

That as a result of the injuries sustained by Mrs. Villari, she incurred medical bills in excess of $20,000 plus lost wages from July of 1979 until November of 1981. The issues of her losses and the amount of the judgment is not at issue in this case.

At the conclusion of the case the appellants moved for a directed verdict on the grounds that there had been no showing of any primary negligence on the part of the appellees. Mr. Buchanan [attorney for appellants] argued that there was certainly no showing of any prior vicious conduct on the part of the dog and that there was absolutely no showing that they knew or should have known that this particular incident or occurrence had ever taken place before or that they had any knowledge that it might take place as described. Mr. Buchanan further argued that the leash law did not apply to this case and that the court should not have instructed the jury on the leash law. For the final arguments on this issue see the attached copies of the argument from the trial.

The court denied Mr. Buchanan’s motion for directed verdict at the conclusion of the case and proceeded to instruct the jury.

In this appeal the Slacks contend that the trial court erred in denying their motion for directed verdict because:

A. A violation of the Prince George’s County leash law, if proven, was not evidence of the type of negligence required to impose liability for personal injuries on owners of domestic animals.

B. Appellees did not prove that Appellants knew, or in the exercise of reasonable care should have known, that the dog “Gideon” had the propensity to do the acts which that [sic ] caused injury.

Under current Maryland law, a dog owner may be responsible for the acts of his animal under two alternate theories of liability — negligence or strict liability, the latter arising from the owner’s knowledge of the animal’s propensities to cause harm. See McDonald v. Burgess, 254 Md. 452, 456, 255 A.2d 299, 301 (1969); Finneran v. Wood, 249 Md. 643, 241 A.2d 579 (1968); Herbert v. Ziegler, 216 Md. 212, 216, 139 A.2d 699, 702 (1958). We examine both.

-Negligence-

The type of negligence that exposes an animal owner who is unaware of the animal’s dangerous propensities occurs in the failure to control the creature or prevent the harm caused by it. See Restatement (Second) of Torts, § 518 (1977).' The degree of control required is generally held to be that which would be exercised by a “reasonable person,” see discussion, Arnold v. Laird, 94 Wash.2d 867, 621 P.2d 138, 141 (1980) (en banc).

Under Maryland law, the violation of a statutory duty establishes a prima facie case of negligence where the violation is the proximate cause of the accident or injury, but does not constitute negligence per se. Whitt v. Dynan, 20 Md.App. 148, 154-55, 315 A.2d 122, 126-27 (1974). The same principle applies to the violation of a county ordinance. Paramount Development Corp. v. Hunter, 249 Md. 188, 193, 238 A.2d 869, 871 (1968). In order for the violation of a statute to be evidence of negligence, that violation must result in an injury to a member of the class the statute was designed to protect and the injury sustained must be the type which the statute was intended to prevent. Gardenvillage Realty v. Russo, 34 Md.App. 25, 34, 366 A.2d 101, 107-08 (1976). These legal determinations are made by the trial judge. Aravanis v. Eisenberg, 237 Md. 242, 259, 206 A.2d 148, 157 (1965).

The particular ordinance at issue in this case provides, in pertinent part, that “[n]o owner of any dog shall allow such animal to be at large in the County____” Prince George’s County Code, § 3-106 (1979, 1982 Repl.Vol.) (emphasis added). Section 3-101(a) states that an “[ajnimal at large shall mean an animal not under restraint and off the premises of his owner.” Further guidance is found in § 3-101(6), which says that an animal “under restraint” shall mean an animal: (1) secured by a leash or lead and under the control of a responsible person, or (2) confined within a vehicle, or (3) within the real property limits of its owner.

Therefore, the initial question to be answered is whether, under the facts in the case sub judice, the dog was in fact, “at large” within the meaning of the statute. At first blush, one might conclude that Gideon was “at large” at the time of the litigated occurrence. We note, however, that the penalty provided by § 3-106 for any dog whose owner shall allow him to be at large in the County is impoundment. It is inconceivable that the designers of this law had in mind the impoundment of a dog for merely straying onto the sidewalk in front of its owner’s residence. Furthermore, the dog in question was under restraint, albeit verbal. There is no requirement that the animal be under leash or lead when on the premises of its owner. Considering the term “at large” further, we observe that § 3-108 provides: “In addition or in lieu of impounding a dog found at large, a notice may issue to the known owner of such dog of the violation along with a cease and desist order.” In our view this penalty was obviously not intended to flow from instances such as we have in the case at bar. To hold otherwise could lead to bureaucratic nonsense. Consequently, we maintain that Gideon was not “at large” as alleged.

