IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON SHELLY CARR, individually, Appellant,

JOSE AND LISA RIVEROS, individually and intheirmarital capacity, Respondents, STATE FARM FIRE &CASUALTY, an Illinoiscorporation; and STATE FARM GENERAL INSURANCE COMPANY, an Illinois corporation, Defendants. No. 73927-1-1 DIVISION ONE
UNPUBLISHED OPINION

FILED: November28, 2016


### Leach, J. —Shelly Carrappeals the trialcourt's summary dismissal of her claims againstLisa and Jose Riveros. Afterthe Riveroses' dog bit her, Carrsued them, alleging common law negligence and statutory strict liability claims. Because the Riveroses did not breach any duty ofcare owed to Carr and Carr did not present any evidence that she had permission to enter the Riveroses' home, as required forherstrictliabilityclaim, we affirmthetrial court. FACTS Carr suffered a dog bite while accompanying her daughter, Brynn Sutherland, on a home inspection. Brynn and her husband, Ryan Sutherland,No. 73927-1-1/2 

### (buyers) were prospective buyers of a home owned by Nicholaas and Lisa Groenveld-Meijer (sellers/landlords). Jose and Lisa Riveros rented the home from the sellers. The Riveroses had a Rottweiler-Labrador mix named "Kid." They had owned Kid for over 13 years, and he had never bitten anyone or displayed 

### aggressive tendencies. At the time of the inspection, Kid had cancer and 

### difficulty walking. The Riveroses told the property manager and the sellers' real estate broker, David Hogan, thatthey would leave Kidalone inthe laundry room with the door closed and that no one should enter that room. As a result, they 

### "understood no one would go in the laundry room as [they] had always insisted 

### that the dog be leftalone."1 Before the scheduled inspection, Hogan sent an e-mail to Jose Riveros asking, "Is itpossible to crate the dog? The buyers will need fullaccess to each
room inthe house for their inspector." Jose and Hogan exchanged a few more e-mails, but Jose never agreed to crate the dog or remove him from the home. In an e-mail to the buyers' real estate broker, Henry Shim, Hogan said, "I have asked them to make sure you have access to the entire house. Suggested crating the dog butdon'tknowtheirexactplans admittedly."

1 Carr disputes this fact but points to no evidence in the record to contradict the Riveroses' assertion. -2-No. 73927-1-1/3


### On the day ofthe inspection, the Riveroses left Kid inthe laundry room before they left for work. The Sutherlands, Shim, Carr, Carr's husband, and the 

### inspector, Michael Linde, attended the home inspection. When the inspection group arrived atthe home, the laundry room doorwas closed. 

### Because Carrbelievedthat shewas experienced withdogs, sheoffered to enterthe laundry room with Linde to testthe dog's characterand watch him while 

### the inspectorlooked aroundthe laundry room. Kid was lying on a pile ofblankets and sniffed Carr's hand but did nototherwise reactto their presence. 

### When Linde and Carr left the laundry room, they left the door open. They continued withthe inspection, but Carr soon noticed Kid out ofthe laundry room 

### and lying on the hardwood floor, unable to stand. Kid appeared to be trying to getbackinto the laundry room. 

### Because her previous interaction with Kid had seemed friendly, Carr decided to help the dog back into the laundry room. Shefirst tried to pick up the 

### dog. Kid made a noise, and Carr realized the potential danger ofpicking up a dog she didn't know. She then crouched in front of Kid and held her hand six inches in front ofhis nose. Kid bit her outstretched hand. 

### Carr sued for damages caused by the dog bite. Her complaint alleged
common law negligence and strict liabilityunder RCW 16.08.040. The trial court granted the Riveroses' summary judgment motion. Carr moved forNo. 73927-1-1/4


### reconsideration, submitting the declaration of Henry Shim. Thetrialcourtdenied this motion. Carrappeals.
ANALYSIS Standard ofReview 

### This court reviews summary judgment orders de novo, engaging in the


### same inquiryas the trial court.2 Summaryjudgmentisproperif, viewing the facts and reasonable inferences inthe light mostfavorable to the nonmoving party, no 

### genuine issues ofmaterial fact exist and the moving party is entitled tojudgment
as a matter of law.3 Agenuine issue ofmaterial fact exists ifreasonable minds 

### could differ regarding the facts controlling the outcome of the litigation.4 Carr claims that she raised issues of material fact about her two theories of liability:


### common law negligence and strictliabilityunderRCW 16.08.040. Common Law Negligence 

### Carr alleged thatthe Riveroses breached a duty ofcare when they failed to crate their dog as the real estate brokers recommended. The common law 

### provides liability for dog bites based on strict liability and negligence.5 A dog
owner has strict liability for injuries caused by the dog when the owner knows or 2 Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003).

