Knapton ex rel. E.K. v. Monk

379 Mont. 1

347 P.3d 1257

2015 MT 111

Travis KNAPTON, on behalf of E.K., a minor, Plaintiff and Appellant

v.Daniel W. MONK, Cheryl Monk and Kimberlee Johnson, Defendants and Appellees.

No. DA 14–0515.

Supreme Court of Montana.

Submitted on Briefs March 25, 2015.

Decided April 28, 2015.

For Appellant: Kevin S. Brown, Paoli & Brown, P.C.; Livingston, Jeremy S. Yellin, Attorney at Law Havre, Montana.

For Appellee: Paul R. Haffeman ; James A. Donahue, Davis, Hatley, Haffeman & Tighe, Great Falls, Montana.

Opinion

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Travis Knapton, father of E.K., a minor child, appeals from the order of the Twelfth Judicial District Court, Hill County, granting summary judgment in favor of Kimberlee Johnson on Knapton's claims of negligence and strict liability. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court err by granting summary judgment in favor of Johnson on the negligence claim?

¶ 4 2. Did the District Court err by granting summary judgment in favor of Johnson on the strict liability claim?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 Kimberlee Johnson is the owner of a house located in Havre. Travis Knapton and Misty Knapton live in an adjacent home with their minor children. Johnson moved into her house in October of 2008 and lived there with her husband and their two dogs. The couple's dogs were housed in a 10' x 10' kennel. There was no fence separating Johnson's property from the adjoining Knapton property. It is undisputed that Johnson's dogs did not run at large, and they are not the subject of this appeal.

¶ 6 In October 2010, Johnson leased the downstairs portion of the residence to Daniel and Cheryl Monk, while continuing to live upstairs.

At the time of the lease, Johnson knew the Monks owned several dogs of pit bull ancestry and that the animals would be living with the family. After the Monks moved into the residence, Johnson relocated her dogs to a property owned by her husband outside of the city limits, and the Monks used the kennel for their dogs.

¶ 7 In March 2011, Johnson moved out of the house and the Monks began leasing the entire residence. Johnson, however, continued to have a presence at the house. She left personal belongings in a downstairs storage room, received mail at the residence, inspected the premises two or three times a month, and occasionally stayed overnight on a foldaway bed.

¶ 8 The Monks' dogs began escaping from the kennel. On July 23, 2011, one of the Monks' dogs, Shy, bit M.K., E.K.'s older sister, on Knapton's property. On August 4, 2011, Daniel Monk was charged with four misdemeanor offenses stemming from this incident. On October 13, 2011, Shy again escaped and bit E.K. on the leg in Knapton's backyard. As a result of charges arising from these two incidents, Daniel Monk pled nolo contendere to six separate criminal charges on February 16, 2012.

¶ 9 On July 19, 2012, Travis Knapton brought this action against the Monks and Johnson on behalf of E.K. The Monks failed to answer and a default was entered against them. Johnson moved for summary judgment, and the District Court conducted a hearing on Johnson's motion.¹ Knapton stipulated that there was no evidence in the record that demonstrated Johnson was aware the Monks' dogs had previously bitten any other person prior to the attack on E.K. The District Court granted Johnson's motion for summary judgment, concluding that Knapton's negligence claim failed because Johnson did not know the Monks' dogs were vicious. The court also concluded that Knapton's strict liability claim failed because Shy “was not a purebred pit bull, but a mixed breed” and Knapton had not provided authority demonstrating that mixed breed dogs with pit bull ancestry are inherently dangerous. Knapton appeals.

STANDARD OF REVIEW

¶ 10 We review a district court's grant of summary judgment de novo and apply the same criteria under M.R. Civ. P. 56(c) as the district court.

Olsen v. Johnston, 2013 MT 25, ¶ 9, 368 Mont. 347, 301 P.3d 791. Summary judgment is appropriate only “when the moving party demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law.” Parish v. Morris, 2012 MT 116, ¶ 10, 365 Mont. 171, 278 P.3d 1015. “The party moving for summary judgment bears the initial burden of establishing that no genuine issue of material fact exists.” Tonner v. Cirian, 2012 MT 314, ¶ 8, 367 Mont. 487, 291 P.3d 1182 (citation and internal quotations omitted). Once the moving party has met that burden, the “burden then shifts to the non-moving party to present substantial evidence that raises a genuine issue of material fact.” Olsen, ¶ 9. Whether the moving party is entitled to judgment as a matter of law is a legal conclusion, which we review for correctness. Peterson v. Eichhorn, 2008 MT 250, ¶ 13, 344 Mont. 540, 189 P.3d 615.

