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2013 AUG 26 AH 9=36
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
MARGARET L. BRISCOE, No. 69103-1-1
Appellant,
v.
RANDALL LAMONICUS MCWILLIAMS,
Respondent,
LEVITICUS JADE MCWILLIAMS,
ELIZABETH ANN ROWLAND, and
VICTOR GREER, UNPUBLISHED OPINION
Defendants. FILED: August 26, 2013
Verellen, J. — Common law liability for dog bites flows only to the owner,
harborer or keeper of a dog. Margaret Briscoe suffered injuries after being attacked by
a dog left unattended in an apartment. Briscoe sued tenant Randall McWiliams, who
had hired his brother Levi to clean the apartment.1 Levi owned the dog and left it in the
apartment while he went to obtain cleaning supplies. Briscoe alleges respondeat
superior (agency),2 premises liability, and negligent entrustment claims against Randall.
Briscoe appeals the trial court's summary judgment dismissing her claims. Because
1We refer to the brothers byfirst names for ease of reference.
2Appellant refers to agency and respondeat superior interchangeably in her
briefing.
No. 69103-1-1/2
Randall was not the owner, harborer or keeper of the dog, we affirm dismissal of
Briscoe's claims.
FACTS
Randall McWilliams rented an apartment from his friend, Victor Greer, beginning
in March 2009. The lease was on a month-to-month basis and prohibited pets. During
the lease, his brother Levi would visit and bring Jersey, his pit bull. If other people were
present at the apartment, Levi would ensure Jersey was locked either in one of the
rooms or in the downstairs garage.
Greer decided to sell his apartment in early 2010, so Randall began the process
of moving out. Greer listed the apartment with a realty company and informed Randall
that real estate agents would have access to the apartment via the lockbox installed on
the front door. On July 14, 2010, Randall left for California. Randall informed Greer he
would be out of the apartment by July 15, 2010. Randall hired Levi to clean the
apartment and move some of Randall's items to their mother's house. Randall agreed
to pay Levi $300 for the work.
On July 16, 2010, Randall called Levi to check in on the cleaning. According to
Randall, Levi told him the cleaning would be completed by that evening. Randall
testified at his deposition that "I presumed he was going to be done [by July 16]. I
anticipated he'd probably have to go back and get some cleaning supplies, but the
majority ofthe job was going to be done."3 After speaking with Levi, Randall deposited
the $300 into Elizabeth Rowland's (Levi's girlfriend's) account.
Clerk's Papers at 96.
No. 69103-1-1/3
That same day, July 16, Randall contacted Greer and informed him the
apartment was clean and vacant. Greer then telephoned Margaret Briscoe, his aunt, to
request that she visit the apartment the next day, July 17, to confirm that Randall had
moved out. Randall did not know Greer requested Briscoe to come to the apartment on
July 17.
Levi had not finished cleaning by July 16. Levi was still at the apartment on
July 17, with Jersey. On July 17, Levi left the apartment to get some cleaning supplies
with Jersey loose in the apartment. Briscoe came to the apartment while Levi was out.
When she entered, Jersey attacked her, injuring her legs.
Briscoe sued Levi and Rowland (Jersey's owners), Randall, and Greer. Briscoe
voluntarily dismissed Greer. Briscoe obtained default judgment against Levi and
Rowland, but they are judgment proof and have no insurance.
Briscoe's causes of action against Randall included respondeat superior
(agency), premises liability, and negligent entrustment, as well as a claim for violation of
the lease agreement as a third-party beneficiary. Randall moved to dismiss all of the
claims under CR 12(b)(6). The court dismissed the third-party beneficiary claim.
Randall then moved for summary judgment on the three remaining claims, arguing
generally that only owners, keepers or harborers of a dog could be held liable for
injuries. He specifically argued that no Washington case had ever permitted a dog bite
victim to recover based on agency law. The trial court granted the motion and
dismissed all three claims. Because all claims had been resolved, the trial court
entered final judgment. Briscoe appeals.
