* Jay Rhodes v. Rodney Machugh

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

FILED
NOVEMBER 3, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JAY H. RHODES, 	)
) 	No. 32S09-I-III
Appellant, 	)
)
v. 	)
)
RODNEY MACHUGH, 	) 	PUBLISHED OPINION
)
Respondent. 	)
SIDDOWAY, C.J. - 	Comments to § 23 of the Restatement (Third) of Torts, which
deals with strict liability imposed on the owners of abnormally dangerous animals,
observe that the common law has been satisfied overall with the generalization that
livestock are not excessively dangerous, but "[i]n the future, courts might wish to give
consideration to particular genders ... of a species that involve danger levels uncommon
for the species itself." RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND
EMOTIONAL HARM § 23 cmt. e (2010) (emphasis added). In this case, Jay Rhodes asks
us to hold the owner of a ram (a male sheep) strictly liable for harm caused by the ram on
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 32S09-I-III
Rhodes v. MacHugh
account of the ram's gender-based dangerousness, rather than any abnormal
dangerousness of which the owner was aware.
Mr. Rhodes is a particularly sympathetic plaintiff and appellant, both in the
circumstances he presents and the forthrightness of his argument on appeal. But we
conclude that existing Washington common law strikes the appropriate balance in
imposing limited strict liability on the owners of domestic animals and otherwise
imposing a duty of care commensurate with the character of their animals. 	We affirm the
summary judgment dismissal of Mr. Rhodes's complaint.
FACTS AND PROCEDURAL BACKGROUND
Jay Rhodes and Rodney MacHugh are long-time friends and neighbors. Both men
live in Richland and have farmed for decades. Mr. Rhodes has raised cows, horses, and
occasionally pigs and goats, but he described the summer of 20 12 as "my first excursion
with sheep. And an unfortunate one." Clerk's Papers (CP) at 21. Mr. MacHugh has
bred sheep for over thirty years. Because Mr. MacHugh's land is prone to flooding, Mr.
Rhodes has allowed Mr. MacHugh to keep some of his livestock on Mr. Rhodes's
property.
In the summer of 20 12, Mr. MacH ugh and Mr. Rhodes went to a livestock yard in
Lewiston, Idaho, where Mr. MacHugh purchased a ram to replace his existing ram, which
he described as "in really old shape." CP at 26. The replacement ram was eight or nine
2
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 32509-1-III
Rhodes v. MacHugh
months old I and weighed in the neighborhood of 150 pounds. 	It showed no vicious
tendencies. The men took it directly to Mr. Rhodes's property where, for the following
month, it caused no problems. In the weeks before Mr. MacHugh put the ram in with
ewes, Mr. Rhodes described it as "real friendly. 	He'd come up to me several times when
I was changing water, and I'd pet him." CP at 22.
On August 20, 2012, Mr. Rhodes went into his yard to tum on his sprinklers. By
that time, Mr. MacHugh had put several ewes in the pasture with the ram. Mr. Rhodes
walked past them and toward the five-foot sprinklers in the pasture. Just as he touched
the valve at the top of the sprinklers, the ram butted him from behind, knocking him to
the ground. According to Mr. Rhodes, the ram continued to "jump up in the air and then
he'd hit me with his head," knocking him out "a couple of times," for as much as 30
minutes. CP at 23. Fortunately, a neighbor who stopped by to bring Mr. Rhodes some
cantaloupes saw what was going on. Although Mr. Rhodes told her not to come into the
pasture, she began throwing her cantaloupes at the ram, which was sufficiently distracted
that Mr. Rhodes was able to crawl to the gate. 	She helped him out and slammed the gate
on the charging ram. Mr. Rhodes, then 82 years old, suffered a concussion, five broken
ribs, and a broken sternum and shoulder. He was hospitalized for 16 days.
I At that age, it was a "lamb ram," but we refer to it as a ram for simplicity.
