                                   IN THE
              ARIZONA COURT OF APPEALS
                                DIVISION ONE


     KEVIN SPIRLONG and ANNE SPIRLONG, husband and wife,
   individually and on behalf of their minor son, LOGAN SPIRLONG,
                   Plaintiffs/Appellants/Cross-Appellees,

                                       v.

         CHARLES BROWNE, Defendant/Appellee/Cross-Appellant.

                            No. 1 CA-CV 12-0763
                             FILED 10-28-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2008-030976
                 The Honorable Hugh E. Hegyi, Judge

                                 AFFIRMED


                                  COUNSEL

Gallagher & Kennedy, P.A., Phoenix
By Jeffrey T. Pyburn, Jonathan T. Hasebe
Counsel for Plaintiffs/Appellants/Cross-Appellees

Perry Childers Hanlon & Hudson, PLC, Phoenix
By Gary L. Hudson, Jr.
Counsel for Defendant/Appellee/Cross-Appellant



                                  OPINION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.
                          SPIRLONG v. BROWNE
                            Opinion of the Court

N O R R I S, Judge:

¶1            Under state statutes, a person “keeping” a dog for more than
six consecutive days is considered the dog’s owner and is strictly liable for
any injuries and damages caused by the dog. The issue in this appeal is
whether “keeping” requires the person to have exercised care, custody, or
control of the dog. We hold it does.

             FACTS AND PROCEDURAL BACKGROUND


¶2           In August 2007, Defendant/Appellee Charles Browne rented
two rooms in his home to David Mayes and his wife. Mayes owned two
dogs, including a Belgian Malinois named Joop. Mayes brought both dogs
with him when he and his wife moved into Browne’s home. Mayes was
solely responsible for caring for the dogs.

¶3            On December 11, 2007, Browne left for work at 6:45 a.m.
When he left, Mayes and Shasta Russell, Browne’s live-in girlfriend, were
at home. At some point that day, Mayes asked Russell, “Do you want me
to leave [Joop] out [of his crate] so he can keep you company?” Russell
responded, “Sure, yes.” Later that day, Russell put Joop into the backyard.
Joop escaped from the backyard and bit the son of Plaintiffs/Appellants
Kevin and Anne Spirlong, who was riding his bike on a nearby city street.

¶4             The Spirlongs sued Browne, Mayes, and Russell. The
Spirlongs alleged, as relevant here, that the three were strictly liable for
their son’s injuries under Arizona Revised Statutes (“A.R.S.”) sections 11-
1020 and 11-1025 (2012), statutes that impose strict liability on dog owners
for injuries and bites caused by their dogs (collectively, “dog bite
statutes”).1 Browne answered the complaint, alleging the fault of others as


              1Section  11-1020 imposes liability when the dog is “at large.”
It provides that “[i]njury to any person or damage to any property by a dog
while at large shall be the full responsibility of the dog owner or person or
persons responsible for the dog when [the] damages were inflicted.”
Section 11-1025 deals specifically with dog bites. It states that “[t]he owner
of a dog which bites a person when the person is in or on a public place or
lawfully in or on a private place . . . is liable for damages suffered by the
person bitten . . . .”




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                            Opinion of the Court

an affirmative defense. Neither Mayes nor Russell responded or otherwise
defended, and the Spirlongs obtained default judgments against them.

¶5            Subsequently, Browne and the Spirlongs cross-moved for
summary judgment, and as relevant here, contested whether, as a matter of
law, Browne was Joop’s owner under the dog bite statutes (“statutory
owner”). The dog bite statutes define a statutory owner as “any person
keeping an animal other than livestock for more than six consecutive days.”
A.R.S. § 11-1001(10) (2012).2 After finding the word “keeping” ambiguous,
the superior court concluded that “to ‘keep’ a dog . . . an individual must
exercise a substantial degree of care, custody, and control over the animal.”
The court then found Browne met this requirement as a matter of law
because he had “made the determination to allow Joop to reside in his
home, and he alone controlled the physical condition, maintenance,
upkeep, and improvements to the physical structures which, ultimately,
controlled and maintained custody over Joop.” Accordingly, the superior
court granted the Spirlongs’ cross-motion, ruling that Browne was Joop’s
statutory owner, and thus, strictly liable for the Spirlongs’ son’s injuries.

¶6             The case proceeded to trial. After the parties rested, the court
refused to dismiss Browne from the case, and denied his motion for
judgment as a matter of law. The court then instructed the jury that it had
already determined Browne was Joop’s statutory owner.3 Over the
Spirlongs’ objection, the court further instructed the jury on comparative
fault vis-à-vis Browne, Mayes, and Russell. The jury returned a verdict in
favor of Browne.

