Wishon v. Hammond

538 P.3d 1197

Trela WISHON, Plaintiff/Appellant,

v. James HAMMOND and Rita Hammond, Defendants/Appellees,andForest Hammond, Ronald Hammond and Dalton Gravett, Defendants.

Case No. 117,997

Court of Civil Appeals of Oklahoma, Division No. 4.

Filed: October 26, 2022

Rehearing Denied: November 23, 2022

Mandate Issued: October 19, 2023

Dakota C. Low, MILLER DOLLARHIDE, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant

Shanda McKenney, ANGELA D. AILLES & ASSOCIATES, Oklahoma City, Oklahoma, for Defendants/Appellees

OPINION BY JOHN F. FISCHER, CHIEF JUDGE:

¶1 Trela Wishon appeals the judgment in favor of James and Rita Hammond (collectively, the Hammonds). Wishon and her dog were attacked and injured by a dog owned by co-defendant Forest Hammond. Wishon sued the Hammonds alleging that, as owners of the real property where Forest Hammond lived and kept the dog, they were liable for harboring a dangerous animal in violation of state and municipal law. Wishon further alleged that the Hammonds were negligent as owners of the property where the dangerous animal was maintained by failing to require that the dog be contained in a safe manner. The Hammonds filed a motion for summary judgment arguing that they did not violate state and municipal law because they did not own the dog. They further argued they were not negligent because they did not know that Forest Hammond kept the animal that attacked Wishon on their property. Wishon's appeal of the judgment granting the Hammonds’ motion has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2013, ch. 15, app. 1, and the matter stands submitted without appellate briefing.

¶2 The issue in this case is whether a landlord has a duty to those who are not on the property but are injured as the result of activities conducted on the property owner's premises by the property owner's tenant. We hold, in the circumstances of this case, that the law imposes that duty on a landlord. Nonetheless, we affirm the judgment in favor of the Hammonds with respect to Wishon's claim that the Hammonds violated state and municipal law. They were not owners of the dog that attacked Wishon for purposes of those laws. However, we reverse the judgment with respect to Wishon's common law negligence claim that the Hammonds are liable for her injuries as owners of the property where the dog was kept. Disputed issues of fact concerning whether the Hammonds breached their duty to Wishon preclude summary judgment as to this theory of liability.

BACKGROUND

¶3 James and Rita Hammond own property on Drew Drive within the municipal boundary of Oklahoma City. In the fall of 2014, they permitted James’ brother, Ronald, to live on that property. They did not have a written lease agreement but their understanding was that Ronald would "pay whatever he could" in rent, usually $500 per month, when he was able to do so. At some point, with the Hammonds’ knowledge and consent, Ronald permitted his grandson, Forest Hammond, to live on the property with him.

¶4 Approximately two years after Ronald moved onto the Hammonds’ Drew Drive property, and while Forest was living there, Wishon was walking on the road in front of the property when she and her dog were attacked and bitten by a dog owned by Forest. The injuries were severe and required medical attention. Wishon sued Ronald, Forest, James, Rita and another of Ronald's grandsons, Dalton Gravett. Wishon alleged that the defendants were liable pursuant to Oklahoma and Oklahoma City law as owners of the dog that caused her injuries, and were negligent in failing to properly house the animal and in failing to warn her that the dangerous animal was on the premises. There is some indication that Wishon's suit against Ronald, Forest and Dalton may have been resolved in her favor, and Wishon's claims against those defendants are not at issue in this appeal.¹

¶5 This appeal involves Wishon's claim against James and Rita Hammond as owners of the Drew Drive property. The Hammonds argued in their motion for summary judgment that they could not be held liable for Wishon's injuries because: (1) they did not own the dog that attacked Wishon and therefore could not have violated state or municipal law; and (2) they did not owe Wishon a duty of care under common law negligence because they were unaware of the dog's existence.² Wishon appeals the judgment granting the Hammonds’ motion.

STANDARD OF REVIEW

¶6 Title 12 O.S.2011 § 2056 governs the procedure for summary judgment in this case. A motion for summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Id. Like the trial court, an appellate court "will examine the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact." Carmichael v. Beller , 1996 OK 48, ¶ 2, 914 P.2d 1051. The de novo standard controls an appellate court's review of a district court order granting summary judgment. Id. "De novo review involves a plenary, independent, and non-deferential examination of the trial court's rulings of law." Neil Acquisition, L.L.C. v. Wingrod Inv. Corp. , 1996 OK 125, n.1, 932 P.2d 1100.

