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Stroop v. Day6/1/1995
, 52 St.Rep. 461
Submitted on Briefs March 10, 1995.
Hughie E. Stroop filed a complaint in the Eighth Judicial District Court, Cascade County, against James C. Day and Colleen M. Day (the Days), alleging that they were liable for damages he sustained when he was bitten by their dog. Stroop's complaint alleged negligence and violation of § 27-1-715, MCA. Following trial, the jury found that the Days were not negligent nor had they violated § 27-1-715, MCA. Stroop moved for a new trial on his statutory claim. The District Court granted his motion. The Days appeal the decision of the District Court granting Stroop's motion for a new trial. Stroop cross-appeals the District Court's denial of his motion in limine for an order ruling that contributory negligence does not apply to the liability of defendants under § 27-1-715, MCA. We affirm in part and reverse in part.
The issues are:
1. Did the District Court err in granting Stroop's motion for a new trial?
2. Did the District Court err in denying Stroop's motion in limine for an order ruling that contributory negligence does not apply to the liability of defendants under § 27-1-715, MCA?
Stroop and the Days lived across an alley from one another in Great Falls, Montana. On May 19, 1990, Stroop was working in his backyard. He observed James Day in his backyard. Stroop testified that he crossed the alley and approached the Days' residence to tell Mr. Day about a suspicious looking vehicle he had seen near the Days' house on the evening of a recent robbery.
The Days' property was separated from the public alley by a "picket" type fence approximately forty-eight inches high. Stroop stood in the alley next to the Days' fence. As Day and Stroop conversed, Stroop leaned on the fence, rested his arms on the top horizontal cross-board and extended his hands and forearms into the Days' property. The Days' dog, Stogie, ran at Stroop in an aggressive manner. Stroop pulled his hands back from the Days' property.
Day testified that, after Stogie ran at Stroop, he cautioned Stroop about placing his hands over the fence. Stroop denied receiving any such warning.
Day and Stroop continued their conversation for several minutes. Sometime during their discussion, Stroop again leaned against the Days' fence, placing his hands and forearms into the Days' property. When Stroop extended his hands into the Days' property a second time, Stogie jumped up and bit Stroop's right hand. The parties dispute the severity of the bite and the extent of the damages suffered.
Stroop filed a complaint against the Days in the Eighth Judicial District Court, Cascade County. Stroop alleged negligence on the part of the Days as well as violation of § 27-1-715, MCA. Following trial, a jury found that the Days were not negligent nor had they violated § 27-1-715, MCA. Stroop moved for a new trial on his statutory claim. The District Court granted Stroop's motion for a new trial, determining that there was insufficient evidence for the jury to conclude that the Days had not violated § 27-1-715, MCA. The Days appeal the District Court's granting of a new trial. Stroop cross-appeals the District Court's determination that contributory negligence is applicable to the statutory claim.
Issue 1
Did the District Court err in granting Stroop's motion for a new trial?
Pursuant to § 25-11-102, MCA, the District Court determined that there was insufficient evidence to justify the jury's verdict that the Days had not violated § 27-1-715, MCA. We review a district court's decision to grant a new trial to determine
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