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