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### 2013 AUG 26 AH 9=36

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE MARGARET L. BRISCOE, Appellant,

v. RANDALL LAMONICUS MCWILLIAMS, Respondent, LEVITICUS JADE MCWILLIAMS, ELIZABETH ANN ROWLAND, and VICTOR GREER, Defendants. No. 69103-1-1

UNPUBLISHED OPINION FILED: August 26, 2013 Verellen, J. —Common law liability for dog bites flows only to the owner, 

### harborer or keeper of a dog. Margaret Briscoe suffered injuries after being attacked by
a dog left unattended in an apartment. Briscoe sued tenant Randall McWiliams, who 

### had hired his brother Levi toclean theapartment.1 Levi owned thedog andleft it in the apartment while he went to obtain cleaning supplies. Briscoe alleges respondeat 

### superior (agency),2 premises liability, and negligententrustment claims against Randall. Briscoe appeals the trial court's summaryjudgment dismissing her claims. Because



### 1Wereferto the brothers byfirst names for ease ofreference. 2Appellant refers to agency and respondeat superiorinterchangeably in her briefing.No. 69103-1-1/2 

### Randall was not the owner, harborer or keeper ofthe dog, we affirmdismissal of
Briscoe's claims. FACTS Randall McWilliams rented an apartment from his friend, Victor Greer, beginning in March 2009. The lease was on a month-to-month basis and prohibited pets. During the lease, his brother Levi would visit and bring Jersey, his pit bull. Ifother people were present at the apartment, Levi would ensure Jersey was locked either in one ofthe
rooms or in the downstairs garage. Greer decided to sell his apartment in early 2010, so Randall began the process of moving out. Greer listed the apartment with a realty company and informed Randall that real estate agents would have access to the apartment via the lockbox installed on the front door. On July 14, 2010, Randall left for California. Randall informed Greer he would be out ofthe apartment by July 15, 2010. Randall hired Levi to clean the apartment and move some of Randall's items to their mother's house. Randall agreed to pay Levi $300 for the work. On July 16, 2010, Randall called Levi to check in on the cleaning. According to Randall, Levi told him the cleaning would be completed by that evening. Randall testified at his deposition that "I presumed he was going to be done [by July 16]. I anticipated he'd probably have to go back and get some cleaning supplies, but the 

### majority ofthejob wasgoing to bedone."3 After speaking with Levi, Randall deposited the $300 into Elizabeth Rowland's (Levi's girlfriend's) account.

Clerk's Papers at 96.No. 69103-1-1/3 That same day, July 16, Randall contacted Greer and informed him the apartment was clean and vacant. Greer then telephoned Margaret Briscoe, his aunt, to request that she visitthe apartment the next day, July 17, to confirm that Randall had moved out. Randall did not know Greer requested Briscoe to come to the apartment on July 17. Levi had not finished cleaning by July 16. Levi was still at the apartment on July 17, with Jersey. On July 17, Levi leftthe apartment to get some cleaning supplies with Jersey loose in the apartment. Briscoe came to the apartment while Levi was out. When she entered, Jersey attacked her, injuring her legs. Briscoe sued Levi and Rowland (Jersey's owners), Randall, and Greer. Briscoe voluntarily dismissed Greer. Briscoe obtained defaultjudgment against Levi and Rowland, but they arejudgment proofand have no insurance. Briscoe's causes of action against Randall included respondeat superior (agency), premises liability, and negligent entrustment, as well as a claim for violation of the lease agreement as a third-party beneficiary. Randall moved to dismiss all ofthe claims under CR 12(b)(6). The court dismissed the third-party beneficiary claim. Randall then moved for summaryjudgment on the three remaining claims, arguing generally that only owners, keepers or harborers of a dog could be held liable for 

### injuries. He specifically argued that no Washington case had ever permitted a dog bite victim to recover based on agency law. The trial court granted the motion and dismissed all three claims. Because all claims had been resolved, the trial court entered final judgment. Briscoe appeals.No. 69103-1-1/4
DISCUSSION Briscoe argues the trial court erred indismissing her claims against Randall, contending she should have the chance to argue her negligent entrustment, respondeat 

### superiorand premisesliability claims to thejury.4 Wereview de novo a trial court's decision onsummaryjudgment, performing the same inquiry as thetrial court.5 We 

