Kara Kelly, V. Amanda Mayo ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KARA KELLY,
No. 81764-7-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
AMANDA MAYO, a single person;
SHANE DONOVAN MOORE-HAGGIN,
a single person; KARRIE J. DUTTON
and DONALD D. DUTTON, wife and
husband, and the marital community
composed thereof,
Respondents.
APPELWICK, J. — Kelly brought a premises liability action against Mayo’s
landlord, based on injuries her daughter received from a dog bite by Mayo’s dog
on the leased premises. The trial court granted summary judgment for the
landlord. We affirm.
FACTS
Amanda Mayo leased a condo from Karrie Dutton beginning on July 2,
2015. Despite a pet prohibition in the lease, she adopted a dog several months
later in December 2015. Dutton was aware that Mayo had adopted the dog.
Representatives of the condominium community informed Dutton that the dog had
displayed aggressive behavior towards another dog in the condominium
community. On January 30, 2016, the dog attacked five year old C.K., while he
was Mayo’s social guest in the condo.
No. 81764-7-I/2
C.K.’s mother Kara Kelly brought suit against Mayo, Dutton, and Dutton’s
husband Donald Dutton, and Shane Moore-Haggin (corporately “Dutton”). She
asserted, inter alia, a premises liability claim that the Duttons had a duty to warn
those entering the premises of the danger posed by the dog.
Both sides moved for summary judgment. The trial court granted summary
judgment for Dutton, finding that landlords are generally not responsible for
animals on the leased premises, even if they know the animal may be dangerous.
Kelly appeals.
DISCUSSION
Kelly argues that the trial court erred in granting summary judgment
dismissing her claim against Dutton. She argues the court should have granted
summary judgment for her instead. The parties’ primary dispute is whether
landlords can be liable for a dog bite on their leased premises under a premises
liability theory.
Summary judgment is appropriate where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. CR
56(c). We review summary judgment determinations de novo, engaging in the
same inquiry as the trial court. Durland v. San Juan County, 182 Wn.2d 55, 69,
340 P.3d 191 (2014).
Dutton argues that landlords generally cannot be liable when a tenant’s dog
bites someone. Pointing primarily to Frobig v. Gordon, 124 Wn.2d 732, 735, 881
P.2d 226 (1994), they argue that it is “‘settled law’” that “‘only the owner, keeper,
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No. 81764-7-I/3
or harborer’” of a dog is liable for the injuries the dog causes. (quoting Clemmons
v. Fidler, 58 Wn. App. 21, 35-36, 791 P.2d 257 (1990)).
Kelly points to Oliver v. Cook, 194 Wn. App. 532, 544, 377 P.3d 265 (2016).
There, this court allowed a premises liability claim by a tenant against their landlord
for a dog bite the tenant sustained from a dog brought onto the leased premises
by the landlord’s invitee. Id. at 543-44. Kelly argues this case establishes a
“separate analysis” from other theories of dog bite liability through which landlords
can be held liable for their tenants’ dangerous dogs.
Since the briefing in this case, our Supreme Court decided Saralegui Blanco
v. Gonzales Sandoval, 197 Wn.2d 553, 485 P.3d 326 (2021). There, like here, a
plaintiff argued that a landlord was liable for injuries caused by their tenant’s dog
under a premises liability theory. Id. at 554. Our Supreme Court rejected the
claim, considering both Frobig and Oliver. Id. at 557-58, 564. It reasoned that
premises liability attached only to a possessor of land, who generally must occupy
and control the land. Id. at 559. Generally, in a landlord-tenant relationship,
possession and control are transferred to tenants. Id. at 560. The court recognized
that a claim could exist where a landlord retains control over a portion of the leased
premises. Id. But, it specifically rejected the notion that landlord liability can be
based on only knowledge and control through lease provisions. Id. at 560-61.
Kelly makes that very same argument. She argues that Dutton retained
control over whether animals were kept on the premises based on the “no pets”
clause in the lease. And, she argues that Dutton should have taken steps to
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correct the situation once she was informed that the dog was potentially
dangerous.
We follow the Saralegui Blanco court in declining to impose premises
liability on Dutton based on knowledge and control through lease terms. Because
Kelly cannot establish premises liability as a matter of law, dismissal of the claim
against Dutton at summary judgment was proper.
We affirm.
WE CONCUR:
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