2014 VT 55


Martin v. Christman (2013-250)
 
2014 VT 55
 
[Filed 13-Jun-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2014 VT 55

 

No. 2013-250

 

Michaela and David Martin as
  Next Best Friends
of Gracie Martin


Supreme Court


 


On Appeal from


     v.


Superior Court, Washington Unit,


 


Civil Division


 


 


John W. Christman and Joanna L.
  Christman


March Term, 2014


 


 


 


 


Michael
  S. Kupersmith, J.


 

Christopher McVeigh of McVeigh ¨ Skiff, Burlington, for
Plaintiffs-Appellants.
 
Jeffrey S. Marlin of Primmer Piper Eggleston & Cramer
PC, Montpelier, for 
  Defendants-Appellees.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Robinson and Crawford, JJ.
 
 
¶ 1.            
CRAWFORD, J.   The single issue raised by this appeal
is whether we should change the common-law rule requiring proof of a dog
owner’s negligence as the sole basis for liability for personal injuries
inflicted by the dog.  In the face of longstanding precedent, both in
Vermont and in the United States in general, we decline to change the
substantive law by judicial decision.  The decision of the trial court is
affirmed.  
¶ 2.            
On July 3, 2009, plaintiffs Michaela and David Martin and their
three-year-old daughter Gracie spent the day at a campsite that the family
rents on a seasonal basis at a campground in Island Pond, Vermont.
 Defendants John and Joanna Christman rented a campsite near the Martins.
 As long-term campers, the families were friendly with one another.  
¶ 3.            
Michaela took Gracie to a playground adjacent to the Christmans’
site.  She watched Gracie from a nearby picnic table.  The Christmans were camping with two of their boxer dogs, one
of which was a two-year old male named Diesel.  They had a table of their
own which was sheltered with a gazebo.  Joanna Christman tied Diesel to a
pole supporting the gazebo.  Gracie Martin asked John Christman if she
could pet Diesel, and he said that she could. 
¶ 4.            
Without warning Diesel attacked Gracie, knocking her to the ground and
biting her face.  John Christman forced his dog to let go of the
child.  The Martins took Gracie to North Country Hospital where she
received surgery to repair her wounds. 
¶ 5.            
The Martins brought suit against the Christmans,
their insurer, and the campground on several theories, including strict
liability and negligence.  The trial court granted defendants’ motion to
dismiss the strict liability claim on the ground that existing Vermont
precedent required proof of negligence to recover against a dog owner for
damages caused by his or her dog.  It also dismissed a “direct action”
claim against the Christmans’ insurer.  The
parties stipulated to the dismissal with prejudice of the negligence claim and
a related claim of premises liability.  This appeal is limited to the
trial court’s dismissal of the strict liability claim. 
¶ 6.            
We review the trial court’s decision on a motion to dismiss de
novo.  Bock v. Gold, 2008 VT 81, ¶ 4, 184
Vt. 575, 959 A.2d 990 (mem.).  We assume
that all facts pleaded in the complaint are true.  Assoc. of Haystack
Prop. Owners, Inc. v. Sprague, 145 Vt. 443, 444, 494 A.2d 122, 123 (1985). 
A motion to dismiss for failure to state a claim upon which relief may be
granted should be denied “unless it is beyond doubt that there exist no facts
or circumstances that would entitle the plaintiff to relief.”  Richards v. Town of Norwich, 169 Vt. 44, 48, 726 A.2d 81, 85
(1999) (quotations omitted). 
¶ 7.            
Vermont law has long required proof of an owner’s negligence to
establish liability for injuries caused by dog bites.  In Godeau v. Blood, 52 Vt. 251 (1880), this
Court affirmed a verdict in favor of a boy bitten by a shopkeeper’s bull
terrier, described at trial “as the most wickedest
kind of a dog.”  Id. at 254. 
Liability depended upon evidence that the dog was known to be “exceptionally
fierce and ferocious” and had attacked other animals.  Id.
at 253.  This Court did not require evidence of a prior attack upon
a human.  Id. at 254.  Instead, we
ruled that:
[A]s [the owner] is held to be a man of
common vigilance and care, if he had good reason to believe, from his knowledge
of the ferocious nature and propensity of the dog, that there was ground to
apprehend that he would, under some circumstances, bite a person, then the duty
of restraint attached; and to omit it was negligence.
Id.  Failure to tie
the dog up despite knowledge of its vicious tendencies—in other words, the
negligent actions of the owner—provided the basis for liability. 
¶ 8.            
We have followed the same line of analysis in subsequent decisions, which
explicitly rule out tort recovery against dog owners based on theories of
strict or absolute liability.  See Hillier v. Noble, 142 Vt. 552,
556, 458 A.2d 1101, 1104 (1983); Carr v. Case, 135 Vt. 524, 525, 380
A.2d 91, 93 (1977); Davis v. Bedell, 123 Vt.
441, 442-43, 194 A.2d 67, 68 (1963); Worthen
v. Love, 60 Vt. 285, 286, 14 A. 461, 461 (1888).  The reasons offered
in support of the rule are that dogs are useful and usually harmless, Davis,
123 Vt. at 442, 194 A.2d at 68, and that “[d]ogs have
their rights” in the absence of evidence of a vicious nature.  Godeau, 52 Vt. at 254.   
¶ 9.            
In contrast to plaintiffs’ suggestion in this case that the legal rule
should derive primarily from the desire to compensate for the injury, the
traditional common-law rule focuses on the conduct of the defendant.  In Hillier,
for example, Justice Peck asks what more the dog owner could have done to
prevent injury to others:  “What greater restraints could have been
reasonably or prudently required is difficult to imagine.  The law does
not yet require that these common household pets be either caged or
destroyed.”  142 Vt. at 557, 458 A.2d at 1104.   