DISCUSSION

¶ 11 I. Did the District Court err by granting summary judgment in favor of Johnson on the negligence claim?

¶ 12 Knapton argues that Johnson is liable in negligence for the injuries inflicted by the Monks' dog on his daughter, E.K., under a theory of premises liability. Knapton reasons that Johnson, as the lessor of the premises, owed a duty of care to E.K. In order to maintain a negligence cause of action, a plaintiff must prove four essential elements: (1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty, (3) a causal connection between the defendant's breach of care and the plaintiff's injury, and (4) damages resulting from the injury. Fisher v. Swift Transp. Co., 2008 MT 105, ¶ 13, 342 Mont. 335, 181 P.3d 601. Ordinarily, negligence actions involve fact intensive questions and are not susceptible to summary judgment. Hinkle ex rel. Hinkle v. Shepherd Sch. Dist. # 37, 2004 MT 175, ¶ 23, 322 Mont. 80, 93 P.3d 1239. However, whether a defendant owes a legal duty to another is a question of law. Fisher, ¶ 17.

¶ 13 As a general rule, a lessor is under no duty “to anyone to look after the premises or to keep them in repair, and is not responsible, either to persons injured on or off the land for conditions which develop or are created by the tenant after possession has been transferred.” Larson–Murphy v. Steiner, 2000 MT 334, ¶ 103, 303 Mont. 96, 15 P.3d 1205 ; see also Vennes for Vennes v. Miller, 1998 MT 23, ¶ 12, 287 Mont. 263, 954 P.2d 736 (“[I]n general, a nonresident property owner is not liable for injuries to others inflicted by a dog owned and maintained by the occupant of the property in question.”). However, we have noted an exception to this general rule, as stated in the Restatement (Second) of Torts § 379A, which we have cited as persuasive authority:

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.

Larson–Murphy, ¶ 104, 15 P.3d 1205 (citing Restatement (Second) of Torts, § 379A (1965) (emphasis added)).² We also noted in Larson–Murphy a similar rule is stated in the Restatement (Second) of Property, Landlord and Tenant, § 18.4 (1977).³ See also Easson v. Wagner, 501 N.W.2d 348, 350 (S.D.1993) (Although generally “a landlord is not liable for the negligent acts of his tenant ... exceptions arise in those cases where the condition or use of the premises is so potentially harmful that the courts will not permit the owner to hide behind a lease.”).⁴

¶ 14 Knapton argues that “Johnson reasonably should have known the dogs were vicious” and that allowing the Monks to harbor vicious dogs “unavoidably involve[d],” in the words of the Restatement, an unreasonable risk. Johnson responds that she cannot be held liable for the dog's attack upon E.K. because she was the not the “keeper” of the Monks' dogs, citing Criswell v. Brewer, 228 Mont. 143, 741 P.2d 418 (1987), for the proposition that a lessor who is neither the owner nor the keeper of a lessee's dog cannot be held liable for common law negligence based upon the dog's conduct, regardless of whether the landlord knew about the dog's vicious propensities. Johnson essentially argues that the law of injury by animal rather than the law of premises liability controls and Knapton's failure to clearly articulate liability under the former theory is fatal to his claim.

¶ 15 Admittedly, in our opinions in Criswell and other cases, we failed to clearly explain that injury by animal and premises liability are separate common law theories of liability. We take this opportunity to clarify that the two theories are distinct, and that the absence of liability under one theory does not necessarily preclude recovery under the other. In applying the law of injury by animal, we have concluded that a plaintiff may recover in a common law negligence action only against a defendant who is the “keeper” of the domestic animal. In contrast, when analyzing premises liability where a domestic animal is involved, we have cited the rule stated in the Restatement (Second) of Torts § 379A, which does not require, as a prerequisite for recovery, that the defendant be the keeper of the domestic animal. Compare Vennes for Vennes v. Miller, 1998 MT 23, 287 Mont. 263, 954 P.2d 736, with Larson–Murphy v. Steiner, 2000 MT 334, 303 Mont. 96, 15 P.3d 1205.

¶ 16 Similarly, other state courts have analyzed premises liability and injury by animal as separate legal theories of liability. In Stokes v. Lyddy, 75 Conn.App. 252, 815 A.2d 263 (Conn.App.Ct.2003), the Connecticut Appellate Court addressed an analogous factual scenario where the plaintiff, while walking along a public sidewalk, was bitten by a pit bull owned by the defendants' tenant....