Stout v. Bartholomew

Present: All the Justices

LYNN A. STOUT

v. Record No. 001204 OPINION BY JUSTICE CYNTHIA D. KINSER
April 20, 2001
EDWARD L. BARTHOLOMEW, ET AL.

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge

This action arises out of an accident between a

motorcycle operated by the plaintiff, Lynn A. Stout, and a

dog named Jackson. The defendant, Edward L. Bartholomew

(Bartholomew), and his wife, Carol J. Bartholomew, cared

for the dog. 1 The dispositive issues on appeal involve the

circuit court’s refusal to grant an instruction on

negligence per se, the court’s judgment setting aside a

jury verdict in favor of Stout against Bartholomew, and the

court’s decision to sustain a demurrer with regard to

claims for failure to warn. Because we find no error in

the circuit court’s judgment on these issues, we will

affirm that judgment.

FACTS AND MATERIAL PROCEEDINGS

In summarizing the evidence adduced at trial, we are

guided by well-established principles of appellate review.

“Even though the trial court set the verdict aside, we

state the facts and reasonable inferences to be drawn

1
The Bartholomews’ daughter owned Jackson.
therefrom in the light most favorable to” Stout, who

prevailed against Bartholomew before the jury. Stump v.

Doe, 250 Va. 57, 58, 458 S.E.2d 279, 280 (1995); accord

Hoar v. Great E. Resort Mgmt., Inc., 256 Va. 374, 378, 506

S.E.2d 777, 780 (1998).

The accident at issue occurred as Stout and her

husband, Douglas Olin, were riding their motorcycles

northbound on Glebe Road, a four-lane public highway in

Arlington County. Olin was riding in front of Stout and

slightly to her left. As they approached the intersection

between Glebe Road and 37th Street, both Olin and Stout saw

a dog, later determined to be Jackson, standing on the

sidewalk. In Olin’s words, the dog was in “an attack

posture[,] . . . baring its teeth, [and] appeared to be

growling.” As Olin traveled past the dog, the dog ran out

into the street and came at him. Olin was able to take

evasive action, but the dog leaped up against the front

tire of Stout’s motorcycle, causing the tire to turn at a

right angle to the frame of the motorcycle. Consequently,

Stout was thrown forward over the handlebars and landed on

the pavement on Glebe Road. As a result of the accident,

Stout suffered personal injuries.

The Bartholomews had cared for Jackson from October

1996 through the date of the accident, April 13, 1997.

2
Jackson was a forty-pound, mixed breed dog that was about

ten months old at the time of the accident. Mrs.

Bartholomew described Jackson’s temperament as “sweet” and

“animated.” She also testified that the neighborhood

children frequently played with him. One of those children

stated that Jackson was “a very friendly dog.” That

child’s mother, however, indicated that Jackson was

“frisky” and acted aggressively toward other male dogs. In

spite of that tendency, the evidence established that,

prior to the day in question, Jackson had not previously

attacked or chased people, cars, bicycles, or motorcycles.

Jackson was not the first dog that the Bartholomews

had cared for or owned. They had acquired another dog in

approximately 1988 and decided about a year later to

install a pet containment system that is based on the use

of electronics coupled with training of the pet. A dog

wears an electronic shock collar that emits a beep when the

dog approaches the boundary, which is established by an

underground wire. If the dog crosses the boundary, the

collar shocks the dog. 2 The Bartholomews chose this pet

containment system instead of some other type of fencing

partly because they both had had experience with dogs

2
The brand name of the pet containment system selected
by the Bartholomews was “Invisible Fencing System.”

3
getting out of boundaries enclosed by more traditional

kinds of fences. They concluded that this system was the

most effective method of confining a pet to a specified

area.

Clark Associates Invisible Fence Corporation (Clark

Associates) sold the “Invisible Fencing System” to the

Bartholomews and installed it on their property located on

Glebe Road. Clark Associates’ contract with Mrs.

