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Borns v. Voss6/6/2003
This is an appeal from an order granting summary judgment to the defendants in a dog bite case. The district court concluded that there were no genuine issues of material fact, that the defendants had no prior knowledge that their dog was vicious or possessed other dangerous propensities, and that the defendants, therefore, owed no duty to the plaintiff.
We reverse.
ISSUES
1. Was summary judgment improper because of the existence of genuine issues of material fact?
2. Were the appellees entitled to summary judgment as a matter of law?
3. Should the "one free bite" rule be abrogated?
STANDARD OF REVIEW
Summary judgment motions are governed by W.R.C.P. 56. We review summary judgments under the following standard:
Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to judgment as a matter of law. Matlack v. Mountain West Farm Bureau Mutual Insurance Company, 2002 WY 60, 6, 44 P.3d 73, 6 (Wyo.2002). A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which the parties have asserted. Id. We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. Id. We evaluate the propriety of a summary judgment using the same standards and materials as the lower court used. Id. We do not accord deference to the district court's decisions on issues of law. Id. T.M. ex rel. Cox v. Executive Risk Indem., Inc., 2002 WY 179, 7, 59 P.3d 721, 724 (Wyo. 2002).
FACTS
Clayton Voss and Mitsy Voss do business as Lazy TX Outfitters. Collectively, they are the appellees in this case. As part of their business, the Vosses had established the "Down's Fork" camp in the Wind River Mountains. Jim Borns (Borns) was employed by the Vosses. At the time of the incident that gave rise to this case, Borns had been camping with his children, Carmen and Sam, at Down's Fork for a week or two. Carmen, who was seven years old at the time, is the appellant herein.
On July 18, 1999, the Vosses, along with their male Red Heeler dog, Tramp, arrived in camp. They were accompanied by another employee, Ron Penny (Penny). Clayton Voss testified that he had been in and out of the camp several times in the preceding days. Both of the Vosses testified that on at least two prior occasions in the camp, they had seen Carmen mistreating Tramp. Clayton Voss testified that twice he had seen Carmen hitting Tramp on the back, at least once with a stick, and that on both occasions he had told her "not to do that." Mitsy Voss testified that she had seen Carmen both kick the dog "in the rear end" and hit him on the face, and that she had told Carmen "that was not something we do." Penny testified similarly, indicating that on five or siX occasions he had seen Carmen slap the dog and "tell him no." He further testified that, while he had said something to Carmen at least once about her conduct, he doubted that he had mentioned the incidents to the Vosses.
As proof that the Vosses had prior knowledge of Tramp's dangerous propensities, Carmen submitted the affidavit of her father, who described both an initial warning about Tramp from Clayton Voss and a later experience he had with Tramp:
3. That shortly after becoming employed by the defendants, Clayton Voss warned me to be careful around his dog, Tramp. Mr. Voss indicated that it might take his dog
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