### 3CR 56(c); Michak, 148Wn.2d at794-95. 4Hulbertv. PortofEverett, 159Wn. App. 389, 398, 245 P.3d 779 (2011). 5Sliqerv. Odell. 156Wn. App. 720, 731, 233 P.3d 914 (2010). -4-No. 73927-1-1/5


### has reason toknow that the dog has vicious or dangerous propensities.6 Carr does not dispute that the Riveroses had no notice that Kid had any dangerous 

### propensity; thus, she nowassertsonly a common law negligenceclaim. The Restatement (Second) ofTorts § 518 (1977) provides, 

### Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to 

### be abnormally dangerous, issubjectto liabilityfor harm doneby the animal if, butonly if, 

### (a) he intentionallycausestheanimal to do the harm, or (b) he is negligentin failing to preventthe harm. 

### "'[A] negligence cause of action arises when there is ineffective control of an animal in a situation where it would reasonably be expected that injury could 

### occur, andinjurydoes proximatelyresultfrom the negligence.'"7 "The amount of control required is that which would be exercised by a reasonable person based 

### upon the totalsituation at thetime, including the past behavior of the animal and 

### theinjuriesthatcouldhave beenreasonablyforeseen."8 Carrcharacterizes her common law claim as "negligentfailure to confine." 

### The Riveroses counterthat § 518 does notdefine the duty ofcare as the duty to 

### confine orcrate their dog but only to exercise reasonable care and control. We

6 Arnold v. Laird, 94 Wn.2d 867, 870, 621 P.2d 138 (1980) (citing Johnston v. Ohls, 76Wn.2d 398, 457 P.2d 194 (1969)). 

### 7Sliger, 156Wn. App. at 731-32 (quoting Arnold, 94 Wn.2d at 871). 8Arnold, 94 Wn.2d at 871. -5-No. 73927-1-1/6



### agree that failure to confine is not, in itself, negligent. A dog owner's failure to confine is only negligentwhen itcausedforeseeable injury. The Riveroses claim thatthey could not have foreseen the injurybecause 

### Kid had never shown any vicious or dangerous propensity. Carr contends that lack of knowledge of the animal's dangerous propensity relates only to the
common law cause of action for strict liability, not negligence. But the relevant
case law considers knowledge ofdangerous propensity in analyzing whether an 

### injury is foreseeable.9 Thus, notice ofdangerous propensity is relevantto both strictliability and negligence common lawcauses ofaction. Carr asserts that a jury should have decided whether her injury was foreseeable. "Foreseeability is a question offact for thejury unless reasonable 

### persons could reach but one conclusion."10 In Beelerv. Hickman,11 this court affirmed summary judgment dismissal ofthe plaintiff's common law negligence claim because there was insufficientevidence ofnegligence when the dog owner 

### had no reason to know the dog would bite the plaintiff. The defendant dog owner's admissionthatthe dog would reactifprovokedwas not enough evidence 

### of negligence to survive summaryjudgment.12 Like in Beeler, the Riveroses had
9See, e.g., Sliqer, 156 Wn. App. at 732; Beelerv. Hickman, 50 Wn. App. 746, 754, 750 P.2d 1282 (1988). 10 Schneiderv. Strifert, 77 Wn. App. 58, 63, 888 P.2d 1244 (1995). 

### 11 50 Wn. App. 746, 754, 750 P.2d 1282 (1988). 12 Beeler, 50 Wn. App. at754. -6-No. 73927-1-1/7



### no reason to believe that Kid would bite anyone, particularly because he was old 

### and sick and could barely walk. Carr implies that the dog's breed, RottweilerLabradormix, shows dangerous propensity. Butshe offers neitherevidencethat 

### the particular breed is prone to attacks nor legal authority to show that breed is a relevant consideration. She therefore fails to show how the breed creates a 

### question of fact. Because the Riveroses had no reason to believe Kid, confined to a laundry room, would bite anyone, reasonable persons could reach no other conclusion than thatthe Riveroses were not negligent. 

