IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

KEVIN SPIRLONG and ANNE SPIRLONG, husband and wife, 

individually and on behalf of their minor son, LOGAN SPIRLONG, 

Plaintiffs/Appellants/Cross-Appellees,

v.

CHARLES BROWNE, Defendant/Appellee/Cross-Appellant.

No. 1 CA-CV 12-0763

Appeal from the Superior Court in Maricopa County

No. CV2008-030976

The Honorable Hugh E. Hegyi, Judge

AFFIRMED

COUNSEL

Gallagher & Kennedy, P.A., Phoenix

By Jeffrey T. Pyburn, Jonathan T. Hasebe

Counsel for Plaintiffs/Appellants/Cross-Appellees

Perry Childers Hanlon & Hudson, PLC, Phoenix

By Gary L. Hudson, Jr.

Counsel for Defendant/Appellee/Cross-Appellant

OPINION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in 

which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.
SPIRLONG v. BROWNE

Opinion of the Court

2

N O R R I S, Judge:

¶1 Under state statutes, a person “keeping” a dog for more than 

six consecutive days is considered the dog’s owner and is strictly liable for 

any injuries and damages caused by the dog. The issue in this appeal is 

whether “keeping” requires the person to have exercised care, custody, or 

control of the dog. We hold it does.

FACTS AND PROCEDURAL BACKGROUND

¶2 In August 2007, Defendant/Appellee Charles Browne rented 

two rooms in his home to David Mayes and his wife. Mayes owned two 

dogs, including a Belgian Malinois named Joop. Mayes brought both dogs 

with him when he and his wife moved into Browne’s home. Mayes was

solely responsible for caring for the dogs. 

¶3 On December 11, 2007, Browne left for work at 6:45 a.m. 

When he left, Mayes and Shasta Russell, Browne’s live-in girlfriend, were 

at home. At some point that day, Mayes asked Russell, “Do you want me 

to leave [Joop] out [of his crate] so he can keep you company?” Russell 

responded, “Sure, yes.” Later that day, Russell put Joop into the backyard. 

Joop escaped from the backyard and bit the son of Plaintiffs/Appellants 

Kevin and Anne Spirlong, who was riding his bike on a nearby city street. 

¶4 The Spirlongs sued Browne, Mayes, and Russell. The

Spirlongs alleged, as relevant here, that the three were strictly liable for

their son’s injuries under Arizona Revised Statutes (“A.R.S.”) sections 11-

1020 and 11-1025 (2012), statutes that impose strict liability on dog owners 

for injuries and bites caused by their dogs (collectively, “dog bite 

statutes”).

1 Browne answered the complaint, alleging the fault of others as 

 

1Section 11-1020 imposes liability when the dog is “at large.”

It provides that “[i]njury to any person or damage to any property by a dog 

while at large shall be the full responsibility of the dog owner or person or 

persons responsible for the dog when [the] damages were inflicted.”

Section 11-1025 deals specifically with dog bites. It states that “[t]he owner 

of a dog which bites a person when the person is in or on a public place or 

lawfully in or on a private place . . . is liable for damages suffered by the 

person bitten . . . .”
SPIRLONG v. BROWNE

Opinion of the Court

3

an affirmative defense. Neither Mayes nor Russell responded or otherwise 

defended, and the Spirlongs obtained default judgments against them. 

¶5 Subsequently, Browne and the Spirlongs cross-moved for 

summary judgment, and as relevant here, contested whether, as a matter of 

law, Browne was Joop’s owner under the dog bite statutes (“statutory 

owner”). The dog bite statutes define a statutory owner as “any person 

keeping an animal other than livestock for more than six consecutive days.” 

A.R.S. § 11-1001(10) (2012).

2 After finding the word “keeping” ambiguous, 

the superior court concluded that “to ‘keep’ a dog . . . an individual must 

exercise a substantial degree of care, custody, and control over the animal.”