Although we conclude that the dog in this case was not “at large,” we will examine the claim that he was “allowed” to venture off of the private premises and was thus violative of the statute in question. The agreed statement of facts indicates that Mrs.' Slack opened the gate to Gideon’s enclosure to enable him to enter the house through the kitchen door. Instead, “the dog walked past Mrs. Slack.” Moments after Gideon had proceeded beyond his mistress and down the driveway she called him; he returned immediately. Mrs. Slack testified that she was not aware of the incident with the Villaris. There is no indication that she knew the dog was going out of bounds, or that she “allowed” him to leave the premises. The mere accidental escape of an animal, without proof of the owner’s knowledge or negligence, is insufficient evidence to constitute a violation of similar statutes couched in identical terms. See Santanello v. Cooper, 106 Ariz. 262, 475 P.2d 246 (1970); Jett v. Norris, 133 Ga.App. 596, 211 S.E.2d 639, reh. den. (1974). See generally, cases collected in 34 A.L. R.2d 1285, § 4 at 1289-91 and later case service; 4 Am. Jur.2d § 116, Animals, pp. 367-68. Absent proof of Mrs. Slack’s negligence in failing to control Gideon, no violation of the statute occurred. The same incident might even have taken place had the dog been under a leash. Certainly the degree of care exhibited by Mrs. Slack was that of a “reasonable person.”

Because there was no violation of the statute on the part of the Slacks, the court erred in failing to grant the motion for directed verdict on the issue of liability by way of the negligence hypothesis.

-Strict Liability-

The owner of an animal may be responsible for injuries caused by that animal under the principles of strict liability. Under this concept, the owner’s liability arises from exposing the community to a known dangerous beast rather than any negligence in keeping or controlling his animal. Prosser, Law of Torts, § 76 at 449 (4th ed. 1971). Unlike the negligence theory of recovery, where liability attaches at the time of occurrence of the injury or damages, “[t]he gist of the [strict liability] action is the keeping of the animal after knowledge of its mischievious propensities.” Twigg v. Ryland, 62 Md. 380, 385, 50 A.R. 226 (1884). In order to hold an animal owner liable under this theory, “the claimant must show that the owner knew, or by the exercise of ordinary and reasonable care, should have known, of the inclination or propensity of the animal to do the particular mischief that was the cause of the harm.” Herbert v. Zeigler, supra, at 216, 139 A.2d at 702. See also, Restatement (Second) of Torts, § 508 (1977).

The Court óf Appeals discussed the knowledge or scienter required to hold the owner of an animal possessed of these tendencies responsible for the injuries inflicted in Bachman v. Clark, 128 Md. 245, 97 A. 440 (1916). There the Court said:

[T]he owner’s knowledge of the dog’s vicious propensity need only be such as to put him on his guard, and to require him as an ordinary prudent person to anticipate the act or conduct of the dog resulting in the injury for which the owner is sought to be held liable.... The owner’s knowledge of the propensity of the dog may be, and most generally is, acquired from its conduct and behavior, although such knowledge may be acquired from other persons, and in some cases the knowledge of others is imputed to the owner. [Citation omitted.]

Id. at 248, 97 A. at 441.

The Slacks contend that their motion for directed verdict should have been granted because the Villaris failed to prove that the appellants knew or should have known of Gideon’s propensity to commit the act alleged, i.e., rushing or jumping at persons passing in front of “his” yard. Because there is not an iota of such evidence, we agree.

The standard for determining whether a directed verdict should be granted is extremely strict. “A directed verdict is inappropriate where there is any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact which if found to exist would prevent judgment for the moving party.” Impala Platinum, Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 328-29, 389 A.2d 887, 905-06 (1978). Nonetheless, there are circumstances in which the directed verdict is appropriate. As we recently stated in Cavalier Mob. Homes v. Liberty Homes, 53 Md.App. 379, 454 A.2d 367, cert. denied, 295 Md. 736 (1983):

Whenever the facts, and any rational inferences which may be drawn from them, point so strongly toward the non-existence of an essential element of a party’s cause of action or defense that no reasonable man could find for its existence, the appropriate level of non-persuasion has been reached and a directed verdict is proper.

Id. at 385, 454 A.2d at 372.

Maryland courts have denied recovery by an injured plaintiff where he has failed to demonstrate the owner’s scienter of the propensity of his animal to cause harm. The notice which will charge the owner or keeper with liability for the vicious or mischievous conduct of the animal must be notice that it is inclined to do the particular mischief that has been done. Twigg v. Ryland, supra, at 386, 50 A.R. at 226; accord, Finneran v. Wood, supra. In the case of a dog, notice that he is “fiercely disposed” toward cattle is not notice that he is similarly inclined to mankind. Twigg, supra, at 386, 50 A.R. at 227. Following the same reasoning, the Finneran Court held that evidence that a horse kicked at someone frightening her in her stall, or at other horses, was of scant significance in determining her propensity to kick humans. Id. at 647-48, 241 A.2d at 581-82.

