Moore v. Myers

KRAUSER, Judge. Twelve-year-old Monica Graham was struck by a car in Prince George’s County while fleeing a neighbor’s advancing pit bull. The dog was, at that time, both unleashed and unconfined, in violation of Prince George’s County law. 1 Seeking damages for her daughter’s injuries, Monica’s mother, appellant Mattie Moore, brought a negligence action on behalf of herself and her daughter, in the Circuit Court for Prince George’s County, against the driver of the car, Mia Flatricia Young; the owner of the dog, Michael Myers; his wife, Jeanne Griffin Myers; and her fifteen year-old son, ³⁵⁹ Jaton Griffin. 2 Jaton, appellant alleged, played a pivotal role in this matter: He was with the dog at the time of the accident and had, according to appellant, prompted the dog’s pursuit of Monica, setting in motion the terrible events of that day. In her amended six-count complaint, appellant alleged, among other things, that the accident had resulted from the individual negligence of Ms. Young, Jaton, and Mr. and Mrs. Myers and from the Myerses’ negligent entrustment of Mr. Myers’s pit bull to Jaton.

After granting successive motions for judgment, the first at the conclusion of appellant’s case and the second at the conclusion of the defense, the court permitted the case to go to the jury on a single count, accusing the driver of the striking vehicle, Ms. Young, of negligence. When the jury returned a verdict in favor of Ms. Young, appellant noted this appeal, but solely on behalf of Monica, 3 claiming only that the court had erred in dismissing the negligence and negligent entrustment counts against appel-lees. TRIAL To facilitate our analysis of the issues presented, we shall divide our review of what happened at trial into two segments: appellant’s case and appellees’ defense. That will permit us to highlight the evidence adduced by each side and the rulings made by the court at the conclusion of each segment. ³⁶⁰ Appellant’s Case Although Monica, her treating physician, and both her parents testified, the case for liability, which is the only aspect of this matter before us, rested entirely on Monica’s testimony and the portions of the deposition testimony and answers to interrogatories of Michael Myers and of Mia Young that were read into the record.

We shall not, therefore, recount the testimony of Monica’s parents or her physician, which focused principally on the injuries that Monica sustained and the ensuing medical treatment she received, except to note that this accident left Monica with two broken arms, a broken leg, and a fractured jaw. A. Monica’s Testimony Monica testified that on July 18, 1999, she and three friends were walking along Columbia Park Road, not far from her residence. As the girls approached the Myerses’ home, at 7104 Columbia Park Road, Monica saw Jaton and two other boys, Heath and Nathaniel, “standing by the steps [of the house] with a dog.” Monica knew all three boys either from school or from the neighborhood. The dog was a pit bull.

It was unleashed and standing between Jaton and Heath, in an unenclosed front yard. In front of the Myerses’ house, Jaton and one of Monica’s friends, Showna, got into an argument. At that point, Jaton threatened to “sic his dog on” the girls. When he purportedly “said something to the dog to make the dog ... aggressive,” the dog barked at the girls and started towards Monica, “like it was coming after” her.

As it approached, Monica “got scared,” turned and ran into the path of Ms. Young’s oncoming car. B. Michael Myers’s Deposition Testimony Appellant read portions of Mr. Myers’s deposition testimony into the record. Myers deponed that he owned the pit bull. He insisted, however, that the dog had never bitten anyone, except during personal protection training when the dog bit a ³⁶¹ protective sleeve.

He also stated that he regularly allowed Jaton to play with the pit bull in front of his house, and did not require Jaton to put the dog on a leash. On his way home on the date of the accident, he saw a group of girls walking along Columbia Park Road, headed in the direction of his house. He stated that, when he got home, “[he] walked past Jaton,” who was “by the steps with the dog.” As he entered his house, he heard the slamming of car brakes. C. Mia Young’s Deposition Testimony Excerpts from the deposition of Mia Young were read into the record.

The excepts disclosed that, as Ms. Young drove down Columbia Park Road towards the Myerses’ house, she observed three girls running in the street, with a dog in pursuit. She noted that the dog wore a leash, that it “was behind the children,” and that it looked like it was chasing them. D, Court’s Ruling At the conclusion of appellant’s case, the circuit court granted judgment in favor of Mrs. Myers and Jaton as to all counts and granted judgment in favor of Mr. Myers as to all counts, except Count I. Appellees’ Defense The defense presented only two witnesses: Mia Young, the driver of the vehicle that struck Monica, and Officer James Stanley of the Prince George’s County Police Department. For his convenience, Officer Stanley was permitted to testify during the presentation of appellant’s case, even though he was called by the defense.

