MARSHALL v. CITY OF TULSA

MARSHALL v. CITY OF TULSA
2024 OK 78
Case Number: 122429
Decided: 11/06/2024
THE SUPREME COURT OF THE STATE OF OKLAHOMA

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

SARAH MARSHALL, Plaintiff/Appellant,
v.
CITY OF TULSA and LOREN POSS, Defendants/Appellees.

ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
STATE OF OKLAHOMA

HONORABLE CAROLINE WALL, TRIAL JUDGE

¶0 Tulsa Animal Welfare, a department within the City of Tulsa, placed a pit bull mix with Loren Poss. Poss went on vacation and left dog with pet-sitter, Sarah Marshall. Dog bit Marshall when she attempted to separate a dog fight. Marshall sued City of Tulsa pursuant to the strict liability dog bite statute, 4 O.S. § 42.1 and common law negligence. The trial court granted City's Motion for Summary Judgment, finding Marshall was an "owner" of dog and could not recover under 4 O.S. § 42.1 and City did not owe a duty to Marshall. Marshall appealed, and we retained the matter. We hold that Marshall is an "owner" under 4 O.S. § 42.1 and City did not owe Marshall a duty of care.

MATTER PREVIOUSLY RETAINED FOR DISPOSITION;
JUDGMENT OF THE TRIAL COURT AFFIRMED.

Daniel B. Graves, Rachel E. Gusman and Shea A. Bielby, GRAVES MCLAIN PLLC, Tulsa, Oklahoma for Plaintiff/Appellant.

T. Michelle McGrew and Hayes T. Martin, City of Tulsa, Tulsa, Oklahoma for Defendant/Appellee.

OPINION

ROWE, V.C.J.:

BACKGROUND

¶1 In January 2020, Tulsa Animal Welfare ("Tulsa Animal")¹ rescued Julian, a neglected male pit bull mix. When Julian was found, he was malnourished, covered in fleas, and did not have food, water, or shelter. Julian's owners were charged with felony animal cruelty. Julian remained in Tulsa Animal's care for two years until he was placed with foster Loren Poss ("Foster"), his caretaker. Prior to fostering Julian, Foster entered into the Tulsa Animal Welfare Foster Agreement ("Foster Agreement") with Tulsa Animal.

¶2 Pursuant to the Foster Agreement, Foster agreed to provide a temporary home for Julian and understood that she was responsible for his care. The Foster Agreement further stated that "any Tulsa Animal Welfare foster animal in [Foster's] care is owned by Tulsa Animal Welfare and can be removed from [Foster's] care at any time by Tulsa Animal Welfare, . . ."² The Foster Agreement also provided that Foster understood she was not allowed to have others "care for [her] foster animal(s) unless [she] received approval from the Foster Coordinator."³

¶3 During the weekend of March 24-27, 2022, Foster planned to go out of town. In accordance with the Foster Agreement, Foster contacted the Foster Coordinator to inquire what should be done with Julian while she was away. The Foster Coordinator did not respond. Ultimately, Foster hired Plaintiff/Appellant Sarah Marshall ("Marshall"), a Rover.com⁴ pet-sitter, to house and care for Julian while Foster was out of town for the weekend.⁵

¶4 When Foster arrived at Marshall's home with Julian, Foster discovered that Julian would be boarded among five other dogs.⁶ After Foster left, Marshall let Julian off his leash and into the backyard with the five other dogs. When Marshall brought the six dogs inside to place them in their respective crates, Julian allegedly attacked another dog.⁷ In an attempt to separate the dogs, Marshall grabbed Julian's harness, whereupon Julian turned and bit Marshall's right hand multiple times resulting in several fractures and nerve damage.

PROCEDURAL HISTORY

¶5 The City of Tulsa's Department of City Experience executes responsibilities related to safety and animals through its Tulsa Animal Welfare division. The City of Tulsa ("City") is a political subdivision of the State of Oklahoma, making any tort claim against it or one of its divisions subject to the Government Tort Claims Act, 51 O.S. § 151 et seq.⁸ Marshall served timely notice of her claims on City pursuant to 51 O.S. § 156.⁹ City denied all claims in June 2022. Marshall filed her petition six months later--within the prescribed time-period--alleging strict liability pursuant to 4 O.S. § 42.1¹⁰ against City and common law negligence and negligence per se pursuant to Tulsa, Okla. Ord., Title 2, Ch. 1, § 101(A)(4);¹¹ § 107;¹² and Ch. 6 § 601¹³ against City and Foster.¹⁴

¶6 City filed its Amended Motion for Summary Judgment arguing Marshall's claims failed as a matter of law because (1) Marshall was an owner of Julian at the time of the dog bite under 4 O.S. § 42.1 and (2) Marshall failed to prove the elements of common law negligence. Marshall filed a Partial Motion for Summary Judgment arguing the court should find as a matter of law that City was the only owner of Julian at the time of the dog bite for purposes of strict liability under 4 O.S. § 42.1.

