                                                       COURT OF APPEAi S£V-
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                                                       2013 AUG 26 AH 9=36



     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION ONE

MARGARET L. BRISCOE,                            No. 69103-1-1

                    Appellant,

       v.



RANDALL LAMONICUS MCWILLIAMS,

                    Respondent,

LEVITICUS JADE MCWILLIAMS,
ELIZABETH ANN ROWLAND, and
VICTOR GREER,                                   UNPUBLISHED OPINION

                    Defendants.                 FILED: August 26, 2013


       Verellen, J. — Common law liability for dog bites flows only to the owner,

harborer or keeper of a dog. Margaret Briscoe suffered injuries after being attacked by

a dog left unattended in an apartment. Briscoe sued tenant Randall McWiliams, who

had hired his brother Levi to clean the apartment.1 Levi owned the dog and left it in the
apartment while he went to obtain cleaning supplies. Briscoe alleges respondeat

superior (agency),2 premises liability, and negligent entrustment claims against Randall.
Briscoe appeals the trial court's summary judgment dismissing her claims. Because




       1We refer to the brothers byfirst names for ease of reference.
       2Appellant refers to agency and respondeat superior interchangeably in her
briefing.
No. 69103-1-1/2


Randall was not the owner, harborer or keeper of the dog, we affirm dismissal of

Briscoe's claims.


                                          FACTS

       Randall McWilliams rented an apartment from his friend, Victor Greer, beginning

in March 2009. The lease was on a month-to-month basis and prohibited pets. During

the lease, his brother Levi would visit and bring Jersey, his pit bull. If other people were

present at the apartment, Levi would ensure Jersey was locked either in one of the

rooms or in the downstairs garage.

       Greer decided to sell his apartment in early 2010, so Randall began the process

of moving out. Greer listed the apartment with a realty company and informed Randall

that real estate agents would have access to the apartment via the lockbox installed on

the front door. On July 14, 2010, Randall left for California. Randall informed Greer he

would be out of the apartment by July 15, 2010. Randall hired Levi to clean the

apartment and move some of Randall's items to their mother's house. Randall agreed

to pay Levi $300 for the work.

       On July 16, 2010, Randall called Levi to check in on the cleaning. According to

Randall, Levi told him the cleaning would be completed by that evening. Randall

testified at his deposition that "I presumed he was going to be done [by July 16]. I

anticipated he'd probably have to go back and get some cleaning supplies, but the

majority ofthe job was going to be done."3 After speaking with Levi, Randall deposited
the $300 into Elizabeth Rowland's (Levi's girlfriend's) account.




        Clerk's Papers at 96.
No. 69103-1-1/3


       That same day, July 16, Randall contacted Greer and informed him the

apartment was clean and vacant. Greer then telephoned Margaret Briscoe, his aunt, to

request that she visit the apartment the next day, July 17, to confirm that Randall had

moved out. Randall did not know Greer requested Briscoe to come to the apartment on

July 17.

       Levi had not finished cleaning by July 16. Levi was still at the apartment on

July 17, with Jersey. On July 17, Levi left the apartment to get some cleaning supplies

with Jersey loose in the apartment. Briscoe came to the apartment while Levi was out.

When she entered, Jersey attacked her, injuring her legs.

       Briscoe sued Levi and Rowland (Jersey's owners), Randall, and Greer. Briscoe

voluntarily dismissed Greer. Briscoe obtained default judgment against Levi and

Rowland, but they are judgment proof and have no insurance.

       Briscoe's causes of action against Randall included respondeat superior

(agency), premises liability, and negligent entrustment, as well as a claim for violation of

the lease agreement as a third-party beneficiary. Randall moved to dismiss all of the

claims under CR 12(b)(6). The court dismissed the third-party beneficiary claim.

