                                                                        FILED 

                                                                    NOVEMBER 3, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


JAY H. RHODES,                               )
                                             )         No. 32S09-I-III
                     Appellant,              )
                                             )
      v.                                     )
                                             )
RODNEY MACHUGH,                              )         PUBLISHED OPINION
                                             )
                     Respondent.             )

       SIDDOWAY,   C.J. -   Comments to § 23 of the Restatement (Third) ofTorts, which

deals with strict liability imposed on the owners of abnormally dangerous animals,

observe that the common law has been satisfied overall with the generalization that

livestock are not excessively dangerous, but "[i]n the future, courts might wish to give

consideration to particular genders ... of a species that involve danger levels uncommon

for the species itself." RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND

EMOTIONAL HARM      § 23 cmt. e (2010) (emphasis added). In this case, Jay Rhodes asks

us to hold the owner of a ram (a male sheep) strictly liable for harm caused by the ram on
No. 32S09-I-III
Rhodes v. MacHugh


account of the ram's gender-based dangerousness, rather than any abnormal

dangerousness of which the owner was aware.

      Mr. Rhodes is a particularly sympathetic plaintiff and appellant, both in the

circumstances he presents and the forthrightness of his argument on appeal. But we

conclude that existing Washington common law strikes the appropriate balance in

imposing limited strict liability on the owners of domestic animals and otherwise

imposing a duty of care commensurate with the character of their animals. We affirm the

summary judgment dismissal of Mr. Rhodes's complaint.

                    FACTS AND PROCEDURAL BACKGROUND

      Jay Rhodes and Rodney MacHugh are long-time friends and neighbors. Both men

live in Richland and have farmed for decades. Mr. Rhodes has raised cows, horses, and

occasionally pigs and goats, but he described the summer of 20 12 as "my first excursion

with sheep. And an unfortunate one." Clerk's Papers (CP) at 21. Mr. MacHugh has

bred sheep for over thirty years. Because Mr. MacHugh's land is prone to flooding, Mr.

Rhodes has allowed Mr. MacHugh to keep some of his livestock on Mr. Rhodes's

property.

      In the summer of 20 12, Mr. MacH ugh and Mr. Rhodes went to a livestock yard in

Lewiston, Idaho, where Mr. MacHugh purchased a ram to replace his existing ram, which

he described as "in really old shape." CP at 26. The replacement ram was eight or nine




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No. 32509-1-III
Rhodes v. MacHugh


months old I and weighed in the neighborhood of 150 pounds. It showed no vicious

tendencies. The men took it directly to Mr. Rhodes's property where, for the following

month, it caused no problems. In the weeks before Mr. MacHugh put the ram in with

ewes, Mr. Rhodes described it as "real friendly. He'd come up to me several times when

I was changing water, and I'd pet him." CP at 22.

      On August 20, 2012, Mr. Rhodes went into his yard to tum on his sprinklers. By

that time, Mr. MacHugh had put several ewes in the pasture with the ram. Mr. Rhodes

walked past them and toward the five-foot sprinklers in the pasture. Just as he touched

the valve at the top of the sprinklers, the ram butted him from behind, knocking him to

the ground. According to Mr. Rhodes, the ram continued to "jump up in the air and then

he'd hit me with his head," knocking him out "a couple of times," for as much as 30

minutes. CP at 23. Fortunately, a neighbor who stopped by to bring Mr. Rhodes some

cantaloupes saw what was going on. Although Mr. Rhodes told her not to come into the

pasture, she began throwing her cantaloupes at the ram, which was sufficiently distracted

that Mr. Rhodes was able to crawl to the gate. She helped him out and slammed the gate

on the charging ram. Mr. Rhodes, then 82 years old, suffered a concussion, five broken

ribs, and a broken sternum and shoulder. He was hospitalized for 16 days.




       I   At that age, it was a "lamb ram," but we refer to it as a ram for simplicity.

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No. 32509-1-111
Rhodes v. MacHugh


         Mr. Rhodes filed this action in an effort to recover for his injuries. He did not

contend that the ram was abnormally dangerous and he refused to accuse his friend of

negligence, testifying, "I don't think Mr. MacHugh thought there was anything wrong"

with the ram. CP at 23. For his part, Mr. MacHugh admitted that he had owned as many

as three "mean" rams over the years but that "on my place, if they're the least bit mean,

they go real quick." CP at 27. He testified that he had selected this ram because it was

the "friendliest" of three that the seller had raised on a bottle after their mother died. CP

at 26.

         Because Mr. Rhodes relied exclusively on a theory of strict liability that he asked

the court to extend to the owners of all rams, not just those known to be abnormally

dangerous, the parties presented the legal issue to the trial court on summary judgment.