No. 69103-1-1/4
DISCUSSION
Briscoe argues the trial court erred in dismissing her claims against Randall,
contending she should have the chance to argue her negligent entrustment, respondeat
superior and premises liability claims to the jury.4 We review de novo a trial court's
decision on summary judgment, performing the same inquiry as the trial court.5 We
may affirm an order granting summary judgment on any basis supported by the record.6
Under longstanding Washington common law, only the owner, keeper or
harborer of a dog is liable for injuries caused by the dog.7 In 1920, our Supreme Court
considered whether to overturn a verdict in favor of a plaintiff who had sued the receiver
of the Washington Motion Picture Corporation for negligence when a dog kept on its
property escaped and killed the plaintiff's young son.8 One ofthe employees ofthe
corporation owned the dog and was paying another employee to feed it.9 The court
4We reject Briscoe's contention that the trial court had already ruled on the
viability of her liability theories when it denied Randall's CR 12(b)(6) motion. As Randall
rightly argues, the trial court has the discretion to deny a motion to dismiss on a claim
but then grant summary judgment on that same claim. Lindsev v. Dayton-Hudson
Corp.. 592 F.2d 1118, 1121 (10th Cir. 1979).
5 Lvbbert v. Grant County. 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). We view all
facts and reasonable inferences therefrom most favorably toward the nonmoving party.
Id. Summary judgment is proper if the pleadings, affidavits, and depositions establish
that there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. jd.; CR 56(c). Ifthe nonmoving party fails to controvert
material facts supporting the summary judgment motion, those facts are considered to
be established. Cent. Wash. Bank v. Mendelson-Zeller. Inc.. 113 Wn.2d 346, 354, 779
P.2d 697 (1989).
6 LaMon v. Butler. 112 Wn.2d 193, 200-01, 770 P.2d 1027(1989).
7 UnderWashington's strict liability dog bite statute, RCW 16.08.040, only owners
are liable for damages. Briscoe does not assert any cause of action under the statute
against Randall.
8 Markwood v. McBroom. 110 Wash. 208, 208-09, 188 P. 521 (1920).
9 Id. at 209-10.
No. 69103-1-1/5
looked to the common law and reasoned that the receiver was plainly not the dog's
owner or keeper.10 The court also applied the following definition: "'Harboring' means
protecting, and one who treats a dog as living at his house, and undertakes to control
his actions, is the owner or harborer thereof, as affecting liability for injuries caused by
it."11 In concluding the receiver was not a harborer of the dog, the court noted the dog
was not an asset of the corporation, the dog was not in the receiver's possession, and
the receiver could not be charged with knowledge of the dog's existence.12 Having
determined the receiver was neither the owner, keeper or harborer of the dog, the court
vacated the judgment, reasoning that "[a]t common law a person would not be liable for
an injury resulting from the bite of a dog unless he was the owner, keeper, or harborer
of the dog."13
Many decades later, in Frobiq v. Gordon, the court considered whether the
plaintiff, who had been mauled by a Bengal tiger, could recover not against the keeper
of the tiger but against the keeper's landlords (the Branches).14 Anne Gordon, the
keeper of the tiger and the tenant, leased property from the Branches.15 Gordon was in
the business of providing wild animals for film and video projects.16 Gordon had the
tiger on her property for a project, and the tiger escaped during the filming of a
10k± at 211.
11 Id,
12 jcL at 211-12.
13kL
14124Wn.2d732, 881 P.2d 226 (1994)
15 JcL at 733.
16 Id.
No. 69103-1-1/6
commercial.17 The tiger attacked Frobig, seriously wounding her.18 The court
considered whether the trial court had properly dismissed Frobig's action against the
landlords for negligence and strict liability.19
The court grounded its analysis in the common law rule announced in Markwood
v. McBroom. stating, "The rule in Washington is that the owner, keeper or harborer of a
dangerous or vicious animal is liable; the landlord of the owner, keeper, or harborer is
not."20 The court then stated, "In short, liability flows from ownership or direct control."21
The court rejected the viability of the plaintiff's claim against the landlords because a
"landlord owes no greater duty to the invitees or guests of his tenant than he owes to
the tenant himself."22
The court reasoned further that the landlords' prior knowledge of the tiger on the
property had no significance because under Washington law, the "landlords would not
be liable to the tenant for the tiger's attack so should not be liable to third parties for
injuries inflicted by the animal."23 The court concluded that "[t]he wild animals were
Anne Gordon's alone, and under Washington law liability resulting from the ownership
and management of those animals rests with Anne Gordon alone."24 Therefore, the
court foreclosed any actions against landlords for liability arising out the dangerous
17 Id, at 734.
18 id
19 id at 735.
