Teresa Marie Burt, as Mother and Next Friend of Salem Paul Baker, and Teresa Marie Burt, Individually v. Anthony R. Miller

IN THE COURT OF APPEALS OF IOWA

No. 12-1934
Filed March 26, 2014

TERESA MARIE BURT, As Mother and
Next Friend of SALEM PAUL BAKER,
and TERESA MARIE BURT, Individually,
Plaintiffs-Appellees,

vs.

ANTHONY R. MILLER,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.

Defendant appeals the judgment against him in a tort suit arising from a

dog bite. AFFIRMED.

Anthony R. Miller, Waterloo, appellant pro se.

Carter Stevens of Roberts, Stevens, Predergast & Guthrie, P.L.L.C.,

Waterloo, for appellee.

Considered by Vogel, P.J., McDonald, J., and Huitink, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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HUITINK, S.J.

Defendant appeals the judgment against him in a tort suit arising from a

dog bite. Iowa Code section 351.28 (2009) imposes strict liability to the owner of

a dog for damages done by the dog. We conclude that under section 351.28 the

district court properly assigned one hundred percent of the fault to defendant,

who was the owner of the dog. The owner’s knowledge of a dog’s propensity to

be vicious is not an essential element of claims against dog owners. Other

issues raised by defendant on appeal have not been preserved for our review.

We affirm the decision of the district court.

I. Background Facts & Proceedings.

Anthony Miller owned a home in Waterloo, Iowa, where he lived with his

son, Roger, and a pitbull dog. A friend, Douglas Baker, was also staying with

him. Douglas’s son, Salem Baker came to visit him every other weekend. On

May 23, 2009, Salem, who was then eleven years old, was spending the

weekend at Miller’s home. While Salem was petting the dog that evening, it

nipped at his hands. No injury occurred at that time.

Salem stated that when he came downstairs in the morning on May 24,

2009, the dog started barking at him. The dog chased him, he tried to run away

but tripped, and the dog bit him on the leg. Douglas, who was in the house, got

the dog off of Salem. Miller and Roger were outside at the time. Salem required

medical treatment for the dog bite. Miller subsequently had the dog put down.

Salem’s mother, Teresa Burt, filed a tort action against Miller as mother

and next friend of Salem and individually, claiming Miller was negligent and as a

result Salem suffered serious injuries. Miller represented himself in the lawsuit.
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He signed requests for admissions stating he was the owner of the dog and

Salem suffered injuries as a result of the dog bite. In answers to interrogatories,

Miller stated he owned the home where the incident took place. Additionally,

Miller stipulated that the medical bills presented by plaintiffs were fair and

reasonable for the treatment of Salem’s injuries caused by the dog bite.

The case proceeded to a trial to the court on October 8, 2012. Salem

testified he was in the hospital sixteen days. He had five surgeries on his leg,

including a skin graft. He still walks with a limp and cannot stand for long periods

of time. Salem stated he was unable to participate in sports with his friends.

Burt stated Salem was embarrassed to have people see his leg. Salem’s

grandmother testified Salem had become afraid of dogs. Evidence was

presented that Salem had medical bills of $54,655.04. There was a Medicaid

adjustment of $34,866.83 and a Medicaid payment of $19,788.21.

The district court entered a decision finding Miller was one hundred

percent at fault. The court determined Miller was negligent in that he failed to

maintain control of his dog knowing the reputation of pitbulls and knowing the

dog had nipped at Salem’s hands the night before. The court assessed

damages of $54,655.04 for past medical expenses; $25,000 for past pain and

suffering; $5000 for future pain and suffering; $20,000 for loss of body; and

$10,000 for future loss of body. The court awarded Burt $10,000 for past loss of

consortium and $1000 for future loss of consortium. In total, judgment was

entered against Miller for $125,655.04, plus interest. Miller appeals the decision

of the district court.
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II. Standard of Review.

Tort actions are tried at law, not in equity. Kreamer v. Coll. of Osteopathic

Med., 301 N.W.2d 698, 700 (Iowa 1981). In cases tried at law, our review is for

the correction of errors at law. Iowa R. App. P. 6.907. “When a party challenges

the sufficiency of the evidence to support the factual findings made by the district

court in a bench trial, we must examine the record for substantial evidence in

support of the challenged findings.” Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168,

179 (Iowa 2004).

III. Merits.

A. In his pro se appeal, Miller raises several constitutional issues that

were not raised before the district court. “[W]e require error preservation even on

constitutional issues.” State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999).