### may affirm an ordergranting summaryjudgmenton any basis supported by therecord.6 Under longstanding Washington common law, only the owner, keeper or 

### harborerofa dog isliable for injuries caused by thedog.7 In 1920, ourSupreme Court considered whether to overturn a verdict in favor of a plaintiff who had sued the receiver 

### ofthe Washington MotionPicture Corporation for negligence when a dog kept on its 

### property escaped andkilled theplaintiff's young son.8 One oftheemployees ofthe corporation owned the dog and was paying anotheremployee tofeed it.9 Thecourt
4Wereject Briscoe's contention that thetrial courthadalready ruled on the viability of her liabilitytheories when itdenied Randall's CR 12(b)(6) motion. As Randall rightly argues, the trial court has the discretion to deny a motion to dismiss on a claim but then grant summaryjudgment on that same claim. Lindsev v. Dayton-Hudson Corp.. 592 F.2d 1118, 1121 (10th Cir. 1979). 

### 5Lvbbertv. GrantCounty. 141 Wn.2d 29, 34, 1 P.3d 1124(2000). Weview all facts and reasonable inferences therefrom most favorably toward the nonmoving party. Id. Summaryjudgment is proper ifthe pleadings, affidavits, and depositions establish that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. jd.; CR 56(c). Ifthe nonmoving party fails to controvert material facts supporting the summaryjudgment motion, those facts are considered to be established. Cent. Wash. Bank v. Mendelson-Zeller. Inc.. 113 Wn.2d 346, 354, 779 P.2d 697 (1989). 

### 6LaMon v. Butler. 112Wn.2d 193, 200-01, 770 P.2d 1027(1989). 

### 7UnderWashington'sstrict liability dog bite statute, RCW 16.08.040, only owners are liable for damages. Briscoe does not assert any cause of action under the statute against Randall. 

### 8Markwood v. McBroom. 110Wash. 208, 208-09, 188 P. 521 (1920). 9 Id. at 209-10.No. 69103-1-1/5 

### looked to the common lawand reasoned that the receiver was plainly not the dog's 

### ownerorkeeper.10 The courtalso applied thefollowing definition: "'Harboring' means protecting, and one who treats a dog as living at his house, and undertakes to control 

### his actions, is the owner or harborer thereof, as affecting liability forinjuries caused by 

## it."11 In concluding the receiverwas not aharborerofthe dog, the courtnoted the dog
was not an asset ofthe corporation, the dog was not in the receiver's possession, and 

### the receivercould not be charged with knowledge ofthe dog'sexistence.12 Having determined the receiver was neither the owner, keeper or harborer ofthe dog, the court vacated thejudgment, reasoning that "[a]tcommon law a person would not be liable for an injuryresulting from the bite of a dog unless he was the owner, keeper, or harborer 

### ofthe dog."13 Many decades later, in Frobiq v. Gordon, the court considered whether the 

### plaintiff, who had been mauled by a Bengal tiger, could recover not against the keeper 

### ofthetiger but against the keeper's landlords (theBranches).14 Anne Gordon, the 

### keeper ofthetiger and thetenant, leasedpropertyfrom the Branches.15 Gordon was in the business ofproviding wild animals for film andvideo projects.16 Gordon had the tiger on her property for a project, and the tiger escaped during the filming of a

10k± at 211. 

### 11 Id, 

### 12jcL at 211-12. 

### 13kL 14124Wn.2d732, 881 P.2d 226 (1994) 

### 15 JcL at 733. 16 Id.No. 69103-1-1/6 

## commercial.17 Thetigerattacked Frobig, seriouslywounding her.18 The court considered whether the trial court had properly dismissed Frobig's action againstthe 

### landlords for negligence andstrict liability.19 The court grounded its analysis inthe common law rule announced in Markwood 

### v. McBroom. stating, "The rule inWashington is that the owner, keeper or harborer of a 

### dangerous or vicious animal is liable; the landlord of the owner, keeper, or harborer is 

## not."20 The courtthen stated, "In short, liabilityflows from ownership ordirectcontrol."21 The court rejected the viability ofthe plaintiff's claim against the landlords because a "landlord owes no greater duty to the invitees or guests of his tenant than he owes to the tenant himself."22 

