                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-1940
                              Filed October 14, 2015


MICHELLE DUNKINS,
     Plaintiff-Appellant,

vs.

RTL ENTERPRISES, L.L.C.,
     Defendant-Appellee,

and

JAMAR JONES and MELLISA JONES,
     Defendants.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Michelle Dunkins appeals the district court’s grant of summary judgment in

favor of RTL Enterprises, L.L.C. on Dunkins’s claims of premises liability and

negligence. AFFIRMED.




       David Hosack and Carter Stevens of Roberts, Stevens, Prendergast

& Guthrie, P.L.L.C., Waterloo, for appellant.

       Henry J. Bevell III of Swisher & Cohrt, P.L.C., Waterloo, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
                                       2


VAITHESWARAN, Judge.

      Jamar and Melissa Jones owned four dogs, one of which bit Michelle

Dunkins while Dunkins was visiting the Joneses. The Joneses rented their home

from RTL Enterprises, L.L.C. Unbeknownst to RTL, a Jones dog previously bit

someone else.

      Dunkins sued the Joneses and RTL, alleging: (1) premises liability against

RTL as landowner, (2) negligence on the part of the Joneses and RTL, and

(3) strict liability against the Joneses as dog owners.   The Joneses took no

responsive action. RTL answered and moved for summary judgment. Following

a hearing, the district court granted RTL’s motion on the negligence and

premises liability counts and dismissed RTL as a defendant. Dunkins appealed.

      Summary judgment is appropriate when there is no genuine issue of

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

Bierman v. Weier, 826 N.W.2d 436, 443 (Iowa 2013). The material facts are

essentially undisputed. The key question is whether the district court erred in

granting judgment as a matter of law on each of the counts against RTL.

I.    Premises Liability

      In granting RTL summary judgment on the premises liability count, the

district court partially relied on Allison by Fox v. Page, 545 N.W.2d 281 (Iowa

1996). The issue before the court was whether “a landlord is liable for an injury

inflicted by a tenant’s dog when the landlord knew or had reason to know that the

dog was dangerous.” Allison, 545 N.W.2d at 283. The case was tried under a

premises liability theory. Id. at 282. Though the landlord was aware the tenant

“owned a dog that was allowed to run free in the fenced-in yard” and the dog had
                                        3


previously “injured a young girl visiting the tenant,” the court concluded “the

landlords have no liability for the injuries caused by their tenant’s dog.” Id. at

282-83. The court reasoned as follows: “The landlords did not have any right to

control their tenant’s dog.    The tenant’s dog, to the extent it can even be

categorized as a condition of the premises, came onto the land after the property

was leased.” Id. at 283. Because the landlords “did not own or harbor the dog

that bit” the plaintiff, the court concluded the case should not have been

submitted to the jury. Id. at 284.

       RTL similarly did not own or harbor the dog that bit Dunkins. Although a

tenancy application might have placed RTL on notice that the Joneses owned a

dog, this type of ownership knowledge was not deemed material in Allison.

       Nor did the landowner’s knowledge of the dog’s propensity to bite affect

the holding in Allison. See id. at 283-84. As noted, RTL had no knowledge of

the previous dog bite and Dunkins conceded as much in her deposition, as did

her attorney.

       Because RTL “did not own or harbor the dog,” RTL “owed no duty to third

persons to protect them from the dog.” See id. Based on Allison, we affirm the

district court’s grant of summary judgment to RTL on the premises liability count.

II.    Negligence

       Dunkins alleged RTL (1) “[n]egligently allow[ed] the dangerous and vicious

dog to be present and stay in the premises,” (2) “knew or in the exercise of

reasonable care should have known that the vicious animal was on the premises

involved and caused unreasonable risk of injury to a person in [her] position,” and

(3) “failed to take reasonable precautions to protect those lawfully near the
                                         4

premises.” This court rejected a similar negligence claim in Patterson v. Rank,

No. 10-0566, 2010 WL 5394623, at *3-6 (Iowa Ct. App. Dec. 22, 2010). As in

Allison, we focused on the landowner’s control of the dog and concluded the law

did not support extension of a duty of reasonable care absent control. Patterson,

2010 WL 5394623, at *5.

       Dunkins attempts to distinguish Allison and Patterson on the ground she

lacked a written lease and RTL “retained significant control” over the property.

We find the nature of the lease to be a distinction without a difference. In Allison,

the landlords rented the property to their daughter, arguably giving them more

control over the leased property than if they had rented the premises to an

unknown third party. 545 N.W.2d at 282. The court did not mention this fact as

significant in its analysis. In Patterson, the plaintiff cited certain lease terms in

arguing the landlord exercised control over the rented space, but this court

rejected the assertion.     2010 WL 5394623, at *3-4.           We find Patterson

persuasive.

       We conclude the district court did not err in granting summary judgment to

RTL on the negligence count.

       AFFIRMED.