¶7 The trial court denied Marshall's Partial Motion for Summary Judgment, finding as a matter of law Marshall was an owner of Julian under 4 O.S. § 42.1. The trial court granted City's Motion for Summary Judgment finding City owed no duty, breached no duty, and did not cause Marshall's injuries. Marshall appealed, and we retained the matter for disposition.

STANDARD OF REVIEW

¶8 The appellate standard of review of summary judgment is de novo. Boyle v. ASAP Energy, Inc., 2017 OK 82, ¶ 7, 408 P.3d 183, 187. On appeal, this Court assumes plenary and non-deferential authority to reexamine a district court's legal rulings. John v. St. Francis Hospital, Inc., 2017 OK 81, ¶ 8, 405 P.3d 681, 685. Summary judgment will be affirmed only if the Court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 11, 160 P.3d 959, 963-64. All inferences and conclusions to be drawn from the materials must be viewed in a light most favorable to the nonmoving party. Tiger v. Verdigris Valley Electric Coop., 2016 OK 74, ¶ 13, 410 P.3d 1007, 1011.

¶9 Even when the facts are not controverted, if reasonable persons may draw different conclusions from the facts, summary judgment must be denied. Bird v. Coleman, 1997 OK 44, ¶ 20, 939 P.2d 1123, 1127. When genuine issues of material fact exist, summary judgment should be denied, and the question becomes one for determination by the trier of fact. Brown v. Okla. State Bank & Trust Co., 1993 OK 117, ¶ 7, 860 P.2d 230, 233. Because the district court has the limited role of determining whether there are such issues of fact, it may not determine fact issues on a motion for summary judgment nor may it weigh the evidence. Stuckey v. Young Exp. Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730.

ANALYSIS

A. When 4 O.S. § 42.1 and Tulsa Municipal Ordinance Title 2, Ch. 1, § 100
Are Read Contemporaneously, Marshall Is Considered an Owner for
Purposes of Strict Liability Under 4 O.S. § 42.1.

¶11 Oklahoma's dog bite statute is derived from the common law and is liberally construed. Nickell v. Sumner, 1997 OK 101, ¶ 13, 943 P.2d 625, 628. See also 12 O.S. § 2;¹⁵ 25 O.S. § 29.¹⁶ It imposes liability without regard to fault. Id. ¶5, 943 P.2d at 627. The elements of strict liability under 4 O.S. § 42.1 consist of (1) ownership of the dog, (2) lack of provocation, (3) a bite or other injury to the plaintiff by the dog, and (4) the plaintiff's lawful presence at the place where the attack occurs. Hampton By and Through Hampton v. Hammons, 1987 OK 77, ¶ 17, 743 P.2d 1053, 1058; Hood v. Hagler, 1979 OK 163, ¶ 9, 606 P.2d 548, 550. Oklahoma law specifies that "[t]he owner or owners of any dog shall be liable for damages to the full amount of any damages sustained when his dog, without provocation, bites or injures any person while such person is in or on a place where he has a lawful right to be."¹⁷ The question before us is whether, under the facts of this case, Marshall was an owner of Julian for purposes of 4 O.S. § 42.1.

