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Mulcahy v. Damron8/20/1991
Judith A. Mulcahy appeals from summary judgment granted in favor of Terry Damron and Marilyn Damron, husband and wife, on Mulcahy's claim under A.R.S. § 24-521 [renumbered § 11-1025], Arizona's dog bite statute, for personal injuries she received from the Damrons' dog while Mulcahy was grooming him at the Amphi Pet Hospital. For the reasons stated below, we reverse.
FACTS AND PROCEDURAL HISTORY
The Damrons had kenneled "Zeke," a bluetick hound, at the Amphi Pet Hospital for four days while they were on vacation. They instructed the pet hospital to groom the dog during this time. They also gave permission for Zeke to be sedated, muzzled or handled in any way the staff deemed prudent and proper. While Mulcahy was positioning Zeke in an enclosed bathing tank, Zeke bit her on the wrist, causing
personal injuries which required surgery. At the time Zeke bit her, Mulcahy had a leash on the dog but had not sedated or muzzled him. Zeke's medical chart, which Mulcahy did not read prior to grooming, warned that Zeke "will bite" and "owner says not to touch tail -- very sensitive, may bite."
Mulcahy filed a claim for personal injuries pursuant to A.R.S. § 24-521. The Damrons filed a motion for summary judgment claiming that (1) Zeke was in the possession and control of Amphi Pet Hospital thereby making him a dog at large and making the pet hospital or Mulcahy responsible for the dog when the injuries were inflicted, citing this court's opinion in Johnson v. Svidergol, 157 Ariz. 333, 757 P.2d 609 (App.1988); (2) the intervening negligence of either Mulcahy or the pet hospital, or both, proximately caused the injury ; and (3) Mulcahy assumed the risk of injury when she accepted the responsibility of grooming dogs.
Mulcahy filed a motion for summary judgment claiming that (1) A.R.S. § 24-521 applied and not A.R.S. § 24-378 [renumbered § 11-1020] because Zeke was not a dog at large; (2) under A.R.S. § 24-521 the defense of assumption of risk is not allowed, only the defense of provocation; and (3) proximate cause was not broken by the entrustment of Zeke by the owner to another person because the duty imposed by § 24-521 is nondelegable.
The trial court granted summary judgment in favor of the Damrons, finding that the issue was possession and control of the dog and that because the Damrons did not have possession and control of Zeke at the time of the bite, he was a dog at large, therefore making Mulcahy and the pet hospital liable as the "person or persons responsible for the dog when such damages are inflicted." A.R.S. § 24-378.
DOG AT LARGE STATUTE
First, we agree with Mulcahy that the dog at large statute does not apply in this case. A.R.S. § 24-378 provides:
Injury to any person or damage to any property by a dog while at large shall be the full responsibility of the dog owner or person or persons responsible for the dog when such damages were inflicted.
"At large" is defined in § 24-361 [renumbered § 11-1001] as "neither confined by an enclosure nor physically restrained by a leash." In this case, Zeke was in an enclosed bathing tank and on a leash when the bite occurred; therefore, according to the clear words of the statute, it cannot apply to him in this case.
Both the trial court's and the Damrons' reliance on Johnson v. Svidergol is misplaced. First, the facts in that case are distinguishable. The dog in Johnson had been stolen and taken from California to Arizona where it bit a child in the back yard of the thi
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