### Carr contendsthatan injurywas foreseeable becausethe Riveroses knew 

### that prospective buyers would be inspecting the house. Carr further argues that the Riveroses knew that the inspection required access to the entire home, 

### including the laundry room. But knowledge ofthe inspection does not create a 

### question of fact about the likelihood of injury when the dog has no history of viciousness and was confined to a room to which the Riveroses had denied 

### access. Opportunitydoes not equalforeseeability.13

13 The parties discuss the trespasser/licensee/invitee distinctions in connection with the Riveroses' common law duty. But Carr's status as a 

### trespasser is not relevant to this case. The Riveroses explain the trespasser 

### analysis in anticipation of a premises liability argument, but Carr does not assert a premises liability cause of action. Further, the trespasser analysis does not relate to the Riveroses' duty of care under §518. We need not determine whetherCarrwas a trespasser. -7-No. 73927-1-1/8

Under the circumstances, the Riveroses exercised a reasonable amount of control when they confined Kid to one room and declared that room to be off limits. Because Carr does not create any issue of fact that the Riveroses breached a duty ofcare, thetrial courtproperly dismissed this claim. StatutoryStrict Liability Carr also asserts a strict liability claim under RCW 16.08.040(1), which provides, The owner of any dog which shall bite any person while such person is in or on a public place or lawfully in or on a private place including the property ofthe owner of such dog, shall be liable for such damages as may be suffered by the person bitten, regardless of the former viciousness of such dog or the owner's knowledge of such viciousness. Carr does not claim she was in a public place. Instead, she argues that 

### shewas lawfully in a private place.14 A person is lawfully upon the private property of such ownerwithin the meaning of RCW 16.08.040 when such person is upon the property of the owner with the express or implied consent of the owner: PROVIDED, That said consent shall not be presumed when 

### the propertyoftheownerisfenced orreasonablyposted.1151

14 The parties discuss Carr's status as trespasser or licensee in connection with her statutory strict liability claim. But the test for whether she was lawfully on the premises under RCW 16.08.050 does not involve the trespasser/licensee analysis. See Sliqer, 156Wn. App. at 730 ("The plain words of the statute focus on express or implied consent of the owner of the dog to determine whether one is legally on the dog owner's property. The word trespasseris notfound inthe statute."). 15 RCW 16.08.050. -8-No. 73927-1-1/9



### Because the dog bite statute does not define "implied consent," courts use the 

### term's ordinary meaning.16 "[Ijmplied consent may be communicated based on 'conduct, omission, or bymeans of local custom.'"17 Carr offers three alternative arguments to show that she was lawfully on the property. First, she contends that she had the Riveroses' implied consentto be on the premises. She also contends that she could presume consentthrough custom. Lastly, she maintains that she did not need the Riveroses' consent because she had the consent ofthe sellers. We find none of Carr's arguments persuasive. First, Carr fails to show that she had the Riveroses' permission. She concedes that the Riveroses did not give her express permission to enter the property, but she claims that she had their implied permission because they knew aboutthe home inspection and neverforbade herentry. According to Carr, the Riveroses' failure to expressly prohibit her entry implied that she had permission to enter. But because the Riveroses never knewthat Carrwas going to be on the property, they had no opportunityto objectto her access. Itwas not reasonable for Carr to infer she had permission simply because she was not



### 16 Sliqer, 156Wn. App. at728. 17 Sliqer, 156Wn. App. at 728 (quoting Singleton v. Jackson, 85 Wn. App. 835, 839, 935 P.2d 644 (1997)). -9-No. 73927-1-1/10 

### expressly excluded. We disagree with Carr's suggestion that the Riveroses' failure to objectcan be interpreted as implied consent. 

### Even ifCarrhad implied permission to enterthe property, that permission 

### did not extend to the laundry room. RCW 16.08.050 states that the consent of the owner "shall not be presumed when the property ofthe owner is fenced or 

### reasonably posted."18 Here, Carr does notdispute that allpeople involved were
aware that the door was closed in order to keep the dog isolated. With this 

### information, the closed door provided the functional equivalent of a fence or a 

### warning sign. Therefore, the Riveroses' implied permission to enterthe laundry
room cannotbe presumed. 

### Second, Carr does not provide sufficientevidence to create a question of fact that she could presume she had permission based on industry custom. Carr claims that she had implied permission to be on the premises because it is 

