Becker v. Liu

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

RUTHANN BECKER, et al., Plaintiffs/Appellants,

v.

ROBERT LIU, et al., Defendants/Appellees.

No. 1 CA-CV 17-0515
FILED 8-7-2018

Appeal from the Superior Court in Maricopa County
No. CV2015-001904
The Honorable Dawn M. Bergin, Judge

AFFIRMED

COUNSEL

Martineau & Johnson, P.L.L.C., Mesa
By J. Stanley Martineau, W. Raymond Johnson, III
Counsel for Plaintiffs/Appellants

Perry Childers Hanlon & Hudson PLC, Phoenix
By Michael J. Childers, Christopher J. Bork
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Peter B. Swann joined.
 BECKER, et al. v. LIU, et al.
Decision of the Court

H O W E, Judge:

¶1 Ruthann Becker, as personal representative of the Estate of
Luigi Rosa, appeals the summary judgment in favor of Robert and Gina Liu
on claims that the Lius were liable for injuries their dog caused Rosa. For
the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The facts are undisputed.1 Rosa house-sat for the Lius and
cared for their two dogs while the Lius were on a 16-day vacation during
June and July 2014. On July 11, the last day of the Lius’ trip, one of the Lius’
dogs got tangled in Rosa’s legs, causing Rosa to trip and fall. Rosa suffered
a traumatic cervical fracture that rendered him quadriplegic. The Lius
found Rosa later that day when they arrived home from their vacation.

¶3 Rosa sued the Lius and made three claims that they were
liable for his injuries. First, the Lius were strictly liable under A.R.S. § 11–
1020, which provides that a dog owner or the person responsible for a dog
has “full responsibility” for any injury to a person or damage to any
property the dog may inflict “while at large.” Second, the Lius were strictly
liable at common law under Restatement (Second) of Torts § 509, which
provides that “[a] possessor of a domestic animal” is liable for harm the
animal does to another if the possessor knows or has reason to know that
the animal “has dangerous propensities abnormal to its class[.]” Third, the
Lius were liable in negligence because the dog was “likely to do harm
unless controlled” and the Lius did not take reasonable care to control or
confine the dog.

¶4 The Lius moved for summary judgment on all the claims.
Rosa cross-moved for partial summary judgment, arguing that the evidence
indisputably established that the dog had been “at large” under A.R.S. § 11–
1020. The trial court granted the Lius summary judgment on all claims and
denied Becker’s cross-motion. The court ruled that the strict liability claims
failed because the undisputed evidence showed that the dog was inside the
house and not “at large” as A.R.S. § 11–1020 required and that the dog had

1 Because Rosa did not specify the paragraphs in the Lius’ statement
of facts that he disputed, see Ariz. R. Civ. P. (former) 56(c)(3) (current
56(c)(3)(B)(i)), the trial court deemed these facts undisputed. Rosa has not
challenged this ruling on appeal. See Carrillo v. State, 169 Ariz. 126, 132
(App. 1991).

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Decision of the Court

no “dangerous propensities abnormal to its class.” The court also ruled that
the negligence claim failed because the dog was not “abnormally
dangerous.”

¶5 Becker moved for reconsideration on the court’s ruling that
the negligence claim failed because no evidence showed that the dog was
“abnormally dangerous.” Becker noted that proof that an animal was
“abnormally dangerous” had been a requirement of a negligence claim
under Restatement (First) of Torts § 518, but negligence claims involving
animals were now governed by Restatement (Second) of Torts § 518, which
removed the requirement of “abnormal dangerousness.”

¶6 The court agreed that it had improperly applied the prior
§ 518 rather than the current § 518, but nevertheless reaffirmed its grant of
summary judgment on the negligence claim on a ground that was
dispositive regardless which version of § 518 applied. Under both versions,
only possessors or harborers of domestic animals were liable for negligently
failing to prevent them from harming others; the court found that because
the Lius were away on vacation and had entrusted the care and custody of
the dog to Rosa, they did not possess or harbor the dog when it caused Rosa
injury. The court then entered a final judgment and Becker timely
appealed.2

DISCUSSION

¶7 Becker argues that the trial court erroneously granted the Lius
summary judgment on her claims. “We review a grant of summary
judgment de novo and view the facts in the light most favorable to the non-
moving party.” Wickham v. Hopkins, 226 Ariz. 468, 470 ¶ 7 (App. 2011).
Summary judgment is appropriate when no material issues of fact exist and
the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P.
56; Orme Sch. v. Reeves, 166 Ariz. 301, 305 (1990). Because Becker’s claims
fail under the undisputed facts, the trial court correctly granted summary
judgment.