Bartholomew contained the following warning in block

capital letters:

Occasionally an animal cannot be trained to avoid
crossing the boundary, and sometimes even a properly
trained animal may cross the boundary. Therefore,
[Clark Associates] cannot guarantee that the unit
will, in all cases, keep a customer’s animal within
the established boundary. Accordingly, if a customer
has reason to believe that their animal may pose a
danger to others or harm itself if it is not kept from
crossing the boundaries, customer should not rely
solely upon the unit to keep the animal from crossing
the boundary.

However, no one from Clark Associates suggested to the

Bartholomews that, because of the heavy volume of traffic

on Glebe Road, their property was not an appropriate

location to use an invisible fence.

During the eight years that the Bartholomews used the

fence for their other dog, it “worked perfectly,” according

to Bartholomew. Because of their previous success with the

fence, the Bartholomews decided to utilize the same system

4
when they started caring for Jackson. At that time, the

Bartholomews asked Clark Associates to service the system.

Clark Associates performed some repairs to the fence where

the underground wire had been cut and also provided a shock

collar for Jackson to wear.

After the Bartholomews commenced training Jackson by

using the shock collar, he responded quickly to the system

and did not have any difficulty learning the boundary,

according to Mrs. Bartholomew. In fact, she testified that

Jackson responded better than their other dog had. Prior

to the incident in question, Jackson had never crossed the

boundary of the invisible fence while he was wearing the

shock collar, nor had the Bartholomews received any

complaints about Jackson getting out of their yard.

Bartholomew further stated that, when the neighborhood

children were in his yard playing with Jackson, the dog did

not follow them across the boundary of the invisible fence

when the children left the Bartholomews’ yard.

On the day of the accident, Bartholomew put the collar

on Jackson and let him out of the house. A short time

later, Bartholomew received a call from a neighbor advising

him that Jackson was not in the yard. Bartholomew

subsequently learned about the accident involving Jackson.

When he found the dog later that evening near the boundary

5
of the invisible fence, Jackson was still wearing the

collar, which was beeping as it should when a dog is near

the boundary.

Richard Henry Polsky, an applied animal behaviorist,

testified at trial on behalf of Stout. He qualified as an

expert in the field of dog behavior and training, including

electronic shock collars and pet containment systems.

Polsky opined that it was unreasonable for Clark Associates

to install the invisible fence on the Bartholomews’

property because the heavy volume of traffic on Glebe Road

made the fence less effective as a pet containment system.

He also testified that a shock collar can cause some dogs

to become aggressive toward humans and other dogs, and can

prevent a dog from re-entering the boundary after it has

crossed the invisible fence. However, Polsky admitted that

it was his understanding that the invisible fence and

collar were working on the day of the accident, that

Jackson was wearing the collar, and that the dog had not

previously violated the invisible fence.

Stout filed this action against Bartholomew, Clark

Associates, and Invisible Fence Company, Inc. (IFCO), the

company that designed and manufactured the invisible fence.

In her amended motion for judgment, Stout asserted one

count of negligence against Bartholomew, and both

6
negligence and breach of warranty claims against IFCO and

Clark Associates.

In response, IFCO and Clark Associates filed a

demurrer to those portions of Stout’s amended motion for

judgment alleging claims for breach of warranty and/or

failure to warn. The circuit court sustained the demurrer,

in part, and dismissed Stout’s claims against IFCO and

Clark Associates for failure to warn. 3 On the morning of

trial, Stout dismissed her remaining claims against IFCO. 4

She proceeded to trial on her negligence and breach of

warranty claims against Clark Associates and her negligence

claim against Bartholomew.

At the close of Stout’s evidence, Clark Associates and

Bartholomew moved to strike that evidence. The court

sustained Clark Associates’ motion as to the breach of

warranty claim but took the motions under advisement on the

negligence counts against Bartholomew and Clark Associates.

The jury returned a verdict in favor of Stout against

Bartholomew, awarding her damages in the amount of $27,408.

