       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SHELLY CARR, individually,
                                                    No. 73927-1-1
                      Appellant,
                                                    DIVISION ONE



JOSE AND LISA RIVEROS,                              UNPUBLISHED OPINION
individually and in their marital
capacity,

                      Respondents,

STATE FARM FIRE & CASUALTY,
an Illinois corporation; and STATE
FARM GENERAL INSURANCE
COMPANY, an Illinois corporation,
                                                    FILED: November 28, 2016
                      Defendants.



       Leach, J. — Shelly Carr appeals the trial court's summary dismissal of her

claims against Lisa and Jose Riveros. After the Riveroses' dog bit her, Carr sued

them, alleging common law negligence and statutory strict liability claims.

Because the Riveroses did not breach any duty of care owed to Carr and Carr

did not present any evidence that she had permission to enter the Riveroses'

home, as required for her strict liability claim, we affirm the trial court.

                                         FACTS


       Carr suffered a dog bite while accompanying her daughter, Brynn

Sutherland, on a home inspection.        Brynn and her husband, Ryan Sutherland,
No. 73927-1-1/2




(buyers) were prospective buyers of a home owned by Nicholaas and Lisa

Groenveld-Meijer (sellers/landlords).   Jose and Lisa Riveros rented the home

from the sellers.


       The Riveroses had a Rottweiler-Labrador mix named "Kid." They had

owned Kid for over 13 years, and he had never bitten anyone or displayed

aggressive tendencies.      At the time of the inspection, Kid had cancer and

difficulty walking. The Riveroses told the property manager and the sellers' real

estate broker, David Hogan, that they would leave Kid alone in the laundry room

with the door closed and that no one should enter that room. As a result, they

"understood no one would go in the laundry room as [they] had always insisted

that the dog be left alone."1

       Before the scheduled inspection, Hogan sent an e-mail to Jose Riveros

asking, "Is it possible to crate the dog? The buyers will need full access to each

room in the house for their inspector." Jose and Hogan exchanged a few more

e-mails, but Jose never agreed to crate the dog or remove him from the home.

In an e-mail to the buyers' real estate broker, Henry Shim, Hogan said, "I have

asked them to make sure you have access to the entire house.           Suggested

crating the dog but don't know their exact plans admittedly."




       1 Carr disputes this fact but points to no evidence in the record to
contradict the Riveroses' assertion.
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No. 73927-1-1/3




       On the day of the inspection, the Riveroses left Kid in the laundry room

before they left for work. The Sutherlands, Shim, Carr, Carr's husband, and the

inspector, Michael Linde, attended the home inspection. When the inspection

group arrived at the home, the laundry room door was closed.

       Because Carr believed that she was experienced with dogs, she offered to

enter the laundry room with Linde to test the dog's character and watch him while

the inspector looked around the laundry room. Kid was lying on a pile of blankets

and sniffed Carr's hand but did not otherwise react to their presence.

       When Linde and Carr left the laundry room, they left the door open. They

continued with the inspection, but Carr soon noticed Kid out of the laundry room

and lying on the hardwood floor, unable to stand. Kid appeared to be trying to

get back into the laundry room.

       Because her previous interaction with Kid had seemed friendly, Carr

decided to help the dog back into the laundry room. She first tried to pick up the

dog. Kid made a noise, and Carr realized the potential danger of picking up a

dog she didn't know. She then crouched in front of Kid and held her hand six

inches in front of his nose. Kid bit her outstretched hand.

      Carr sued for damages caused by the dog bite. Her complaint alleged

common law negligence and strict liability under RCW 16.08.040. The trial court

granted   the   Riveroses'   summary judgment        motion.    Carr     moved   for
No. 73927-1-1/4




reconsideration, submitting the declaration of Henry Shim. The trial court denied

this motion. Carr appeals.


                                   ANALYSIS


                               Standard of Review


      This court reviews summary judgment orders de novo, engaging in the

same inquiry as the trial court.2 Summary judgment is proper if, viewing the facts

and reasonable inferences in the light most favorable to the nonmoving party, no

genuine issues of material fact exist and the moving party is entitled to judgment

as a matter of law.3 A genuine issue of material fact exists if reasonable minds

could differ regarding the facts controlling the outcome of the litigation.4 Carr

claims that she raised issues of material fact about her two theories of liability:

common law negligence and strict liability under RCW 16.08.040.