1. Strict Liability

¶8 Becker contends that the trial court erred in granting
summary judgment on the strict liability claims. Becker first argues that

2 Rosa passed away one week after judgment was entered. Rosa’s
estate was substituted as the plaintiff and Becker filed a notice of appeal as
personal representative.

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contrary to the court’s ruling, whether the dog was “at large” under A.R.S.
§ 11–1020 was factually in dispute. We review statutory construction and
interpretation issues de novo. Green Cross Med., Inc. v. Gally, 242 Ariz. 293,
295 ¶ 5 (App. 2017). The Court’s primary goal in interpreting statutes is to
effectuate the legislature’s intent. Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7
(2017). A statute’s language is the most reliable indicator of its meaning. See
Sempre Ltd. P’ship v. Maricopa Cty., 225 Ariz. 106, 108 ¶ 5 (App. 2010). When
the plain text of a statute is clear and unambiguous the court need not resort
to secondary methods of statutory interpretation. State v. Christian, 205
Ariz. 64, 66 ¶ 6 (2003).

¶9 Becker argues that a dog is “at large” if it can “inhabit the
same space[]” as a person other than its owner. But this interpretation
contradicts the plain language of the definition of “at large.” A dog is “at
large” for purposes of A.R.S. § 11–1020 if it is “neither confined by an
enclosure nor physically restrained by a leash.” A.R.S. § 11–1001(2). The
dog was inside the house with Rosa when Rosa was injured, and a house is
ordinarily understood as a type of enclosure. See Enclose, Black’s Law
Dictionary (10th ed. 2014) (defining “enclose” as “[t]o surround or
encompass”); see also Enclosure, id. (defining “enclosure” as “[l]and
surrounded by some visible obstruction”); cf. Silverman v. United States, 365
U.S. 505, 511 n.4 (1961) (characterizing a person’s house in the context of the
Fourth Amendment as an “insulated enclosure”); Mulcahy v. Damron, 169
Ariz. 11, 12 (App. 1991) (holding that a dog in a bathtub in a grooming room
of a pet hospital was not “at large” when injury occurred). To hold as Becker
suggests would mean that a dog would be “at large” any time it was not
leashed or caged, even if it were in a house or a fenced dog park. Such an
interpretation contravenes the plain language of A.R.S. § 11–1001(2).
Therefore, the trial court did not err in granting summary judgment on this
claim.

¶10 Becker next argues that the trial court erred in granting
summary judgment on the common-law strict liability claim. Becker relies
on Restatement (Second) of Torts § 509(1), which provides that a “possessor
of a domestic animal” that the possessor “knows or has reason to know has
dangerous propensities abnormal to its class” is subject to liability for harm
the animal does to another, even when the possessor “has exercised the
utmost care” to prevent the animal from doing the harm. Liability is limited,
however, to harm that results from the “abnormally dangerous
propensity.” Restatement (Second) of Torts § 509(2). Becker argues that a
factual dispute exists whether the dog had dangerous propensities
abnormal to its class because the dog had “unpredictable, attention-seeking

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behaviors,” such as running around a person or getting underfoot if
ignored.

¶11 Becker points to no authority, however, that such behaviors
of a dog constitute a “dangerous propensity.” The mere fact that a person
suffered an injury caused by a dog’s physical actions is not proof that the
dog had a “dangerous propensity.” See James v. Cox, 130 Ariz. 152, 154 (App.
1981) (evidence that a dog had a “sensitive head” from being kicked by a
horse but had never bitten anyone before current incident did not show that
the dog had abnormally dangerous propensities); Hartsock v. Bandhauer, 158
Ariz. 591, 594 (App. 1988) (testimony that “the dogs occasionally fought
with each other and would snarl, growl and bite each other” and that the
owner warned children “not to come in the yard because the dogs might
bite them” was insufficient to show abnormally dangerous propensities
when child was bitten); see also Brady v. Skinner, 132 Ariz. 425, 426 (App.
1982) (evidence that mule was “ornery” and “did not like anybody and
would put his ears back and shy away whenever anyone got close to him[]”
was insufficient to show dangerous propensities when the mule kicked
child). With no evidence that the dog had “abnormally dangerous
propensities,” the trial court properly granted summary judgment on this
claim.