                               DISCUSSION

¶7             Although the Spirlongs and Browne have raised a number of
arguments regarding the applicability of comparative fault to the dog bite
statutes, the dispositive issue before us turns on a different issue—whether
Browne was Joop’s statutory owner under A.R.S. § 11-1001(10). If he was
not Joop’s statutory owner, then as Browne argues, the superior court


              2Thestatutory definition of “owner” applies to both A.R.S.
§ 11-1020 and A.R.S. § 11-1025. See A.R.S. § 11-1001 and A.R.S. § 11-1028
(2012).

              3At the Spirlongs’ request, the court also instructed the jury
on premises liability.



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                             Opinion of the Court

should have dismissed the statutory dog bite claims against him as a matter
of law.

¶8            As discussed, A.R.S. § 11-1001(10) defines an “owner” as “any
person keeping an animal other than livestock for more than six consecutive
days.” As they did in the superior court, the parties dispute the meaning
of the word “keeping,” with Browne arguing “keeping” requires a person
to have care, custody, or control of the dog and the Spirlongs arguing
“keeping” simply requires a person to ”house” a dog in his or her home for
a minimum of six consecutive days. As the superior court observed, the
dog bite statutes do not define “keeping,” and, indeed the word has
multiple meanings. See infra ¶ 10. Thus, we agree with the superior court
the word “keeping” as used in A.R.S. § 11-1001(10) is ambiguous. Because
the interpretation of statutory language presents a question of law, we
exercise de novo review. Home Builders Ass'n of Cent. Ariz. v. City of
Maricopa, 215 Ariz. 146, 149, ¶ 6, 158 P.3d 869, 872 (App. 2007). We agree
with Browne’s construction of the word “keeping.”

¶9             In construing a statute, our goal is to give effect to the intent
of the Legislature. “We will give effect to each word or phrase and apply
the ‘usual and commonly understood meaning unless the legislature clearly
intended a different meaning.’” Indus. Comm'n of Ariz. v. Old Republic Ins.
Co., 223 Ariz. 75, 77, ¶ 7, 219 P.3d 285, 287 (App. 2009) (quoting Bilke v. State,
206 Ariz. 462, 464–65, ¶ 11, 80 P.3d 269, 271–72 (2003)); see also A.R.S. § 1-
213 (2002) (statutory language should be construed according to common
and approved use of the language). Further, if the statutory language is not
clear, we may consider other factors, including “the language used, the
subject matter, its historical background, its effects and consequences, and
its spirit and purpose.” Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d
870, 873 (1991).

¶10            The word “keeping” has multiple common meanings. See
The American Heritage Dictionary 957 (4th ed. 2006) (listing 14 distinct
definitions for the word “keep” when used as transitive verb). In the
context of ownership of an animal, one common meaning is of particular
relevance here: “To manage, tend, or have charge of.” Id. This definition is
also most consistent with the general legal definition of “keeping.” As noted
in Black’s Law Dictionary 885 (8th ed. 2004), a “keeper,” is “[o]ne who has
the care, custody, or management of something and who usu[ally] is legally
responsible for it.” These definitions suggest a construction of “keeping”
that requires a person to exercise care, custody, or control over a dog




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                             Opinion of the Court

instead of simply allowing a dog to stay in his or her home for six
consecutive days, as the Spirlongs argue.

¶11            This construction is supported by other statutory language
retained by the Legislature when it adopted the definition of “owner” in
what is now A.R.S. § 11-1001(10). In 1975, the Legislature amended and
enacted various animal control statutes. See generally 1975 Ariz. Sess. Laws
ch. 164 (1st Reg. Sess.). Not only did the Legislature enact what is now
A.R.S. § 11-1020, 1975 Ariz. Sess. Laws, ch. 164, at § 11, and the definition of
“owner” we have today, id. at § 1, but it also amended the statute requiring
county license fees for dogs. Id. at § 6. In amending the license fee statute,
it retained the requirement that all dogs “kept, harbored or maintained”
within the state must be licensed. Id. The Legislature did not, however,
incorporate the words “harbor” or “maintain” or their derivatives,
“harboring” or “maintaining,” in the definition of “owner.” Instead, it
restricted the definition of “owner” to a person “keeping an animal.” By
restricting the definition of “owner” to a person “keeping an animal” and
not expanding it to include a person harboring or maintaining an animal,
we conclude the Legislature was attempting to distinguish between
keeping an animal and harboring (or maintaining) an animal, which, as we
discuss below, see infra ¶ 17, occurs when a person simply provides a place
for an animal to stay. Cf. Alejandro v. Harrison, 223 Ariz. 21, 24, ¶ 8, 219 P.3d
231, 234 (App. 2009) (when drafters of a statute include particular language
in one part of a statute, but not in another part of the statute, courts should
not read “that language into the portion of the statute or rule from which
the particular language has been omitted.”).

