This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


H. P., a minor, by Jason Peshon,
her father and natural guardian,


Amber Carney,

Russell Carney,

Filed September 7, 1999
Halbrooks, Judge

Winona County District Court
File No. C4-98-849

James M. Sherburne, Sherburne Law Office, P.A., 735 Northstar East, 625 Marquette Avenue, Minneapolis, MN 55402 (for appellant)

Robert G. Benner, Goodman & Guzinski, 300 First Avenue NW, Suite 221, PO Box 1448, Rochester, MN 55903 (for respondent)

Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant H.P. challenges the district court's grant of summary judgment in favor of respondent landlord Russell Carney in a dog-bite case involving a tenant's dog. Appellant argues there was a genuine issue of material fact as to whether respondent was a "harborer or keeper" of the dog under Minn. Stat. § 347.22 (1998). Appellant also argues the district court erred by determining as a matter of law that respondent did not owe a common law duty of care to his tenant's guest. Because we find no error in the district court's judgment, we affirm.


On September 16, 1997, appellant H.P. was bitten by Amber Carney's dog, Jekyll, while in Amber Carney's apartment. Amber Carney rented the apartment, the upper unit of a duplex, from her father, respondent Russell Carney, who lived in the ground level unit of the duplex. Amber Carney lived in the upper unit with her two children and her boyfriend, Roger Kanz.

Respondent bought the duplex in 1977. He lived in one apartment and rented the other to non-relatives from 1978 until he began renting to Amber Carney in 1990 or 1991, after she returned from a six-month stay in Florida. Prior to leaving for Florida, Amber Carney had continuously lived in respondent's home as a minor child.

While renting from respondent, Amber Carney received assistance under the Section 8 Existing Housing Program of the U.S. Department of Housing and Urban Development, which paid part of her rent obligation. Under the terms of the lease, Amber Carney had sole possession of the upper unit. Respondent paid for garbage collection and water, but Amber Carney was responsible for her own electric, gas, and telephone bills. There was one cable connection to the house; respondent and Amber Carney split the cable bill.

At her deposition, Amber Carney testified that she began helping respondent with cooking, cleaning, and transportation to appointments in 1992, following his diagnosis of multiple sclerosis. She testified they ate meals together an average of twice per week. Respondent kept his door open, and Amber Carney and her eight-year-old child were permitted to enter his residence without knocking, but there is nothing to suggest that respondent spent any significant amount of time in Amber Carney's apartment.

Amber Carney had two dogs while renting from respondent. Her first dog, Hades, was not well-behaved. Amber Carney no longer wanted the dog and decided to give it to one of respondent's friends. Unbeknownst to her, respondent arranged to have his friend shoot the dog.

A few months after giving Hades away, Amber Carney brought Jekyll home. Amber Carney obtained respondent's permission to keep the dog on the premises, as required under the terms of the lease. Respondent had very little contact with the dog. The dog stayed in Amber Carney's apartment, and she and her boyfriend took care of the dog. The dog was only in respondent's apartment on a couple of occasions and only when Amber Carney was present.

On the morning of the incident, Erin Carney, respondent's other daughter, brought appellant to Amber Carney's apartment. Amber Carney went to school, leaving Erin Carney in charge of the household.

Appellant attempted to hug Jekyll while he was lying on a couch. Jekyll moved twice to avoid her, but she persisted and Jekyll bit her on the face. When Amber Carney returned, respondent told her what had occurred. She contacted animal control and was told to euthanize the animal.

Appellant brought a complaint against both Amber Carney and respondent, seeking damages under theories of strict liability and negligence. The district court granted respondent's motion for summary judgment, and this appeal followed.


On appeal from summary judgment, a reviewing court determines whether any genuine issues of material fact exist and whether the district court erred in applying the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). No deference need be given to the district court's application of the law. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

1. Strict Liability

Appellant argues respondent is strictly liable under Minn. Stat. § 347.22 (1998), which provides:

If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term "owner" includes any person harboring or keeping a dog but the owner shall be primarily liable.

The supreme court has interpreted "harboring or keeping" under section 347.22 to mean more than the presence of a dog on the premises. Verrett v. Silver, 309 Minn. 275, 277, 244 N.W.2d 147, 149 (1976).