The officer testified that when he arrived at the scene of Monica’s accident, he was not told by anyone that a dog had been involved in the accident. Nor did he recall animal control being called in response to this accident. Ms. Young testified that she only saw Monica for a second, before she struck Monica with her car. She confirmed that ³⁶² she saw three girls running in the street, chased by a pit bull wearing a leash.

At the conclusion of Ms. Young’s testimony, the court granted judgment in favor of Mr. Myers as to Count I, submitting only the question of Ms. Young’s negligence to the jury. A verdict in favor of Ms. Young followed. STANDARD OF REVIEW “A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence.” Md. Rule 2-519(a). In deciding such a motion during a jury trial, “the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made.” See Md. Rule 2-519(b).

On appeal, when “reviewing the propriety of the grant or denial of a motion for judgment by a trial judge [we] must conduct the same analysis.” Azar v. Adams, 117 Md.App. 426, 435 , 700 A.2d 821 (1997) (citation omitted). Consequently, “[w]e assume the truth of all credible evidence on the issue, and all fairly deducible inferences therefrom, in the light most favorable to the party against whom the motion is made.” Tate v. The Board of Education of Prince George’s County, 155 Md.App. 536, 544 , 843 A.2d 890 (2004) (citation omitted). Therefore, “if there is any evidence, no matter how slight, that is legally sufficient to generate a jury question, the case must be submitted to the jury for its consideration.” Id. at 545 , 843 A.2d 890 . DISCUSSION I. Appellant contends that the circuit court erred in granting Mr. Myers’s motion for judgment as to Count I of the complaint.

That count alleged that Mr. Myers was negligent in “failing] to contain, control, and warn about [his] pit bull dog so as to not cause injury to others” in violation of a ³⁶³ Prince George’s County law. The county ordinance, upon which appellant relies, required that a pit bull be “maintained within a building or a secure kennel at all times” and if “removed from the building or kennel,” to “be secured by ... a leash and maintained under the control of an adult.” Mr. Myers’s violation of that law, according to appellant, was a proximate cause of Monica’s injuries. Our analysis begins with the observation that “Maryland has adopted a very restrictive rule about granting [motions for judgment] in negligence actions.” Banks v. Iron Hustler Corp., 59 Md.App. 408, 423 , 475 A.2d 1243 (1984). Indeed, it “has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury.” Id.

(quoting Fowler v. Smith, 240 Md. 240, 246 , 213 A.2d 549 (1965)). “The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury.” Id. (emphasis omitted). To prevail in a typical negligence action, one must show “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” Horridge v. Saint Mary’s County Department of Social Services, 382 Md. 170, 182 , 854 A.2d 1232 (2004). But, “where there is an applicable statutory scheme designed to protect a class of persons which includes the plaintiff, ... the defendant’s duty ordinarily ‘is prescribed by the statute’ or ordinance and that the violation of the statute or ordinance is itself evidence of negligence.” Brooks v. Lewin Realty III, Inc., 378 Md. 70, 78 , 835 A.2d 616 (2003) (citations omitted).

In that situation, “all that a plaintiff must show is: (a) the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff, and (b) that the violation proximately caused the injury complained of.” Id. at 79 , 835 A.2d 616 . ³⁶⁴ The Prince George’s County law, which appellant maintains Mr. Myers violated, provides that [a]ny person owning a Pit Bull Terrier prior to November 1, 1996, may continue to harbor the animal on his premises under the following conditions: (3) The owner shall maintain the dog within a building or a secure kennel at all times. Whenever the dog is removed from the building or kennel it shall be secured by an unbreakable or unseverable leash and maintained under the control of an adult. Prince George’s County, Md., Code § 3-185.01 (1996). Viewing the evidence in a light most favorable to appellant, we find that there was sufficient evidence establishing a violation of that law by Mr. Myers.