### The court reasoned further that the landlords' priorknowledge ofthe tiger on the property had no significance because under Washington law, the "landlords would not be liable to the tenant for the tiger's attack so should not be liable to third parties for 

### injuries inflicted by theanimal."23 Thecourtconcluded that"[t]hewild animals were Anne Gordon's alone, and underWashington law liability resulting from the ownership 

### and management ofthose animals rests with Anne Gordon alone."24 Therefore, the court foreclosed any actions against landlords for liability arising out the dangerous



### 17 Id, at 734. 

### 18 id 19 id at 735. 

### 20 id (citing Markwood, 110 Wash. at 208-09) 

### 21 id 

### 22 id 23 id at 737. 24 Id.No. 69103-1-1/7 animals owned, kept, or harbored by tenants. In Clemmons v. Fidler, Division Two ofthis court declined to extend the common law rule to apply to landlords, even where the landlord knows the tenant has a dog with 

### vicious tendencies.25 There, theplaintiffsued thelandlord for injuries to heryoung son underthetheory that the landlord knew his tenants' dog wasdangerous.26 Thecourt reasoned, "[T]he landlord's knowledge is immaterial. We hold that the common law rule 

### applies: only the owner, keeper, orharborer ofthe dog is liable for such harm."27 The
court continued, "This rule is consistent with our case law, with our former criminal and present civil statutes on dogs, and with the analogous law governing landlord liability for 

### defective conditions on leased premises."28 "Common law liability for injuries caused by vicious or dangerous dogs is based upon a form of strict liability. . . . Any injury caused by such an animal subjects the 

### ownertoprimafacie liability without proofofnegligence."29 Issues ofnegligence and 

### contributory negligence, fault and comparativefault therefore have no application.30 The rationale rejecting landlord liability for a tenant's dog expressed in Clemmons and Frobig applies equally to Randall's liability for Levi's dog, regardless ofwhether Levi


### 25 58Wn. App. 32, 33, 791 P.2d 257 (1990): see also Frobig v. Gordan. 124 Wn.2d 732, 735, 881 P.2d 226 (1994) (citing Clemmons). 

### 26 id at 33-34. 27 id at 34. 28 id at 34-35; see also Shafterv. Beyers, 26Wn. App. 442, 446-47, 613 P.2d 554 (1980) (court did not err indismissing on summaryjudgment plaintiffs action 

### against the owner ofthe premises where the dog inquestion was kept by a subtenant because neitherthe dog bite statute nor the common law allowed a plaintiffto recover 

### against a landlord, where landlord was not the owner, keeper or harborer of the dog). 

### 29 Johnston v. Ohls. 76 Wn.2d 398, 400, 457 P.2d 194 (1969). 30 Id. at 401.No. 69103-1-1/8



### was Randall's agent (respondeat superior) or business invitee (premises liabilitytheory). Nordoes the narrowly drawn common law rule permit a claim for negligent entrustment. The common law restricts liability to the owner, keeper or harborer because they own or have direct control ofthe animal.31 There is no genuine issue ofmaterial fact that Randall was neither the owner, harborer, or keeper ofJersey. He had no direct control ofthe animal. Under the longstanding common law rule announced in Markwood. and reiterated in Frobig and 

### Clemmons. a plaintiffinjured by an animal must seek recovery from the owner, keeper

or harborer ofthat animal. The common law precludes Briscoe's alternative theories of liability. Because Randall does not fall within the class ofpeople subject to common law 

### liability, weaffirm dismissal ofBriscoe's claims againsthim.32

WE CONCUR:



### 31 Government agencies involved with animal control mayface liability underthe public duty doctrine, see, e.g.. Gorman v. Pierce County, No. 42502-5-M, slip op. at 7-15 (Wash. Ct. App. Aug. 13, 2013); Livingston v. City of Everett, 50 Wn. App. 655, 658, 751 P.2d 1199 (1988), but that discrete theory ofrecovery does not conflict with the common law standard limiting liability to the owner, keeper or harborer of an animal. 

### 32 See Hacklerv. Hackler, 37Wn. App. 791,794, 683 P.2d241 (1984) (summary judgment is properwhen, although some facts might be disputed, there are not material facts at issue under the legal principle that disposes ofthe controversy).

8