Randall then moved for summary judgment on the three remaining claims, arguing

generally that only owners, keepers or harborers of a dog could be held liable for

injuries. He specifically argued that no Washington case had ever permitted a dog bite

victim to recover based on agency law. The trial court granted the motion and

dismissed all three claims. Because all claims had been resolved, the trial court

entered final judgment. Briscoe appeals.
No. 69103-1-1/4


                                      DISCUSSION

       Briscoe argues the trial court erred in dismissing her claims against Randall,

contending she should have the chance to argue her negligent entrustment, respondeat

superior and premises liability claims to the jury.4 We review de novo a trial court's
decision on summary judgment, performing the same inquiry as the trial court.5 We

may affirm an order granting summary judgment on any basis supported by the record.6
       Under longstanding Washington common law, only the owner, keeper or

harborer of a dog is liable for injuries caused by the dog.7 In 1920, our Supreme Court
considered whether to overturn a verdict in favor of a plaintiff who had sued the receiver

of the Washington Motion Picture Corporation for negligence when a dog kept on its

property escaped and killed the plaintiff's young son.8 One ofthe employees ofthe
corporation owned the dog and was paying another employee to feed it.9 The court


       4We reject Briscoe's contention that the trial court had already ruled on the
viability of her liability theories when it denied Randall's CR 12(b)(6) motion. As Randall
rightly argues, the trial court has the discretion to deny a motion to dismiss on a claim
but then grant summary judgment on that same claim. Lindsev v. Dayton-Hudson
Corp.. 592 F.2d 1118, 1121 (10th Cir. 1979).
       5 Lvbbert v. Grant County. 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). We view all
facts and reasonable inferences therefrom most favorably toward the nonmoving party.
Id. Summary judgment is proper if the pleadings, affidavits, and depositions establish
that there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. jd.; CR 56(c). Ifthe nonmoving party fails to controvert
material facts supporting the summary judgment motion, those facts are considered to
be established. Cent. Wash. Bank v. Mendelson-Zeller. Inc.. 113 Wn.2d 346, 354, 779
P.2d 697 (1989).
       6 LaMon v. Butler. 112 Wn.2d 193, 200-01, 770 P.2d 1027(1989).
       7 UnderWashington's strict liability dog bite statute, RCW 16.08.040, only owners
are liable for damages. Briscoe does not assert any cause of action under the statute
against Randall.
       8 Markwood v. McBroom. 110 Wash. 208, 208-09, 188 P. 521 (1920).
       9 Id. at 209-10.
No. 69103-1-1/5


looked to the common law and reasoned that the receiver was plainly not the dog's

owner or keeper.10 The court also applied the following definition: "'Harboring' means
protecting, and one who treats a dog as living at his house, and undertakes to control

his actions, is the owner or harborer thereof, as affecting liability for injuries caused by

it."11 In concluding the receiver was not a harborer of the dog, the court noted the dog
was not an asset of the corporation, the dog was not in the receiver's possession, and

the receiver could not be charged with knowledge of the dog's existence.12 Having
determined the receiver was neither the owner, keeper or harborer of the dog, the court

vacated the judgment, reasoning that "[a]t common law a person would not be liable for

an injury resulting from the bite of a dog unless he was the owner, keeper, or harborer

of the dog."13

       Many decades later, in Frobiq v. Gordon, the court considered whether the

plaintiff, who had been mauled by a Bengal tiger, could recover not against the keeper

of the tiger but against the keeper's landlords (the Branches).14 Anne Gordon, the
keeper of the tiger and the tenant, leased property from the Branches.15 Gordon was in
the business of providing wild animals for film and video projects.16 Gordon had the
tiger on her property for a project, and the tiger escaped during the filming of a




       10k±     at 211.

       11 Id,
       12 jcL at 211-12.
       13kL
       14124Wn.2d732, 881 P.2d 226 (1994)
       15 JcL at 733.
       16 Id.
No. 69103-1-1/6


commercial.17 The tiger attacked Frobig, seriously wounding her.18 The court
considered whether the trial court had properly dismissed Frobig's action against the

landlords for negligence and strict liability.19

       The court grounded its analysis in the common law rule announced in Markwood

v. McBroom. stating, "The rule in Washington is that the owner, keeper or harborer of a

dangerous or vicious animal is liable; the landlord of the owner, keeper, or harborer is

not."20 The court then stated, "In short, liability flows from ownership or direct control."21
The court rejected the viability of the plaintiff's claim against the landlords because a