                             Common Law Negligence

      Carr alleged that the Riveroses breached a duty of care when they failed

to crate their dog as the real estate brokers recommended. The common law

provides liability for dog bites based on strict liability and negligence.5 A dog

owner has strict liability for injuries caused by the dog when the owner knows or


       2 Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22
(2003).
      3 CR 56(c); Michak, 148 Wn.2d at 794-95.
      4 Hulbert v. Port of Everett, 159 Wn. App. 389, 398, 245 P.3d 779 (2011).
      5 Sliqer v. Odell. 156 Wn. App. 720, 731, 233 P.3d 914 (2010).
                                        -4-
No. 73927-1-1/5




has reason to know that the dog has vicious or dangerous propensities.6 Carr

does not dispute that the Riveroses had no notice that Kid had any dangerous

propensity; thus, she now asserts only a common law negligence claim.

      The Restatement (Second) of Torts § 518 (1977) provides,

      Except for animal trespass, one who possesses or harbors a
      domestic animal that he does not know or have reason to know to
      be abnormally dangerous, is subject to liability for harm done by the
      animal if, but only if,

             (a) he intentionally causes the animal to do the harm, or

              (b) he is negligent in failing to prevent the harm.

"'[A] negligence cause of action arises when there is ineffective control of an

animal in a situation where it would reasonably be expected that injury could

occur, and injury does proximately result from the negligence.'"7 "The amount of

control required is that which would be exercised by a reasonable person based

upon the total situation at the time, including the past behavior of the animal and

the injuries that could have been reasonably foreseen."8

      Carr characterizes her common law claim as "negligent failure to confine."

The Riveroses counter that § 518 does not define the duty of care as the duty to

confine or crate their dog but only to exercise reasonable care and control. We



      6 Arnold v. Laird, 94 Wn.2d 867, 870, 621 P.2d 138 (1980) (citing
Johnston v. Ohls, 76 Wn.2d 398, 457 P.2d 194 (1969)).
      7 Sliger, 156 Wn. App. at 731-32 (quoting Arnold, 94 Wn.2d at 871).
      8 Arnold, 94 Wn.2d at 871.
                                         -5-
No. 73927-1-1/6




agree that failure to confine is not, in itself, negligent. A dog owner's failure to

confine is only negligent when it caused foreseeable injury.

      The Riveroses claim that they could not have foreseen the injury because

Kid had never shown any vicious or dangerous propensity. Carr contends that

lack of knowledge of the animal's dangerous propensity relates only to the

common law cause of action for strict liability, not negligence. But the relevant

case law considers knowledge of dangerous propensity in analyzing whether an

injury is foreseeable.9 Thus, notice of dangerous propensity is relevant to both

strict liability and negligence common law causes of action.

       Carr asserts that a jury should have decided whether her injury was

foreseeable. "Foreseeability is a question of fact for the jury unless reasonable

persons could reach but one conclusion."10 In Beeler v. Hickman,11 this court

affirmed summary judgment dismissal of the plaintiff's common law negligence

claim because there was insufficient evidence of negligence when the dog owner

had no reason to know the dog would bite the plaintiff. The defendant dog

owner's admission that the dog would react if provoked was not enough evidence

of negligence to survive summary judgment.12 Like in Beeler, the Riveroses had


       9 See, e.g., Sliqer, 156 Wn. App. at 732; Beeler v. Hickman, 50 Wn. App.
746, 754, 750 P.2d 1282 (1988).
      10 Schneider v. Strifert, 77 Wn. App. 58, 63, 888 P.2d 1244 (1995).
       11 50 Wn. App. 746, 754, 750 P.2d 1282 (1988).
       12 Beeler, 50 Wn. App. at 754.
                                        -6-
No. 73927-1-1/7




no reason to believe that Kid would bite anyone, particularly because he was old

and sick and could barely walk. Carr implies that the dog's breed, Rottweiler-

Labrador mix, shows dangerous propensity. But she offers neither evidence that

the particular breed is prone to attacks nor legal authority to show that breed is a

relevant consideration.   She therefore fails to show how the breed creates a

question of fact. Because the Riveroses had no reason to believe Kid, confined

to a laundry room, would bite anyone, reasonable persons could reach no other

conclusion than that the Riveroses were not negligent.