Mr. MacHugh's motion for summary judgment dismissing the claim was granted. Mr.

Rhodes appeals.

                                          ANALYSIS

         The sole issue on appeal is whether summary judgment in favor of Mr. MacHugh

was proper because he is not strictly liable for harm caused by a ram he did not know to

be abnormally dangerous. No material facts are in dispute and we, like the trial court, are

presented with a pure question of law that we review de novo. Triplett v. Dep't ofSoc. &

Health Servs., 166 Wn. App. 423, 427, 268 P.3d 1027 (2012).




                                               4

No. 32509-1-II1
Rhodes v. MacHugh


       For more than a century, the rule in Washington regarding liability for harm

caused by a domestic animal 2 has been:

              "The owner or keeper of a domestic animal not naturally inclined to
       commit mischief, while bound to exercise ordinary care to prevent injury
       being done by it to another, is not liable for such injury if the animal be
       rightfully in the place when the mischief is done, unless it is affirmatively
       shown, not only that the animal was vicious, but that the owner or keeper
       had knowledge of the fact. When such scienter exists, the owner or keeper
       is accountable for all the injury such animal may do, without proof of any
       negligence or fault in the keeping, and regardless of his endeavors to so
       keep the animal as to prevent the mischief."

Lynch v. Kineth, 36 Wash. 368,370-71, 78 P. 923 (1904) (emphasis omitted) (quoting 2

eyc. Animals 368); and more recently Johnston v. Ohls, 76 Wn.2d 398, 400, 457 P.2d

194 (1969); Sligar v. Odell, 156 Wn. App. 720, 732, 233 P.3d 914 (2010); see also 16

DAVID K. DEWOLF & KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAWAND

PRACTICE § 3.6, at 133 (4th ed. 2013) (noting that "[s]trict liability for injuries caused by

individual animals known to be abnormally dangerous is still the general rule," but "when

the animal is not an abnormally dangerous specimen of its class, negligence in controlling

the animal must be proven").




       2  A "domestic animal," as defined by the Restatement (Second) o/Torts, is one
"that is by custom devoted to the service of mankind at the time and in the place in which
it is kept." RESTATEMENT (SECOND) OF TORTS § 506(2), at 10 (1977). "[T]he test is
whether the animals are as a class recognized by custom as devoted to the service of
mankind." Id. § 506 cmt. a.

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No. 32509-l-III
Rhodes v. MacHugh


       Washington cases are consistent with the Restatement (Second) o/Torts (1977).

In Arnoldv. Laird, 94 Wn.2d 867, 871,621 P.2d 138 (1980), our Supreme Court noted

that the Restatement (Second) "recognizes two separate causes of action" against the

owner of a domestic animal that causes injury. Under section 509, strict liability applies

where the animal "has known dangerous propensities abnormal to its class." Arnold,94

Wn.2d at 871. Section 518, on the other hand, "provides that ifthere are no known

abnormally dangerous propensities, the owner is liable only if he is negligent in failing to

prevent the harm. The amount of care required is commensurate with the character of the

animal." Id. (emphasis omitted) (citing § 518 cmt. f).

       Mr. Rhodes concedes that rams have not historically been regarded as being

inherently dangerous animals. Br. of Appellant at 1-2; RESTATEMENT (SECOND) § 509

cmt. e ("[T]he law has not regarded bulls, stallions and rams as being abnormally

dangerous animals to be kept under the strict liability stated in this Section.").

Nevertheless, relying on a comment to § 23 of the most recent Restatement o/Torts, he

asks that we recognize that "[t]he dangerous propensities of rams are well-known and

strict liability should attach, and this whether the animal is 'domestic' or otherwise." Br.

of Appellant at 3.




                                              6

No. 32509-1-111
Rhodes v. MacHugh


      The language of § 23 of the Restatement (Third) ofTorts is similar to that of

Restatement (Second) § 509,3 yet the comments to § 23 propose a possible gender- or

breed-based modification of the general rule treating domestic animals as not excessively

dangerous. Comment e states, in part:

      Overall, the common law has been satisfied with the generalization that
      livestock and dogs are not excessively dangerous and has applied this
      generalization to all livestock and dogs. In the future, courts might wish to
      give consideration to particular genders or breeds ofa species that involve
      danger levels uncommon for the species itself. If so, it might be
      appropriate to impose strict liability, without individualized scienter, on the
      owner ofsuch an animal.

RESTATEMENT (THIRD) § 23 cmt. e (2010) (emphasis added). Mr. Rhodes asks us to act

on this acknowledgment and common knowledge that while ewes may be timid, rams are

known to be dangerous.

