Opinion
No. 36488-3-II.
June 3, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-2-02628-8, M. Karlynn Haberly, J., entered May 30, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
Jennifer Lou Carr, as limited guardian for Joseph Michael Carr, appeals the trial court's summary judgment dismissal of her negligence claims against defendants Edlee and Jane Doe Quesnell. The trial court ruled that the Quesnells, landlords of the trailer park where a tenant's dog bit Joseph, owed no duty to Joseph. Carr argues that the Quesnells had a duty because an express covenant in the tenant's lease contained safety rules and regulations regarding pet ownership. We hold that the lease provisions created no duty to Joseph; nor was the lease an affirmative act by the Quesnells that created a duty. Accordingly, we affirm.
FACTS
The Quesnells own Berry Lake Manor, a manufactured home community for individuals aged 55 and older. All tenants at Berry Lake sign a rental agreement that limits each tenant to one pet, requires tenants to complete a pet rider agreement, and forbids all pets larger than 10 inches tall at the shoulder or weighing more than 15 pounds. The rental agreement prohibits "aggressive/vicious pets," and provides that "[a]ny violation of these rules and regulations, the Pet Rider Agreement, and/or signed complaints from other residents relating to a pet will result in a requirement that the pet be removed from the community immediately." Clerk's Papers (CP) at 35 (emphasis omitted). The pet rider agreement also apparently requires pets to be on a leash of less than 5 feet in length and in the control of an adult any time they are outside the tenant's home. The rental agreement explains that these provisions are intended to maintain a safe environment for residents and their guests. Edlee Quesnell testified that he specifically intended the pet rules to protect Berry Lake residents and guests.
The parties did not provide a copy of the pet rider agreement to this court, but deposition testimony established some of its restrictions.
Berry Lake resident Margaret Koepplin obtained a written waiver of these restrictions from Quesnell, allowing her to keep a dog that was 12 inches tall and weighed 22 pounds. On three separate occasions before the incident in question here, Quesnell warned Koepplin about her failure to properly leash or control the dog. He did not, however, act to remove the dog from the community. There is no evidence that the dog was vicious or aggressive. Rather, Joseph's father testified in deposition that Joseph had played with the dog before.
On August 13, 2005, Koepplin's dog bit three-year-old Joseph, who was visiting hisgrandparents at Berry Lake. Joseph's mother, Jennifer, sued alleging that Quesnell was negligent in failing to enforce the express terms of the rental agreement by failing to immediately remove a pet that violated any terms of the rental agreement or the pet rider agreement. Quesnell moved for summary judgment, arguing that a landlord has no duty to parties on the premises for injuries caused by his tenant's dog. The trial court granted Quesnell's motion.
ANALYSIS
We review a summary judgment de novo. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004) (citing Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993)). Summary judgment is appropriate only if Quesnell, the moving party, demonstrates that "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." CR 56(c); Atherton Condo. Apartment Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). We consider all facts in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005) (citing Atherton, 115 Wn.2d at 516).
Whether a defendant owes a duty to the plaintiff is a question of law. Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994). Generally, landlords have no duty to protect tenants or third parties from vicious dogs, even if the landlord knows that the dog may be vicious. Clemmons v. Fidler, 58 Wn. App. 32, 35-36, 791 P.2d 257 (1990); see also Frobig v. Gordon, 124 Wn.2d 732, 881 P.2d 226 (1994). Carr argues, nonetheless, that either (1) the special circumstances of this case create a duty under the rental agreement, which contained pet restrictions for the explicitpurpose of providing a safe environment for tenants and their guests; or (2) the landlord assumed a duty and, thus, was obligated to follow through to protect his tenants. Carr bases the latter theory on the landlord's obligations under the lease.
1. Creating a Tort Duty by Contract
Carr argues that Quesnell, in covenanting to restrict the size of tenants' dogs, assumed a duty to protect tenants in those restrictions. She contends that the lease agreement's provision that any violation of its restrictions "will result in a requirement that the pet be removed from the community immediately" obliged Quesnell to remove the animal when he learned of a violation. CP at 35.
The Washington Supreme Court considered and rejected the same argument in Frobig, 124 Wn.2d at 732. There, the plaintiff sued a landlord for injuries she sustained when a tiger a tenant owned attacked her. Frobig, 124 Wn.2d at 734. The court reiterated the general rule that a landlord is not liable for injuries inflicted by a tenant's dangerous animal, and it held that the rule applies to dangerous wild animals as well. Frobig, 124 Wn.2d at 735. The court rejected reasoning in Strunk v. Zoltanski, 62 N.Y.2d 572, 479 N.Y.S.2d 175, 468 N.E.2d 13 (1984), which held that a landlord can be liable where the landlord knows of the dog's vicious nature and takes "no measures by pertinent provisions in the lease . . . to protect third persons." Strunk, 62 N.Y.2d at 575 (emphasis added).
Strunk relied on a California case, Uccello v. Laudenslayer, 118 Cal. Rptr. 741, 44 Cal.App.3d 504 (1975), which found liability based on the "'moral blame attached to a landlord's conduct' when he can evict a tenant with a dangerous dog but fails to do so." Frobig, 124 Wn.2d at 739 (quoting Uccello, 118 Cal. Rptr. at 747). Although the Frobig court declined to follow either Strunk or Uccello, it also explained that even under those cases, the landlord would not be liable. Frobig, 124 Wn.2d at 739. The court pointed out that Strunk and Uccello found a duty only because the landlord had previous notice that the animal was vicious and the landlord had time under the lease or the law to evict the tenant. Frobig, 124 Wn.2d at 739-40. The landlord in Frobig had insufficient time under either the law or the lease to evict the tiger's owner before the plaintiff was injured. Frobig, 124 Wn.2d at 740.
Thus, Frobig essentially held that lease provisions that allow a landlord to remove dangerous animals or evict the owner-tenant do not alter the general rule that a landlord is not liable for injuries a tenant's pet inflicted. Moreover, here as in Frobig, even if we apply the Strunk- Uccello analysis, Carr has not shown liability. Quesnell had no notice that the tenant's dog was vicious. The dog had not previously attacked or attempted to attack anybody in the park. In fact, Joseph had played with the dog before without incident. Any possible leash violation or size and weight violation would not have put Quesnell on notice that the dog was dangerous. Under these circumstances, Frobig compels us to hold that Quesnell owed no duty to Joseph. And because Carr's "assumed duty" argument relies solely on the lease provisions, it fails as well. If the lease provisions do not directly create a duty, we cannot indirectly create one.
Carr's remaining argument is that the "special relation" between a landlord and tenant warrants a duty here. Br. of Appellant at 12. But Washington courts have explicitly and repeatedly held to the contrary. See Clemmons, 58 Wn. App. at 35 ("Mere ownership of property . . . does not in and of itself make a landlord 'liable for persons thereon who own or possess, harbor or keep a dangerous dog.'") (quoting Shafer v. Beyers, 26 Wn. App. 442, 447, 613 P.2d 554 (1980)). Furthermore, statutes specifically address the duties and responsibilities of landlords in mobile home parks without mentioning anyduty to enforce rules on tenants. See RCW 59.20.130. The legislature has considered the scope of landlord duties and has declined to impose the duty that Carr requests here.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Bridgewater, J., and Van Deren, A.C.J., concur.