       Carr contends that an injury was foreseeable because the Riveroses knew

that prospective buyers would be inspecting the house. Carr further argues that

the Riveroses knew that the inspection required access to the entire home,

including the laundry room. But knowledge of the inspection does not create a

question of fact about the likelihood of injury when the dog has no history of

viciousness and was confined to a room to which the Riveroses had denied

access. Opportunity does not equal foreseeability.13




      13 The parties discuss the trespasser/licensee/invitee distinctions in
connection with the Riveroses' common law duty. But Carr's status as a
trespasser is not relevant to this case. The Riveroses explain the trespasser
analysis in anticipation of a premises liability argument, but Carr does not assert
a premises liability cause of action. Further, the trespasser analysis does not
relate to the Riveroses' duty of care under §518. We need not determine
whether Carr was a trespasser.
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No. 73927-1-1/8




          Under the circumstances, the Riveroses exercised a reasonable amount

of control when they confined Kid to one room and declared that room to be off

limits.    Because Carr does not create any issue of fact that the Riveroses

breached a duty of care, the trial court properly dismissed this claim.

                                 Statutory Strict Liability

          Carr also asserts a strict liability claim under RCW 16.08.040(1), which

provides,

          The owner of any dog which shall bite any person while such
          person is in or on a public place or lawfully in or on a private place
          including the property of the owner of such dog, shall be liable for
          such damages as may be suffered by the person bitten, regardless
          of the former viciousness of such dog or the owner's knowledge of
          such viciousness.

Carr does not claim she was in a public place. Instead, she argues that

she was lawfully in a private place.14

          A person is lawfully upon the private property of such owner within
          the meaning of RCW 16.08.040 when such person is upon the
          property of the owner with the express or implied consent of the
          owner: PROVIDED, That said consent shall not be presumed when
          the property of the owner is fenced or reasonably posted.1151



       14 The parties discuss Carr's status as trespasser or licensee in
connection with her statutory strict liability claim. But the test for whether she
was lawfully on the premises under RCW 16.08.050 does not involve the
trespasser/licensee analysis. See Sliqer, 156 Wn. App. at 730 ("The plain words
of the statute focus on express or implied consent of the owner of the dog to
determine whether one is legally on the dog owner's property. The word
trespasser is not found in the statute.").
          15 RCW 16.08.050.
                                             -8-
No. 73927-1-1/9




Because the dog bite statute does not define "implied consent," courts use the

term's ordinary meaning.16 "[Ijmplied consent may be communicated based on

'conduct, omission, or by means of local custom.'"17

      Carr offers three alternative arguments to show that she was lawfully on

the property. First, she contends that she had the Riveroses' implied consent to

be on the premises. She also contends that she could presume consent through

custom.   Lastly, she maintains that she did not need the Riveroses' consent

because she had the consent of the sellers. We find none of Carr's arguments

persuasive.

      First, Carr fails to show that she had the Riveroses' permission.       She

concedes that the Riveroses did not give her express permission to enter the

property, but she claims that she had their implied permission because they

knew about the home inspection and never forbade her entry. According to Carr,

the Riveroses' failure to expressly prohibit her entry implied that she had

permission to enter. But because the Riveroses never knew that Carr was going

to be on the property, they had no opportunity to object to her access. It was not

reasonable for Carr to infer she had permission simply because she was not




      16 Sliqer, 156 Wn. App. at 728.
      17 Sliqer, 156 Wn. App. at 728 (quoting Singleton v. Jackson, 85 Wn. App.
835, 839, 935 P.2d 644 (1997)).
                                       -9-
No. 73927-1-1/10




expressly excluded.    We disagree with Carr's suggestion that the Riveroses'

failure to object can be interpreted as implied consent.

       Even if Carr had implied permission to enter the property, that permission

did not extend to the laundry room. RCW 16.08.050 states that the consent of

the owner "shall not be presumed when the property of the owner is fenced or

reasonably posted."18 Here, Carr does not dispute that all people involved were

aware that the door was closed in order to keep the dog isolated.       With this

information, the closed door provided the functional equivalent of a fence or a

warning sign. Therefore, the Riveroses' implied permission to enter the laundry

room cannot be presumed.