2. Negligence

¶12 Becker argues that the trial court erred in granting the Lius
summary judgment on the negligence claim on the ground that the
undisputed evidence showed that the Lius were not the “possessors” or
“harborers” of the dog under Restatement (Second) of Torts § 518 when the
dog caused Rosa’s injury. That provision states that a person who
“possesses or harbors a domestic animal that he does not know or have
reason to know to be abnormally dangerous[]” is liable for the harm the
animal causes if he is negligent in failing to prevent the harm. Id. Becker
argues that because the Lius owned the dog and hired Rosa to watch the
dog at the Lius’s house, the Lius “possessed” and “harbored” the dog and
were liable when the dog injured Rosa.

¶13 We need not resolve the meaning of “possess” or “harbor”
under § 518, however, because we can affirm the grant of summary
judgment on another ground. See KB Home Tucson, Inc. v. Charter Oak Fire
Ins. Co., 236 Ariz. 326, 329 ¶ 14 (App. 2014) (“We will affirm summary
judgment if it is correct for any reason supported by the record, even if not
explicitly considered by the superior court.”). Even assuming that the Lius
possessed or harbored the dog, the trial court nevertheless correctly granted

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summary judgment because nothing in the undisputed facts shows that the
Lius were negligent in protecting Rosa from injury. Although whether an
alleged tortfeasor has breached a duty and caused injury are generally fact
issues for a jury to determine, summary judgment is appropriate “if no
reasonable juror could conclude that the standard of care was breached or
that the damages were proximately caused by the defendant’s conduct.”
Gipson v. Kasey, 214 Ariz. 141, 143 n.1 ¶ 9 (2007).

¶14 Under the undisputed facts here, no reasonable juror could
find that the Lius breached their standard of care to Rosa. A dog owner has
a duty to take reasonable precautions to prevent a foreseeable risk of injury
by a dog. Medlyn v. Armstrong, 621 P.2d 81, 82 (Or. App. 1980); see also Quiroz
v. ALCOA Inc., 243 Ariz. 560, 565 ¶ 13 (2018) (foreseeability may be used to
determine breach and causation). The issue is whether the Lius “knew or
had reason to know that the dog, if not controlled or confined, might cause
the injury” Rosa suffered. See Medlyn, 621 P.2d at 82. Nothing in the
undisputed facts shows that the Lius knew or should have known that the
dog might injure Rosa.

¶15 Rosa began house-sitting and caring for both of the Lius’ dogs
while the Lius traveled beginning 2007. Rosa house-sat in December 2013
and March 2014 without incident. Both Rosa and Becker were comfortable
staying with the dogs and would bring their small grandchildren to
accompany them. Neither Rosa nor Becker ever complained about the dogs’
behavior, and no evidence showed that the dog that caused Rosa’s injury
ever injured anyone. At the time of the accident, Rosa had been caring for
the dog for 15 days; the Lius spoke to Rosa several times, and aside from
air-conditioning and pool issues, Rosa reported that everything was fine
with the house and dogs. At the time of the accident, the dog was sitting
with Rosa on the sofa and followed Rosa to the pantry as he was getting
food for the dogs, and the dog tripped Rosa in a rush to get at the food.
Although the accident and the consequent injury was tragic, the facts show
that it was the result of normal dog behavior and was not the fault of the
Lius’ failure to adequately train the dog or advise Rosa of the necessary care
to be taken around the dog. Because Rosa did not show that the Lius knew
or reasonably could have anticipated that the dog might cause the injury he
incurred, summary judgment for the Lius was proper.

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CONCLUSION

¶16 For the foregoing reasons, we affirm. We award costs to the
Lius upon compliance with Arizona Rule of Civil Appellate Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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