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Lichenstein v. Wagner7/20/2005
Lynette Lichenstein appeals the trial court's summary judgment dismissal of her claim for damages against the landlords and property managers of rental property whose tenants owned a wolf-dog hybrid that attacked and injured her. She argues that the trial erred in applying Frobig v. Gordon, 124 Wn.2d. 732, 881 P.2d 226 (1994), to preclude assigning liability to the property owner for Lichenstein's dog-bite injuries, in spite of their possible awareness of (1) wolf-dog hybrids on the property and (2) a defect in the fence around the property. Agreeing with the trial court that Frobig confines liability to the animal's owner or controller, we affirm.
FACTS
Angela and Mathew Wagner rented a Tacoma house owned by Marvin and Janice Nelson (Nelsons). Windermere-Puyallup/Canyon Road, L.L.C. and Windermere Property Management/WPM, Inc., managed the Nelsons' rental property.
The Wagners owned a wolf-dog hybrid, which apparently escaped from the rental property's fenced backyard and attacked Lynette Lichenstein as she walked by her own home nearby. She suffered injuries requiring emergency room treatment at the hospital.
Lichenstein sued the Wagners, Windermere, and the Nelsons. She alleged that the Nelsons and Windermere were liable because the fence on the Nelsons' rental property was in such disrepair that it did not confine the Wagners' wolf-dog hybrid.
The trial court granted Windermere's and the Nelsons' motion to dismiss under CR 12(b)(6), ruling that Frobig controlled.
Lichenstein appeals.
ANALYSIS
I. Standard of Review
We review de novo the propriety of a trial court's dismissal of an action under CR 12(b)(6). Burton v. Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230 (2005). Dismissal is appropriate under CR 12(b)(6) only if 'it appears beyond doubt that the plaintiff cannot prove any set of facts which would justify recovery.' Burton, 153 Wn.2d at 422 (quoting Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)). For purposes of our review, we presume the plaintiff's allegations are true, and we may 'consider hypothetical facts not included in the record.' Burton, 153 Wn.2d at 422 (quoting Tenore, 136 Wn.2d 329-30.)
II. Liability for Animals
It is well settled in Washington that liability for a dangerous dog or wild animal 'flows from ownership or direct control' of that animal. See e.g., Frobig, 124 Wn.2d at 735; Clemmons v. Fiddler, 58 Wn. App. 32, 37, 791, P.2d 257, review denied, 115 Wn.2d 1019 (1990). In addition, local legislative bodies may create different rules with respect to animal liability in order to protect public safety, where such rules do not conflict with more general state laws. Rhoades v. City of Battle Ground, 115 Wn. App 752, 763, 63 P.3d 142 (2002), review denied, 149 Wn.2d 1028 (2003).
Although the Tacoma Municipal Code (TMC) regulates the duties of people who have, keep, maintain, possess, or control dangerous animals, it does not address landlord liability for injuries such animals cause. TMC 5.23.025-.026. And we find nothing in the record to suggest that any other local legislative body has attempted further regulations that would apply here.
Similarly, we find inapposite Lichenstein's emphasis on the landlord's possible knowledge of a defect in the fence on the rental property. Washington has not adopted the Restatement (Second) of Torts sec. 379A (1965), argued by Lichenstein. And the Supreme Court in Frobig expressly held that 'landlords have no duty to protect third parties from a tenant's lawfully owned but dangerous animals,' even where the landlord knows that the danger
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