       Second, Carr does not provide sufficient evidence to create a question of

fact that she could presume she had permission based on industry custom. Carr

claims that she had implied permission to be on the premises because it is

industry custom to have family members of potential buyers attend home

inspections.   But evidence from a single person or business is insufficient to

establish industry custom.19 At summary judgment, Carr introduced only Linde's


       18 See Sliqer, 156 Wn. App. at 729.
       19 Swartlev v. Seattle Sch. Dist. No. 1, 70 Wn.2d 17, 21, 421 P.2d 1009
(1966) ("'Although, where negligence is in issue, the usual conduct or general
custom of others under similar circumstances is relevant and admissible, such
custom may not be established by evidence of conduct of single persons or
businesses.'" (quoting Miller v. Staton, 58 Wn.2d 879, 885, 365 P.2d 333
(1961))).
                                        -10-
No. 73927-1-1/11




deposition testimony as evidence of custom.           Linde testified that he had

performed "thousands" of home inspections and that buyers' family members

attended approximately 50 percent of those inspections. Linde's testimony relies

solely on his personal experiences in his own business practice. His testimony

does not include any opinion about any industry-wide practice. Linde's testimony

alone does not establish an issue of fact about industry custom.20

      Finally, Carr contends that she had the sellers' permission to be on the

land.21 But Carr fails to establish that the sellers, and not the Riveroses, should

be considered the owners for purposes of determining lawful presence under

RCW 16.08.050. Carr contends that as the actual owners of the land, only the




      20 Carr    submitted   a   declaration   from   Shim   with   her   motion   for
reconsideration to corroborate Linde's testimony, but, as discussed below in
connection with the motion for reconsideration, we do not consider Shim's
testimony.
       21 Carr cites Hansen v. Sipe. 34 Wn. App. 888, 664 P.2d 1295 (1983), in
support of her assertion that she had adequate permission from the sellers. But
the conclusions from Hansen are not relevant to any determination in this case.
Hansen interprets a previous version of the RCW that drew a distinction between
lawful presence on the dog owner's property and lawful presence on a third
party's property. Hansen, 34 Wn. App. at 890-91. Carr argues that because the
sellers and not the dog owners are owners of the property in question, a less
restrictive definition of "lawful" should apply. But the dog bite statute no longer
draws a distinction between lawful presence on the dog owner's property and
lawful presence on a third party's property. See RCW 16.08.050. The ordinary
definition of "lawful" applies in both circumstances. See Sliqer, 156 Wn. App. at
728. Hansen does not help Carr's case.
                                       -11-
No. 73927-1-1/12




consent of the sellers is required for "lawful" entry.22 But Carr's interpretation of

"lawful" ignores the rules that govern landlord and tenant rights and duties.

       Carr offers no convincing explanation or authority for her assertion that the

landlords' limited right to exhibit the property provides them with authority to give

permission to all persons who wish to enter the property for an inspection

associated with a prospective sale.      "Except as limited by the terms of the

leasehold, a tenant has a present interest and estate in the property for the

period specified, which gives him exclusive possession against everyone,

including the lessor."23   Washington law requires tenants to permit landlords

access to their home for certain limited purposes, including to show the house to

potential buyers:

       The tenant shall not unreasonably withhold consent to the landlord
       to enter the dwelling unit at a specified time where the landlord has
       given at least one day's notice of intent to enter to exhibit the
       dwelling unit to prospective or actual purchasers or tenants. A
       landlord shall not unreasonably interfere with a tenant's enjoyment
       of the rented dwelling unit by excessively exhibiting the dwelling
       unitJ24!




      22 Carr cites McMilian v. King County, 161 Wn. App. 581, 601, 255 P.3d
739 (2011), for the proposition that the ordinary meaning of "lawful" requires the
consent of the actual third party owners of the property, the sellers in this case.
But McMilian is distinguishable because that case does not involve a landlord-
tenant relationship.
       23 Aldrich v. Olson, 12 Wn. App. 665, 667, 531 P.2d 825 (1975).
       24 RCW 59.18.150(6); see also RCW 59.18.150(1).
                                        -12-
No. 73927-1-1/13




The Supreme Court has observed that the scope of the landlords' entrance

should not exceed the purposes contemplated by the Residential Landlord-

Tenant Act of 1973.25 Here, Carr's attendance at the inspection was not within

the scope of the landlords' right to exhibit the property. Thus, the landlords' right

to exhibit under RCW 59.18.150 cannot be the basis for Carr's permission to

enter. Even if the landlords could grant the Sutherlands permission to enter their

tenants' home, Carr was not a prospective purchaser, and she provides no

evidence that the sellers ever gave her, specifically, permission to enter the

property.