¶12             Our analysis also comports with Arizona’s approach to dog
bite liability under the common law. For example, in Perazzo v. Ortega, 29
Ariz. 334, 342, 241 P. 518, 520 (1925), appeal after remand, 32 Ariz. 154, 256 P.
503 (1927), the plaintiff sued a grandfather under a common law theory of
liability for injuries caused by a dog owned by the grandfather’s grandson,
who lived with the grandfather and his family. 29 Ariz. at 342, 241 P. at 520;
32 Ariz. at 162, 256 P. at 506. The plaintiff presented evidence that even
though the grandfather had not consented to the dog’s presence, he
nevertheless had allowed the dog to live with his family because his wife
and “the children” liked dogs. 29 Ariz. at 341-42, 241 P. at 520. The
grandfather had also allowed his wife to take care of the dog. Id. at 342, 241
P. at 520. The Arizona Supreme Court recognized this evidence was
“sufficient” for the jury to find the grandfather was “harboring and
keeping” the dog and thus had constructive notice of the dog’s “vicious”
disposition. Id. The court also recognized the plaintiff did not have to



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                           SPIRLONG v. BROWNE
                             Opinion of the Court

prove the grandfather was the dog’s owner because this evidence “was
sufficient to go to the jury on the question of the [grandfather] being [its]
keeper.” Id. at 343, 241 P. at 520.

¶13            Significantly, in reaching these conclusions, the court relied
on a number of cases recognizing that a head of a household may be liable
for injuries caused by a dog if he or she permits a relative such as a spouse,
son, or in-law who exercises care, custody, or control of a dog to live in the
household, as a member of the family. Put more colorfully, these cases
recognize that in such a situation, the head of the household has essentially
taken or accepted the dog into the home as a four-footed member of the
family. When, however, a person merely permits another individual who
owns a dog to live on his or her property but does not include or treat the
other individual as a member of the household, that person is not liable for
injuries caused by the other individual’s dog. Although Perazzo predated
Arizona’s dog bite statutes by decades, its reasoning and the cases it relied
on are consistent with our construction of the word “keeping” and our
conclusion that a person does not keep a dog unless he exercises care,
custody, or control over it.

¶14             Further, under the dog bite statutes a statutory owner is
strictly liable for injuries caused by a dog. Massy v. Colaric, 151 Ariz. 65, 66,
725 P.2d 1099, 1100 (1986) (discussing prior versions of A.R.S. §§ 11-1020
and 11-1025). In contrast to the common law, a plaintiff asserting a
statutory dog bite claim does not need to show the defendant knew or
should have known the dog had dangerous propensities abnormal to its
class. Jones v. Cox, 130 Ariz. 152, 153 n.1, 634 P.2d 964, 965 n.1 (App. 1981).
And, unlike the common law, the statutory owner will bear liability for
injuries caused by a dog even if he exercised utmost care to prevent any
harm. Id. at 154, 634 P.2d at 966. Given the effects and consequences of
strict liability in this context, construing “keeping” as requiring care,
custody, or control of a dog allows the defendant an opportunity to assess
whether the dog presents a risk he or she is willing to accept.

¶15             The Spirlongs argue, however, that because the dog bite
statutes are designed to protect the victim, they impose what should be
viewed as a form of absolute liability and we should, therefore, construe
“keeping” broadly to include anyone who “houses” a dog. As discussed,
the dog bite statutes impose strict, not absolute liability, see supra ¶ 14.
Johnson ex rel. Johnson v. Svidergol, 157 Ariz. 333, 335, 757 P.2d 609, 611 (App.
1988) (discussing what is now A.R.S. § 11-1025; statutory owners are strictly
liable for injuries caused by their dogs, but “strict liability does not mean



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                            Opinion of the Court

absolute liability”). Further, if the Legislature had intended to extend
liability to anyone who “houses” a dog, we presume it would have used
language expressing this intent so that individuals would be able to
appreciate the risk they are assuming in doing nothing more than this. Cf.
Murdock v. Balle, 144 Ariz. 136, 138, 696 P.2d 230, 232 (App.
1985) (predecessor to A.R.S. § 11-1025 is in derogation of the common law
and is subject to “strict, literal construction”).

¶16           In Trager v. Thor, 516 N.W.2d 69 (Mich. 1994), the Michigan
Supreme Court recognized that to be equitable, strict liability for dog bites
should not be imposed unless the liable party has been given an
opportunity to assess the potential risk posed by the dog. Construing
“keeping” as requiring care, custody, or control ensures the equitable
application of strict liability for dog bites. As the court in Trager observed,

              [L]iability is not imposed because of a failure to
              restrain the animal, since the utmost care in that
              regard is not a defense to liability. . . .
                      In order for such allocation [of strict
              liability] to be equitable, the liable party must
              have sufficient custody and sufficient control of
              the animal to assess whether a risk is presented
              by an abnormal propensity and to decide
              whether an animal should be brought into or
              remain in the community. It is this proprietary
              control, akin to ownership, that we hold must
              be present to deem a party a keeper, and
              potentially liable, under the common-law strict
              liability principle.