3
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 32509-1-111
Rhodes v. MacHugh
Mr. Rhodes filed this action in an effort to recover for his injuries. He did not
contend that the ram was abnormally dangerous and he refused to accuse his friend of
negligence, testifying, "I don't think Mr. MacHugh thought there was anything wrong"
with the ram. CP at 23. For his part, Mr. MacHugh admitted that he had owned as many
as three "mean" rams over the years but that "on my place, if they're the least bit mean,
they go real quick." CP at 27. He testified that he had selected this ram because it was
the "friendliest" of three that the seller had raised on a bottle after their mother died. CP
at 26.
Because Mr. Rhodes relied exclusively on a theory of strict liability that he asked
the court to extend to the owners of all rams, not just those known to be abnormally
dangerous, the parties presented the legal issue to the trial court on summary judgment.
Mr. MacHugh's motion for summary judgment dismissing the claim was granted. Mr.
Rhodes appeals.
ANALYSIS
The sole issue on appeal is whether summary judgment in favor of Mr. MacHugh
was proper because he is not strictly liable for harm caused by a ram he did not know to
be abnormally dangerous. No material facts are in dispute and we, like the trial court, are
presented with a pure question of law that we review de novo. 	Triplett v. Dep't of Soc. &
Health Servs., 166 Wn. App. 423, 427, 268 P.3d 1027 (2012).
4
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 32509-1-II1
Rhodes v. MacHugh
For more than a century, the rule in Washington regarding liability for harm
caused by a domestic animal2 has been:
"The owner or keeper of a domestic animal not naturally inclined to
commit mischief, while bound to exercise ordinary care to prevent injury
being done by it to another, is not liable for such injury if the animal be
rightfully in the place when the mischief is done, unless it is affirmatively
shown, not only that the animal was vicious, but that the owner or keeper
had knowledge of the fact. 	When such scienter exists, the owner or keeper
is accountable for all the injury such animal may do, without proof of any
negligence or fault in the keeping, and regardless of his endeavors to so
keep the animal as to prevent the mischief."
Lynch v. Kineth, 36 Wash. 368,370-71, 78 P. 923 (1904) (emphasis omitted) (quoting 2
eyc. Animals 368); and more recently Johnston v. Ohls, 76 Wn.2d 398, 400, 457 P.2d
194 (1969); Sligar v. Odell, 156 Wn. App. 720, 732, 233 P.3d 914 (2010); see also 16
DAVID K. DEWOLF & KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LA WAND
PRACTICE § 3.6, at 133 (4th ed. 2013) (noting that "[s]trict liability for injuries caused by
individual animals known to be abnormally dangerous is still the general rule," but "when
the animal is not an abnormally dangerous specimen of its class, negligence in controlling
the animal must be proven").
2 A "domestic animal," as defined by the Restatement (Second) o/Torts, is one
"that is by custom devoted to the service of mankind at the time and in the place in which
it is kept." RESTATEMENT (SECOND) OF TORTS § 506(2), at 10 (1977). "[T]he test is
whether the animals are as a class recognized by custom as devoted to the service of
mankind." Id. § 506 cmt. a.
5
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 32509-l-III
Rhodes v. MacHugh
Washington cases are consistent with the Restatement (Second) o/Torts (1977).
In Arnoldv. Laird, 94 Wn.2d 867, 871,621 P.2d 138 (1980), our Supreme Court noted
that the Restatement (Second) "recognizes two separate causes of action" against the
owner of a domestic animal that causes injury. Under section 509, strict liability applies
where the animal "has known dangerous propensities abnormal to its class." Arnold,94
Wn.2d at 871. Section 518, on the other hand, "provides that ifthere are no known
abnormally dangerous propensities, the owner is liable only if he is negligent in failing to
prevent the harm. The amount of care required is commensurate with the character of the
animal." Id. (emphasis omitted) (citing § 518 cmt. f).