Myers admitted in his deposition testimony that he owned the pit bull in question; that he allowed Jaton to take the dog outside without a leash; that, minutes before Monica was struck by a car, he saw Jaton in the yard with the pit bull; and that he walked past Jaton without attempting to exercise any control over the dog. Although Mr. Myers never testified whéther the dog was, at that time, on a leash, Monica did. She stated that the dog was not on a leash as it pursued her. Thus, at the time of the accident, by all accounts, the pit bull was not under the control of an adult, and, according to Monica’s testimony, it was not on a leash either, in violation of county law.

And that was what the circuit court, in effect, found. It stated, without elaborating: “I believe that I can take judicial notice of this, the violation of the local ordinance, if you will, regarding the pit bull.” After finding that Mr. Myers had violated county law, the . circuit court turned to the question of whether Monica’s ' injuries were proximately caused by the violation. In concluding that they were not, the court stated: Harkening back to the statute, one reads and emphasizes the language that it, meaning the dog, shall be secured by an unbreakable or unseverable leash and maintained under ³⁶⁵ the control of an adult. There is no indication as to what Mr. Myers’ reaction was with his minor son.

There is no indication as to what his minor son was doing. But most significantly is the Court’s recollection, and I certainly may be wrong here, as to what [Monica] testified to. She said the dog looked at me, I got scared, the dog was barking, there was no leash on the dog, which seems to be contradicted, but then she said I ran. She got to the car, she was hit by the car.

It is unequivocal that that’s what she testified to. The point that I make in emphasizing that testimony, and I took the liberty to review my notes again last evening, was that there is no evidence that the dog barking was the proximate cause or a proximate cause, and there certainly can be more than one cause of an accident, of this accident. In so holding, the circuit court failed to view the evidence in the light most favorable to appellant, as it was required to do. Proximate cause, the Court of Appeals has declared, in the context of a statutory violation, “is established by determining whether the plaintiff is within the class of persons sought to be protected [by the statute], and the harm suffered is of a kind which the drafters intended the statute to prevent.” Brooks, 378 Md. at 79 , 835 A.2d 616 . “[T]his cause and effect relationship,” the Court avowed, “makes the violation of a statute primo, facie evidence of negligence.” Id.

And, “[w]here there is evidence that the violation of the statute proximately caused the plaintiffs injury, evidence of such violation ‘is sufficient evidence to warrant the court in submitting the case to the jury on the question of the [defendant’s] negligence.’ ” Id. (citation omitted). “Animal control statutes are designed to protect the public against the hazards of personal injury or property damage caused by roaming animals.... ” Hammond v. Robins, 60 Md.App. 430, 435-36 , 483 A.2d 379 (1984). As a member of the public, Monica fell within the protected class. Injuries suffered as a result of fleeing an approaching pit bull that is both unconfined and unleashed, in violation of county ³⁶⁶ law, are the kind of injuries that the ordinance was meant to prevent.

Insisting, nonetheless, that the circuit court was correct in granting judgment in his favor as to Count I, Mr. Myers maintains that this “case leaves open too many possibilities to lend itself to any easy inferences as to what may have happened.” He directs our attention to the testimony of the policeman who investigated the accident, Officer James Stanley. Officer Stanley testified that, in investigating the accident, “there was no indication of any involvement of a pit bull and neither animal control nor any related agency was called to investigate any violation of the City Ordinance.” As “a police officer has a sworn duty to investigate violations of the law,” Myers suggests that “the lack of an investigation demonstrates a lack of any evidence of a violation.” But that argument obscures more than it enlightens. “[T]he credibility of the witnesses and the weight to be given the evidence on each side of the issue is primarily for the trier of fact[,]” Hall v. Coates, 62 Md.App. 252, 265 , 489 A.2d 41 (1985), which, in this instance, was the jury not the court. The inconclusive nature of one witness’s testimony hardly provided grounds for preventing this case from going to the jury. Mr. Myers also claims that, as a matter of law, “Jaton’s alleged actions, if proven, constitute a superseding, intervening act which would sever any proximate cause attributable to the violation of the ordinance,” as does, he maintains, “[t]he actions of Mia Young.” Indeed “even if any negligence was attributable to” him, he argues that “it was so attenuated by the superseding acts of Jaton and/or driver Ms. Young as to terminate any liability under the facts as presented in this case.” “The chain of causation may be broken by an intervening force (negligent or non-negligent) that may, in turn, become a superseding cause, in which case the original tortfeasor’s liability will terminate.” Yonce v. Smithkline Beecham Clinical Laboratories, Inc., 111 Md.App. 124, 140 , ³⁶⁷ 680 A.2d 569 (1996). “It is a superseding cause, whether intelligent or not, if it so entirely supersedes the operation of the defendant’s negligence that it alone, without his negligence contributing thereto in the slightest degree, produces the injury.” Id.