Harboring means to afford lodging, to shelter or to give refuge to a dog. Keeping a dog * * * implies more than the mere harboring of the dog for a limited purpose or time. One becomes the keeper of a dog only when he either with or without the owner's permission undertakes to manage, control or care for it as dog owners in general are accustomed to do.

Id. Absent any indicia of control over a dog within the tenant's apartment, a landlord is not a harborer or keeper of a tenant's dog. Gilbert v. Christiansen, 259 N.W.2d 896, 897 (Minn. 1977).

Appellant argues respondent exercised "ultimate control" over Amber Carney's dogs because he arranged to have her first dog shot and he directed her to euthanize the second. Contrary to appellant's assertion, however, Amber Carney's deposition testimony clearly indicates that respondent did not instruct her to euthanize Jekyll. She testified animal control directed her to do so.

Furthermore, the right of landlords to exclude pets does not give them control over the pet such that they are harborers or keepers of the animal for purposes of section 347.22. Id. at 897. Even if respondent had demanded the removal of Amber Carney's pets, that fact alone would not have been sufficient to defeat summary judgment. There is nothing in the record to show that respondent had even appreciable contact with Jekyll.

Appellant further argues the relationship between respondent and Amber Carney was not a true landlord-tenant relationship, but rather just an arrangement to allow for collection of Section 8 rent money while the family lives in one household. In support of this argument, appellant points to facts showing that Amber Carney lives there so she can help respondent due to his illness, Amber Carney and her son do not knock before entering respondent's apartment, respondent and Amber Carney split the cable bill, and Section 8 pays part of Amber Carney's rent.

While it is true that Amber Carney testified she lives there in order to assist respondent, appellant fails to point to any facts showing that Amber Carney did not have exclusive use of her apartment. See State v. Schotl, 289 Minn. 175, 178-79, 182 N.W.2d 878, 880 (1971) (deciding whether a landlord-tenant relationship existed by focusing on whether the alleged tenant had "an exclusive right to possession of the room"). Furthermore, the record shows that Amber Carney has paid rent throughout the course of her tenancy.

As the district court aptly concluded, appellant failed to present any evidence creating a genuine issue of material fact as to the legitimacy of the landlord-tenant relationship between respondent and Amber Carney. We, therefore, conclude summary judgment was properly granted.

2. Negligence

Appellant also argues the district court erred in granting summary judgment on her negligence claim because respondent, as owner of the property, owed a common law duty to warn or protect appellant from a known vicious animal. To maintain a claim for negligence, appellant must show:

(1) duty; (2) breach of that duty; (3) that the breach of duty be the proximate cause of [appellant's] injury; and (4) that [appellant] did in fact suffer injury.

Boitz v. Preblich, 405 N.W.2d 907, 912 (Minn. App. 1987) (quotations omitted). Negligence is generally a jury question, id., but "the existence of a legal duty is an issue for the court to determine as a matter of law." Wojciechowski v. Harer, 496 N.W.2d 844, 846 (Minn. App. 1993) (citing Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985)).

Appellant relies on foreign authority for the proposition that a landlord has a common law duty to warn or protect invitees when there is a vicious dog on the premises. But Minnesota law is adequately developed in this area, and we need not look to other jurisdictions for guidance.

In Wojciechowski, plaintiffs sought damages from the owner and managers of a trailer park for a dog bite that occurred in a tenant's yard. Id. at 845. This court determined that the issue of whether the landlord owed a duty to control a dog kept in an area exclusively possessed by the tenant was a legal question, id. at 846, and resolved that question in the negative. Id. at 847.

Appellant attempts to distinguish Wojciechowski based on respondent's status as an owner-occupant and because respondent exercised some degree of control over Amber Carney's dogs. But, as mentioned above, the only control exercised by respondent was the ability to exclude dogs, and that is insufficient to establish liability. See Gilbert, 259 N.W.2d at 897 (holding apartment management corporation's right to exclude dogs did not make it an "owner" of tenant's dog under dog-bite statute); Wojciechowski, 496 N.W.2d at 846 (holding mobile-home-park landlord was not liable for dog-bite victim's injuries as "owner" of dog where landlord never made any effort to control or manage dog). Absent any indication that respondent assumed control over Amber Carney's dog, Jekyll, mere occupancy by the owner of property does not create a special duty of care. Given the absence of a genuine issue of material fact as to the landlord-tenant relationship, we conclude the district court properly determined respondent had no duty with respect to his tenant's dog.