### industry custom to have family members of potential buyers attend home 

### inspections. But evidence from a single person or business is insufficient to establish industry custom.19 Atsummaryjudgment, Carr introduced only Linde's
18 See Sliqer, 156Wn. App. at729. 19 Swartlev v. Seattle Sch. Dist. No. 1, 70 Wn.2d 17, 21, 421 P.2d 1009 

### (1966) ("'Although, where negligence is in issue, the usual conduct or general custom of others under similar circumstances is relevant and admissible, such 

### custom may not be established by evidence of conduct of single persons or 

### businesses.'" (quoting Miller v. Staton, 58 Wn.2d 879, 885, 365 P.2d 333 (1961))). -10-No. 73927-1-1/11 

### deposition testimony as evidence of custom. Linde testified that he had performed "thousands" of home inspections and that buyers' family members attended approximately 50 percentofthose inspections. Linde's testimony relies solely on his personal experiences in his own business practice. His testimony does not include any opinion aboutany industry-wide practice. Linde's testimony 

### alone does notestablish an issueof fact aboutindustry custom.20 Finally, Carr contends that she had the sellers' permission to be on the land.21 But Carrfails to establish that the sellers, and not the Riveroses, should 

### be considered the owners for purposes of determining lawful presence under RCW 16.08.050. Carr contends that as the actual owners ofthe land, only the

20 Carr submitted a declaration from Shim with her motion for reconsideration to corroborate Linde's testimony, but, as discussed below in connection with the motion for reconsideration, we do not consider Shim's testimony. 21 Carr cites Hansen v. Sipe. 34 Wn. App. 888, 664 P.2d 1295 (1983), in 

### support of her assertion that she had adequate permission fromthe sellers. But the conclusions from Hansen are not relevant to any determination in this case. 

### Hansen interprets a previous version ofthe RCWthatdrew a distinction between 

### lawful presence on the dog owner's property and lawful presence on a third party's property. Hansen, 34 Wn. App. at 890-91. Carrargues thatbecausethe sellers and not the dog owners are owners of the property in question, a less restrictive definition of "lawful" should apply. But the dog bite statute no longer draws a distinction between lawful presence on the dog owner's property and 

### lawfulpresence on a third party's property. See RCW 16.08.050. The ordinary definition of"lawful" applies in both circumstances. See Sliqer, 156 Wn. App. at 728. Hansen does not help Carr's case. -11-No. 73927-1-1/12



### consent of the sellers is required for "lawful" entry.22 ButCarr's interpretation of "lawful" ignoresthe rules thatgovern landlord and tenantrights and duties. Carroffers no convincing explanation orauthorityfor herassertion thatthe landlords' limited right to exhibitthe property provides them with authority to give 

### permission to all persons who wish to enter the property for an inspection associated with a prospective sale. "Except as limited by the terms of the leasehold, a tenant has a present interest and estate in the property for the 

### period specified, which gives him exclusive possession against everyone, 

### including the lessor."23 Washington law requires tenants to permit landlords
access to their home for certain limited purposes, including to show the house to potential buyers: 

### The tenant shall not unreasonably withhold consentto the landlord to enterthe dwelling unit at a specified time where the landlord has given at least one day's notice of intent to enter to exhibit the dwelling unit to prospective or actual purchasers or tenants. A landlord shall not unreasonably interfere with a tenant's enjoyment of the rented dwelling unit by excessively exhibiting the dwelling unitJ24!

22 Carr cites McMilian v. King County, 161 Wn. App. 581, 601, 255 P.3d 739 (2011), for the proposition that the ordinary meaning of "lawful" requires the consent ofthe actual third party owners ofthe property, the sellers inthis case. But McMilian is distinguishable because that case does not involve a landlordtenant relationship. 

