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Fouts v. Mason4/28/1999
No. 85
Appeal from the Iowa District Court for Marshall County, M.D. Seiser, Judge.
Child appeals from summary judgment ruling dismissing her claim for personal injuries she received from a dog bite on defendant's property. REVERSED AND REMANDED WITH DIRECTIONS.
The plaintiff, Tiffany Fouts, through her mother, Tracy Jensen, appeals from a summary judgment ruling dismissing her claim against the defendant, Winifred Barker. Fouts seeks damages against Barker for personal injuries she received from a dog bite on property Barker owned. Fouts alleges two theories: strict liability under the provisions of Iowa's dog bite statute, Iowa Code section 351.28 (1997), and premises liability. The district court held as a matter of law that Barker was not liable under either theory. We affirm as to strict liability and reverse as to premises liability. We remand for further proceedings consistent with this opinion.
We review a district court's ruling on a motion for summary judgment for correction of errors at law. Iowa R. App. P. 4; see Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524, 528 (Iowa 1995). Summary judgment is proper only when
"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Iowa R. Civ. P. 237(c).
The "genuine issue as to any material fact" requirement means the evidence is such that reasonable minds could differ on how the issue should be resolved. Thorp Credit, Inc. v. Gott, 387 N.W.2d 342, 343 (Iowa 1986). "An issue of fact is `material' only when the dispute is over facts that might affect the outcome of the suit, given the applicable law." Fees v. Mutual Fire & Auto. Ins. Co., 490 N.W.2d 55, 57 (Iowa 1992).
A motion for summary judgment is functionally akin to a motion for directed verdict. Thorp Credit, 387 N.W.2d at 343. When ruling on a motion for a summary judgment, the district court must therefore (1) view the evidence in the light most favorable to the nonmoving party-in this instance Fouts-and (2) accord the nonmoving party every legitimate inference that can be deduced from the evidence. Id.
Accordingly, we must review the record as we would on a motion for directed verdict to determine whether Barker has shown no genuine issue of material fact. See Dickerson v. Mertz, 547 N.W.2d 208, 212 (Iowa 1996). On our review, we must, like the district court, view the evidence in the light most favorable to Fouts and accord her every legitimate inference that can be deduced from the evidence. See id. We, of course, must also determine whether the district court correctly applied the law. Lawlor, 528 N.W.2d at 528.
The record in this case consists of the pleadings, answers to interrogatories, and affidavits. Viewing the evidence in the light most favorable to Fouts, we glean the following facts from the record.
Barker lives in Marshalltown and owns two adjoining properties there. She lives in one of the houses (406 East Linn) and has rented the other house (404 East Linn) to her daughter, Mary Mason. In 1982, there was a fence at the back of the house where Barker lives. At that time, Barker joined this fence with a new fence around the back of 404 East Linn. There is no partition separating these two properties so, in effect, there is a single backyard with a common fence. In 1985, Mason moved into 404 East Linn.
Mason, with Barker's permission, has kept a chow/cocker spaniel mix- named Hank-in the single backyard since 1993. Hank was allowed to roam freely there. In
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