¶12 City relies on Hampton By and Through Hampton v. Hammons, 1987 OK 77, 743 P.2d 1053 to support its argument that Marshall was an owner at the time of the dog-bite. In Hampton, after a young boy was bitten by the neighbor's son's dog, the boy's parents sued, claiming the neighbor was the owner of the dog under 4 O.S. § 42.1. The neighbor argued there could be no recovery under § 42.1 because neighbor's ownership of the dog was not established. We recognized that neither the statute nor case law gave direction as to how narrowly or broadly the term owner should be defined. Id. ¶ 24, 743 P.2d at 1059. As such, we looked at § 42.1 and considered Tulsa Municipal Ordinance, Title 2, Ch. 1, § 1(d) (1973).¹⁸

¶13 We determined that "[w]hen both the legislature and a home rule municipality have passed regulations in the same area, the test the municipal ordinance must survive in order to supersede the statute depends upon whether the power being exercised is purely municipal, or whether there is a wider public interest involved." Hampton, ¶ 26, 743 P.2d at 1060. We determined matters concerning dog attacks is one area of concurrent local and state concern. Id. "Only when the local ordinance and state statute contain express or implied conditions inconsistent and irreconcilable with one another will they be characterized as conflicting." Id.

¶14 We found § 42.1 and Tulsa Municipal Ordinance, Title 2, Ch. 1, § 1(d) (1973) neither inconsistent nor irreconcilable, reasoning "the Tulsa ordinance includes the whole of [the state statute's] definition and merely expands it to include persons who harbor or exercise control over a dog." Id. And where "potentially conflicting legislation may be construed in such a way as to give effect to both and do violence to neither, that construction will be adopted rather than one leading to a conclusion that the two are at odds." Id. We construed § 42.1 and Tulsa Municipal Ordinance Title 2, Ch. 1, § 100 (1973) contemporaneously to hold the neighbor was an owner for purposes of § 42.1.

¶15 Marshall argues she was not an owner of Julian but only a temporary boarder and that City has the legal right of possession of Julian. Marshall relies upon the Court of Civil Appeals' ruling in Hass v. Money, 1993 OK CIV APP 38, 849 P.2d 1106 to support her argument.¹⁹ In Money, while owners were on vacation, they boarded their dog at an animal clinic. Id. ¶ 1, 849 P.2d at 1107. An employee of the animal clinic was bitten by owners' dog while walking him and filed suit against owners under 4 O.S. § 42.1. Owners relied on Hampton to argue the employee fell within the definition of an owner at the time the dog bit the employee. The Court of Civil Appeals, however, erroneously determined that Hampton's "broad definition of owner is a result of construction of § 42.1 and a Tulsa municipal ordinance dealing with vicious dogs." Id. ¶ 7, 849 P.2d at 1107-08 (emphasis added). The Court of Civil Appeals' specious analysis of Hampton led the court to find owner in § 42.1 could not be extended and the definition of owner was restricted to a person having the legal right to possession. Id.

¶16 The Court of Civil Appeal's analysis in Money is incorrect. First, Money improperly concluded Hampton's analysis was inapposite. Specifically, Money's determination that the Hampton Court relied on a definition of owner under a subsection of the Tulsa Municipal Ordinance limited to vicious dogs was incorrect. Money, ¶ 7, 849 P.2d at 1107. The definition of owner Hampton relied upon was applicable to all animals--vicious or not--under the Tulsa Municipal Ordinance Title 2, Ch. 1 § 1(d) (1973).²⁰ Second, Money's conclusion that the definition of owner is restricted to a person having the legal right to possession is misguided and inconsistent with Hampton--and with our holding today. Accordingly, Money is hereby overruled.

¶17 We find Hampton's analysis instructive to the issue before us. Section 42.1 does not define owner, however, Tulsa Municipal Ordinance Title 2, Ch. 1, § 100 (2021) ("the Ordinance") may aide us in determining whether Marshall was an owner at the time of the dog bite for purposes of § 42.1. The Ordinance defines owner as "any person, firm or corporation having the care or maintenance of, keeping or harboring, or in possession and control or custody of any dog, cat, animal or domestic animal."²¹ City contends Marshall was an owner under the Ordinance and cannot recover against City under § 42.1.

¶18 Here, City is a charter city with the power to "adopt and enforce all ordinances necessary or proper to protect the public peace, health, order, morals, and safety, and to promote the general welfare of the City of Tulsa and its inhabitants." Article I, Section 3 of City of Tulsa Charter.²² We previously held in Hampton, that "matters concerning dog attacks is one area of concurrent local and state concern, and that where such ordinances exist and are not irreconcilable with the state statute, they are to be construed cumulatively." Hampton, ¶ 27, 743 P.2d at 1060. The Ordinance's definition of owner is neither inconsistent nor irreconcilable with § 42.1. Therefore, the Ordinance will operate to extend owner in § 42.1 to include any person expressly covered under the Ordinance.

