Summary
holding that "[b]ecause the dog bite statute is more specific and recent than the guest premises statute, it will control should the two collide"
Summary of this case from McCormick v. HoddinottOpinion
Civil Action No. 99C-12-002.
Submitted: July 5, 2000.
Decided: August 21, 2000.
Motion for Partial Summary Judgment — Denied.
H. Clay Davis, III, Esquire, H. Clay Davis III, P.A., Georgetown, Delaware, Attorney for the Plaintiff.
Allan Wendelburg, Esquire, Law Office of Allan Wendelburg, Hockessin, Delaware, Attorney for the Defendants.
MEMORANDUM OPINION
Deborah J. Bemiller ("Plaintiff') has sued Cheryl Rodriguez and Jose Rodriguez ("Defendants") for damages arising from a dog bite incurred in the Defendants' home. The Plaintiff filed a Motion for Declaratory Relief seeking a ruling that 7 Del. C. § 1711, Delaware's statute providing for the liability of a dog owner for damages ("dog bite statute"), precludes an affirmative defense under 25 Del. C. § 1501 ("guest premises statute"). The Defendants argue that this motion is essentially a Motion to Strike their pleading. It should be denied, they contend, because there are disputed issues of fact. For present purposes, I will treat this as a Motion For Partial Summary Judgment on the liability question.
STATEMENT OF FACTS
The pleadings provide a limited background. The Defendants own a dog that bit the Plaintiff There is, however, a dispute about the Plaintiffs status at the time. Was she a "trespasser," as that term is used in both the dog bite and the guest premises statutes? Was she a "guest without payment" as that phrase is mentioned in the guest premises statute?
The Plaintiff alleges that the Defendants asked her to help gather eggs on the Defendants' poultry farm. The Plaintiff claims she agreed to assist if the Defendants' dog was secured. However, when entering the home, the dog was uncontrolled. The dog then bit the Plaintiff. The Plaintiff admits, for this motion, that she was a nonpaying guest at the time of the attack.
Under Defendants' version, the Plaintiff and her husband came to the Rodriguez farm uninvited. Mrs. Rodriguez went to the Plaintiffs truck to see what Bemiller wanted. The dog was inside the home. After a brief conversation, the Plaintiff asked to use the Defendants' bathroom and was told to wait outside until the dog could be restrained. Then, precipitately, the Plaintiff barged in and was bitten. From this perspective, Bemiller was a trespasser.
DISCUSSION Standard of Review
Considering a summary judgment motion, "the Court's function is to examine the record and determine whether there is a genuine issue of fact." Battista v. Chrysler Corp., Del. Super., 454 A.2d 286, 290 (1982). Summary judgment is appropriate where, after viewing the record in a light most favorable to the nonmoving party, the Court finds there are no genuine issues of material fact. Camac v. Hall, Del. Super., 698 A.2d 394, 396 (1996). A material dispute exists where the parties disagree on the factual predicates for the legal principles they advance. Merrill v. Crothall-American, Inc., Del. Supr., 606 A.2d 96, 99 (1992). Moreover, the "Court's decision must be based only on the record presented, including all pleadings, affidavits, depositions, admissions, and answers to interrogatones, not on what evidence is "potentially possible.'" Id. (quoting Rochester v. Katalan, Del. Supr., 320 A.2d 704, 708, fh. 7 (1974)). "Summary judgment will not be granted if the record indicates that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances." Camac at 396; Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 470 (1962).
Analysis
Plaintiff requests a ruling that the dog bite statute eliminates the guest premises statute as an affirmative defense. The Plaintiff assumes that these laws are mutually exclusive. However, the statutes are not irreconcilably in conflict. Should any overlap exist the later enacted and more specific dog bite statute controls.
Delaware's dog bite statute provides that:
The owner of a dog is liable in damages for any injury, death or loss to person or property that is caused by such dog, unless the injury, death or loss was caused to the body or property of a person who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property of the owner, or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting, or abusing the dog.7 Del. C. § 1711. Therefore, dog owners are strictly liable for injuries caused by their dog. Responsibility will not occur, however, if the person bitten was a trespasser on the dog owner's land and the attack occurs on the owner's property.
Generally, where a person claims that a tort has been committed while on another's land, Delaware's guest premises statute defines the landowner's duties. The statute provides that:
No person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused by the wilful or wanton disregard of the rights of others.25 Del. C. § 1501. This statute requires a plaintiff who was either a "guest without payment" or a "trespasser" to show egregious conduct for a tenable tort action.
Where a person is bitten by a dog while on the property of the animal's owner, these two statutes may conflict. If the person bitten is classified as a trespasser, the dog bite statute will not apply and there is no difference. Where, however, the individual is not a trespasser, these two statutes diverge. The dog bite statute would make the dog owner, who is also the landowner, strictly liable for the tort that occurs on the property. Contrarily, the guest premises statute would permit liability only for intentional or wilful and wanton acts. How is this conflict resolved?
In Delaware, "[w]here possible, a court will attempt to harmonize two potentially conflicting statutes dealing with the same subject. If they cannot be reconciled, however, the specific statute must prevail over the general." Turnbull v. Fink, Del. Supr., 668 A.2d 1370, 1377 (1995). Moreover, "if the two acts are irreconcilable, the later enacted statute must prevail over the earlier." Id. Finally, when the General Assembly enacts legislation that covers an area already subject to legislation, it is presumed to know of the prior enactment. See Carter v. McLaughlin, Del. Supr., ___ A.2d ___, No. 207, 1999, Berger, J. (April 14, 2000); City of Rehoboth v. McKenzie, Del. Super., C.A. No. 98C-12-023, Graves, J. (Feb. 29, 2000) Let. Op. at 8.
The dog bite statute is more specific than the guest premises statute. It applies to one special tort that could occur on a person's land. The guest premises statute, however, covers many different types of torts or acts that could produce injury. Moreover, the dog bite statute, effective in 1998, was enacted fifteen years after the guest premises statute. Being later, the General Assembly is presumed to have known of the potential conflict when the dog bite statute was enacted. Because the dog bite statute is more specific and recent than the guest premises statute, it will control should the two collide.
This is a first impression issue. There is, however, precedent for a more specific statute, or in this case, a doctrine, to trump the guest premises statute. In Fox v. Fox, Del. Supr., 729 A.2d 825 (1999), the Supreme Court ruled that the attractive nuisance principle was not foreclosed by the guest premises statute. Like the dog bite statute, the attractive nuisance policy covers a subset of activity that may occur on land by protecting injured children. This case supports the conclusion that the dog bite law, being more specific, supercedes the guest premises statute where they overlap in coverage.
While Delaware courts have not yet addressed this statute, other jurisdictions have reviewed strict liability laws. See generally, Ward Miller, Annotation, Modern Status of Rule of Absolute or Strict Liability for Dogbite, 51 ALR4th 446 (1987).
Here, these statutes may or may not conflict depending on Plaintiffs status when bitten. If she was a trespasser, the dog bite statute will not apply. Presently, there is a material factual dispute concerning the Plaintiffs position. Consequently, summary judgment on the liability question cannot be granted.
CONCLUSION
Concerning the two statutes, where the dog bite law and the guest premises statute conflict, such as when a "guest without payment" is bitten on the dog owner's property, the dog bite statute governs. It is more specific and was enacted later. Naturally, an affirmative defense would be a victim's situation as a trespasser. Because Plaintiffs status is disputed, her motion is denied. To conclude, the strict liability of the dog bite statute will apply unless the Plaintiff is found to be a trespasser.