Id. at 73.

¶17           Our construction of “keeping” is also consistent with other
courts that have considered and interpreted the same or similar statutory
terms. For example, Minnesota defines an “owner” as including any person
who either harbors or keeps a dog. Minn. Stat. § 347.22 (1986). The
Supreme Court of Minnesota explained the distinction between the two
concepts:

              Harboring means to afford lodging, to shelter or
              to give refuge to a dog. Keeping a dog, as used
              in the statute before us, implies more than the
              mere harboring of the dog for a limited purpose


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                          SPIRLONG v. BROWNE
                            Opinion of the Court

              or time. One becomes the keeper of a dog only
              when he either with or without the owner’s
              permission undertakes to manage, control or
              care for it as dog owners in general are
              accustomed to do.

Verrett v. Silver, 244 N.W.2d 147, 149 (Minn. 1976). Additionally, in
Pawlowski v. American Family Mutual Ins. Co., 777 N.W.2d 67 (Wis. 2009), the
Wisconsin Supreme Court construed Wisconsin’s dog bite statute that, like
Minnesota’s statute, defines an “owner” as including any person who
“harbors or keeps a dog.” The court explained those words were not
synonymous, and that “keeping” required the exercise of some measure of
care, custody, or control while “harboring” simply required giving shelter
or refuge to a dog. Id. at 73.4 See generally, John P. Ludington, Annotation,
Who “Harbors” or “Keeps” Dog under Animal Liability Statute, 64 A.L.R. 4th
963, §§ 3-4 (1988) (describing distinction between “harboring” and
“keeping” a dog).

¶18           Applying the foregoing principles, we hold the definition of
“keeping” under the dog bite statutes requires a person to exercise care,
custody, or control of a dog. Whether a person has exercised sufficient care,
custody, or control to be a statutory owner of a dog will generally present

              4The  distinction between a person who keeps a dog and a
person who harbors a dog has not been, as the Wisconsin Supreme Court
in Pawlowski also noted, “crisp over the years.” 777 N.W.2d at 73. Some
courts have used these terms to differentiate between a person who
exercises care, custody, or control of a dog from one who does not and,
instead, simply provides a place for the dog to stay. Other courts have used
these terms interchangeably to refer to a person who exercises care,
custody, or control over a dog. Indeed, in Perazzo, our supreme court noted
the grandfather had harbored and kept the dog. 29 Ariz. at 342, 241 P. at
520. Although the court described the grandfather as harboring the dog, as
discussed above, the grandfather’s relationship with the dog went far
beyond harboring. See supra ¶¶ 12-13. Other Arizona courts, applying
common law liability principles, have also used these terms
interchangeably. In each case, however, the liable party either actually
owned the animal or had exercised care, custody, or control over the
animal. See Ariz. Livestock Co. v. Washington, 52 Ariz. 591, 84 P.2d 588 (1938)
(actual owner); Walter v. S. Ariz. Sch. for Boys, Inc., 77 Ariz. 141, 267 P.2d
1076 (1954) (actual owner); Vigue v. Noyes, 24 Ariz. App. 144, 536 P.2d 713
(1975) (actual owner and owner of stable), vacated in part by 113 Ariz. 237,
550 P.2d 234 (1976).


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                         SPIRLONG v. BROWNE
                           Opinion of the Court

an issue of fact and will depend on the facts and circumstances of the
particular case.

¶19            The superior court concluded the “keeping” requirement of
the statutory definition of “owner” could be satisfied by evidence that a
defendant merely allowed a dog to live on property the defendant controls.
We disagree. Such evidence, without more, would shift the meaning of
“keeping” from the care, custody, or control of the dog to the care, custody,
or control of the property.

¶20           Although whether a person has exercised sufficient care,
custody, or control to be a statutory owner of a dog will normally present
an issue of fact, that is not the case here. The Spirlongs presented no
evidence Browne exercised any care, custody, or control over Joop. Browne
simply allowed Joop to live in his home; Mayes was solely responsible for
Joop; and Joop was under Mayes’ care, custody, and control. Further, the
Spirlongs presented no evidence Browne ever treated Mayes, and by
extension Joop, as a member of his family. Given this record, the superior
court should have dismissed the Spirlongs’ statutory dog bite claims
against Browne as a matter of law. On this basis alone, we affirm the
judgment entered by the superior court in Browne’s favor.

                              CONCLUSION

¶21           For the foregoing reasons, we affirm the judgment entered by
the superior court in Browne’s favor. As the prevailing party on appeal, we
award Browne his costs on appeal contingent upon his compliance with
Arizona Rule of Civil Appellate Procedure 21.




                                  :gsh




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