This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Amber Burger, a minor, and
Troy Burger and Penny Burger, individually
and as parents and natural legal guardians of Amber Burger,
Bigelow’s Ponderosa Mobile Home Park, LLC,
d/b/a Bigelow’s Ponderosa Mobile Home Park,
Matthew Dumias, et al.,
Goodhue County District Court
File No. C3-03-1622
David W. VanDerHeyden, VanDerHeyden and Ruffalo, P.A., 302 Elton Hills Drive Northwest, Suite 300, P.O. Box 6535, Rochester, MN 55903 (for appellants)
R. Stephen Tillitt, Angela M. Nelson, Gislason & Hunter, L.L.P., 9900 Bren Road East, Suite 215E, Minnetonka, MN 55343-2297 (for respondent)
Considered and decided by Halbrooks, Presiding Judge; Klaphake, Judge; and Wright, Judge.
Appellant Amber Burger was bitten and scratched by Smoky, a dog owned by Matthew Dumias, on November 22, 2001. Matthew Dumias’s brother, Michael Dumias, and the Burger family, were tenants of respondent Bigelow’s Ponderosa Mobile Home Park (Ponderosa). Matthew Dumias did not reside at Ponderosa. Rather, he was an occasional visitor at his brother’s residence. Michael Dumias’s lot was adjacent to and visible from the Burgers’ residence.
At approximately 1:45 p.m., Amber’s mother, Penny Burger, noticed that Smoky had entangled his leash on some items in Michael Dumias’s lot. Because Smoky was howling and barking, Penny Burger entered Michael Dumias’s lot to disentangle the dog. She and her husband, Troy Burger, were able to extricate the dog. Once freed from the entanglement, Smoky began to jump around excitedly. Amber, who was ten years old at the time of the incident, asked her mother’s permission to feed the dog. Penny Burger consented, as Smoky “seemed harmless to us since we had our faces in his face.”
Amber retrieved dog food and water from her residence and returned to Michael Dumias’s lot with her younger sister, Ashley. Amber asked Ashley to feed the dog because the dog looked mean, although Smoky did not bark or growl at Amber. Ashley agreed and told Amber to distract Smoky while Ashley put the food and water on the ground. Amber began petting and talking to Smoky to distract him.
Smoky jumped on Amber with his paws on her stomach. He then bit Amber on her neck and right arm. Amber fled inside her residence and was taken to the hospital where she received six stitches in her neck and ten stitches in her arm. As a result of the dog bites, Amber has scars on her arm and neck, and she continues to be fearful of larger dogs.
Amber and her parents (collectively the Burgers) sued Matthew Dumias, Michael Dumias, and Ponderosa for negligence. The Burgers based their claims on violations of Minn. Stat. § 347.22 (2000) (providing liability for dog owners when a dog attacks or injures a person) and common-law negligence. The complaint alleges that Ponderosa’s management failures permitted the presence of a dangerous dog that resulted in the injuries to Amber. Both Michael Dumias and Matthew Dumias failed to answer the complaint or to participate in any of the proceedings, and the district court found them jointly and severally liable to the Burgers for $49,956.40.
Ponderosa moved for summary judgment, arguing that it was not the owner of the dog that bit Amber as required under Minn. Stat. § 347.22. The Burgers conceded that Ponderosa was not the owner of the dog and abandoned the statutory claim. But the Burgers continued to assert a common-law negligence claim against Ponderosa for its failure to control the dog through enforcement of its rules and regulations. The district court granted summary judgment in favor of Ponderosa, concluding that the Burgers had failed to establish that Ponderosa had a duty to the Burgers for Smoky’s conduct, notwithstanding any rules or regulations promulgated by Ponderosa. This appeal followed.
review de novo the district court’s decision to grant summary judgment, viewing
the evidence in the light most favorable to the nonmoving party.
Burgers contend that Ponderosa was negligent for failing to enforce its rules
on dog ownership and for failing to act when agents of Ponderosa became aware
of Smoky’s vicious propensity. To
prevail on a negligence claim, the plaintiff must show (1) a duty; (2) a breach
of that duty; (3) that the breach is the proximate cause of the plaintiff’s injuries;
and (4) that the plaintiff did in fact suffer an injury. Boitz
v. Preblich, 405 N.W.2d 907, 912 (
we examine whether Ponderosa, as Michael Dumias’s landlord, owed a duty of care
to Amber to secure its tenant’s dog. The
existence of a legal duty is an issue of law subject to de novo review. Larson
v. Larson, 373 N.W.2d 287, 289 (
a general rule, a person does not have a legal duty to protect another from the
harm caused by a third party’s conduct. H.B. by Clark v. Whittemore, 552 N.W.2d
705, 707 (
the landlord-tenant relationship was not a special relationship giving rise to
a duty to protect.
