Day on Torts
A dog park located within an apartment complex being used by residents of the complex was considered to fall within the residential exception of the Tennessee dog bite statute, so plaintiff, who was bitten at her apartment complex’s dog park, had to show that the dog’s owner knew or should have known of the dog’s dangerous propensities to establish liability.
In Cruise v. Byrd, No. M2022-01578-COA-R3-CV (Tenn. Ct. App. July 20, 2023), plaintiff lived at an apartment complex which included a dog park which was open to residents only. While at the dog park, plaintiff’s dog was attacked by defendant’s dog, and plaintiff was bitten by defendant’s dog when she intervened. Defendant was also a resident at the apartment complex.
Plaintiff filed a complaint for negligence and negligence per se. Defendant filed a motion for summary judgment, asserting that the dog bite occurred on residential property rather than public property and that defendant had no notice of the dog’s dangerous propensities. The trial court granted defendant’s motion for summary judgment, ruling that the dog park was not a public place, and the Court of Appeals affirmed.
In Tennessee, liability for dog bites is governed by the dog bite statute, Tenn. Code Ann. § 44-8-413. Section (a) of the statute provides that a person is liable “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” if the dog is not under reasonable control or is running at large, with no reference to the dog owner’s knowledge of the dog’s violent propensities. Section (c), however, provides a residential exception to this level of liability. Tenn. Code Ann. § 44-8-413(c) states:
If a dog causes damage to a person while the person is on a residential, farm or other noncommercial property, and the dog’s owner is the owner of the property, or is on the property by permission of the owner or as a lawful tenant or lessee, in any civil action based upon such damages brought against the owner of the dog, the claimant shall be required to establish that the dog’s owner knew or should have known of the dog’s dangerous propensities.
The issue in this case, then, was whether the dog park at the apartment complex was public property under section (a) or fell under the parameters of section (c), with both the trial court and Court of Appeals ruling that it fell with (c)’s residential exception.
Looking to a previous Eastern District court case that had found that it was not the zoning but the use of the property that mattered, the Court of Appeals explained:
[T]he use of the property here—the apartment complex and the dog park within it—is fundamentally residential. … [Plaintiff] was not a guest of the apartment complex; she was a resident. … The trial court found that the Legislature intended for apartment complexes to fall within subsection (c)(1)’s inclusion of “residential, farm, or other noncommercial property,” explaining that the statute expressly included “lawful tenant[s] or lessee[s]” of a property within its protection. We agree with this reasoning because the Dog Bite Statute is clear and there is no need to complicate the task of enforcing it as written. …As evidenced by her “Tennessee Residential Lease Agreement,” [defendant] was a lawful tenant of the apartment complex. As such, she was on the premises of the apartment complex’s dog park as a lawful tenant when her dog bit [plaintiff]. As a lawful tenant of the apartment complex, the plain language of the Dog Bite Statute afforded [defendant] the protection of the residential exception of subsection (c) in this case, which required [plaintiff] to establish [defendant]’s knowledge of her dog’s dangerous propensities.
Because plaintiff had no proof that defendant knew of her dog’s dangerous propensities, summary judgment for defendant was affirmed.
This opinion was released 2.5 months after oral arguments in this case.