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