The court then found Browne met this requirement as a matter of law 

because he had “made the determination to allow Joop to reside in his 

home, and he alone controlled the physical condition, maintenance, 

upkeep, and improvements to the physical structures which, ultimately, 

controlled and maintained custody over Joop.” Accordingly, the superior 

court granted the Spirlongs’ cross-motion, ruling that Browne was Joop’s

statutory owner, and thus, strictly liable for the Spirlongs’ son’s injuries.

¶6 The case proceeded to trial. After the parties rested, the court 

refused to dismiss Browne from the case, and denied his motion for 

judgment as a matter of law. The court then instructed the jury that it had 

already determined Browne was Joop’s statutory owner.

3 Over the 

Spirlongs’ objection, the court further instructed the jury on comparative 

fault vis-à-vis Browne, Mayes, and Russell. The jury returned a verdict in 

favor of Browne. 

DISCUSSION

¶7 Although the Spirlongs and Browne have raised a number of 

arguments regarding the applicability of comparative fault to the dog bite 

statutes, the dispositive issue before us turns on a different issue—whether

Browne was Joop’s statutory owner under A.R.S. § 11-1001(10). If he was 

not Joop’s statutory owner, then as Browne argues, the superior court 

 

2The statutory definition of “owner” applies to both A.R.S. 

§ 11-1020 and A.R.S. § 11-1025. See A.R.S. § 11-1001 and A.R.S. § 11-1028

(2012). 

3At the Spirlongs’ request, the court also instructed the jury 

on premises liability.
SPIRLONG v. BROWNE

Opinion of the Court

4

should have dismissed the statutory dog bite claims against him as a matter 

of law. 

¶8 As discussed, A.R.S. § 11-1001(10) defines an “owner” as “any 

person keeping an animal other than livestock for more than six consecutive 

days.” As they did in the superior court, the parties dispute the meaning 

of the word “keeping,” with Browne arguing “keeping” requires a person 

to have care, custody, or control of the dog and the Spirlongs arguing

“keeping” simply requires a person to ”house” a dog in his or her home for 

a minimum of six consecutive days. As the superior court observed, the 

dog bite statutes do not define “keeping,” and, indeed the word has

multiple meanings. See infra ¶ 10. Thus, we agree with the superior court 

the word “keeping” as used in A.R.S. § 11-1001(10) is ambiguous. Because 

the interpretation of statutory language presents a question of law, we 

exercise de novo review. Home Builders Ass'n of Cent. Ariz. v. City of 

Maricopa, 215 Ariz. 146, 149, ¶ 6, 158 P.3d 869, 872 (App. 2007). We agree 

with Browne’s construction of the word “keeping.”

¶9 In construing a statute, our goal is to give effect to the intent 

of the Legislature. “We will give effect to each word or phrase and apply 

the ‘usual and commonly understood meaning unless the legislature clearly 

intended a different meaning.’” Indus. Comm'n of Ariz. v. Old Republic Ins. 

Co., 223 Ariz. 75, 77, ¶ 7, 219 P.3d 285, 287 (App. 2009) (quoting Bilke v. State, 

206 Ariz. 462, 464–65, ¶ 11, 80 P.3d 269, 271–72 (2003)); see also A.R.S. § 1-

213 (2002) (statutory language should be construed according to common 

and approved use of the language). Further, if the statutory language is not 

clear, we may consider other factors, including “the language used, the 

subject matter, its historical background, its effects and consequences, and 

its spirit and purpose.” Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 

870, 873 (1991).

¶10 The word “keeping” has multiple common meanings. See

The American Heritage Dictionary 957 (4th ed. 2006) (listing 14 distinct 

definitions for the word “keep” when used as transitive verb). In the 

context of ownership of an animal, one common meaning is of particular

relevance here: “To manage, tend, or have charge of.” Id. This definition is 

also most consistent with the general legal definition of “keeping.” As noted 

in Black’s Law Dictionary 885 (8th ed. 2004), a “keeper,” is “[o]ne who has 

the care, custody, or management of something and who usu[ally] is legally 

responsible for it.” These definitions suggest a construction of “keeping” 

that requires a person to exercise care, custody, or control over a dog 
SPIRLONG v. BROWNE

Opinion of the Court

5

instead of simply allowing a dog to stay in his or her home for six 

consecutive days, as the Spirlongs argue.