(citing State ex rel. Schiller v. Hecht Co., 165 Md. 415, 421 , 169 A. 311 (1933)). “[T]he connection is not actually broken,” however, “if the intervening event is one which might, in the natural and ordinary course of things, be anticipated as not entirely improbable, and the defendant’s negligence is an essential link in the chain of causation.” Id. “An intervening force is a superseding cause if the intervening force was not foreseeable at the time of the primary negligence.” Yonce, 111 Md.App. at 140 , 680 A.2d 569 . “Normally, the ‘foreseeability inquiry is ... a question of fact to be decided by the trier of fact’; [i]t is only when the facts are undisputed, and are susceptible of but one inference, that the question is one of law for the court....” Id. at 141 , 680 A.2d 569 . (citations omitted). Myers’s negligence was not, as a matter of law, superseded by the acts of Jaton or Ms. Young.

The jury could have reasonably concluded, based on the evidence presented, that Mr. Myers should have foreseen the danger posed by his dog to the children outside his house. Had he complied with the law and either confined his dog or leashed him and placed him under the control of an adult, the accident would probably not have occurred, or so the jury could have concluded.

II

Appellant contends, in her brief, that the circuit court erred in granting judgment in favor of Mr. and Mrs. Myers as to whether they negligently entrusted the pit bull to Jaton (Count III). At argument before this Court, however, appellant slightly altered her position. She conceded, at that time, that the circuit court was correct in granting judgment in favor of Mrs. Myers, because there was no evidence that Mrs. Myers was an owner of the pit bull. That concession leaves only the question of whether the circuit court erred in grant ³⁶⁸ ing judgment in favor of Mr. Myers, the undisputed owner of the dog, on the negligent entrustment claim.

The doctrine of negligent entrustment provides: One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them. Robb v. Wancowicz, 119 Md.App. 531, 538 , 705 A.2d 125 (1998) (citing Restatement (Second) of Torts § 390 (1965)). In granting appellees’ motion for judgment on the negligent entrustment count, the circuit court stated: [F]rom my research it appears that the only place I can find that concept of negligent entrustment discussed is motor vehicle law. And we know now that the only person operating the motor vehicle was Ms. Young.

It is a novel theory, but one that doesn’t hold water as long as this Court is concerned.... Appellant contends that even though “most of the cases addressing the issue of negligent entrustment are case [sic] involving automobiles, the legal theory as adopted in Maryland is not limited to such claims.” There is indeed no reference to “motor vehicles” in the Maryland definition of that tort. It refers to the negligent entrustment of “chattel” not “motor vehicles”. And dogs are chattel under Maryland law, as elsewhere.

See Miller v. Hirschmann, 170 Md. 145 , 183 A. 259 (1936); People v. Dyer, 95 Cal.App.4th 448 , 115 Cal.Rptr.2d 527 (2002); Koester v. VCA Animal Hospital, 244 Mich.App. 173 , 624 N.W.2d 209 (2000); Richardson v. Fairbanks North Star Borough, 705 P.2d 454 (Alaska 1985); Soucek v. Banham, 524 N.W.2d 478 (Minn.App.1995); Daughen v. Fox, 372 Pa.Super. 405 , 539 A.2d 858 (1988). ³⁶⁹ “Chattel” is defined as “[mjovable or transferable property; personal property; esp., a physical object capable of manual delivery and not the subject matter of real property.” Black’s Law Dictionary 251 (8th ed. 2004). And “personal property” is defined as “[a]ny movable or intangible thing that is subject to ownership and not classified as real property.” Id. at 1254. Since a dog is a “movable ... thing that is subject to ownership and not classified as real property,” it is personal property and thus chattel. Although the circuit court was correct in observing that, in Maryland,