Burgers maintain that Ponderosa, as Michael Dumias’s landlord, owed a duty of
care to secure Smoky. We disagree. Minnesota courts, deciding cases under both negligence
and statutory strict-liability standards, have rejected the assertion that the owner
of a mobile home park has a legal duty to control a tenant’s dog within the
confines of the tenant’s lot. Gilbert v. Christiansen, 259 N.W.2d 896,
897-98 (Minn. 1977) (“The possession of the land on which the animal is kept,
even when coupled with permission given to a third person to keep it, is not
enough to make the possessor of the land liable as a harborer of the animal.”
(quotation omitted)); Wojciechowski by
Wojciechowski v. Harer, 496 N.W.2d 844, 847 (
Ponderosa’s “rules and regulations are applicable to the lot and the dog,” the
Burgers contend that Ponderosa exerted sufficient control over Smoky to render
it as liable as the dog’s owner or keeper. The Burgers refer to Ponderosa lease
provisions that allow the park (1) to evict pets for being bothersome or
causing discomfort, and (2) to evict a tenant who “does something” that
endangers the health and safety of other park residents. This broad reservation of power by Ponderosa
does not support the Burgers’ contention that Ponderosa exerted control over
Smoky or Michael Dumias’s lot in a manner that created a duty to protect Amber
from Smoky. Without more, this theory is
identical to that of the plaintiffs in Wojciechowski,
who alleged negligence by the mobile home park “for failing to enforce the
rules and regulations of the park and for failure to ensure reasonable safety
in those parts of the park under their control.” 496 N.W.2d at 845. The Wojciechowski
court rejected this theory of negligence, holding that the landlord could not
be held liable despite having a “right to exercise control over dogs through
rules and regulations relating to the care of pets in the complex and a right
to exclude pets from the complex.”
Burgers attempt to distinguish the holding in Wojciechowski by arguing that Smoky had a vicious propensity that
was known to Ponderosa, thereby creating a duty to protect against a
foreseeable risk. The record does not
support this contention. A plaintiff
establishes an animal’s vicious propensity with proof that the particular
animal was “abnormal and dangerous.” Clark v. Brings, 284 Minn. 73, 75, 169
N.W.2d 407, 409 (1969). “[An animal’s]
propensity is vicious if it tends to harm, whether manifested in play or in
anger, or in some outbreak of untrained nature which, from want of better
understanding, must remain unclassified.”
The Burgers rely on Michael Dumias’s police statement where he said that he had warned people that the dog would bite. But Michael Dumias also stated that the dog had never bitten anyone, aggressively chased animals or people, nor been declared a dangerous dog. The Burgers also rely on an incident between Gerald Erickson, Ponderosa’s part-time groundskeeper, and a leashed dog located in or near Michael Dumias’s lot. Erickson testified in a deposition that, while picking up sticks near Michael Dumias’s lot, a dog on a leash barked at him “like a normal dog would bark at you.” The dog, which Erickson was unable to identify as Smoky, walked toward Erickson until the dog reached the end of its chain. Erickson did not consider the barking or the movement of the dog to be aggressive behavior. When viewed in the light most favorable to the Burgers, these incidents are insufficient to establish a vicious propensity that would put Ponderosa on notice of a foreseeable risk.
The Burgers have failed to establish that Ponderosa had a duty to control Matthew Dumias’s dog. Moreover, they have failed to demonstrate that Smoky had a vicious propensity that would have put Ponderosa on notice of the dog’s character and the resulting foreseeable risk. As a result, the Burgers have not alleged a cognizable common-law negligence claim against Ponderosa as a matter of law, and the district court did not err when it granted summary judgment.
The district court correctly determined that there are no genuine issues of material fact, and Ponderosa is entitled to judgment as a matter of law. Accordingly, summary judgment was properly granted.
 A common-law scienter action is distinguishable from a common-law negligence action asserting liability for a dog bite. Under common-law scienter, a party may recover from an animal’s keeper for injuries by a domestic animal upon proof that the animal had a dangerous or vicious propensity known to the animal’s keeper. Ryman v. Alt, 266 N.W.2d 504, 508 (Minn. 1978); see also Cuney v. Campbell, 76 Minn. 59, 62, 78 N.W. 878, 879 (1899) (“The gravamen of [a scienter action] is the neglect of the owner of an animal known by him to be vicious, and liable to attack and injure people, to restrain him so as to prevent the risk of damage.”).