¶11 This construction is supported by other statutory language 

retained by the Legislature when it adopted the definition of “owner” in 

what is now A.R.S. § 11-1001(10). In 1975, the Legislature amended and 

enacted various animal control statutes. See generally 1975 Ariz. Sess. Laws 

ch. 164 (1st Reg. Sess.). Not only did the Legislature enact what is now 

A.R.S. § 11-1020, 1975 Ariz. Sess. Laws, ch. 164, at § 11, and the definition of 

“owner” we have today, id. at § 1, but it also amended the statute requiring 

county license fees for dogs. Id. at § 6. In amending the license fee statute, 

it retained the requirement that all dogs “kept, harbored or maintained” 

within the state must be licensed. Id. The Legislature did not, however, 

incorporate the words “harbor” or “maintain” or their derivatives, 

“harboring” or “maintaining,” in the definition of “owner.” Instead, it 

restricted the definition of “owner” to a person “keeping an animal.” By 

restricting the definition of “owner” to a person “keeping an animal” and 

not expanding it to include a person harboring or maintaining an animal, 

we conclude the Legislature was attempting to distinguish between 

keeping an animal and harboring (or maintaining) an animal, which, as we 

discuss below, see infra ¶ 17, occurs when a person simply provides a place 

for an animal to stay. Cf. Alejandro v. Harrison, 223 Ariz. 21, 24, ¶ 8, 219 P.3d 

231, 234 (App. 2009) (when drafters of a statute include particular language 

in one part of a statute, but not in another part of the statute, courts should 

not read “that language into the portion of the statute or rule from which 

the particular language has been omitted.”).

¶12 Our analysis also comports with Arizona’s approach to dog 

bite liability under the common law. For example, in Perazzo v. Ortega, 29 

Ariz. 334, 342, 241 P. 518, 520 (1925), appeal after remand, 32 Ariz. 154, 256 P. 

503 (1927), the plaintiff sued a grandfather under a common law theory of 

liability for injuries caused by a dog owned by the grandfather’s grandson,

who lived with the grandfather and his family. 29 Ariz. at 342, 241 P. at 520; 

32 Ariz. at 162, 256 P. at 506. The plaintiff presented evidence that even 

though the grandfather had not consented to the dog’s presence, he 

nevertheless had allowed the dog to live with his family because his wife 

and “the children” liked dogs. 29 Ariz. at 341-42, 241 P. at 520. The 

grandfather had also allowed his wife to take care of the dog. Id. at 342, 241 

P. at 520. The Arizona Supreme Court recognized this evidence was 

“sufficient” for the jury to find the grandfather was “harboring and 

keeping” the dog and thus had constructive notice of the dog’s “vicious” 

disposition. Id. The court also recognized the plaintiff did not have to 
SPIRLONG v. BROWNE

Opinion of the Court

6

prove the grandfather was the dog’s owner because this evidence “was 

sufficient to go to the jury on the question of the [grandfather] being [its] 

keeper.” Id. at 343, 241 P. at 520.

¶13 Significantly, in reaching these conclusions, the court relied

on a number of cases recognizing that a head of a household may be liable 

for injuries caused by a dog if he or she permits a relative such as a spouse, 

son, or in-law who exercises care, custody, or control of a dog to live in the

household, as a member of the family. Put more colorfully, these cases 

recognize that in such a situation, the head of the household has essentially 

taken or accepted the dog into the home as a four-footed member of the

family. When, however, a person merely permits another individual who 

owns a dog to live on his or her property but does not include or treat the 

other individual as a member of the household, that person is not liable for 

injuries caused by the other individual’s dog. Although Perazzo predated 

Arizona’s dog bite statutes by decades, its reasoning and the cases it relied

on are consistent with our construction of the word “keeping” and our 

conclusion that a person does not keep a dog unless he exercises care, 

custody, or control over it.