¶19 The Ordinance defines owner as "any person . . . having the care or maintenance of, keeping or harboring, or in possession and control or custody of any dog. . . ." Marshall was caring for, keeping, and had possession of Julian while Foster was away for the weekend. Although Marshall had temporary possession and custody of Julian, she was ultimately responsible for his care and maintenance--as did Foster, making her an owner.

¶20 This conclusion is further supported by the language of § 42.1. When § 42.1 was enacted, the Legislature contemplated that there could be more than one owner of a dog for purposes of § 42.1. More specifically, § 42.1 states "[t]he owner or owners of any dog shall be liable for the damages..." 4 O.S. § 42.1 (emphasis added). Therefore, finding Marshall is an owner of Julian does not run contrary to the Legislature's manifest intent that there may be more than one owner of a dog.

¶21 Accordingly, we hold that when 4 O.S. § 42.1 and Tulsa Municipal Ordinance Title 2, Ch. 1, § 100 are read contemporaneously, Marshall is considered an owner of Julian at the time of the dog bite for purposes of strict liability under 4 O.S. § 42.1.

B. City of Tulsa Does Not Owe Marshall A Duty Because She Is Not a
Foreseeable Plaintiff.

¶22 In addition to strict liability, Marshall also asserts a common law negligence claim against City. In its Motion for Summary Judgment, City argued there was no duty owed to Marshall because Marshall's harm was not foreseeable. Moreover, City argued Marshall failed to produce any evidence that Julian ever showed signs of aggression. Marshall contended City owed her a duty because it was foreseeable she would be injured due to Tulsa Animal's failure to formally evaluate Julian for aggression. Marshall also argued Foster was an agent of City, making City responsible for Foster's actions. Ultimately, the trial court granted City's Motion for Summary Judgment.

¶23 The material elements of a negligence claim are: (1) a duty owed by the defendant to protect the plaintiff from injury; (2) a failure to perform that duty; and (3) injuries to the plaintiff which are proximately caused by the defendant's failure to exercise the duty of care. Bird v. Pruett's Food, Inc., 2023 OK 92, ¶ 7, 536 P.3d 578, 581. The existence of a duty of care is the threshold question in any negligence action. Wofford v. Eastern State Hosp., 1990 OK 77, ¶ 8, 795 P.2d 516, 518. A duty of care is an obligation owed by one person to act so as not to cause harm to another. See 76 O.S. § 1. Whether the defendant owed the plaintiff a duty of care is a question of law for the court. Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶ 7, 913 P.2d 1318, 1320. If the defendant did not owe a duty of care to the plaintiff, there can be no liability for negligence as a matter of law.

¶24 In determining the legal question of the existence of a duty of care, "the court considers policy factors that lead the law to say a particular plaintiff is entitled to protection." Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 14, 160 P.3d 959, 964 (citing Iglehart v. Bd. of County Commissioners of Rogers County, 2002 OK 76, ¶ 10, 60 P.3d 497, 502). The most important consideration in determining the existence of a duty of care is foreseeability of harm to the plaintiff. Id. Foreseeable risk of harm establishes the zone of risk to assess whether defendant's conduct created a generalized and foreseeable risk of harm to plaintiff. Id.

¶25 Foreseeability, as it relates to duty, is evaluated differently than foreseeability as it relates to the proximate cause analysis. Delbrel, ¶ 12, 913 P.2d at 1322. Foreseeability as an element of proximate cause is a much more specific factual requirement that must be proved to win the case once the courthouse doors are open. Id. Whereas foreseeability as a component of duty involves a lesser inquiry, requiring the court, as a threshold legal matter, to evaluate the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence. Id.

¶26 Marshall contends her injury was foreseeable and within the zone of risk because City owes a duty to the general public to act with ordinary care. Marshall is correct that City owes a duty to use ordinary care when placing an animal for adoption or in a foster home; however, that duty does not extend to all persons that reside within the City of Tulsa. As such, Marshall's residence within Tulsa city limits does not automatically make her a foreseeable plaintiff.