¶ 10.         In
limiting recovery to cases of negligence, the dog-bite cases fall within the
normal parameters of our tort law.  With the exception of ultra-hazardous
activities such as blasting and keeping dangerous animals, there is no
liability without a breach of a duty of care based on the defendant’s
conduct.  Oliver Wendell Holmes, Jr. considered this issue in The Common
Law, first published in 1881: 
[The law] does not
adopt the coarse and impolitic principle that a man acts always at his
peril.  On the contrary, its concrete rules, as well as the general
questions addressed to the jury, show that the defendant must have had at least
a fair chance of avoiding the infliction of harm before he becomes answerable
for such a consequence of his conduct.
O. Holmes, Jr., The
Common Law 163 (Little, Brown & Co. 1946) (1881). 
¶ 11.         The
single greatest exception to liability founded upon negligence—strict liability
for the sale of products—depends upon proof of product defect.  Although
strict product liability removes barriers of privity
and scienter, it still requires evidence of design,
manufacture, or warning—all matters of human agency—which are in some way
deficient or unsafe.  If we turn to the tort rules applicable to ordinary
human behavior such as driving an automobile or maintaining a place of
business, a demonstration of fault through a failure to act with sufficient
care is a universal requirement for liability.    
¶ 12.         Like
the majority of courts which have considered the issue before us, we see no
reason to single out dog ownership for treatment that is different from that we
apply to auto drivers, storekeepers, and other human pursuits.  These are
all activities which are usually safe and generally beneficial.  An attack
by a dog that came without warning is very similar to an auto accident caused
by an unforeseen medical emergency.  In neither case can we answer Justice
Peck’s question by pointing to a more reasonable, safer course of conduct for
the defendant. 
¶ 13.         These
principles are generally followed in the United States, except in those states
that have enacted legislation departing from the common-law rules.  See
Annotation, Modern Status of Rule of Absolute or Strict Liability for Dogbite, 51 A.L.R. 4th 446 (2014) (collecting cases).
 The Restatement (Third) of Torts limits strict liability for animal
owners to those who keep unreasonably dangerous animals.  See Restatement
(Third) of Torts: Liability for Physical and Emotional Harm § 23 (2010)
(“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.”).  The comment to § 23
contrasts ownership of dangerous animals with pets and common farm animals in a
manner entirely consistent with Godeau and the
other Vermont dog bite cases:  
The premise of
this Section is that, apart from animals that trespass and wild animals that
pose an inherent risk of personal injury, most animals normally are safe, or at
least are not abnormally unsafe in a way that would justify the imposition of
strict liability.  In addition, such animals provide important benefits to
those who own or maintain possession of them.  Thus, livestock such as
cows, horses, and pigs are of substantial economic value, while pets such as
dogs and cats provide essential companionship for households and
families.  Indeed, dogs and cats are frequently regarded as members of the
family.  Furthermore, ownership of animals such as dogs and cats is widespread
throughout the public; therefore, the limited risks entailed by ordinary dogs
and cats are to a considerable extent reciprocal.  Accordingly, the case
on behalf of strict liability for physical or emotional harms that all such
ordinary animals might cause is weak. 
Id. cmt. b.
¶ 14.         Plaintiffs
argue that we should follow the eighteen or so states that have adopted strict
liability for dog bites.  However, the overwhelming majority have done so
by statute.  See, e.g., Ariz. Rev. Stat. § 11-1020
(2014); Cal. Civ. Code § 3342 (2014); Mass. Gen. Laws ch.
140, § 155 (2014); Wash. Rev. Code § 16.08.040 (2014).  Only
one state, South Carolina, has judicially eliminated the requirement of scienter for dog bites, and that decision has not been
followed by other jurisdictions.  Hossenlopp v. Cannon, 329 S.E.2d 438, 441 (S.C. 1985).*
 But see Borns ex rel. Gannon v. Voss,
2003 WY 74, ¶¶ 34-37, 70 P.3d 262 (declining to follow Hossenlopp);
Gehrts v. Batteen,
2001 SD 10, ¶ 15, 620 N.W.2d 775 (declining to follow Hossenlopp).
 
