                                                                                       04/26/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 January 18, 2018 Session

       HOWARD L. GREENLEE v. SEVIER COUNTY, TENNESSEE

                  Appeal from the Circuit Court for Sevier County
                    No. 2009-0302-IV     O. Duane Slone, Judge


                            No. E2017-00942-COA-R3-CV


This action involves a claim for compensatory damages for personal injury caused by a
police dog. The defendant sought summary judgment, arguing that the victim, an officer
acting in the course and scope of his employment, was a participant in the act or conduct
that prompted the need for the dog’s services, thereby removing liability pursuant to
Tennessee Code Annotated section 44-8-413(b)(1). The court agreed and granted
summary judgment. We reverse and remand for further proceedings.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                           Reversed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D.
SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.

Sidney W. Gilreath and Cary L. Bauer, Knoxville, Tennessee, for the appellant, Howard
L. Greenlee.

Rhonda L. Bradshaw and Andrew N. Firkins, Knoxville, Tennessee, for the appellee,
Sevier County, Tennessee.

                                        OPINION

                            I.      BACKGROUND

       On April 24, 2008, Officer Howard Greenlee (“Plaintiff”), while in the course and
scope of his employment for the Tennessee Highway Patrol, attempted a traffic stop. The
suspect fled on foot, prompting Plaintiff to request assistance from the Sevier County
Sheriff’s Office (“Defendant”). Defendant dispatched a K-9 unit, consisting of Deputy
Blaine Lewis and a police dog (“Jodie”). The search for the suspect led Deputy Lewis
and Jodie to a mobile home, where the two went underneath the home in pursuit of the
suspect. Jodie emerged first and subsequently attacked Plaintiff, who was standing
nearby, while Deputy Lewis remained underneath the home.

        Plaintiff sustained significant injuries. He later filed suit, alleging that Deputy
Lewis and Defendant failed in their duty to keep Jodie under reasonable control as
required by Tennessee Code Annotated section 44-8-413, which provides, in pertinent
part, as follows:

       (a)(1) The owner of a dog has a duty to keep that dog under reasonable
       control at all times, and to keep that dog from running at large. A person
       who breaches that duty is subject to civil liability for any damages suffered
       by a person who is injured by the dog while in a public place or lawfully in
       or on the private property of another.

       (2) The owner may be held liable regardless of whether the dog has shown
       any dangerous propensities or whether the dog’s owner knew or should
       have known of the dog’s dangerous propensities.

       (b) Subsection (a) shall not be construed to impose liability upon the owner
       of the dog if:

              (1)    The dog is a police or military dog, the injury occurred
              during the course of the dog’s official duties and the person
              injured was a party to, a participant in or suspected of being
              a party to or participant in the act or conduct that prompted
              the police or military to utilize the services of the dog;

              (2)   The injured person was trespassing upon the private,
              nonresidential property of the dog’s owner;

              (3)    The injury occurred while the dog was protecting the
              dog’s owner or other innocent party from attack by the
              injured person or a dog owned by the injured person;

              (4)   The injury occurred while the dog was securely
              confined in a kennel, crate or other enclosure; or

              (5)    The injury occurred as a result of the injured person
              enticing, disturbing, alarming, harassing, or otherwise
              provoking the dog.

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(Emphasis added.). Defendant moved for summary judgment, arguing that it could not
be held liable because Plaintiff was a participant in the act or conduct that prompted the
need for Jodie’s services. Plaintiff disagreed, arguing that the plain language of Section
44-8-413(b)(1) did not merit such an interpretation. He explained that the act or conduct
that prompted the need for services was the fleeing suspect, not his request for assistance.

        The trial court granted summary judgment, finding that the plain language of
Section 44-8-413(b)(1) barred recovery because Plaintiff was a participant in the
utilization of the police dog. In so holding, the court reasoned that the legislature likely
believed that first responders would be covered by the workers’ compensation laws.
Plaintiff filed a motion to alter or amend the court’s judgment, citing a California case
with similar facts in which that court rejected such an interpretation in dicta.1 The court
denied the motion. This timely appeal followed.

                                           II.     ISSUE

       The sole issue on appeal is whether the court erred in granting summary judgment
in favor of Defendant.

                               III.    STANDARD OF REVIEW

       The appropriate summary judgment standard to be applied is as follows:

       [W]hen the moving party does not bear the burden of proof at trial, the
       moving party may satisfy its burden of production either (1) by
       affirmatively negating an essential element of the nonmoving party’s claim
       or (2) by demonstrating that the nonmoving party’s evidence at the
       summary judgment stage is insufficient to establish the nonmoving party’s
       claim or defense.