¶27 Marshall relies upon Tulsa Animal's policy which states that prior to placing a dog with a foster or for adoption, Tulsa Animal will conduct a behavioral evaluation. Marshall argues Tulsa Animal failed to conduct a formal behavior evaluation of Julian. Tulsa Animal's policy specifically provides: "All animals being considered for adoption or rescue placement must receive a preliminary health and behavior evaluation."²³ The policy sets forth the procedure for a behavior evaluation:

D. Perform brief behavior evaluation.

 

a. Any aggression toward people at all -- Do not hold for adoption
b. Too fearful -- Do not hold for adoption
c. Not social -- Consider not holding for adoption
d. Aggressive toward other animals -- Do not hold for adoption
e. Food aggressive -- Do not hold for adoption unless it is a puppy that can be...²⁴

Marshall contends Tulsa Animal had a duty to "guard against handing out dangerous dogs as shown by its own Policy. . ."²⁵ and by failing to perform a formal behavior evaluation on Julian, City created a zone of risk making Marshall a foreseeable plaintiff. City's policy, however, does not require a formal evaluation, as suggested by Marshall. In fact, City's policy does not specify any requirements for the behavior evaluation other than to withhold a dog for adoption if the dog exhibits certain characteristics or behaviors.

¶28 To the extent Tulsa Animal did not conduct a behavior evaluation of Julian, Marshall is still not a foreseeable plaintiff. Marshall presented no evidence that Julian displayed characteristics or behaviors that should have kept Tulsa Animal from holding him for adoption in violation of its policy. To the extent Julian showed signs of aggression, perhaps Marshall would be a foreseeable plaintiff--as any person who came into contact with Julian could be considered a foreseeable plaintiff. This, however, would require a showing that City knew or should have known the dog was aggressive.²⁶ See Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 16, 160 P.3d 959, 965 (to prevent summary judgment, plaintiff needed to produce evidentiary materials showing that employee knew or should have known of some danger of harm which would make the harm foreseeable). The record on appeal fails to include evidence demonstrating Julian was aggressive toward humans or other dogs.

¶29 Lastly, Marshall contends she was a foreseeable plaintiff because Foster was an agent of Tulsa Animal, making Tulsa Animal ultimately responsible for Foster placing Julian with Marshall. Marshall also contends City's argument that it could not foresee Julian would be boarded at Marshall's home is flawed. Specifically, Marshall points to Foster's inquiry with Tulsa Animal regarding guidance on what to do with Julian while she was out of town for the weekend to demonstrate Tulsa Animal was on notice Julian would be cared for by someone other than Foster. It is Marshall's contention that Tulsa Animal's notice and failure to instruct Foster on what to do with Julian made Marshall a foreseeable plaintiff.

¶30 It is undisputed that Foster "was acting under a policy for cruelty and neglect cases which declared [Foster] an 'extension of [Tulsa Animal].'"²⁷ To the extent Foster was an agent of Tulsa Animal, by placing Julian with Marshall, Foster violated the Agreement, making her actions fall outside the scope of her authority. A principal is not bound by any act of the agent outside the scope of authority. See N.H. v. Presbyterian Church, 1999 OK 88, ¶ 18, 998 P.2d 592, 600; Cont'l Supply Co. v. Sinclair Oil & Gas Co., 1924 OK 1166, ¶ 4, 235 P. 471, 474. The Agreement expressly provided that Foster will not "allow others to care for [Julian] unless [Foster] ha[s] received approval from the Foster Coordinator."²⁸ Although Tulsa Animal did not provide Foster guidance on what to do with Julian, Foster violated the Agreement by placing Julian with Marshall without approval. Therefore, Foster's placement of Julian with Marshall did not impute a duty onto Tulsa Animal/City.

¶31 On summary judgment, the defendant contends that the facts and circumstances are undisputed and submits evidentiary material supporting its contention. The plaintiff must respond with some evidentiary material that would demonstrate a need for a trial on the issue. Here, Marshall needed to present evidence that City knew or should have known Julian was aggressive such that Marshall's injury was foreseeable. She failed to do so. Accordingly, we find City did not owe a duty to Marshall because she did not fall within the zone of risk that would make her a foreseeable plaintiff.

CONCLUSION

¶32 We find the analysis in Hampton By and Through Hampton v. Hammons, 1987 OK 77, 743 P.2d 1053 sound and correct when applied to the facts of this case. When 4 O.S. § 42.1 and the Tulsa Municipal Ordinance Title 2, Ch.1 § 100 are construed contemporaneously, Marshall is considered an owner for purposes of the strict liability dog-bite statute, 4 O.S § 42.1.