3
The court denied the demurrer with regard to Stout’s
breach of warranty claims.
4
Stout reserved her objection to, and right to appeal,
the prior dismissal of the failure to warn claim against
IFCO.

7
However, the jury rendered a verdict in favor of Clark

Associates.

Bartholomew subsequently renewed his motion to strike

and also moved to set aside the jury’s verdict. After

considering the parties’ memoranda and hearing argument of

counsel, the circuit court sustained the motions and

entered judgment in favor of Bartholomew. The court found

that there was no evidence from which the jury could have

concluded that Bartholomew did not act reasonably in the

restraint of the dog. The court further concluded that

Bartholomew could not have anticipated that using the

invisible fence to confine Jackson was likely to result in

injuries to others. We awarded Stout this appeal.

ANALYSIS

Three of the errors that Stout assigns are dispositive

of this appeal. She challenges the circuit court’s refusal

to instruct the jury on negligence per se, its ruling to

set aside the jury verdict in her favor, and the court’s

sustaining the demurrer with regard to the failure to warn

claims. We will address these issues seriatim.

In Stout’s first assignment of error, she contends

that the circuit court erred in refusing to instruct the

jury to find Bartholomew negligent per se if he violated

Arlington County Code § 2-6, which requires all dogs to be

8
“secured by a leash or lead, and under the control of the

owner . . . or within the real property limits of its

owners.” 5 Stout contends that the undisputed evidence

establishes that Bartholomew violated this ordinance, and

that the purpose of the ordinance is to protect members of

the public, such as herself, from the hazards of unleashed

dogs. Thus, argues Stout, she was entitled to have the

jury instructed on negligence per se.

In Butler v. Frieden, 208 Va. 352, 352-53, 355, 158

S.E.2d 121, 122-23 (1967), this Court held that a city

ordinance, which subjected a dog owner to a fine if the dog

“shall go at large upon any public street . . . unless such

dog is accompanied by an attendant or held in leash,”

supplied the standard for deciding whether the owner had

exercised the duty of ordinary care. However, in that

case, the defendants did not contest their violation of the

ordinance. Instead, the issue on appeal was “whether the

ordinance was designed to protect the public from personal

injuries inflicted by dogs.” Id. at 354, 158 S.E.2d at

122. In concluding that the ordinance was so designed and

that the trial court, therefore, did not err in instructing

5
Stout offered Instruction No. 31, which the circuit
court refused. In pertinent part, that instruction told
the jury that, if it believed “from the greater weight of

9
the jury that violation of the ordinance constituted

negligence, we recognized that, prior to the enactment of

the ordinance, the defendants’ failure to keep the dog

leashed would not have been a breach of their duty to the

plaintiff because the defendants had no reason to believe

that the dog would inflict injuries if allowed to run

unleashed. However, under the standard created by the

ordinance, the defendants breached their duty to the

plaintiff because they permitted the dog to roam at large

on a public street. Id. at 355, 158 S.E.2d at 123.

Relying on Butler, Stout argues that Arlington County

Code § 2-6 supplies the standard for determining whether

Bartholomew exercised his duty of care and that the circuit

court therefore erred in failing to instruct the jury with

regard to negligence per se. However, to establish

negligence per se, Stout must initially prove that

Bartholomew “violated a statute that was enacted for public

safety.” Halterman v. Radisson Hotel Corp., 259 Va. 171,

176, 523 S.E.2d 823, 825 (2000) (citing MacCoy v. Colony

House Builders, Inc., 239 Va. 64, 69, 387 S.E.2d 760, 763

(1990); Virginia Elec. and Power Co. v. Savoy Const. Co.,

224 Va. 36, 45, 294 S.E.2d 811, 817 (1982)). Bartholomew

_________________________
the evidence that defendant violated the ordinance, than
[sic] the defendant is guilty of negligence.”

10
contends that Stout failed to do so. He argues not only

that Arlington County Code § 2-6 is not applicable to this

case but also that he did not violate that ordinance. We

agree with Bartholomew.

