No. 87-98 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

DONALD D. CRISWELL, 

Plaintiff and Appellant, 

-VSKEVIN BREWER and MICK McLEOD, 

jointly and individually, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Rosebud, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

H. D. Buelow, Miles City, Montana 

Huntley & Eakin, Baker, Montana 

For Respondent: 

Keefer, Roybal & Hanson; J. Dwaine Roybal, ~illings, 

Montana 

Filed : 

Submitted on Briefs: June 4, 1987 

Decided: August 18, 1987 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Donald D. Criswell, plaintiff, appeals from an order of 

the Sixteenth Judicial District, Rosebud County, Montana, 

granting defendant, Kevin Brewer, summary judgment with 

prejudice. 

We affirm. 

The sole issue which we must address on appeal is whether the District Court erred in granting defendant Brewer's 

motion for summary judgment. 

Donald Criswell brought this action for injuries sustained as a result of a dog bite. The bite was received 

while Criswell was on the Hammond Ranch, which is owned by 

defendant Brewer. The ranch is located in a rural area 

outside of Forsyth, Montana. 

Brewer hired Mick McLeod to live and conduct business as 

foreman for him on the ranch. For approximately eight years, 

McLeod and his wife lived in the ranch house on the Hammond 

Ranch. The McLeods own the dog which caused the injuries at 

issue. The dog had bitten someone approximately two years 

before the incident with Criswell. Brewer was aware of the 

earlier biting and provided materials to McLeod to build a 

fence and dog pen behind the ranch house. It was agreed that 

the dog would stay in the dog pen unless it was with McLeod. 

There was also a fenced enclosure surrounding the house. At 

the time of the attack, the fence around the house was apparently in disrepair with a section down or missing. 

On April 30, 1984, the date of the attack, Criswell was 

at the Hammond Ranch to read an electric meter and deliver a 

meter calendar as part of his job for Mid-Yellowstone Electric Company. Meters which were located in rural areas were 
read only once a year. The meter pole is located outside the 

fenced enclosure, but Criswell needed to go to the ranch home 

to deliver the calendar. The record shows that when he was 

approximately 15 feet outside the gate to the fence, the 

McLeod dog came around the house from the back, escaped 

through the gap in the fence and bit Criswell as he attempted 

to retreat to his car. Criswell states that he was aware of 

a "Beware of Dog" sign posted on the fence surrounding the 

house. The record does not disclose why the dog was out of 

the dog pen. 

After being bitten, Criswell sought immediate medical 

treatment in Forsyth, Montana. Due to complications resulting from the wound, it was necessary for him to undergo 

surgery to relieve pressure on a trapped nerve. 

Criswell filed a complaint against both Brewer and 

McLeod for his injuries and consequential expenses. Although 

McLeod is the acknowledged owner of the dog, Criswell maintains that Brewer was a "keeper" of the dog; that he was 

aware that the dog had previously bitten someone; and that he 

was therefore jointly responsible for the damages Criswell 

incurred. 

Brewer filed a motion for summary judgment. His motion 

was granted by the District Court on the basis that there was 

no factual evidence to sustain the allegation that Brewer was 

the "keeper" of the dog. 

From this order Criswell appeals. 

In determining whether summary judgment is appropriate 

in this case, we must first determine whether there is a 

genuine issue as to any material fact and that the moving 

party is entitled to a judgment as a matter of law. Rule 

56(c), M.R.Civ.P. If there is a genuine issue as to any 

material fact, summary judgment is not appropriate. Summary 

judgment is never to be used as a substitute for trial if a 
factual controversy exists. Reaves v. Reinbold (~ont. 1980), 

615 P.2d 896, 898, 37 St.Rep. 1500, 1502. 

In the present case, Brewer owns the land upon which the 

dog bite occurred. He employed McLeod to work and do business for him on the ranch property as foreman. He was aware 

that McLeod had a dog and that the dog had previously bitten 

someone at least once in the approximately eight years in 

which it was kept on the ranch. 

The District Court found that Brewer was not the "keeper" of the dog as described in 3A C.J.S. Animals § 205(b), at 

709-710: 

The keeper of an animal is one who, either with or 

without the owner's permission, undertakes to 

manage, control, or care for an animal as owners 

are accustomed to do, or a person who exercises 

control over the animal on his premises with the 

knowledge of its presence. 

We agree. The facts in this case show that Brewer did 

not own, have possession of or "manage, control, or care for 

an animal as owners are accustomed to do . . ." 

There is a duty of reasonable and ordinary care under 

the circumstances for landowners in Montana. ~aiser v. Town 

of Whitehall (Mont. 1986), 718 P.2d 1341, 1343, 43 St.Rep. 

846, 849. However, the record indicates that Brewer clearly 

met that duty. 

We affirm the decision of the 

We Concur: