Rubin v. Town of Poultney

Rubin v. Town of Poultney  (97-479); 168 Vt. 624; 721 A.2d 504

[Filed 28-Oct-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-479

                               JUNE TERM, 1998


Rebecca Rubin                        }       APPEALED FROM:
                                     }
                                     }
     v.                              }       Rutland Superior Court
                                     }
Town of Poultney, et al.             }
                                     }       DOCKET NO. S0182-96 RcC


       In the above-entitled cause, the Clerk will enter:


       Plaintiff Rebecca Rubin appeals the Rutland Superior Court's  grant of
  summary judgment in favor of defendants Town of Poultney, Poultney's town
  constable, Douglas Bishop, and Poultney's town manager, Jonas Rosenthal, on
  her negligent  failure to protect claim.(FN1)  We affirm.

       The parties do not dispute the facts.  Richard and Sheila Fleury's
  dog, Ben, bit plaintiff when she jogged past their home in  the Town of
  Poultney.  Two days prior to the incident, the town manager received
  reports that the dog had been roaming the streets frightening people.  The
  reports did not allege that the dog had bitten anyone.  In response to the
  reports, the town manager and the town constable visited the Fleurys'
  residence to advise them to  keep their dog tied up.  The next day, the
  town manager sent a letter to the Fleurys again advising them of the
  complaints and giving them notice that the town selectmen would take action
  in the event the dog bit someone.  The day after the town manager sent the
  letter, the dog bit and injured plaintiff. The dog was not tied up at the
  time of the incident.

       Plaintiff brought suit against defendants, claiming negligent failure
  to protect her from the Fleurys' dog.  The court granted  defendants'
  motion for summary judgment, holding that this case did not trigger
  defendants' statutorily prescribed duty to take action  to protect the
  general public from dogs that bite.  See 20 V.S.A. § 3546.(FN2)  The court
  further held that defendants were not negligent under plaintiff's
  alternative  theories of common law negligence liability.

       In reviewing a grant of summary judgment, this Court applies the same
  standard as the trial court.  See  Madden v. Omega Optical, Inc., 165 Vt.
  306, 309, 683 A.2d 386, 389 (1996). Summary judgment should be granted
  when, taking all allegations made by the non-moving party as true, there
  are no genuine issue of material fact and the moving party is entitled to
  judgment as a matter of law.  See id.  To survive summary judgment, the

 

  nonmoving party must demonstrate sufficient evidence to support a prima
  facie case.  State v. G.S.  Blodgett Co., 163 Vt. 175, 181-82, 656 A.2d 984, 988 (1995).

       By statute, town officials have a duty to investigate if the town
  receives three written complaints that a dog, while off the premises of the
  owner, has bitten a person.  20 V.S.A. § 3546(a), (b). If the town finds
  the animal bit the person without provocation, the town has a duty to
  protect people by ordering the animal muzzled, chained, confined, or
  disposed of in a humane way.  Id. § 3546(c).  On appeal, plaintiff relies,
  not on the Town's statutorily-imposed duty,  but on common law negligence.

       To prevail in a common law negligence action, a plaintiff must
  demonstrate that the defendant owed a legal duty to the plaintiff, the duty
  was breached, the breach constituted the proximate cause of plaintiff's
  harm, and plaintiff suffered actual loss or damage as a  result. O'Connell
  v. Killington, Ltd., 164 Vt. 73, 76, 665 A.2d 39, 42  (1995).  The
  existence of a duty is primarily a question of law.  Id. Absent a duty of
  care, an action for negligence fails.  Behn v. Northeast Appraisal Co.,
  Inc., 145 Vt. 101, 106, 483 A.2d 604, 607 (1984).

       Plaintiff first contends that defendants assumed a duty to her by
  undertaking actions not otherwise required of them.  She relies on the
  Restatement sections stating that one who negligently performs a
  voluntarily assumed undertaking to render services may incur liability if
  his or her actions result in harm to the intended direct recipient of such
  services or to some foreseeable third person.  See generally Restatement
  (Second) of Torts §§ 323, 324A (1965); see also 2 S. Speiser et al., The
  American Law of Torts § 9:22 (1985) (discussing Restatement rule). More
  specifically, she refers to § 324A(b) to argue that, in responding to the
  complaints, defendants undertook to control the Fleurys' dog and thereby
  voluntarily assumed a duty to her above  and beyond their duty under the
  dog-bite statute.

       The trial court did not directly address whether, by warning the
  Fleurys to confine their dog to their premises, defendants had assumed the
  Fleurys' duty to control their dog for the protection of  the public
  generally, or plaintiff individually.  Rather, the court held that, even if
  defendants voluntarily assumed a duty, they acted with reasonable care. 
  Our affirmance rests on different grounds.

       Plaintiff asserts that it takes very little beyond a gratuitous
  promise for courts to find an assumption of a duty.  See W. Keeton, Prosser
  and Keeton on Torts § 56 (5th ed. 1984).  Here, however, defendants merely
  promised to perform their statutory duty should the triggering event occur. 
  See Restatement (Second) of Torts § 324A, cmt. d (proffering illustrations
  of undertaking liability to third persons that either involve promise or
  contract to perform specific service, or concern employee's assumption of
  employer's duty).  They made no promise to confine the dog absent the
  statutory prerequisites. Defendants' verbal and written warnings simply
  served to put the  Fleurys on notice of their dog's reported behavior and
  its potential  consequences.  See Wright v. Schum, 781 P.2d 1142, 1145
  (Nev. 1989) (mere advice or warning by one person to another that care
  should be taken to avoid risk does not itself create undertaking).  We
  therefore conclude that their voluntary action in warning the dog's owners
  did  not constitute an assumption of the owners' duty to control their dog, 
  nor become a duty to protect plaintiff.

       Despite the general principle that duty is a question of law,
  plaintiff alternatively claims that the trial court erred because the
  existence and scope of a voluntarily undertaken duty is a question of fact
  that must be submitted to a jury.  Pratt v. Liberty Mut. Ins. Co., 952 F.2d 667, 670-71 (2d Cir. 1992) (applying Vermont law, i.e., relying on Derosia
  v.

 

  Liberty Mut. Ins. Co., 155 Vt. 178, 189, 583 A.2d 881, 888 (1990), in
  holding that existence of undertaking constitutes question of fact for
  jury).  We need not reach that issue in this case because plaintiff did not
  come forward with sufficient evidence that defendants undertook to control
  the Fleurys' dog for the question to reach a  jury.

       Plaintiff next contends that the town's right to control  vicious dogs
  gives rise to a general legal duty to protect her from vicious dogs.  In
  support, she cites cases in which a specific contractual provision gives
  one party, a landlord for example, a general right to control the other
  party's pets.  Her argument  depends, however, on a mischaracterization of
  the rights defined and the duties imposed by the statute.  Despite the
  statute's general  title, "investigation of vicious dogs," it deals
  specifically with investigation of dogs that bite rather than any general
  right to control dogs.  In this case, defendants' ability to exercise
  control  over dogs exists in narrowly circumscribed conditions and is
  statutory, not contractual, in nature.

       Finally, plaintiff cites to cases in which we have found a duty exists
  by virtue of a special relationship.  We note that she fails to allege any
  such special relationship between town officials and residents that would
  require protection before the statutorily-imposed duty to investigate and
  control takes effect.  The town's right to  control dogs that bite does not
  give rise to a generalized duty to control vicious dogs.

       Affirmed.



                       BY THE COURT:



                       _______________________________________
                       Jeffrey L. Amestoy, Chief Justice

                       _______________________________________
                       John A. Dooley, Associate Justice

                       _______________________________________
                       James L. Morse, Associate Justice

                       _______________________________________
                       Denise R. Johnson, Associate Justice

                       _______________________________________
                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes

FN1.   Although the trial  court also granted summary judgement on
  plaintiff's claim of intentional infliction of emotional  distress,
  plaintiff does not appeal this ruling.

FN2. We refer throughout to the statute in effect at the time of the
  incident, but the statute has since undergone general amendment.