As previously stated, Arlington County Code § 2-6

requires that dogs “be kept secured by a leash or lead, and

under the control of the owner . . . or within the real

property limits of its owners.” This ordinance cannot,

however, be read in isolation. It must be construed in

conjunction with other ordinances having the same purpose.

See Prillaman v. Commonwealth, 199 Va. 401, 405, 100 S.E.2d

4, 7 (1957) (“statutes are not to be considered as isolated

fragments of law, but as a whole, or as parts of . . . a

single and complete statutory arrangement”).

In addition to § 2-6, the Arlington County Code

contains other relevant sections dealing with animals. For

instance, Arlington County Code § 2-5 provides that “[i]t

shall be unlawful for the owner of any dog to permit such

dog . . . to run at large in the county . . . .” The term

“[r]unning at large” is defined as “any dog, while roaming,

running or self-hunting off the property of its owner or

custodian and not under its owner’s or custodian’s

immediate control.” Arlington County Code § 2-4.

11
 When considering these ordinances “as parts of . . . a

single and complete statutory arrangement,” Prillaman, 199

Va. at 405, 100 S.E.2d at 7, we conclude, as Bartholomew

argues, that § 2-6 does not apply in this case.

Bartholomew had in place a system designed to keep Jackson

within the Bartholomews’ real property limits. Bartholomew

did not take Jackson off his property without a leash. The

exceptions to the requirements of § 2-6, i.e., for “off-

lead training, obedience matches and trials, [and] when the

dog has a skin condition which would be exacerbated by the

wearing of a collar,” confirm that § 2-6 applies when an

owner chooses to take a dog off the owner’s real property

limits. When a dog escapes from a pet containment system

designed to keep the dog within the owner’s real property

limits, the owner has not violated § 2-6. Thus, the

circuit court was correct in refusing to give Stout’s

Instruction No. 31 because Arlington County Code § 2-6 does

not supply a standard of care applicable to this case.

Notably, Stout did not rely on Arlington County Code

§ 2-5, which utilizes the term “permit.” As we stated in

Rice v. Turner, 191 Va. 601, 605, 62 S.E.2d 24, 26 (1950),

such language “implies knowledge, consent, or a willingness

on the part of the owner for . . . domestic animals to run

at large.” In Rice, we concluded that the statute at issue

12
there, which made it “unlawful for the owner of any horse,

mule, cattle, hog, sheep, or goat, to permit any such

animal to run at large[,]” did not “cover a situation where

the owner has used ordinary care to keep his stock confined

to his premises.” Id. at 604-05, 62 S.E.2d at 25-26. The

same conclusion applies in this case.

In her second assignment of error, Stout contends that

the circuit court erred in finding that there was no

evidence from which the jury could have concluded that

Bartholomew did not act reasonably in the restraint of

Jackson. In support of her argument, Stout points to

Bartholomew’s admissions that he relied solely on the

invisible fence to keep Jackson confined in the yard; that

he knew the invisible fence would not work all the time,

for example, when a power outage occurs; and that, even

when the fence is working properly, a well-trained dog may

still cross the boundary despite the shock received when

doing so. Stout also relies on the warning contained in

Clark Associates’ sales contract, the fact that the

Bartholomews’ property was located adjacent to a heavily

traveled highway, and the evidence that Jackson was a

young, recently trained, frisky dog that displayed some

aggressiveness when confronted by other male dogs. Stout

argues that, based on this evidence, the jury could have

13
concluded that ordinary care requires more than reliance on

merely one system of confinement that did not physically

restrain Jackson. We do not agree.

In addressing this assignment of error, we are mindful

of the following principles of appellate review:

In a case such as this, where the trial court has
set aside a jury verdict for the plaintiff, the
verdict is not entitled to the same weight as one
which has been approved by the court. But such a
verdict must be reinstated and judgment rendered on
the verdict if we find any credible evidence in the
record that supports the jury’s finding. In viewing
the evidence, we accord the plaintiff benefit of all
substantial conflicts in the evidence and all
reasonable inferences that may be drawn from the
evidence.