¶33 In a common law negligence claim, the existence of a duty is established when a plaintiff's harm was reasonably foreseeable. Marshall's harm was too far attenuated to make Marshall a foreseeable plaintiff; therefore, City owed no duty to Marshall.

¶34 The trial court's order granting City's Motion for Summary Judgment and denying Marshall's Partial Motion for Summary Judgment is hereby affirmed.

MATTER PREVIOUSLY RETAINED FOR DISPOSITION;
JUDGMENT OF THE TRIAL COURT AFFIRMED.

Kane, C.J., Rowe, V.C.J., Kauger, Winchester, Edmondson, Gurich, Darby and Kuehn, JJ., concur.

Combs, J., concurs in result.

FOOTNOTES

¹ The City of Tulsa is the listed defendant because Tulsa Animal Welfare is a department of the City of Tulsa.

² Tulsa Animal Welfare Foster Agreement, Tulsa Animal Ex. 5.

³ Id.

⁴ Rover.com is "the world's largest and most trusted network of 5-star pet sitters and dog walkers. Rover connects dog and cat owners with pet care whenever they need it. Millions of services have been booked on Rover, including pet sitting, dog walking, in-home dog boarding, and doggy day care. Through Rover's straightforward website and app, anyone can easily find, message, and book a pet care provider who'll treat their pet like family. And on TheDogPeople.com--one of the world's top pet blogs--Rover provides tips and articles that delight, inform, and enhance the bond between people and their pets." Rover, https://www.rover.com/blog/wpcontent/uploads/2016/10/Rover_Fact_Sheet_JP_20190423.pdf?msockid=240e6d072eff6187320079af2f2c60f7 (last date visited September 20, 2024).

⁵ It is undisputed that Foster violated the Foster Agreement by leaving Julian with Marshall without approval from Tulsa Animal.

⁶ Three of the dogs were personal to Marshall. Marshall was boarding the other two dogs through Rover.com. The dogs ranged in size and breeds.

⁷ According to the police report, when Julian was picked up from Marshall's house "there was blood and dog treats all over the place. [The woman who picked up Julian] stated she can't confirm but judging by the scene, she suspect[ed] the dogs were loose in the house and somebody introduced dog treats. [She] suspect[ed] he [sic] dogs were basically fighting over food." Tulsa Police Department Police Report, Marshall's Motion for Partial Summary Judgment, Exhibit A.

⁸ The City of Tulsa's Department of City Experience executes responsibilities related to safety and animals through its Tulsa Animal Welfare division.

⁹ "A. Any person having a claim against the state or a political subdivision within the scope of Section 151 et seq. of this title shall present a claim to the state or political subdivision for any appropriate relief including the award of money damages.

B. Except as provided in subsection H of this section, and not withstanding any other provision of law, claims against the state or a political subdivision are to be presented within one (1) year of the date the loss occurs. A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs."

51 O.S. § 156(A)-(B).

¹⁰ "The owner or owners of any dog shall be liable for damages to the full amount of any damages sustained when his dog, without provocation, bites or injures any person while such person is in or on a place where he has a lawful right to be." 4 O.S. § 42.1.

¹¹ Tulsa, Okla. Ord., Title 2, Ch. 1, § 101(A)(4) provides:

"A. It shall be unlawful and an offense under the terms of this title for any person within the corporate limits of the City of Tulsa to:

 

4. Harbor, keep or have possession of any dangerous animal, except as provided in Chapter 6 of this title. Every person violating subparagraph 101.A.4 shall be guilty of an offense and, upon conviction, shall be punished by imprisonment in the City Jail for a period of not exceeding six (6) months or by a fine of not more than One Thousand Two Hundred Dollars ($1,200.00) excluding costs, fees and assessments, or both such fine and imprisonment.

¹² Tulsa, Okla. Ord., Title 2, Ch. 1, § 107 provides:

"A. It shall be the duty of WIN and the Chief of Police to investigate any proper claim that an animal is dangerous within the meaning of this chapter. Should the investigating official determine that a dangerous animal poses an immediate threat to the public health or safety, that official shall immediately seize and impound the animal, or otherwise seek an order from the court that the animal be impounded. The official shall also refer the matter to the City Attorney for approval of a verified complaint requesting a finding by the court that the impounded animal is dangerous and aid in the proceedings instituted in the Municipal Criminal Court against any person for harboring a dangerous animal.

