Day on Torts
In 2007, the Tennessee legislature enacted Tenn. Code Ann. § 44-8-413, which addresses injuries caused by dogs. This statute draws a distinction between (1) injuries caused by a dog “running at large” and (2) injuries caused by a dog on its owner’s property. For the latter group, the statute provides that “the claimant shall be required to establish that the dog’s owner knew or should have known of the dog’s dangerous propensity,” and a recent case gave the Tennessee Court of Appeals its first opportunity to interpret this language.
In Moore v. Gaut, No. E2015-00340-COA-R3-CV (Tenn. Ct. App. Dec. 30, 2015), plaintiff went to defendant’s house to service a satellite dish. Defendant had a great dane fenced in his backyard. According to plaintiff, he was greeted by defendant’s father, who told him that the dog was “gentle” and “jovial” and encouraged him to greet the dog. Plaintiff alleged that when he went to get tools out of his vehicle, which was parked next to the fence, the dog “jumped up, leaned over the fence and bit [his] face.” Plaintiff filed suit against defendant dog owner.
Defendant moved for summary judgment, which he supported with an affidavit stating that his dog “was in a fenced-in area of his backyard” and that the “dog [had] never bitten anyone or attacked anyone.” In response, plaintiff filed his own affidavit detailing the incident and reiterating that he was never warned that the dog might act aggressively. The trial court held that “the undisputed facts established that there had been no previous history of the dog biting, attacking, or acting aggressively.” Instead, the trial court ruled that the evidence showed the opposite—that the dog had never bitten or attacked anyone, and that there was no evidence it had engaged in playful behavior that could be dangerous. Finding that there was no evidence to “put the defendant on notice that the dog was dangerous,” summary judgment was granted to defendant, which the Court of Appeals affirmed.
On appeal, the Court reviewed Tennessee common law regarding injuries caused by dogs, noting that over the years Tennessee courts have repeatedly required “knowledge of the owner or keeper that the animal is vicious or has mischievous propensities.” (citation omitted). In determining whether the owner should have been on notice, common law has allowed courts to consider both previous attacks or vicious behavior, as well as “acts done by the dog that are dangerous from playfulness or mischievousness[.]” (citation omitted). After analyzing the common law on this issue, the Court moved on to consider the statute passed by the Tennessee General Assembly in 2007. Tenn. Code Ann. § 44-8-413 pertains to liability for injuries caused by dogs, with subsection (a) addressing injuries caused by dogs “running at large” and subsection (c) addressing those caused by dogs on their owner’s property. Regarding a dog on its owner’s property, the statute says:
If a dog causes damage to a person while the person is on residential, farm or other noncommercial property, and the dog’s owner is the owner of the property, …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 Court held that in cases such as this one, the statute “clearly retains and codifies the common law requirement” that a plaintiff must show that the defendant knew or should have known that the dog was dangerous.
Here, the Court found that defendant negated this element in his affidavit by testifying that his dog had never bitten or attacked anyone, and plaintiff did not present any evidence to contradict this or create a genuine issue of material fact. Instead, the Court held that the “evidence presented by Plaintiff tends to show that Defendant believed his dog was friendly, gentle, and jovial before the bite occurred. Nor is there any evidence that Defendant was aware of any prior playful or mischievous behavior that could be dangerous.” Accordingly, summary judgment was affirmed.
Plaintiff attempted to get around the notice requirement by arguing that because great danes are an extraordinarily large breed, “its size alone placed the Defendant on notice of any dangerous propensities.” The Court of Appeals, like the trial court, rejected this argument, stating that plaintiff was arguing for a “big dog exception” to the notice requirement. The Court held that they “decline[d] to craft an exception to the long and well established rules in dog bite cases, based solely on a dog’s size or breed.”
The facts of this case presented a challenge for plaintiff—the dog was contained in a fence here and allegedly had never hurt anyone. Although the opinion does not explicitly say as much, the fact that plaintiff chose to get close enough to the fence to allow the dog to reach him must have hurt his case. The problem with this case, though, is the difficulty future dog-bite plaintiffs may have in getting past the summary judgment stage. If a person is injured by a dog on its owner’s property, that person must show that the owner had notice of the dog’s dangerous propensities. Such a showing, though, would often be quite difficult to make. If the owner moves for summary judgment with his or her own affidavit stating that the dog had not acted dangerously before, as the owner did here, it appears that the injured party would have to come up with some specific facts to challenge that assertion. Must a plaintiff locate and depose the dog owner’s mailman or pizza delivery person to see if the dog has ever acted aggressively towards them? Should plaintiff try to track down every visitor to the home? Moreover, the owner’s affidavit here only stated that the dog had “never bitten or attacked anyone.” What about snarling? Aggressive barking? Snapping without an actual bite? If a plaintiff could locate evidence regarding these behaviors, would that be enough to survive summary judgment?
These cases do not come up often, so it may be a long time before this issue is clarified any further, but the current status of the law appears to create an uphill battle for plaintiffs – a battle that existed at common law and according to the Court was not changed by the new statute.