Oberbroeckling v. Lyle, 234 Va. 373, 378, 362 S.E.2d 682,

685 (1987) (citations omitted).

This Court has previously held that the owner of a

domestic animal must exercise ordinary care to keep the

animal off public highways. Wilkins v. Sibley, 205 Va.

171, 173, 135 S.E.2d 765, 766 (1964); Rice, 191 Va. at 605-

06, 62 S.E.2d at 26; see also Page v. Arnold, 227 Va. 74,

80, 314 S.E.2d 57, 61 (1984) (owner of domestic animal

“must exercise reasonable care”). Applying that standard

of care in Page, we upheld a trial court’s decision to

strike the plaintiff’s evidence because the record was

devoid of proof that the pony in question had either the

propensity or ability to jump a particular fence. Id. at

14
80, 314 S.E.2d at 61. The plaintiff in that case argued

that the pony got out of the field because the fence was

inadequate to restrain the animal. Id. at 79, 314 S.E.2d

at 60. However, we concluded that “there was no reason for

the defendants to have anticipated that confining this pony

in this fenced enclosure was liable to result in injury to

others.” Id. at 80, 314 S.E.2d at 61; see also Wilkins,

205 Va. at 175, 135 S.E.2d at 767; Rice, 191 Va. at 609, 62

S.E.2d at 27.

Similarly, there was no reason for Bartholomew to

foresee that using the invisible fence to confine Jackson

would cause injury to others. Bartholomew had successfully

used the fence with his other dog. After he decided to

confine Jackson by utilizing the same system, Jackson

responded quickly to the training with the shock collar and

had not crossed the boundaries of the fence until the day

of the accident. Other than the warning contained in the

contract between Clark Associates and Mrs. Bartholomew,

there was no evidence that an invisible fence is generally

less reliable than other types of fences. There was also

no evidence that the system was not functioning properly on

the day of the accident or that Jackson had the propensity

to chase cars or motorcycles, or to attack humans. As

Bartholomew correctly notes, the question in this case is

15
not whether the invisible fence was always effective. Even

Stout’s expert witness, Polsky, agreed that no pet

containment system is 100 percent effective. Instead, the

relevant inquiry is whether Bartholomew’s reliance on the

invisible fence was reasonable.

For these reasons, we conclude, as a matter of law,

that Bartholomew’s reliance on the invisible fence to

confine Jackson was reasonable and that Bartholomew did not

fail to exercise ordinary care to keep Jackson off the

public highways. Accordingly, the circuit court did not

err in setting aside the jury verdict and entering judgment

for Bartholomew. Ordinarily, negligence is an issue for a

jury to decide. Parham v. Albert, 244 Va. 73, 77, 418

S.E.2d 866, 868 (1992). However, when there is no evidence

to support a contrary conclusion and, thus, reasonable

minds could not differ about the issue, as in this case, it

is a matter of law for a court to decide. Id.

Finally, Stout asserts that the circuit court erred in

sustaining the demurrer with regard to the failure to warn

claims. Stout claims that IFCO and Clark Associates had a

duty to warn Bartholomew about three specific alleged

problems with the invisible fence: (1) that the invisible

fence system can cause aggressive or violent behavior in

some dogs, (2) that the system can inhibit a dog that has

16
crossed the electronic boundary from returning to the area

within the boundary, and (3) that the system is ineffective

when used in areas adjacent to heavily traveled streets

such as Glebe Road.

Although the circuit court did not articulate any

reasons for sustaining the demurrer with regard to the

failure to warn claims, IFCO and Clark Associates argued in

their memorandum in support of the demurrer that any

alleged duty to warn Bartholomew did not extend to Stout

and that they had no duty to warn Stout as a member of the

public at large. On appeal, IFCO and Clark Associates

claim that, even if the circuit court erred in sustaining

the demurrer, the error was harmless because Stout, in

pursuing her negligence count against Clark Associates,

presented all the evidence that would have been pertinent

to the failure to warn claims. They also point out that

the jury returned a verdict against Stout on her negligence

claim against Clark Associates. Stout disagrees and argues

that she was precluded from pursuing a distinct legal

theory of liability. We agree with these defendants.

