This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2420

 

Amber Burger, a minor, and Troy Burger and Penny Burger, individually
and as parents and natural legal guardians of Amber Burger,
Appellants,

vs.

Bigelow’s Ponderosa Mobile Home Park, LLC,
d/b/a Bigelow’s Ponderosa Mobile Home Park,
Respondent,

 

Matthew Dumias, et al.,

Defendants.

 

Filed January 24, 2006

Affirmed

Wright, Judge

 

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.

 

O P I N I O N

 

WRIGHT, Judge

 

This is an appeal from summary judgment against appellants who brought a common-law negligence claim for dog-bite injuries against respondent mobile-home park where the dog was being kept when the bite occurred.  Appellants argue that respondent (1) exerted control over the lot and the dog through its rules, giving rise to a duty to control the dog; and (2) had knowledge of the dog’s vicious propensity.  Because, as a landlord, respondent had no duty to control the dog and knowledge of the dog’s vicious propensity was not established by appellants, we affirm.

FACTS

 

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.

D E C I S I O N

 

We review de novo the district court’s decision to grant summary judgment, viewing the evidence in the light most favorable to the nonmoving party.  Prior Lake Am. v. Mader, 642 N.W.2d 729, 735 (Minn. 2002).  Summary judgment is properly granted when the nonmoving party fails to establish a genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).  When the record lacks proof of any essential element of a claim, the moving party is entitled to summary judgment.  Housing & Redev. Auth. v. Lambrecht, 663 N.W.2d 541, 547 (Minn. 2003).  To survive a motion for summary judgment, a party cannot rely on mere denials or averments.  Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995).  Rather, the party opposing summary judgment has the burden to produce evidence of a disputed material fact.  Id. 

The 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 (Minn. App. 1987).  When asserting liability for a dog bite under a common-law negligence theory, a plaintiff need not establish a dog’s viciousness or scienter.[1]  Id. at 911-12 (citing Ryman v. Alt, 266 N.W.2d 504, 508 (Minn. 1978)). 

Here, 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 (Minn. 1985); Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

As 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 (Minn. 1996).  An exception to this general rule arises when the parties have a special relationship such that a party owes a duty to protect another and there are foreseeable risks involved.  Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 673 (Minn. 2001). 

Historically, the landlord-tenant relationship was not a special relationship giving rise to a duty to protect.  Id. The general rule of landlord nonliability has not been replaced with a general standard of reasonable care in Minnesota.  Johnson v. Miller, 388 N.W.2d 26, 28 (Minn. App. 1986), review denied (Minn. July 31, 1986).  “It is a well-established rule in Minnesota that ‘[i]f a landowner retains no control over the land after the tenant takes possession, then the landowner should not be liable for the tenant’s negligence in maintaining the premises if they have been turned over in good condition.’”  Id. at 27 (quoting Filipczak v. Int’l Bhd. of Elec. Workers, Local 110, 292 Minn. 486, 488, 195 N.W.2d 433, 435 (1972)).  Exceptions to this general rule do not apply in this case.  See id. at 27 n.1 (enumerating exceptions including lessor’s duty to warn of concealed, dangerous conditions existing when possession is transferred of which lessor has knowledge).  And the Minnesota Supreme Court has expressed reluctance to extend the legal duty to protect others.  Funchess, 632 N.W.2d at 674.

The 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 (Minn. App. 1993) (“[T]he landlord of a mobile home park may not be held liable for damages if the dog attacks someone within the confines of the tenant’s lot.”).

Because 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.”  Id. at 846. 

The 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.”  Id. at 82, 169 N.W.2d at 413 (quotation omitted).  The duty of care and restraint attaches when the owner has knowledge that the animal is “evilly inclined.”  Cuney, 76 Minn. at 62, 78 N.W. at 879 (discussing common-law scienter); see also Matson v. Kivimaki, 294 Minn. 140, 155, 200 N.W.2d 164, 172 (1972) (holding that actions of dog were “more in the nature of a reflex action than part of a continued course of vicious conduct known to defendant”).  Were we to apply these definitions to a negligence action against a landlord, the foreseeable risk from a dog’s vicious propensity would require a greater showing as to Smoky’s vicious and dangerous disposition than is present here.    

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.

Affirmed.