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03/03/95 JAMES B. WILLIAMS AND BERTHA WILLIAMS v.

March 3, 1995

JAMES B. WILLIAMS AND BERTHA WILLIAMS
v.
WILLIAM HILL



Appeal from Elmore Circuit Court. (CV-91-638). John Bush, Trial Judge.

Released for Publication July 5, 1995.

Maddox, Justice. Shores, Houston, Kennedy, Ingram and Butts, JJ., concur. Cook, J., concurs in the result.

The opinion of the court was delivered by: Maddox

MADDOX, JUSTICE.

This appeal raises an issue regarding the liability of a dog owner for allowing the dog to run at large on the public streets and roadways. The plaintiffs, James B. Williams and his wife, Bertha, appeal from a summary judgment in favor of the defendant, William Hill.

The specific question presented is whether a dog owner, who under Alabama law is charged with the general knowledge of the propensities of the breed of animal he or she owns, should be charged with the general knowledge that all dogs chase motor vehicles.

Through able counsel, the plaintiffs contend that "in our society today, given both the increasing number of motor vehicles and roadways, as well as the number of dogs kept as pets," such a rule, imposing liability on dog owners for injuries proximately caused by the dog's chasing a motor vehicle, is necessary. After thoroughly reviewing the principles of law applicable to injuries caused by dogs allowed to go upon public roadways, we hold that the owner of a dog may not be charged with the general knowledge that all dogs chase motor vehicles, and therefore that the law will not impute such general knowledge to dog owners in actions for injuries incurred. We, therefore, affirm the defendant's summary judgment.

The defendant William Hill owns a golden retriever named "Buddy Bear." On August 25, 1990, Hill was outside working on his car while Buddy Bear roamed the yard. The plaintiffs were riding a motorcycle on an unpaved public roadway in front of Hill's house. Buddy Bear ran out onto the road and collided with the Williamses' motorcycle, causing it to crash. The Williamses were severely injured. They sued in the Circuit Court of Elmore County, claiming that Hill had negligently allowed the dog to roam. They further alleged that Hill had not properly trained, supervised, and otherwise maintained reasonable control over Buddy Bear. They also claimed that Hill knew of Buddy Bear's propensity to roam and chase cars, and they averred that Hill was responsible for their injuries under the provisions of Ala. Code 1975, § 3-6-1.

Hill filed a motion for summary judgment, supported by filings indicating that, before the accident, he was unaware of any propensity on the part of his dog to chase motorcycles. After a hearing, the Elmore Circuit Court entered a summary judgment for Hill.

The standard of review applicable to a defendant's summary judgment motion is well established. Rule 56(c), Ala. R. Civ. P., provides that a summary judgment is proper when the movant makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, unless the nonmovant rebuts that showing by substantial evidence creating a genuine issue of material fact. See § 12-21-12, Ala. Code 1975; Cain v. Sheraton Perimeter Park S. Hotel, 592 So. 2d 218, 219-20 (Ala. 1991).

Regarding the Williamses' assertion that the defendant is responsible for their injuries under § 3-6-1, Ala. Code 1975, we hold that under the facts of this case, that section is inapplicable. Section 3-6-1 provides a remedy for injuries incurred "when the person so bitten or injured is upon property owned or controlled by the owner of such dog at the time the bite or injury occurs or when such person has been immediately prior to such time on such property and has been pursued therefrom by such dog." It is undisputed by the parties that at the time of the accident the Williamses were riding in front of Hill's home on a public roadway, and that they had never entered the Hill property. Because of those facts, § 3-6-1 is clearly inapplicable, and the summary judgment was properly entered for the defendant on this particular claim.

Because we find that there was no statutory cause of action, we now consider whether there could be an action under the common law, which would be governed by common law principles of negligence.

It is well settled in Alabama that an owner of a domestic animal is not liable for an injury caused by the animal unless it is shown that the owner had previous knowledge of the animal's dangerous or mischievous propensities. Davis v. Ulin, 545 So. 2d 14, 16 (Ala. 1989); Rucker v. Goldstein, 497 So. 2d 491, 493 (Ala. 1986); Durden v. Barnett, 7 Ala. 169, 170 (1844).

This Court considered a similar factual situation in Owen v. Hampson, 258 Ala. 228, 62 So. 2d 245 (1952). The plaintiff in Owen sued after he was knocked from his motorcycle by a dog on the streets of Anniston; the trial court sustained the defendant's demurrer. On appeal, this Court examined the plaintiff's complaint and reversed on one count wherein the plaintiff alleged that the defendant possessed knowledge of the dog's vicious or mischievous propensities. ...


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