ANALYSIS

¶7 As evident from the summary judgment briefing, Wishon based her claim against the Hammonds on common law negligence. She alleged that the Hammonds owed her a duty as owners of the property where the dog was housed and as landlords of the owner of the dog that caused her injuries. In addition, she asserted a claim based on negligence per se, contending that the Hammonds were liable for violating Oklahoma and Oklahoma City laws prohibiting them from harboring the dangerous dog that caused her injuries.

I. Material Facts

A. Undisputed Facts

1. James and Rita Hammond, who live in Edmond, Oklahoma, own the Drew Drive property involved in this suit. They bought the property in approximately 2010. The property is located within the city limits of Oklahoma City, Oklahoma, near Luther, Oklahoma, and is approximately five acres in size.

2. Neighbors on either side of this property erected fences, but the property is not fenced along the front of the Hammonds’ property facing Drew Drive.

3. In the fall of 2014, the Hammonds leased the property to James’ brother, Ronald. No lease term was agreed to and Ronald was to pay on a month-to-month basis.

4. The lease was not in writing and did not prevent Ronald from keeping dogs on the property.

5. The Hammonds own three other rental properties. Each of the tenants in those properties has signed a written lease. Each of those three leases prohibits the tenant from keeping pets, including dogs, on the Hammonds’ property.

6. The Hammonds receive the tax notices for the Drew Drive property or notices from Oklahoma City regarding that property at their Edmond address.

7. With the knowledge and consent of the Hammonds, Ronald permitted his grandson Forest to live with him on this property. Forest estimated that he moved onto the Drew Drive property in approximately September of 2015. (An April 13, 2015 loose dog report suggests that Forest may have moved in earlier. Seeinfra B. Unresolved Issues of Fact.)

8. The Hammonds also knew that Forest kept a male Pit Bull/Mastiff-mix dog on the property, Cain, and authorized Forest to do so. Cain was a littermate of a dog owned by the Hammonds.

9. When Forest moved onto the property, the Hammonds provided a 10-foot by 20-foot chain link kennel for the purpose of keeping Forest's dog contained.³ Forest kept Cain in the kennel for "a little bit," but ultimately decided it was too small for the dog. Then he kept Cain on a chain in the yard.

10. At some point, Forest acquired ownership of a female brindle Pit Bull/Mastiff-mix dog he named "Rousey." This dog was a sibling of Cain and the dog owned by the Hammonds. Forest also kept Rousey on the Hammonds’ Drew Drive property. He initially kept Rousey in the kennel, but she was "an escape artist" and would dig out of the kennel. The area where the kennel was located was sandy soil and easy to dig.

11. On September 27, 2016, while Wishon was walking with her border collie on the road in front of the Hammonds’ Drew Drive property, Wishon and her dog were attacked and injured by Rousey. Wishon and her dog required medical attention but both recovered from their injuries.

12. Neighbors living across the street from the Hammonds’ property, the Holshousers, saw the attack as it occurred; they were able to intervene, stop the attack and take Wishon and her dog for medical treatment.⁴

13. When Oklahoma City animal control officers arrived, Rousey "was still loose," but "ran off into the woods." The officers were able to interview Forest.

14. The animal control officers issued Forest a dangerous dog citation and impounded and later euthanized Rousey, after she was identified by Wishon as the dog that attacked her.

15. A few days after the attack on Wishon, the Hammonds received a letter at their Edmond address regarding the incident, stating that "a dog had gotten loose and bitten someone."

B. Unresolved Issues of Fact

¶8 If any one of the facts in the following section is material, summary judgment is precluded. "Summary judgment claims turn on the law because there is no material factual dispute." Coates v. Progressive Direct Ins. Co ., 2022 OK 45, ¶ 7, 512 P.3d 345. Summary judgment is not appropriate even where the facts are not disputed "if reasonable minds could reach different conclusions from the undisputed material facts." Fargo v. Hays-Kuehn , 2015 OK 56, ¶ 12, 352 P.3d 1223.

¶9 The following issues of fact remain disputed. The Hammonds contended that, although they knew that Forest was keeping one male dog on the property, they did not know that he owned Rousey or kept her on the property. The Hammonds supported their contention with citations to their...