       Carr claims the Riveroses' lease agreement gave the landlords the right to

give permission to third parties to enter the property. The lease permitted the

landlords to conduct inspections of the property. But the Sutherlands, not the

landlords, were inspecting the property. The lease agreement gives inspection

rights to the landlords specifically and cannot be the basis for the Sutherlands'

authority to inspect the property. The Sutherlands were not agents of the sellers,

and Carr certainly was not. The lease provisions about inspection do not show

Carr was lawfully present.




      25 City of Pasco v. Shaw. 161 Wn.2d 450, 461, 166 P.3d 1157 (2007)
(citing Kalmas v. Wagner. 133 Wn.2d 210, 219-20, 943 P.2d 1369 (1997)); ch.
59.18 RCW.
                                       -13-
No. 73927-1-1/14




       Carr also contends that only the sellers had the right to object to the scope

of the inspection because they were in privity with the buyers but the Riveroses

were not.    The buyers' right to inspect, Carr asserts, came from the purchase

agreement between the sellers and the buyers. The Riveroses could voice their

objections only to the sellers, with whom they were in privity.        Carr cites no

authority for this privity argument. Moreover, the logic of her argument is flawed.

A landowner is not in privity with the general public, and yet the landowner may

restrict the public's entry on her private land.26 In the context of this case, the

presence or absence of privity does not dictate the scope of a tenant's right to

exclude others from her property.

       Carr did not present any evidence from which she could infer she had

permission to enter the Riveroses' home.         The trial court properly dismissed

Carr's statutory claim.

                            Motion for Reconsideration


       After the trial court dismissed her claims, Carr moved for reconsideration

under CR 59, providing the newly acquired declaration from Shim. Carr asked

that   the   court   reconsider     its   decision   on   the   following   grounds:

CR 59(a)(4), newly discovered evidence that the proponent could not have

      26 17 William B. Stoebuck & John W. Weaver, Washington Practice:
Real Estate: Property Law § 1.2, at 4 (2d ed. 2004) ("A key attribute of [land]
possession is that it carries with it the legally protected right to exclude other
persons completely and with or without reason from the land possessed.").
                                          -14-
No. 73927-1-1/15




discovered with reasonable diligence at the time of the hearing; CR 59(a)(7), no

evidence or reasonable inference from the evidence justifies the verdict or the

decision or verdict is contrary to law; CR 59(a)(8), there was an error in law; or

CR 59(a)(9), substantial justice has not been done. This court reviews denial of

a motion for reconsideration for abuse of discretion.27

       First, Carr's claim about newly discovered evidence fails because she

offers no explanation, either in her appellate briefing or her motion for

reconsideration, for why the deposition of Shim could not have been taken before

the summary judgment hearing.       Further, Shim's testimony did not offer new

evidence.28 "The realization that [the] first declaration was insufficient does not

qualify the second declaration as newly discovered evidence.'"29 Shim was not a

newly discovered witness.     Carr has failed to demonstrate that the trial court

abused its discretion in denying reconsideration based on CR 59(a)(4).

      As to CR 59(a)(8) and (9), Carr has not shown that the trial court made an

error in law or that substantial justice has not been done.30 And CR 59(a)(7)

does not provide any basis for reconsideration because, as explained above, the



      27 Klever v. Harborview Med. Ctr. of Univ. of Wash., 76 Wn. App. 542,
545, 887 P.2d 468 (1995).
      28 See Sliger, 156 Wn. App. at 734.
      29 Go2Net, Inc. v. C I Host, Inc., 115 Wn. App. 73, 91, 60 P.3d 1245
(2003) (alteration in original) (quoting Adams v. W. Host, Inc., 55 Wn. App. 601,
608, 779 P.2d 281 (1989)).
      30 See Sliger, 156 Wn. App. at 734.
                                        -15-
No. 73927-1-1/16




evidence on record supports dismissal of Carr's claims. The trial court did not

abuse its discretion in denying Carr's motion for reconsideration.

                                  CONCLUSION


      Carr has not identified any material issue of fact that the Riveroses

breached their duty of care in controlling their dog. Nor has she created an issue

of fact about whether she was lawfully on the premises when the dog bite

occurred.   For these reasons, the trial court did not err in granting summary

judgment in favor of the Riveroses.

      We affirm.




WE CONCUR:




      Iv^ikg^ At-3"


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