Facts
- Mary Sligar and Kara A. Odell and her husband (named as “John Doe” Odell) were next-door neighbors whose backyards were separated by a six-foot-high chain-link fence.
- The Odells owned two dogs, Chico (a chocolate Labrador retriever) and Molly (a golden retriever), which they kept in their fenced yard.
- Sligar owned three miniature schnauzers, including one named Pearl.
- The dogs could see each other through the chain-link fence and often barked at each other.
- On the day of the incident, Sligar tried to move Pearl away from the fence.
- Sligar tripped and fell against the fence; as she fell, her hand hit the fence and one finger went through the chain links onto the Odells’ side.
- Chico bit Sligar’s finger while it protruded through the fence.
- Sligar sued the Odells for damages, asserting (1) statutory strict liability under Washington’s dog-bite statute and (2) common-law negligence.
- The Odells moved for summary judgment, arguing Sligar could not satisfy the statute’s “lawfully in or on” requirement and could not show negligence because there was no evidence Chico had dangerous propensities and he was confined within a fenced yard.
- Sligar opposed summary judgment by claiming implied consent based on prior neighborly interactions at the fence (including reaching through to pet Molly, leaning on the fence while talking, and attaching chicken wire on her side of the fence).
- The trial court granted summary judgment for the Odells on both claims, denied reconsideration, and Sligar appealed.
Issues
- Under RCW 16.08.040 and RCW 16.08.050, did Sligar raise a genuine issue of material fact that she was “lawfully in or on” the Odells’ property (through express or implied consent) when her finger protruded through a fenced boundary, such that the Odells could be strictly liable for Chico’s bite?
- Did Sligar raise a genuine issue of material fact that the Odells breached a duty of reasonable care by keeping Chico in a fenced backyard (including by not having a solid fence), despite no evidence of prior dangerous propensities?
Decision
- The Washington Court of Appeals, Division One, affirmed summary judgment for the Odells on both the statutory strict-liability claim and the common-law negligence claim.
- On strict liability, the court held Sligar failed to produce evidence creating a triable issue that the Odells gave express or implied consent for her to be on their property at the time of the bite; because the property was fenced, consent could not be presumed under RCW 16.08.050.
- On negligence, the court held Sligar failed to show breach: absent evidence that Chico had dangerous propensities, keeping him in a fenced backyard was not unreasonable, and the record did not support imposing liability based on the fence being chain-link rather than solid.
Legal Principles
- RCW 16.08.040 imposes strict liability on a dog owner for a bite only if the victim was “lawfully in or on” a private place, including the owner’s property.
- RCW 16.08.050 defines “lawfully” on the owner’s property as being there with the owner’s express or implied consent, but provides that such consent “shall not be presumed” when the property is fenced or reasonably posted.
- When a plaintiff must prove consent to satisfy the “lawfully” element, prior friendly interactions may be insufficient, on a fenced property, to create a factual dispute without evidence of actual consent for the particular intrusion at the time of the bite.
- On summary judgment, a defendant may obtain dismissal by showing an absence of evidence supporting an essential element of the plaintiff’s claim.
- For common-law negligence involving a dog, the plaintiff must show duty, breach, causation, and damages; without evidence of known dangerous propensities or other facts showing unreasonable risk, keeping a dog confined within a fenced yard does not establish breach.
Conclusion
The court affirmed summary judgment because Sligar could not show she was “lawfully” on the Odells’ fenced property for purposes of Washington’s dog-bite strict-liability statute, and she also failed to present evidence that the Odells acted unreasonably in keeping a dog with no known dangerous tendencies in a fenced backyard or that a different fence was required on these facts.