B. If the court shall fail to find, upon a preponderance of the evidence presented in an evidentiary hearing, that the animal seized and impounded is a dangerous animal, then the court shall order WIN to return the animal to its Owner. If such animal is found by the court to be a dangerous animal, the court shall order WIN to euthanize the animal.

C. At the option of the Owner, but subject to the approval of WIN, an animal impounded pursuant to this section may be confined in a private kennel or veterinary clinic during the pendency of the dangerous animal action. The operators of the facility shall then assume full liability for the confinement and maintenance of such animal and shall not release it without first being authorized by WIN or the court. All fees for such impoundment shall be the responsibility of the Owner. In no event shall the City of Tulsa be liable for costs or fees charged by the private facility. Further, the City may assess to the Owner the cost of transporting the animal to the privately-operated impoundment facility."

¹³ Tulsa, Okla. Ord., Title 2, Ch. 6, § 601 provides:

"It shall be unlawful and an offense for an Owner of a dangerous dog to permit the dog to be outside the proper enclosure unless the dog is muzzled and restrained by a substantial chain or leash and under physical restraining of a responsible person over sixteen (16) years of age. The muzzle shall be made in a manner that will not cause injury to the dog or interfere with its vision or respiration but shall prevent it from biting any person or animal."

¹⁴ Defendant Foster was dismissed from the case without prejudice on October 6, 2023. Marshall withdrew her negligence per se claim at the summary judgment hearing.

¹⁵ "The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object." 12 O.S. § 2.

¹⁶ "The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to the laws of this state, which are to be liberally construed with a view to effect their objects and to promote justice." 25 O.S. § 29.

¹⁷ 4 O.S. § 42.1.

¹⁸ The Tulsa Municipal Ordinance provided the following meaning to "owner" in 1973:

 

"Owner as used herein shall mean and include the owner of any dog, cat, animal or domestic animal as herein defined and also every other person having the care or custody of or harboring, keeping or maintaining any dog, cat, animal or domestic animal as herein defined, except a kennel proprietor as herein defined...."

¹⁹ Additionally, Marshall relies on the Foster Agreement's language which states the foster animal is "owned by Tulsa Animal Welfare and can be removed from [Foster's] care at any time by Tulsa Animal Welfare, . . ." to support her proposition that City is the sole owner of Julian. Tulsa Animal Welfare Foster Agreement, Tulsa Animal Ex. 5. We find that this language serves to demonstrate that Tulsa Animal has the authority to remove an animal from a foster's care and does not negate Marshall's status as an owner of Julian at the time of the dog bite.

²⁰ Under Tulsa Municipal Ordinance, Title 2, Ch. 1, § (1)(d) (1973), which was in effect in 1987 when Hampton v. Hammons, 1987 OK 77, 743 P.2d 1053 was decided, the definition of "owner" is almost identical to the definition of "owner" in Tulsa Municipal Ordinance Title 2, Ch. 1, § 100 which was in effect when Marshall was bitten. It appears the primary change was the section numbers.

²¹ Tulsa Municipal Ordinance, Title 2, Ch. 1, § 100.

²² "Subject only to such limitations imposed by the Constitution and laws of the United States of America, by the Constitution and such laws of Oklahoma binding upon cities adopting charters for their own government under the authority granted by Article XVIII, Section 3, of the Constitution of Oklahoma, and by the provisions of this amended Charter, the City of Tulsa shall have the power:

 

To adopt and enforce all ordinances necessary or proper to protect the public peace, health, order, morals, and safety, and to promote the general welfare of the City of Tulsa and its inhabitants;"

²³ Marshall's Response to City's Motion for Summary Judgment, Ex. B.

²⁴ Id.

²⁵ Marshall's Response to City's Motion for Summary Judgment at 18.

²⁶ Marshall points to a report in Julian's file which states "since [Julian] is intact I don't recommend a dominant female in the home" to suggest City knew Julian was aggressive with female dogs. This assertion mischaracterizes the note, however. Reading the note in toto, it was recommended Julian not be placed with female dogs because he was not neutered and the females around him reacted to his presence. Marshall's Response to City's Motion for Summary Judgment, Exhibit D.

²⁷ Plaintiff's Response and Objections to Defendant City of Tulsa's Amended Motion for Summary Judgment and Brief in Support, at 11.

²⁸ City of Tulsa's Amended Motion for Summary Judgment, Exhibit 5, Foster Agreement.