20 id (citing Markwood, 110 Wash. at 208-09)
21 id
22 id
23 id at 737.
24 Id.
No. 69103-1-1/7
animals owned, kept, or harbored by tenants.
In Clemmons v. Fidler, Division Two of this court declined to extend the common
law rule to apply to landlords, even where the landlord knows the tenant has a dog with
vicious tendencies.25 There, the plaintiff sued the landlord for injuries to heryoung son
under the theory that the landlord knew his tenants' dog was dangerous.26 The court
reasoned, "[T]he landlord's knowledge is immaterial. We hold that the common law rule
applies: only the owner, keeper, or harborer of the dog is liable for such harm."27 The
court continued, "This rule is consistent with our case law, with our former criminal and
present civil statutes on dogs, and with the analogous law governing landlord liability for
defective conditions on leased premises."28
"Common law liability for injuries caused by vicious or dangerous dogs is based
upon a form of strict liability. . . . Any injury caused by such an animal subjects the
owner to prima facie liability without proof of negligence."29 Issues of negligence and
contributory negligence, fault and comparative fault therefore have no application.30
The rationale rejecting landlord liability for a tenant's dog expressed in Clemmons and
Frobig applies equally to Randall's liability for Levi's dog, regardless of whether Levi
25 58 Wn. App. 32, 33, 791 P.2d 257 (1990): see also Frobig v. Gordan. 124
Wn.2d 732, 735, 881 P.2d 226 (1994) (citing Clemmons).
26 id at 33-34.
27 id at 34.
28 id at 34-35; see also Shafter v. Beyers, 26 Wn. App. 442, 446-47, 613 P.2d
554 (1980) (court did not err in dismissing on summary judgment plaintiffs action
against the owner of the premises where the dog in question was kept by a subtenant
because neither the dog bite statute nor the common law allowed a plaintiff to recover
against a landlord, where landlord was not the owner, keeper or harborer of the dog).
29 Johnston v. Ohls. 76 Wn.2d 398, 400, 457 P.2d 194 (1969).
30 Id. at 401.
No. 69103-1-1/8
was Randall's agent (respondeat superior) or business invitee (premises liability theory).
Nor does the narrowly drawn common law rule permit a claim for negligent entrustment.
The common law restricts liability to the owner, keeper or harborer because they own or
have direct control of the animal.31
There is no genuine issue of material fact that Randall was neither the owner,
harborer, or keeper of Jersey. He had no direct control of the animal. Under the
longstanding common law rule announced in Markwood. and reiterated in Frobig and
Clemmons. a plaintiff injured by an animal must seek recovery from the owner, keeper
or harborer of that animal. The common law precludes Briscoe's alternative theories of
liability. Because Randall does not fall within the class of people subject to common law
liability, we affirm dismissal of Briscoe's claims against him.32
WE CONCUR:
31 Government agencies involved with animal control mayface liability under the
public duty doctrine, see, e.g.. Gorman v. Pierce County, No. 42502-5-M, slip op. at 7-15
(Wash. Ct. App. Aug. 13, 2013); Livingston v. City of Everett, 50 Wn. App. 655, 658,
751 P.2d 1199 (1988), but that discrete theory of recovery does not conflict with the
common law standard limiting liability to the owner, keeper or harborer of an animal.
32 See Hackler v. Hackler, 37 Wn. App. 791, 794, 683 P.2d 241 (1984) (summary
judgment is proper when, although some facts might be disputed, there are not material
facts at issue under the legal principle that disposes of the controversy).
8