No. 80-434 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

ROB ROY, individually and as 

guardian ad litem of HEATHER ROY, 

Plaintiff and Appellant, 

WALTER NEIBAUER, 

Defendant and Respondent. 

1 from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Regnier and Lewis, Great Falls, Montana 

For Respondent: , 

Jardine, Stephenson, Blewett and Weaver, 

Great Falls, Montana 

Thomas Boland, Great Falls, Montana 

Submitted on briefs: December 30, 1980 

oecided RB 9 - 1cJ81 

Filed: ;, * :ggj 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal from a summary judgment order entered 

by the District Court of the Eighth Judicial District. 

Plaintiff-appellant, individually and as guardian ad litem 

of his daughter Heather, sued defendant-respondent Walter 

Neibauer and defendant John Carlson for injuries received by 

Heather in August 1978. After extensive discovery, respondent Neibauer filed a motion for summary judgment. The 

District Court ruled in favor of that motion. Appellant 

filed a notice of appeal to this Court in September 1979. 

Roy v. Neibauer (1980), - Mont. , 610 P.2d 1185, 37 

St.Rep. 897. We dismissed the appeal without prejudice 

because it was taken prematurely. Subsequently, appellant 

dismissed all complaints against defendant John Carlson and 

again appealed the order of the District Court. 

Walter Neibauer purchased a duplex on August 19, 1978. 

Two separate tenant families resided in the duplex pursuant 

to a preexisting lease, the Rob Roy family and the John 

Carlson family. The Carlsons owned a small cocker spaniel 

dog, and their lease expressly allowed them to maintain the 

dog on the premises. 

On August 27, 1978, or eight days after Neibauer 

acquired the duplex, the Carlson dog bit Heather Roy in the 

front yard of the duplex on the Carlsons' lawn area. Rob 

ROY, as guardian ad litem for his minor daughter, filed a 

complaint against both the dog's owner and the owner of the 

duplex. 

Two issues are raised on this appeal: 

1. What duty, if any, did Neibauer, as owner and 

landlord of a duplex, owe to ROY, a tenant, for injuries 
received on the duplex's front lawn from a dog owned and 

harbored by another tenant, Carlson, when Neibauer purchased 

the duplex subject to the Carlson lease allowing Carlson to 

have the dog, and when the dog injured the Roy child before 

Neibauer could have legally taken any steps to remove the 

dog from the premises or to otherwise control the dog? 

2. When are deposition expenses properly taxed as 

costs in favor of the prevailing party in summary judgment 

cases? 

The District Court found that since Montana law and the 

Carlson lease required Neibauer to give Carlson at least 

fourteen dayst notice to remove the dog, and since the dog 

injured the child only nine days after Neibauer's purchase, 

respondent, as a matter of law, had no duty to protect Roy 

from the dog since he had no legal remedy to remove or 

control the dog. 

It is an elementary principle of law that before a 

claim for relief can be made against a defendant for negligence, the existence of a duty by the defendant to the 

plaintiff must be shown, along with the breach of that duty 

and a resulting injury. Kakos v. Byram (1930), 88 Mont. 

309, 292 P. 909; Jackson v. William Dingwall Company (19651, 

145 Mont. 127, 399 P.2d 236. 

The existence of a duty is a matter of law to be determined by the court and not the jury. Kakos, supra. Here, 

the District Court decided as a matter of law that there 

existed no duty from respondent to appellant since respondent had no control over the dog or the right to dispose of 

the dog prior to the child's injury. We agree. Since there 

was no duty, there could be no negligence, and appellant's 
claim against respondent failed, regardless of whether 

respondent had knowledge of any dangerous propensities of 

the dog. 

Respondent Neibauer purchased the duplex subject to a 

preexisting lease. The lease specifically allowed Carlson 

to own and harbor a dog. The lease further provided, in a 

paragraph designated as "Notice of Change," that respondent 

had to provide Carlson with thirty days' notice if respondent intended to change the terms of the lease. Respondent 

could only terminate the lease by providing Carlson thirty 

days' notice in writing. 

Pursuant to the lease, Carlson agreed he would not 

maintain or permit to be maintained a nuisance on the 

premises, such as a dog with dangerous propensities. If it 

was determined that Carlson's dog was a nuisance on the 

property, respondent's only remedy was to proceed under the 

default clause of the lease which required respondent to 

give Carlson fifteen days' notice of the default. More 

importantly, before respondent could terminate his lease 

with Carlson, he was bound by section 70-24-422, MCA, which 

states: 

"Noncompliance of tenant generally -- landlord's 

right of termination -- damaqes -- injunction. 

(1) ~xzpt as provided in this chapter, if 

there is a noncompliance by the tenant with the 

rental agreement or a noncompliance with 70-24- 

321 affecting health and safety, the landlord 

may deliver a written notice to the tenant pursuant to 70-24-108 specifying the acts and omissions constituting the breach and that the 

rental agreement will terminate upon a date not 

less than 14 days after receipt of the notice. 

If the breach is not remedied within that time, 

the rental agreement terminates as provided in 

the notice . . ." 

Respondent did not purchase the premises subject to 

Carlson's lease and the existence of the dog until August 
19, 1978, eight days before the child was bitten. He had no 

opportunity to remove the dog from the premises nor did he 

have any control whatsoever over the manner in which Carlson 

handled the dog. On these facts and the statute, the District Court correctly found that respondent had no duty to 

appellant to prevent Carlson's dog from injuring Heather 

Roy; therefore, judgment was properly entered against 

appellant as a matter of law. 

Appellant next raises the issue of when deposition 

expenses are properly taxed as costs in favor of the prevailing party. 

Respondent's memorandum of costs and disbursements 

included deposition expenses in the amount of $328. The 

depositions in question included a deposition of Rob Roy at 

a cost of $122, of Marney Roy at a cost of $98, of John 

Carlson at a cost of $70, and of Marcia Carlson at a cost of 

$38.75. Appellant claims that these depositions were merely 

discovery devices used by respondent's attorney for investigation and preparation and cannot now be properly taxed 

against appellant. We disagree. 

The District Court expressly relied on these "several 

depositions" in determining that summary judgment should be 

entered against appellant. The District Court made reference to the depositions in its memorandum decision. These 

depositions were necessary for the disposing of this litigation by way of summary judgment and are proper elements of 

respondent's costs. Johnson v. Furgeson (1971), 158 Mont. 

170, 489 P.2d 1032. 

Affirmed. 
We concur: 

Pd dMl 

Chief ~ustice 

4 .MA 

Justices 

This cause was submitted prior to January 5, 1981.