Borns v. Voss6/6/2003
ely the product of judicial decision, born of the necessities of particular circumstance, is subject to judicial repudiation when the reasons which gave rise to its judicial adoption have failed or no longer exist...."
Jivelekas, 546 P.2d at 431 ( quoting Maffei v. Incorporated Town of Kemmerer, 80 Wyo. 33, 338 P.2d 808, 816 (1959), overruled on other grounds by Collins, 521 P.2d at 1344)).
Not surprisingly, Carmen urges us now to take the expansive view that we espoused in Weaver
"* * * The main characteristic of the common law is its dynamism. It does not remain static. The common law is not a thing of chiseled marble to be left unchanged for centuries.
"'Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from supplying principles of common law to new situations as the need arose. If this were not so, we must succumb to a rule that a judge should let others "long dead and unaware of the problems of the age in which he lives, do his thinking for him."...'"
Weaver, 715 P.2d at 1368 ( quoting Lewis v. Wolf, 122 Ariz. 567, 596 P.2d 705, 706 (1979), overruled on other grounds by Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200, 208 (1983)). Also not surprisingly, the Vosses argue to the contrary the important role of stare decisis, as set forth in Adkins v. Sky Blue, Inc., 701 P.2d 549, 551 (Wyo. 1985):
The common law has served us well because it is flexible, able to grow and meet the requirements of changing conditions and a different society. There are times when change is necessary; but the doctrine of stare decisis is also important in an organized society. Change, therefore, should occur slowly, deliberately after much experience, and if possible so as not to affect vested rights or things in the past.
Several states have repudiated the scienter element in dog bite law. See, for example, Mulcahy v. Damron, 169 Ariz. 11, 816 P.2d 270 (1991); Stroop v. Day, 271 Mont. 314, 896 P.2d 439 (1995); Nickell v. Sumner, 1997 OK 101, 943 P.2d 625 (Okla. 1997); S.H. By and Through Robinson v. Bistryski, 923 P.2d 1376 (Utah 1996); State v. Bash, 130 Wash.2d 594, 925 P.2d 978 (1996); and Ward Miller, Annotation, Modern Status of Rule of Absolute or Strict Liability for Dogbite, 51 A.L.R.4th 446, §§ 4, 7-10 (1987). While it is true that these states have abandoned the scienter element and have adopted a "pure" form of strict liability, it is also true that they did so by statute, and not by court decision. See, 4 Am.Jur.2d Animals, supra, § 101 at 438-39. Oklahoma's statute is a typical example of such a statute:
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. 1991 § 42.1 (cited in Nickell, 943 P.2d at 627). Other statutes pointedly reject the scienter requirement:
Every person owning or keeping a dog shall be liable in damages for injury committed by such dog, and it shall not be necessary in any action brought therefor to allege or prove that such dog was of a vicious or mischievous disposition or that the owner or keeper thereof knew that it was vicious or mischievous....
Utah Code Ann. § 18-1-1 (cited in S.H. By and Through Robinson, 923 P.2d at 1380); see also Mulcahy, 816 P.2d at 272 and Stroop, 896 P.2d at 441.
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