Higgens v. Bagalio ( 2020 )

STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit {\) Docket No. 616-11-19 Wncv
020 Oc1 -7 A ll: 21
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Higgins vs. Bagalio et al
ENTRY REGARDING MOTION
Count 1, Personal Injury - Dog Bite (616-11-19 Wncv)
Count 2, Personal Injury - Dog Bite (616-11-19 Wncv)
Count 3, Personal Injury - Dog Bite (616-11-19 Wncv)
Title: Motion for Summary Judgment (Motion 1)
Filer: Shawn Bailey
Attorney: John E. Brady
Filed Date: July 20, 2020
Response filed on 09/14/2020 by Attorney Steven A. Adler for Plaintiff Katherine Higgins
Response filed on 09/18/2020 by Attorney John E. Brady for Defendant Suzan Bailey
Response filed on 09/25/2020 by Attorney Steven A. Adler for Plaintiff Katherine Higgins
The motion is GRANTED.
The motion is GRANTED.
In this dog bite case, Plaintiff, Katherine Higgins, has sued the landlord of the dog owner
asserting a duty by the landlord to have made sufficient inquiry to disqualify the dog owner
from renting the residence.
Plaintiff Katherine Higgins alleges that her neighbor, Mr. Skyler Bagalio, invited her into
his home, she entered, and shortly thereafter Baxter, Mr. Bagalio’s pit bull, attacked her
without provocation causing serious injuries. Mr. Bagalio rented his single-family home from
Defendants Shawn and Suzan Bailey. In this case, Ms. Higgins claims that the Baileys, as Mr.
Bagalio’ s landlords, are liable for the injuries caused by Baxter.! The Baileys have filed a
summary judgment motion, arguing that they have no liability for Ms. Higgins’ injuries because
they did not know at the inception of the lease agreement with Mr. Bagalio (or at any time
prior to the attack) that Baxter had any dangerous propensity to attack people. Ms. Higgins
opposes summary judgment, arguing that the Baileys are liable for failing to proactively
investigate Baxter’s dangerousness before letting him move in and, in any event, there is a
triable issue as to whether the circumstances were such that they should have known that
Baxter was dangerous.
Ms. Higgins’ principal argument in this case is that a residential landlord has a proactive
duty to investigate whether a dog moving into a leased residence is dangerous, regardless of
basis to suspect that the dog may be dangerous, and if so the landlord must either not permit
* Initially, Mr. Bagalio was a defendant in this case. He has since been dismissed at’Ms. Higgins’ request. He had
Baxter euthanized shortly aftér the attack.
the dog to move in or to take steps to protect third parties. She argues that tort duties in
Vermont are a factual issue rather than a legal one, and her landlord-expert has opined that a
reasonable Vermont landlord, no matter the circumstances, always should investigate
dangerousness before permitting dogs to move into leased premises. She thus argues that the
applicable duty in this case is a dispute of fact that should be resolved by the jury at trial.
Ms. Higgins’ argument that, in Vermont, the existence of a legal duty is a matter of fact
is wrong, and that issue is not fairly debatable. “Existence of a duty is primarily a legal
question.” Sutton v. Vermont Regl. Ctr., 2019 VT 71A, 4] 26, 2020 WL 4380709; Deveneau v.
Wielt, 2016 VT 21, 4] 8, 201 Vt. 396; Buxton v. Springfield Lodge No. 679, Loyal Or. of Moose,
Inc., 2014 VT 52, 4 7, 196 Vt. 486; Langlois v. Town of Proctor, 2014 VT 130, 4 7, 198 Vt. 137.
“Whether or not one party owes a duty to another is an expression of policy considerations
about when people are entitled to legal protection. Thus, whether a duty is owed is primarily a
legal question in which the Legislature or courts ‘apply general categorical rules’ establishing or
withholding liability.” LeClair v. LeClair, 2017 VT 34, 4 10, 204 Vt. 422 (citation omitted)
(quoting Restatement (Third) of Torts § 7 cmt. a and citing Kuligoski v. Brattleboro Retreat,
2016 VT 54A, 4] 19, 203 Vt. 328 (superseded by statute on other grounds)).
A recent Vermont Supreme Court case resolves the issues in this one: in that case the
duty applicable here was exhaustively discussed in Gross v. Turner, 2018 VT 80, 208 Vt. 112. In
Gross, a pedestrian was walking by a leased residence. Social guests of the tenants accidentally
let the tenants’ dogs out of the house. They charged at the pedestrian and injured him. The
pedestrian sued both the social guests and the landlord. As in this case, the injured party was a
“third person outside the landlord’s property.” /d. 4] 1. It was clear in Gross that the landlord
had no knowledge that the dogs were dangerous. The principal issue was whether the landlord
had any duty to “investigate” whether the dogs were dangerous, as the pedestrian alleged that
if the landlord had investigated, the dogs’ dangerousness would have been revealed.
The Court described the landlord’s duty generally as follows: “a landlord owes a duty to
take reasonable steps to protect persons outside the land from injuries caused by a tenant’s
dog if the landlord knew or had reason to know at the time of entering the lease that the dog in
question posed an unreasonable risk of harm to such persons.” /d. 4 13. The knew-or-should-
have-known standard “does not create an obligation on the part of the landlord to actively
inquire into the dog’s history before permitting it to reside on the premises.” /d. 4] 18. “To
know” means to actually know, and having “reason to know” means “actual knowledge of facts
that would alert a reasonable person to the dog’s vicious propensities.” /d. Beyond that, there
simply is no duty to inquire or investigate. This is so ona dog-by-dog basis. The mere fact that
the dog is a member of a suspected “dangerous breed” is insufficient. See id. 4 17 (“[T]his
Court has never held that a dog’s breed alone is sufficient to put its owners or others on notice
that it poses an unreasonable risk of harm, or that pit bulls or other breeds are dangerous per
se. In Vermont, liability in dog-bite cases has always depended on the propensities of the
individual animal.”). “Where the plaintiff offers no evidence that the landlord knew the
tenant’s dog was dangerous, the landlord is not liable for the plaintiff's injures.” /d. 4 14.