Neither will the fact that the animal is regularly maintained in an enclosure or otherwise restrained, standing alone, constitute legally sufficient evidence tending to show the owner’s knowledge of the animal’s vicious propensities or inclination to bite people. McDonald v. Burgess, supra, at 457-58, 255 A.2d 302. In McDonald, the court dismissed the plaintiff’s argument that, based on the earlier cases of Goode v. Martin, 57 Md. 606, 40 A.R. 448 (1882) and Bachman v. Clark, supra, evidence that the dog causing the damage in that case was always kept in a “run” or on a “strap,” if outside the kennel, established that its owner was on notice of its vicious propensities. The Court said:

In Goode v. Martin, supra, our predecessors held the defendant might be presumed to have had knowledge that his dogs were fierce and dangerous from the fact that he was accustomed to keep them tied during the daytime. These cases certainly are not authority for the proposition ... that it is not essential to establish facts which could put an owner on notice of the potentially vicious propensity of his animal. The fact that the dogs here were kept in an enclosure in a suburban area in a day when legal restrictions frequently forbid a dog’s running at large cannot have the same significance that the matter of enclosure had in 1916 [Backman v. Clark ] and 1882 [Goode v. Martin ].

McDonald, supra, at 458, 255 A.2d at 302.

The McDonald court also disabused the plaintiffs of the notion that the owner of the dog knew of his dog’s vicious propensity because the particular breed — a German shepherd — was known to be dangerous. The plaintiffs in that case supported their position with an affidavit from an officer of the Prince George’s Cqunty Police Department’s K-9 Corps which attested to the fact that this breed of dog “can and often does behave in a very vicious manner____” The Court of Appeals held that the mere fact that the dog that injures a plaintiff belongs to a breed with an unsavory reputation, absent evidence that the particular dog was of a violent nature, is insufficient to prove scienter. Id. at 458-60, 255 A.2d at 302-03.

Turning to the canine culprit in the case sub judice, the record is clear that Gideon had never growled at, bitten, or previously attacked any person. He would bark at the sound of the doorbell and, on three or four times in nine or ten years, had chased other dogs. The Villaris’ contention that Gideon presented a threat to humans and that his owners were aware of that danger rests, on the following portion of the agreed statement of facts:

Mrs. Yillari testified that the day after the occurrence she had a telephone conversation with Mrs. Slack. According to Mrs. Villari, Mrs. Slack said that had she known there was anyone in the driveway she would not have let the dog out of the backyard, and that she could not control the dog. Mrs. Slack could not recall all the details of the conversation but state[d], “... Iam assuming she is not lying, so if I had said that it’s — people are normally afraid of large dogs and since he was a Doberman, it was just the kind of thing you would just avoid.” Mrs. Slack testified that She would not have said that she could not control the dog, but stated that if given conflicting commands the dog would obey her husband.

Clearly the facts show that Mrs. Slack could and did control the dog. No other - evidence was introduced to tarnish Gideon’s tractable character or to establish notice of his propensity to engage in the injury-causing act. The fact that Gideon was a Doberman pinscher, standing alone, will not be considered a substitute for proof that this particular pinscher was of an obstreperous or violent nature. McDonald, supra. The fact that the Slacks were wont to maintain Gideon in an enclosure or inside the house, in light of the Court of Appeals’ discussion in McDonald, supra, will not be used to imply any knowledge on their part of Gideon’s inclination to engage in the kind of activity that resulted in harm to Mrs. Villari.

Based on the record before us, what Gideon did on this unfortunate occasion appears to be an isolated, single occurrence. There was no evidence that he had, at any time, behaved similarly in the past; there was no knowledge chargeable to the defendants that he might do this particular act. What occurred was clearly not anticipated, nor could it have been. Compare, Hamilton v. Smith, 242 Md. 599, 219 A.2d 783 (1966) (nine year old boy was savagely attacked by three dogs; evidence established that dogs’ owners were aware of previous biting incidents involving two of the dogs held sufficient to support finding that owners had actual knowledge of dogs’ vicious propensities); Herbert v. Ziegler, supra, (evidence of horse owner’s knowledge of his animal’s propensity to cause harm found when rented horse, who bolted upon being startled by barking dog, was shown to have behaved similarly on previous occasion); Bachman v. Clark, supra, (evidence that bull terrier, who had bitten child without provocation, had snarled and jumped at pedestrians passing by his owner’s property and had bitten and attempted to bite visitors on several occasions held sufficient to show owner’s knowledge of dog’s vicious propensities).

On the record before us, the Slacks’ motion for directed verdict on the issue of liability, based on either theory, should have been granted.

JUDGMENTS REVERSED.

COSTS TO BE PAID BY APPELLEES.