Hammond v. Robins

GETTY, Judge. In Slack v. Villari, 59 Md.App. 462 , 476 A.2d 227 (1984), we recognized that a dog owner may be responsible for acts of his animal under either of two theories, negligence or strict liability — the latter arising from the owner’s knowledge of the animal’s propensity to cause harm. The present case, decided prior to our decision in Slack , presents a ⁴³³ factual scenario somewhat similar to Slack , but sufficiently distinguishable to warrant a contrary result. Concisely stated, Slack involved the dog owner opening a fence gate to allow the animal to walk through toward the kitchen door.

Instead, the dog, a Doberman named “Gideon,” proceeded to the sidewalk at the front of the house, snarling and growling at the Villaris. Gideon came within inches of the couple on the sidewalk, but did not bite either of them. Mrs. Villari, however, twisted away from the dog and sustained severe injuries to her back. A divided panel of this Court held that no violation of the Prince George’s County leash law occurred that would establish a prima facie case of negligence, because the dog was not “at large,” and Gideon’s owner had no notice of the animal’s vicious propensities that would warrant the submission of the case to a jury on the theory of strict liability.

In the present case, the trial judge (Gilmore, J.) summarized the facts as follows: Between 7:00 and 7:30 P.M. on April 26, 1981, Donald A. Robins and Dorothy E. Robins, appellees herein, were riding a heavy duty tandem bicycle on Boetler Road in Carroll County when a dog suddenly appeared from appellant’s property and ran across the road directly into the path of appellees’ bicycle. As a result of the evasive action taken by Donald Robins, who was driving the tandem unit, the bicycle toppled over injurying both appellees. 1 The court found that both appellees were experienced in riding a tandem bicycle and that the bicycle was not defective. “Sasha,” appellant’s dog, was an Alaskan Malamute approximately one year old. Appellant’s backyard is enclosed by a chain link fence with a chain affixed to a dog house to prevent Sasha from getting out of the yard. Appellant was aware that Sasha, an even-tempered dog, would leave the backyard and visit other dogs across the ⁴³⁴ street from appellant’s home and elsewhere on Boetler Road.

On April 26, 1981, appellant Nancy Hammond was doing yard work. Sasha was in the yard, unchained. Appellant observed appellees riding the bicycle as she opened the gate to take a garden cart to the front lawn. Sasha came through the open gate and failed to respond to appellant’s command, “Sasha, come here.” Sasha continued beyond two evergreen trees at the end of the driveway, at which point she could not be seen by appellant.

Mrs. Hammond testified that “an instant” after Sasha disappeared from view she heard a crash and saw the appellees lying in the road. The appellees herein base their claim upon negligence of the appellant in permitting Sasha to leave the enclosed yard knowing the dog’s propensity to cross the street when unrestrained. Strict liability, appellees concede, is not applicable to the facts of this case, presumably because Sasha was not a vicious animal. Appellant raises five issues of alleged error by the trial court, namely: 1.

Did the Circuit Court err in holding that a violation of Carroll County leash law, Ordinance No. 26, gave rise to civil liability? 2. Did the Circuit Court err in holding the appellant liable when there was no evidence that she knew or should have known of the propensity of her dog to do the particular harm alleged? 3. Did the Circuit Court err in not finding that the appellees had assumed the risk or at the very least were contributorily negligent in riding the tandem bicycle? 4. Did the Circuit Court err in finding that the dog involved was that owned by the appellant? 5.

Did the Circuit Court err in awarding damages that were clearly excessive and not supported by the evidence? ⁴³⁵ I Appellant argues that unless the animal control ordinance provides for civil liability, none exists. We disagree. Ordinance No. 26, Sec. 5, of the Carroll County Code provides: SECTION 5. RESTRAINT.

(a) All dogs shall be kept under restraint. (b) No owner shall fail to exercise proper care and control of his animals to prevent them from becoming a public nuisance. (c) No owner of an animal shall allow his animal or animals, except cats, to leave his property unattended or unrestrained as defined by this ordinance. (d) Every female dog in heat shall be contained in a building or secure enclosure in such a manner that such female dog cannot come into contact with a male dog except for planned breeding.

(e) Every vicious animal, as determined by