### 23Aldrich v. Olson, 12 Wn. App. 665, 667, 531 P.2d 825 (1975). 24 RCW 59.18.150(6); see also RCW 59.18.150(1). -12-No. 73927-1-1/13


### The Supreme Court has observed that the scope of the landlords' entrance 

### should not exceed the purposes contemplated by the Residential Landlord

### TenantAct of 1973.25 Here, Carr's attendance at the inspection was notwithin the scope of the landlords' right to exhibit the property. Thus, the landlords' right to exhibit under RCW59.18.150 cannot be the basis for Carr's permission to enter. Even ifthe landlords could grantthe Sutherlands permissionto entertheir tenants' home, Carr was not a prospective purchaser, and she provides no 

### evidence that the sellers ever gave her, specifically, permission to enter the property. 

### Carr claims the Riveroses' lease agreementgave the landlords the right to give permission to third parties to enter the property. The lease permitted the landlords to conduct inspections of the property. But the Sutherlands, not the 

### landlords, were inspecting the property. The lease agreement gives inspection rights to the landlords specifically and cannot be the basis for the Sutherlands' 

### authority to inspectthe property. The Sutherlandswere notagents of the sellers, and Carr certainly was not. The lease provisions about inspection do not show Carrwas lawfullypresent.



### 25 City of Pasco v. Shaw. 161 Wn.2d 450, 461, 166 P.3d 1157 (2007) (citing Kalmas v. Wagner. 133 Wn.2d 210, 219-20, 943 P.2d 1369 (1997)); ch. 59.18 RCW. -13-No. 73927-1-1/14

Carralso contends thatonlythe sellers had the right to objectto the scope ofthe inspection because they were in privity with the buyers but the Riveroses
were not. The buyers' right to inspect, Carr asserts, came from the purchase agreement between the sellers and the buyers. The Riveroses could voice their objections only to the sellers, with whom they were in privity. Carr cites no authority forthis privity argument. Moreover, the logic ofher argument isflawed. A landowner is not in privity with the general public, and yet the landowner may 

### restrict the public's entry on her private land.26 Inthe context of this case, the presence or absence of privity does not dictate the scope of a tenant's right to exclude others from herproperty. Carr did not present any evidence from which she could infer she had permission to enter the Riveroses' home. The trial court properly dismissed Carr's statutory claim. Motion for Reconsideration After the trial court dismissed her claims, Carr moved for reconsideration under CR 59, providing the newly acquired declaration from Shim. Carr asked that the court reconsider its decision on the following grounds: CR 59(a)(4), newly discovered evidence that the proponent could not have 26 17 William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate: Property Law § 1.2, at 4 (2d ed. 2004) ("Akey attribute of [land] possession is that it carries with it the legally protected right to exclude other persons completely and with orwithout reason from the land possessed."). -14-No. 73927-1-1/15


### discovered with reasonable diligence at the time ofthe hearing; CR 59(a)(7), no evidence or reasonable inference from the evidence justifies the verdict or the 

### decision or verdict is contrary to law; CR 59(a)(8), there was an error in law; or 

### CR 59(a)(9), substantialjustice has not been done. This court reviews denial of

a motion for reconsideration for abuse ofdiscretion.27 First, Carr's claim about newly discovered evidence fails because she offers no explanation, either in her appellate briefing or her motion for 

### reconsideration, for why the deposition ofShim could not have been taken before 

### the summary judgment hearing. Further, Shim's testimony did not offer new evidence.28 "The realization that [the] first declaration was insufficient does not 

### qualifythe second declaration as newlydiscovered evidence.'"29 Shim was not a newly discovered witness. Carr has failed to demonstrate that the trial court abused itsdiscretion indenying reconsideration based on CR 59(a)(4). As to CR 59(a)(8) and (9), Carrhas not shown thatthetrial court made an 

### error in law or that substantial justice has not been done.30 And CR 59(a)(7) does not provide any basis for reconsideration because, as explained above, the
27 Klever v. Harborview Med. Ctr. of Univ. of Wash., 76 Wn. App. 542, 545, 887 P.2d 468 (1995). 

### 28 See Sliger, 156Wn. App. at734. 29 Go2Net, Inc. v. C I Host, Inc., 115 Wn. App. 73, 91, 60 P.3d 1245 

### (2003) (alteration in original) (quoting Adams v. W. Host, Inc., 55 Wn. App. 601, 608, 779 P.2d 281 (1989)). 

### 30See Sliger, 156Wn. App. at734. -15-No. 73927-1-1/16

evidence on record supports dismissal of Carr's claims. The trial court did not abuse its discretion indenying Carr's motion for reconsideration. CONCLUSION Carr has not identified any material issue of fact that the Riveroses breached theirduty ofcare incontrolling theirdog. Nor has she created an issue of fact about whether she was lawfully on the premises when the dog bite occurred. For these reasons, the trial court did not err in granting summary judgmentinfavor ofthe Riveroses.
We affirm.

WE CONCUR: 

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