¶14 Further, under the dog bite statutes a statutory owner is 

strictly liable for injuries caused by a dog. Massy v. Colaric, 151 Ariz. 65, 66, 

725 P.2d 1099, 1100 (1986) (discussing prior versions of A.R.S. §§ 11-1020 

and 11-1025). In contrast to the common law, a plaintiff asserting a 

statutory dog bite claim does not need to show the defendant knew or 

should have known the dog had dangerous propensities abnormal to its 

class. Jones v. Cox, 130 Ariz. 152, 153 n.1, 634 P.2d 964, 965 n.1 (App. 1981). 

And, unlike the common law, the statutory owner will bear liability for 

injuries caused by a dog even if he exercised utmost care to prevent any 

harm. Id. at 154, 634 P.2d at 966. Given the effects and consequences of 

strict liability in this context, construing “keeping” as requiring care, 

custody, or control of a dog allows the defendant an opportunity to assess 

whether the dog presents a risk he or she is willing to accept.

¶15 The Spirlongs argue, however, that because the dog bite 

statutes are designed to protect the victim, they impose what should be 

viewed as a form of absolute liability and we should, therefore, construe 

“keeping” broadly to include anyone who “houses” a dog. As discussed, 

the dog bite statutes impose strict, not absolute liability, see supra ¶ 14. 

Johnson ex rel. Johnson v. Svidergol, 157 Ariz. 333, 335, 757 P.2d 609, 611 (App. 

1988) (discussing what is now A.R.S. § 11-1025; statutory owners are strictly 

liable for injuries caused by their dogs, but “strict liability does not mean 
SPIRLONG v. BROWNE

Opinion of the Court

7

absolute liability”). Further, if the Legislature had intended to extend

liability to anyone who “houses” a dog, we presume it would have used 

language expressing this intent so that individuals would be able to 

appreciate the risk they are assuming in doing nothing more than this. Cf. 

Murdock v. Balle, 144 Ariz. 136, 138, 696 P.2d 230, 232 (App. 

1985) (predecessor to A.R.S. § 11-1025 is in derogation of the common law 

and is subject to “strict, literal construction”).

¶16 In Trager v. Thor, 516 N.W.2d 69 (Mich. 1994), the Michigan 

Supreme Court recognized that to be equitable, strict liability for dog bites 

should not be imposed unless the liable party has been given an 

opportunity to assess the potential risk posed by the dog. Construing 

“keeping” as requiring care, custody, or control ensures the equitable 

application of strict liability for dog bites. As the court in Trager observed,

[L]iability is not imposed because of a failure to 

restrain the animal, since the utmost care in that 

regard is not a defense to liability. . . . 

In order for such allocation [of strict 

liability] to be equitable, the liable party must 

have sufficient custody and sufficient control of 

the animal to assess whether a risk is presented 

by an abnormal propensity and to decide 

whether an animal should be brought into or 

remain in the community. It is this proprietary 

control, akin to ownership, that we hold must 

be present to deem a party a keeper, and 

potentially liable, under the common-law strict 

liability principle.

Id. at 73.

¶17 Our construction of “keeping” is also consistent with other 

courts that have considered and interpreted the same or similar statutory 

terms. For example, Minnesota defines an “owner” as including any person 

who either harbors or keeps a dog. Minn. Stat. § 347.22 (1986). The 

Supreme Court of Minnesota explained the distinction between the two 

concepts: 

Harboring means to afford lodging, to shelter or 

to give refuge to a dog. Keeping a dog, as used 

in the statute before us, implies more than the 

mere harboring of the dog for a limited purpose 
SPIRLONG v. BROWNE

Opinion of the Court

8

or time. One becomes the keeper of a dog only 

when he either with or without the owner’s 

permission undertakes to manage, control or 

care for it as dog owners in general are 

accustomed to do.