1
 In City of Huntington Beach v. City of Westminster, 57 Cal. App. 4th 220, 227 n. 4 (Aug. 21, 1997), the
court was presented with an indemnity dispute arising from a similar scenario in which an innocent
bystander was bitten by a police dog. In rejecting the argument that the victim was a participant to the
robbery that prompted the need for canine assistance, thereby removing liability in accordance with a
statute similar to Section 44-8-413, the court stated as follows:
         Westminster contends [the victim] was ‘integrally involved in the criminal activity’
         because she ‘called the police to the scene, followed the police to another location
         searching for her husband [and] elected to remain within the crime scene perimeter for
         nineteen minutes prior to release of the dog.’ Westminster is ‘simply barking up the
         wrong judicial tree.’ Its argument is spurious, infuriating in fact, and contemptible in
         law. [The victim] was an ‘innocent passerby’ and is as much entitled to the benefit of the
         dog bite statute as any other person who was lawfully at the scene of the crime.
                                                     -3-
Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015).
When a properly supported motion is made, “the nonmoving party ‘may not rest upon the
mere allegations or denials of [its] pleading,’ but must respond, and by affidavits or one
of the other means provided in [Rule 56 of the Tennessee Rules of Civil Procedure], ‘set
forth specific facts’ at the summary judgment stage ‘showing that there is a genuine issue
for trial.’” Id. at 265 (quoting Tenn. R. Civ. P. 56.06). Summary judgment “shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” Tenn. R. Civ. P. 56.04.

       “We review a trial court’s ruling on a motion for summary judgment de novo,
without a presumption of correctness.” Rye, 477 S.W.3d at 250 (citations omitted). “In
doing so, we make a fresh determination of whether the requirements of [Rule 56] have
been satisfied.” Id. (citations omitted). We must view all of the evidence in the light
most favorable to the nonmoving party and resolve all factual inferences in the
nonmoving party’s favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008).
This action also presents a matter of statutory interpretation, which is reviewable as a
matter of law pursuant to the de novo standard without any presumption of correctness.
In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009) (citing Gleaves v. Checker
Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn. 2000); Myint v. Allstate Ins. Co., 970
S.W.2d 920, 924 (Tenn. 1998)).

                                   IV.    DISCUSSION

        Plaintiff argues that the court violated the rules of statutory construction by
looking beyond the plain language of the statute. He again argues that the act or conduct
that prompted the need for services was the fleeing suspect, not his request for assistance
and that he was an innocent victim, not a participant. Defendant responds that the plain
language of the statute does not limit party, participant, or suspected party or participant
to only those individuals suspected of committing a crime. Further, Defendant provides
that the court’s consideration of worker’s compensation laws was superfluous and had no
bearing on the ultimate decision.

       The primary objective of statutory interpretation is to carry out the legislative
intent without broadening or restricting a statute beyond its intended scope. Houghton v.
Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing legislative
enactments, we presume that every word in a statute has meaning and purpose and should
be given full effect if the obvious intention of the General Assembly is not violated by so
doing. In Re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we
apply the plain meaning without complicating the task. Eastman Chem. Co. v. Johnson,
                                            -4-
151 S.W.3d 503, 507 (Tenn. 2004). We also presume that the General Assembly was
aware of the state of the law when the statutes were enacted and that it did not intend to
enact a useless statute. Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010).

       Here, the statute provides that liability will not be imposed if “the person injured
was a party to, a participant in or suspected of being a party to or participant in the act
or conduct that prompted the police or military to utilize the services of the dog[.]”
Tenn. Code Ann. § 44-8-413(b)(1) (emphasis added). Our plain reading of the statute
leads us to conclude that the legislature removed liability only for those engaged in the
wrongdoing that prompted police intervention, not for others lawfully at the scene of the
crime. We believe this interpretation is within the legislature’s intent as evidenced by the
removal of liability for those unlawfully on private property, those attacking an innocent
party; or those enticing or provoking the dog to violence. Tenn. Code Ann. § 44-8-
413(b)(2)-(5); see generally Huntington Beach, 57 Cal. App. 4th at 227 n. 4 (holding in
dicta that those lawfully at the scene are entitled to the protections of a dog bite statute
similar in nature to the one at issue here). Accordingly, we reverse the court’s grant of
summary judgment and remand for further proceedings.

                                 V.     CONCLUSION

      The judgment of the trial court is reversed, and the case is remanded for further
proceedings. Costs of the appeal are taxed to the appellee, Sevier County, Tennessee.


                                                  _________________________________
                                                  JOHN W. McCLARTY, JUDGE




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