Ms. Higgins disregards the Gross decision as irrelevant to this case because, in Gross, the
landlord was well acquainted with the dogs and, based on that acquaintance, had no concerns
about their dangerousness, whereas in this case the Baileys knew virtually nothing about
Baxter. See id. {| 4. Those are the facts of Gross, and they are material to the issue of whether
the landlord in that case “should have known” that the dogs were dangerous. The Gross Court
nowhere rules, however, that those facts are a necessary predicate to the landlord’s lack of a
duty to investigate, and the decision is clear that they are not. The record either includes
evidence of actual knowledge or that could reasonably satisfy the should-have-known standard
or it does not. Gross controls this case. Because a landlord’s duty in a case such as this is
clearly established by Gross, Ms. Higgins’ efforts at establishing a different, more protective
duty are ineffectual.?
The issue in this case, as in Gross, thus turns from the law to the evidence. To survive
summary judgment, Ms. Higgins had to come forward with “admissible evidence from which a
jury could conclude that at the time of entering the lease, [the Baileys] knew or had reason to
know [that Baxter] posed an unreasonable risk” to non-tenant, third-parties such as Ms.
Higgins. Gross v. Turner, 2018 VT 80, 4 15, 208 Vt. 112.
The record of this case is reasonably clear that the Baileys knew virtually nothing about
either Mr. Bagalio or Baxter before they moved into the leased premises. The rental unit was
being leased by a different tenant, who surprised the Baileys by terminating her lease early.
The Baileys had recently moved out of state. The departing tenant agreed to try to find a
replacement tenant, and so identified Mr. Bagalio as a prospect.
There is good evidence that the Baileys knew, prior to the inception of the tenancy, that
Mr. Bagalio had a dog and intended that Baxter would live at the leased premises. There also is
evidence to the effect that Baxter had viciously attacked a child in the recent past. There is no
evidence that the Baileys actually knew that Baxter had ever behaved dangerously and there is
no evidence that should have reasonably caused them to infer that he was dangerous. Ms.
Higgins argues that the departing tenant and the Baileys’ real estate agent both were the
Baileys’ general agents and thus anything they knew about Baxter was attributable to the
Baileys. Among the problems with this argument is that there is no material evidentiary
support of record to the effect that either knew, prior to the inception of the lease, that Baxter
was dangerous. The attack evidently occurred shortly after Mr. Bagalio and Baxter moved in.
As in Gross, it may well be that the Baileys, had they simply inquired, would have
learned that Baxter had recently attacked a child, and that presumably would have put them on
clear notice as to his dangerous propensity. But the evidence is clear that they did not do so,
and the law is clear that they did not have a duty to do so.
? The court notes that nothing in Gross or in the record of this case indicates that either landlord is a “professional”
landlord who manages a large number of units and may be subject to different standards and expectations as a
result. Ms. Higgins’ expert is such a professional landlord, and he makes no distinction between an amateur
landlord and a professional landlord, the type or configuration of rental housing at issue, etc. Implicit in his
statement that landords should inquire about the nature of animals on premises is the self interest of landlords in
the protection of their property from harm as much as protecting others. Such facts point out areas of potential
distinction with Gross in other cases, though they do not apply here. Otherwise, to the extent that Ms. Higgins
_finds the Gross Court’s assessment of the competing policy interests insufficiently protective of third-party rights,
her remedy is to seek a change in the law, either before the Vermont Supreme Court or the legislature. The trial
court does not simply disregard binding precedent no matter how much it might disagree with its wisdom. “Until a
[higher] court . . . revokes a binding precedent, a [lower] court . . . is hard put-to ignore that precedent unless it has
unmistakably been cast into disrepute by supervening authority.” Eulitt ex rel. Eulitt v. Maine, Dept. of Educ., 386
F.3d 344, 349 (1st Cir. 2004).
Finally, Ms. Higgins generally claims (with little explanation) that the Baileys are liable
under a Marshfield civil ordinance regulating domestic pets. Ms. Higgins presumably intends
that the Baileys were “keepers” of Baxter under the ordinance since they obviously were not
owners. The ordinance does not define landlords to be the keepers of their tenants’ pets.
More generally, keepership “requires a person to exercise a similar degree of control and care
for a dog as its owner.” Gross v. Turner, 2018 VT 80, 4] 23, 208 Vt. 112. There is no evidence
that the Baileys were Baxter’s keepers. Even if there were some other way that the ordinance
could trigger tort liability, it does not apply to the Baileys.
There is no evidence from which a jury could reasonably find that the Baileys breached
any duty causing Ms. Higgins’ injuries.
ORDER
The Baileys’ motion for summary judgment is granted. Defendant to prepare a final
judgment order for the court’s execution.
Judge
Notifications:
Steven A. Adler (ERN 4209), Attorney for Plaintiff Katherine Higgins
John E. Brady (ERN 1882), Attorney for Defendant Shawn Bailey
John E. Brady (ERN 1882), Attorney for Defendant Suzan Bailey