Verrett v. Silver, 244 N.W.2d 147, 149 (Minn. 1976). Additionally, in 

Pawlowski v. American Family Mutual Ins. Co., 777 N.W.2d 67 (Wis. 2009), the 

Wisconsin Supreme Court construed Wisconsin’s dog bite statute that, like 

Minnesota’s statute, defines an “owner” as including any person who 

“harbors or keeps a dog.” The court explained those words were not 

synonymous, and that “keeping” required the exercise of some measure of 

care, custody, or control while “harboring” simply required giving shelter 

or refuge to a dog. Id. at 73.

4 See generally, John P. Ludington, Annotation, 

Who “Harbors” or “Keeps” Dog under Animal Liability Statute, 64 A.L.R. 4th

963, §§ 3-4 (1988) (describing distinction between “harboring” and 

“keeping” a dog).

¶18 Applying the foregoing principles, we hold the definition of 

“keeping” under the dog bite statutes requires a person to exercise care, 

custody, or control of a dog. Whether a person has exercised sufficient care, 

custody, or control to be a statutory owner of a dog will generally present 

 

4The distinction between a person who keeps a dog and a 

person who harbors a dog has not been, as the Wisconsin Supreme Court 

in Pawlowski also noted, “crisp over the years.” 777 N.W.2d at 73. Some 

courts have used these terms to differentiate between a person who 

exercises care, custody, or control of a dog from one who does not and, 

instead, simply provides a place for the dog to stay. Other courts have used 

these terms interchangeably to refer to a person who exercises care, 

custody, or control over a dog. Indeed, in Perazzo, our supreme court noted 

the grandfather had harbored and kept the dog. 29 Ariz. at 342, 241 P. at 

520. Although the court described the grandfather as harboring the dog, as 

discussed above, the grandfather’s relationship with the dog went far 

beyond harboring. See supra ¶¶ 12-13. Other Arizona courts, applying 

common law liability principles, have also used these terms 

interchangeably. In each case, however, the liable party either actually 

owned the animal or had exercised care, custody, or control over the 

animal. See Ariz. Livestock Co. v. Washington, 52 Ariz. 591, 84 P.2d 588 (1938)

(actual owner); Walter v. S. Ariz. Sch. for Boys, Inc., 77 Ariz. 141, 267 P.2d 

1076 (1954) (actual owner); Vigue v. Noyes, 24 Ariz. App. 144, 536 P.2d 713 

(1975) (actual owner and owner of stable), vacated in part by 113 Ariz. 237, 

550 P.2d 234 (1976).
SPIRLONG v. BROWNE

Opinion of the Court

9

an issue of fact and will depend on the facts and circumstances of the 

particular case.

¶19 The superior court concluded the “keeping” requirement of 

the statutory definition of “owner” could be satisfied by evidence that a

defendant merely allowed a dog to live on property the defendant controls. 

We disagree. Such evidence, without more, would shift the meaning of 

“keeping” from the care, custody, or control of the dog to the care, custody, 

or control of the property. 

¶20 Although whether a person has exercised sufficient care, 

custody, or control to be a statutory owner of a dog will normally present 

an issue of fact, that is not the case here. The Spirlongs presented no 

evidence Browne exercised any care, custody, or control over Joop. Browne

simply allowed Joop to live in his home; Mayes was solely responsible for 

Joop; and Joop was under Mayes’ care, custody, and control. Further, the 

Spirlongs presented no evidence Browne ever treated Mayes, and by 

extension Joop, as a member of his family. Given this record, the superior 

court should have dismissed the Spirlongs’ statutory dog bite claims 

against Browne as a matter of law. On this basis alone, we affirm the 

judgment entered by the superior court in Browne’s favor.

CONCLUSION

¶21 For the foregoing reasons, we affirm the judgment entered by 

the superior court in Browne’s favor. As the prevailing party on appeal, we 

award Browne his costs on appeal contingent upon his compliance with 

Arizona Rule of Civil Appellate Procedure 21.