Because this issue was not presented to nor decided by the district court, we

conclude it has not been preserved for our review. See O’Hara v. State, 642

N.W.2d 303, 314 (Iowa 2002). Therefore, we do not address Miller’s

constitutional claims.

B. Miller challenges the district court’s finding that he was one hundred

percent at fault. He points out that Douglas was living at the property at the time

and was inside the house, while Miller was outside. Miller asserts the court’s

allocation of fault is not supported by the evidence.

Iowa Code section 351.28 provides:

The owner of a dog shall be liable to an injured party for all
damages done by the dog, when the dog is caught in the action of
worrying, maiming, or killing a domestic animal, or the dog is
attacking or attempting to bite a person, except when the party
damaged is doing an unlawful act, directly contributing to the injury.
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This section does not apply to damage done by a dog affected with
hydrophobia unless the owner of the dog had reasonable grounds
to know that the dog was afflicted with hydrophobia and by
reasonable effort might have prevented the injury.

Section 351.28 imposes strict liability to the owner of a dog for damages

done by the dog. Fouts ex rel. Jensen v. Mason, 592 N.W.2d 33, 36 (Iowa

1999). A plaintiff may establish ownership by showing (1) the dog was in the

defendant’s possession and (2) the defendant was harboring the dog on the

defendant’s premises as owners usually do with their dogs. Id. at 37. A person

having temporary care of a dog, such as a groomer, does not become the owner

of the dog. Collins v. Kenealy, 492 N.W.2d 679, 682 (Iowa 1992). In a request

for admissions, Miller admitted he was the owner of the dog that attacked Salem.

The only defenses to the strict liability imposed on dog owners are found

in the statute; contributory negligence is not a defense. Id. Miller’s claims that

Douglas should share a portion of the fault is not supported by the law. See id.

We note there are no allegations that Salem was doing an unlawful act at the

time he was attacked by the dog or that the dog had hydrophobia. See Iowa

Code § 351.28. We conclude that under section 351.28 the district court properly

assigned one hundred percent of the fault to Miller, who was the owner of the

dog.

C. Miller claims there is not sufficient evidence in the record to support

the district court’s findings that the dog nipped at Salem’s hands the evening

before the dog bit him. He also questions Salem’s testimony, “I think he [Miller]

just put it in another room or something like that I think.”
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The owner’s knowledge of a dog’s propensity to be vicious is not an

essential element of claims against dog owners. Steinkuehler v. Brotherson, 443

N.W.2d 698, 700 (Iowa 1989). “Our cases under [section 351.28] have held legal

dog owners absolutely liable, regardless of whether or not the owner was

negligent or had knowledge of the dog’s vicious propensity.” Collins, 492 N.W.2d

at 682. The issue of whether the dog nipped at Salem’s hands the night before

and whether Miller knew of it is therefore not relevant to the issue of whether

Miller is strictly liable for injuries caused by the dog’s attack. We do not address

this issue further.

D. Finally, Miller contends the amount of past medical expenses

awarded to plaintiffs is not supported by the evidence. He claims that while

plaintiffs presented medical bills of $54,655.04, they received a Medicaid

adjustment of $34,866.83 and a Medicaid payment of $19,788.21, leaving only

three dollars uncovered.1

Section 351.28 makes the owner of a dog liable for damages “done by”

the dog. Hagen v. Texaco Ref. & Mkting, Inc., 526 N.W.2d 531, 537 (Iowa

1995). “This language implicitly requires a causal connection between the

animal’s actions and the damages sought by the plaintiff.” Id. Miller signed a

stipulation, “That medical bills and summary of treatment incurred herein were

within a reasonable degree of medical certainty proximately caused by the dog

bite on or about May 24, 2009,” and “That said bills are fair and reasonable and

1
According to our mathematical calculations, the medical bills of $54,655.04, less the
Medicaid adjustment of $34,866.83 and Medicaid payment of $19,788.21 leaves an
amount of zero.
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medically necessary.” Therefore, Miller has agreed there was a causal

connection between the dog’s actions and Salem’s past medical expenses.

The issue Miller raises on appeal appears to be whether plaintiffs may

recover the full amount of Salem’s past medical expenses when those expenses

were covered by Medicaid. This issue was not raised before the district court.

We conclude it has not been preserved for our review and do not address it. See

Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“It is a fundamental

doctrine of appellate review that issues must ordinarily be both raised and

decided by the district court before we will decide them on appeal.”).

We affirm the decision of the district court.

AFFIRMED.