¶ 15.         We
similarly decline to follow such a course.  “While this Court has and will
‘change the common law to meet changing needs of the people of this state,’ we
also recognize instances where the issue presented ‘is better left for
legislative resolution.’ ”  Scheele
v. Dustin, 2010 VT 45, ¶ 15, 188 Vt. 36, 998 A.2d 697 (quoting State
v. LeBlanc, 149 Vt. 141, 145, 540 A.2d 1037, 1040 (1987)) (declining to
recognize new common-law cause of action for malicious injury to pet dog); see
also Goodby v. Vetpharm,
Inc., 2009 VT 52, ¶ 11, 186 Vt. 63, 974 A.2d 1269 (declining to extend
recovery under Wrongful Death Act for loss of pet dog).  As in Scheele,
“we are not persuaded that plaintiffs’ cause requires a major shift in the
landscape of the common law.”  2010 VT 45, ¶ 15. 
Even if such a change were warranted, it should be left to the Legislature,
which is better positioned to develop and consider relevant factors such as the
number of dogs and dog owners in Vermont, the number and nature of injuries
caused by dogs in Vermont, or whether liability insurance is available to cover
dog bites.  See Borns, 2003 WY 74,
¶¶ 34-36 (noting that “there are many ways to fashion a dog bite law” and
identifying factors relevant to decision whether to impose strict
liability).  
¶ 16.         We
recognize the seriousness of the child’s injury and her innocence of
fault.   We are not prepared, however, to depart from long-held
principles of negligence to create a new field of strict liability.  
For these reasons, we affirm the decision of the trial court.
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





*  In Hossenlopp, the South Carolina Supreme Court
affirmed the trial court’s summary judgment in favor of the plaintiff, a
four-year-old child who was injured by the defendant’s dog, holding that the
record supported the lower court’s finding that the defendant had prior
knowledge that the dog tended to bite.  Hossenlopp,
329 S.E.2d at 441.  The court went on, however,
to state that the dog-bite law was an “antiquated” rule of common law origin
and therefore could be changed by common law mandate.  Id.  It
held that dog owners know that dogs have a tendency to bite and therefore
should be liable when their dogs injure others, regardless of whether the owner
had previous knowledge of the dog’s dangerous tendencies.  Id. The
court accordingly adopted as law a California jury instruction, itself based on
a California statute, which provided for strict liability for injuries caused
by dog bites except in cases where the dog was provoked.  Id. 
Two of the five justices on the court concurred in the result but disagreed
with the adoption of the California law.  One justice stated that the
cause at hand was “not the proper vehicle for such a far-reaching change in the
law.”  Id. at 442 (Gregory, J., concurring and
dissenting).  The South Carolina legislature responded to Hossenlopp by enacting a statute imposing strict
liability for dog bites the following year.  Harris
v. Anderson Cnty. Sheriff’s
Office, 673 S.E.2d 423,
425 (S.C. 2009).



