Newport v. Moran

NEWMAN, J.,

dissenting.

The majority opinion appears to give every dog, no matter how exuberant or playful, one free knock-down — as a matter of law. Because I believe that the majority adopts too narrow a view both of the requirements of negligence and of the purposes of the county ordinance, I dissent from the majority’s disposition of this case.

I agree with the majority’s conclusion that, for plaintiff to prevail, she must show that it was foreseeable that if defendant, Rowdy’s owner, did not restrain him, he would charge and hurt someone. I do not agree, however, that, as a *77matter of law, it was not foreseeable that there was a risk that Rowdy would cause such an injury. There was proof that defendant knew that Rowdy was exuberant and energetic and that he would often engage in rough play with plaintiffs dog. There was evidence that plaintiff had told defendant that Rowdy was bothering her dog and would have to quiet down. It was undisputed that, on the day of the injury, Rowdy had pushed his way past defendant to get out of the house and was roaming unattended in the yard. There was evidence that Rowdy would run toward people. Although there was “no evidence that [Rowdy] had ever run into or injured any person before plaintiff was injured,” 80 Or App at 73, I do not believe that such an occurrence was necessary to create a jury question. “Whether a reasonable person in the exercise of ordinary care would have restrained the dog is properly a question for the jury.” Westberry v. Blackwell, 282 Or 129, 133, 577 P2d 75 (1978). The jury could have found that defendant knew that Rowdy was rowdy. Accordingly, I believe that the question of whether she should have restrained Rowdy should have been submitted to the jury.

Moreover, I do not agree with the majority’s treatment of the Lane County ordinance violation. Even if dog bites are not within the area of risk contemplated by the ordinance, Kathren v. Olenik, 46 Or App 713, 724, 613 P2d 69 (1980), I do not believe that it necessarily follows that dog knock-downs are similarly outside the scope of the ordinance. Although, as we stated in Kathren, dogs as a class are not vicious and do not attack people, they do tend to roam at large along streets and in yards and get under foot. The ordinance was intended to protect the public from harm caused by this type of dog behavior.