Opinion
No. 52167-5-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of San Juan County. Docket No: 02-2-05079-5. Judgment or order under review. Date filed: 03/24/2003. Judge signing: Hon. Alan R Hancock.
Counsel for Appellant(s), Joseph D. Bowen, Attorney at Law, 401 N 2nd St, Mount Vernon, WA 98273-5929.
Counsel for Respondent(s), Dylan E Jackson, Alexander Bierman PS, 4800 Aurora Ave N Seattle, WA 98103.
Sara Ellen `sally' Metteer, Wilson Smith Cochran Dickerson, 1215 4th Ave Ste 1700, Seattle, WA 98161-1010.
Gary Allan Western, Wilson Smith Cochran Dickerson, 1215 4th Ave Ste 1700, Seattle, WA 98161-1010.
To establish strict or common law liability for a dog bite, a plaintiff must prove the defendant was either the owner, harborer, or keeper of the dog. Because the plaintiffs in this case failed to demonstrate an issue of fact as to whether defendant Barbara Baney was the owner, harborer, or keeper of a dog that allegedly bit a child, the superior court properly granted summary judgment.
Frobig v. Gordon, 124 Wn.2d 732, 735, 881 P.2d 226 (1994).
FACTS
On February 7, 2002, a dog bit four-year-old Francisco Guerrero on the arm. The injury required surgery.
Shortly after the attack, the San Juan Sheriff's Department received a description of the dog from a witness. Deputy Eric Gardiner, who lived in the neighborhood where the attack occurred, heard a description of the dog and drove home. As he entered the neighborhood, he saw a dog matching the witness' description sitting on Barbara Baney's front steps. The dog, named `Max,' resided with Baney's ex-boyfriend, Victor Capron, who lived about a mile away.
Francisco subsequently identified Max as the dog that bit him. Although the witness, Krysta Carlisle, did not see the actual attack, she identified Max as the dog she saw near Francisco around the time of the attack. The Guerreros filed suit against Baney and Capron, alleging that they were Max's co-owners or, alternatively, that Capron was his owner and Baney harbored or kept him several days a week. In depositions, Baney and Capron testified that they purchased Max as a puppy for their boys when they were living together in 1996. A year later, Baney moved out. Max stayed with Capron and has resided with him since that time. Max has never spent the night at Baney's, and Capron has exclusively fed, licensed, and obtained veterinary care for him. The vet's records list Capron as Max's sole owner.
The complaint is not part of the record before this court.
Baney and Capron had a son of their own, and Baney had a son from a prior relationship.
Baney and Capron testified that Max sometimes showed up at Baney's, presumably walking from Capron's residence. Occasionally, Capron would drop Max off to play with the children at Baney's. Baney denied ever feeding or grooming Max.
In his deposition, Deputy Gardiner stated he lives three houses away from Baney. Although he sometimes did not see Max for several weeks at a time, on average he saw him in the neighborhood two to three times a week. Max would sometimes sit on Baney's porch or play with her children. Gardiner never saw anyone in Baney's house feed him or take him inside. Gardiner saw Capron drop Max off at Baney's or pick him up `[m]aybe once a week[.]' He did not know whether Capron picked Max up because Max had wandered over to Baney's on his own, or whether Capron had dropped Max off earlier. Following an order of default against Capron, Baney moved for summary judgment. Noting that Baney had no responsibility for the dog and that Capron had undertaken all the responsibilities of ownership, the court concluded there was no genuine issue of fact as to whether Barbara Baney owned, kept, or harbored Max.
DECISION
In reviewing a summary judgment, we engage in the same inquiry as the trial court, considering all facts and inferences in a light most favorable to the nonmoving party. Summary judgment is proper only if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Applying these principles here, we conclude summary judgment was properly granted.
CR 56(c); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Wilson, 98 Wn.2d at 437.
The Guerreros asserted two theories of liability below: strict liability for dog owners under RCW 16.08.040, and common law liability for non-owners who keep or harbor a dog and either know or should know that it is dangerous. As to strict liability, the Gurerreros contend there is a genuine issue of fact as to whether the dog was owned solely by Victor Capron, or by Capron and Barbara Baney. They point to evidence that the dog was frequently at Baney's residence and was dropped off there by Capron as often as once a week. They concede that RCW 16.08.040 is in derogation of the common law and must be strictly construed. But relying on Beeler v. Hickman, they argue that `courts should decline to employ a strictly technical definition of ownership in order to effect the legislative intent of the statute.' While Beeler supports that proposition, it does not support the Guerrero's contention that Baney was an owner under the facts of this case.
`The owner of any dog which shall bite any person while such person is in or on a public place or lawfully in or on a private place including the property of the owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness.' RCW 16.08.040.
50 Wn. App. 746, 750 P.2d 1282 (1988).
Beeler held that `[t]he use of the term `owner' evidences a legislative intent to exclude from liability persons who are mere keepers or possessors of a dog.' The court rejected the argument that ownership is limited to purchasers, concluding that the Legislature must have intended to include persons who reside with and care for a dog for an extended period of time. Based on evidence that the defendants in that case had resided with, cared for, and exclusively possessed the dog for three years, the Beeler court concluded there was an issue of fact regarding ownership. The facts in the present case lead to a different conclusion.
Beeler, 50 Wn. App. at 752.
Beeler, 50 Wn. App. at 752.
Virtually every aspect of pet ownership points to Victor Capron as being Max's exclusive owner. Capron housed, fed, licensed, groomed, and cared for the health of the dog. There was no evidence that Baney provided any care for him. Significantly, Max never spent the night with Baney. While there was evidence that Max was present, on average, two to three days a week in Baney's neighborhood, Gardiner saw Capron drop Max off at Baney's no more than once a week. There was no evidence that the dog's visits were regular, scheduled, or part of any arrangement. Even when viewed in a light most favorable to the Guerreros, this evidence is insufficient to create an issue of fact on ownership.
The Guerreos also contend there are issues of fact as to whether, under common law, Baney was Max's harborer or keeper. To be a `harborer' or `keeper,' a person must do more than allow the dog to resort on their premises. They must treat the dog as living at their house and undertake to control its actions. The evidence in this case does not establish an issue of fact as to whether Baney was Max's harborer or keeper.
Harris v. Turner, 1 Wn. App. 1023, 1030, 466 P.2d 202 (1970).
Shafer v. Beyers, 26 Wn. App. 442, 447, 613 P.2d 554 (1980); Harris, 1 Wn. App. at 1029-31.
Affirmed.
KENNEDY and COLEMAN, JJ., concur.