At trial, the premise of Stout’s negligence claim

against Clark Associates was that it had a duty to exercise

ordinary care in the sale, installation, and service of the

invisible fence to Bartholomew. In fact, the circuit court

17
instructed the jury that “[n]egligence is the failure to

use ordinary care.” Stout asserted that Clark Associates

breached that duty because the invisible fence, as a pet

containment system, created an unreasonable risk of danger

to the public from animals that violate the fence’s

boundary. Based on testimony from Stout’s expert witness,

Polsky, Stout claimed that the invisible fence was

unreasonably dangerous because it was installed adjacent to

the heavily traveled Glebe Road, and because the shock

collar can cause some dogs to become aggressive and can

prevent a dog from re-entering the boundary.

In McCoy v. Norfolk & C.R. Co., 99 Va. 132, 137, 37

S.E. 788, 788 (1901), this Court held that a trial court’s

decision sustaining a demurrer to two counts was harmless

error because the allegations in the remaining count were

sufficient to entitle the plaintiff to introduce the

evidence that would have been admissible with regard to the

two counts that were dismissed. See also Childress v.

Chesapeake & O. Ry. Co., 94 Va. 186, 189, 26 S.E. 424, 425

(1897). The alleged problems with the invisible fence upon

which Stout relied to claim that the fence was unreasonably

dangerous are the same deficiencies about which Stout now

contends there was a duty to warn Bartholomew. Thus, under

Stout’s theory of her negligence claim against Clark

18
Associates, she presented all the evidence that would have

been relevant to her allegations concerning the duty to

warn. Accordingly, she was not prejudiced in the

presentation of her evidence.

Furthermore, as reflected by the jury’s verdict in

favor of Clark Associates, Stout failed to establish that

Clark Associates breached its duty of ordinary care by

selling, installing, or servicing a product that created an

unreasonable risk of danger to Stout as a member of the

public. In light of the evidence presented and the jury’s

verdict, we fail to see how Stout could have prevailed on a

duty to warn claim. Having lost under her negligence

theory, she could not have established that the same

alleged problems with the invisible fence made it

“dangerous for the use for which it is supplied[.]”

Featherall v. Firestone Tire & Rubber Co., 219 Va. 949,

962, 252 S.E.2d 358, 366 (1979). However, proof of that

element is necessary to prevail on a cause of action for

failure to warn. Id.

Despite Stout’s assertion that she was precluded from

pursuing a distinct theory of negligence liability, her

memorandum to the circuit court in support of her request

to file an amended motion for judgment reveals that she was

19
not advancing a new legal theory through her amendments

regarding the failure to warn. Stout stated:

Defendants in this case will not be prejudiced or
unduly inconvenienced by Plaintiff’s proposed
amendment. Save for including additional facts in
paragraphs 33-35 and 49-51 regarding the failure to
warn of certain dangers associated with the invisible
fence systems, the First Amended Motion for Judgment
is virtually identical to the original Motion for
Judgment . . . .

Plaintiff is not attempting to assert new and
different claims, or advance a new legal theory, but
seeks only to refine the negligence and breach of
warranty allegations contained in the original Motion
for Judgment.

Stout’s intent is further reflected by the fact that, in

her amended motion for judgment, she did not assert

separate counts against IFCO and Clark Associates for their

alleged breach of the duty to warn but included the

allegations concerning that duty in her general negligence

counts against those defendants. Consequently, we conclude

that the judgment of the circuit court sustaining the

demurrer, if erroneous, was harmless error. McCoy, 99 Va.

at 137, 37 S.E. at 788.

For these reasons, we will affirm the judgment of the

circuit court. 6

Affirmed.

6
In light of our decision, it is not necessary to
address Stout’s remaining assignment of error.

20