"landlord owes no greater duty to the invitees or guests of his tenant than he owes to

the tenant himself."22

       The court reasoned further that the landlords' prior knowledge of the tiger on the

property had no significance because under Washington law, the "landlords would not

be liable to the tenant for the tiger's attack so should not be liable to third parties for

injuries inflicted by the animal."23 The court concluded that "[t]he wild animals were
Anne Gordon's alone, and under Washington law liability resulting from the ownership

and management of those animals rests with Anne Gordon alone."24 Therefore, the

court foreclosed any actions against landlords for liability arising out the dangerous



       17 Id, at 734.
       18 id
       19 id at 735.
       20 id (citing Markwood,   110 Wash. at      208-09)
       21 id
       22 id
       23 id at 737.
       24 Id.
No. 69103-1-1/7


animals owned, kept, or harbored by tenants.

       In Clemmons v. Fidler, Division Two of this court declined to extend the common

law rule to apply to landlords, even where the landlord knows the tenant has a dog with

vicious tendencies.25 There, the plaintiff sued the landlord for injuries to heryoung son
under the theory that the landlord knew his tenants' dog was dangerous.26 The court
reasoned, "[T]he landlord's knowledge is immaterial. We hold that the common law rule

applies: only the owner, keeper, or harborer of the dog is liable for such harm."27 The
court continued, "This rule is consistent with our case law, with our former criminal and

present civil statutes on dogs, and with the analogous law governing landlord liability for

defective conditions on leased premises."28

       "Common law liability for injuries caused by vicious or dangerous dogs is based

upon a form of strict liability. . . . Any injury caused by such an animal subjects the

owner to prima facie liability without proof of negligence."29 Issues of negligence and
contributory negligence, fault and comparative fault therefore have no application.30
The rationale rejecting landlord liability for a tenant's dog expressed in Clemmons and

Frobig applies equally to Randall's liability for Levi's dog, regardless of whether Levi



       25 58 Wn. App. 32, 33, 791 P.2d 257 (1990): see also Frobig v. Gordan. 124
Wn.2d 732, 735, 881 P.2d 226 (1994) (citing Clemmons).
       26 id at 33-34.
       27 id at 34.
       28 id at 34-35; see also Shafter v. Beyers, 26 Wn. App. 442, 446-47, 613 P.2d
554 (1980) (court did not err in dismissing on summary judgment plaintiffs action
against the owner of the premises where the dog in question was kept by a subtenant
because neither the dog bite statute nor the common law allowed a plaintiff to recover
against a landlord, where landlord was not the owner, keeper or harborer of the dog).
       29 Johnston v. Ohls. 76 Wn.2d 398, 400, 457 P.2d 194 (1969).
       30 Id. at 401.
No. 69103-1-1/8


was Randall's agent (respondeat superior) or business invitee (premises liability theory).

Nor does the narrowly drawn common law rule permit a claim for negligent entrustment.

The common law restricts liability to the owner, keeper or harborer because they own or

have direct control of the animal.31

       There is no genuine issue of material fact that Randall was neither the owner,

harborer, or keeper of Jersey. He had no direct control of the animal. Under the

longstanding common law rule announced in Markwood. and reiterated in Frobig and

Clemmons. a plaintiff injured by an animal must seek recovery from the owner, keeper

or harborer of that animal. The common law precludes Briscoe's alternative theories of

liability. Because Randall does not fall within the class of people subject to common law

liability, we affirm dismissal of Briscoe's claims against him.32




WE CONCUR:




       31 Government agencies involved with animal control mayface liability under the
public duty doctrine, see, e.g.. Gorman v. Pierce County, No. 42502-5-M, slip op. at 7-15
(Wash. Ct. App. Aug. 13, 2013); Livingston v. City of Everett, 50 Wn. App. 655, 658,
751 P.2d 1199 (1988), but that discrete theory of recovery does not conflict with the
common law standard limiting liability to the owner, keeper or harborer of an animal.
       32 See Hackler v. Hackler, 37 Wn. App. 791, 794, 683 P.2d 241 (1984) (summary
judgment is proper when, although some facts might be disputed, there are not material
facts at issue under the legal principle that disposes of the controversy).

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