      Prior versions of the Restatement have not overlooked the different temperament

of male domestic animals, pointing out that "[blulls are more dangerous than cows and

steers; stallions are more dangerous than mares and geldings; rams are more dangerous

than ewes and lambs." RESTATEMENT (SECOND) § 509 cmt. e. But historically the

framework of liability for negligence has been viewed as adequate to address gender




      3   "An owner or possessor of an animal that the owner or possessor knows or has
reason to know has dangerous tendencies abnormal for the animal's category is subject to
strict liability for physical harm caused by the animal if the harm ensues from that
dangerous tendency." RESTATEMENT (THIRD) § 23, at 303 (2010).


                                             7

No. 32S09-1-III
Rhodes v. MacHugh


differences, and refusing to broaden strict liability has also been justified by policy

reasons.

       The Restatement (Second) recognizes the relatively dangerous propensities of

male domestic animals such as bulls, stallions, and rams but characterizes them as normal

to their class. As the comments to § S09 observe, "these animals have been kept for stud

purposes from time immemorial so that the particular danger involved in their dangerous

tendencies has become a normal incident of civilized life." RESTATEMENT (SECOND) §

S09 cmt. e; see also id. § S09 cmt. d. (noting that such animals "do not introduce any

unusual danger, since the somewhat dangerous characteristics of these animals are a

customary incident of farming"). In other words, a ram has not been considered

"abnormally" dangerous for purposes of applying strict liability under § S09 because its

dangerous propensities are "normal" for its species.

       It is also for policy reasons that owners of male domestic animals have not been

held to a standard of strict liability, because often it is the very characteristics that cause

the males to be dangerous that make them useful to society. The comments to § SI 8 of

the Restatement (Second) observe that "[t]he high temper normal to stud animals is so

inseparable from their usefulness for breeding purposes that they are not kept at the risk

of the liability stated in § S09." RESTATEMENT (SECOND) § S18 cmt. f. The comments

explaining the rationale for § S09's rule of strict liability similarly observe that




                                               8

No. 32509-I-III
Rhodes v. MacHugh


       the virility which makes [bulls, stallions, and rams] dangerous is necessary
       for their usefulness in performing their function in the socially essential
       breeding of livestock, justifies the risk involved in their keeping.
       Therefore, the law has not regarded bulls, stallions and rams as being
       abnormally dangerous animals to be kept under the strict liability stated in
       this Section.

Id. § 509 cmt. e; see also id. § 509 cmt. d ("[T]he slightly added risk due to their

dangerous character is counterbalanced by the desirability of raising livestock. ").

       The law is not oblivious to the greater risk posed by male livestock used for

breeding in the context of liability for negligence, and greater precautions are typically

required in light of their characteristics. RESTATEMENT (SECOND) § 509 cmt. e. "The

amount of care required is commensurate with the character of the animal." Arnold,94

Wn.2d at 871. As the comments to § 518 explain, "the keeper of a bull or stallion is

required to take greater precautions to confine it to the land on which it is kept and to

keep it under effective control when it is taken from the land than would be required of

the keeper of a cow or gelding." RESTATEMENT (SECOND) § 518 cmt. g.

       "Rules of law ... should not be changed for light or transient causes; but, when

time and events prove the need for a change, changed they must be." State ex rei. Wash.

State Fin. Comm. v. Martin, 62 Wn.2d 645, 666, 384 P.2d 833 (1963). Here, the utility

of domestic animals remains undiminished. Those who raise them and face the greatest

exposure to relatively more dangerous genders or breeds will be familiar with their

characteristics. Third parties continue to have recourse for an owner's negligence, and


                                              9

No. 32509-1-111
Rhodes v. MacHugh


owners are required to take greater precautions to confine and control animals in light of

their characteristics. Mr. Rhodes's unfortunate excursion with Mr. MacHugh's ram does

not persuade us that the limited scope of strict liability that Washington has historically

imposed on the owners of domestic animals should be enlarged. 4

       Affirmed.


                                                  -:hdhw¥r~
                                              Siddoway, C.J.

WE CONCUR:



Korsmo, J.    '?I
                     s. 

Fearing, J.




        4The legislature can, of course, act. We note that by statute, and in derogation of
the common law, it has imposed strict liability on the owner of a dog that bites a person,
as long as the victim was in a public place or lawfully in or on a private place. RCW
16.08.040; Sligar v. Odell, 156 Wn. App. at 727; Beeler v. Hickman, 50 Wn. App. 746,
751-52,750 P.2d 1282 (1988).

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