Mr. Rhodes concedes that rams have not historically been regarded as being
inherently dangerous animals. Br. of Appellant at 1-2; RESTATEMENT (SECOND) § 509
cmt. e ("[T]he law has not regarded bulls, stallions and rams as being abnormally
dangerous animals to be kept under the strict liability stated in this Section.").
Nevertheless, relying on a comment to § 23 of the most recent Restatement o/Torts, he
asks that we recognize that "[t]he dangerous propensities of rams are well-known and
strict liability should attach, and this whether the animal is 'domestic' or otherwise." Br.
of Appellant at 3.
6
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 32509-1-111
Rhodes v. MacHugh
The language of § 23 of the Restatement (Third) of Torts is similar to that of
Restatement (Second) § 509,3 yet the comments to § 23 propose a possible gender- or
breed-based modification of the general rule treating domestic animals as not excessively
dangerous. Comment e states, in part:
Overall, the common law has been satisfied with the generalization that
livestock and dogs are not excessively dangerous and has applied this
generalization to all livestock and dogs. In the future, courts might wish to
give consideration to particular genders or breeds of a species that involve
danger levels uncommon for the species itself. Ifso, it might be
appropriate to impose strict liability, without individualized scienter, on the
owner of such an animal.
RESTATEMENT (THIRD) § 23 cmt. e (2010) (emphasis added). Mr. Rhodes asks us to act
on this acknowledgment and common knowledge that while ewes may be timid, rams are
known to be dangerous.
Prior versions of the Restatement have not overlooked the different temperament
of male domestic animals, pointing out that "[blulls are more dangerous than cows and
steers; stallions are more dangerous than mares and geldings; rams are more dangerous
than ewes and lambs." RESTATEMENT (SECOND) § 509 cmt. e. But historically the
framework of liability for negligence has been viewed as adequate to address gender
3 "An owner or possessor of an animal that the owner or possessor knows or has
reason to know has dangerous tendencies abnormal for the animal's category is subject to
strict liability for physical harm caused by the animal if the harm ensues from that
dangerous tendency." RESTATEMENT (THIRD) § 23, at 303 (2010).
7
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 32S09-1-III
Rhodes v. MacHugh
differences, and refusing to broaden strict liability has also been justified by policy
reasons.
The Restatement (Second) recognizes the relatively dangerous propensities of
male domestic animals such as bulls, stallions, and rams but characterizes them as normal
to their class. As the comments to § S09 observe, "these animals have been kept for stud
purposes from time immemorial so that the particular danger involved in their dangerous
tendencies has become a normal incident of civilized life." REST ATEMENT (SECOND) §
S09 cmt. e; see also id. § S09 cmt. d. (noting that such animals "do not introduce any
unusual danger, since the somewhat dangerous characteristics of these animals are a
customary incident of farming"). 	In other words, a ram has not been considered
"abnormally" dangerous for purposes of applying strict liability under § S09 because its
dangerous propensities are "normal" for its species.
It is also for policy reasons that owners of male domestic animals have not been
held to a standard of strict liability, because often it is the very characteristics that cause
the males to be dangerous that make them useful to society. The comments to § SI 8 of
the Restatement (Second) observe that "[t]he high temper normal to stud animals is so
inseparable from their usefulness for breeding purposes that they are not kept at the risk
of the liability stated in § S09." RESTATEMENT (SECOND) § S18 cmt. f. 	The comments
explaining the rationale for § S09's rule of strict liability similarly observe that
8
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 32509-I-III
Rhodes v. MacHugh
the virility which makes [bulls, stallions, and rams] dangerous is necessary
for their usefulness in performing their function in the socially essential
breeding of livestock, justifies the risk involved in their keeping.
Therefore, the law has not regarded bulls, stallions and rams as being
abnormally dangerous animals to be kept under the strict liability stated in
this Section.
Id. § 509 cmt. e; see also id. § 509 cmt. d ("[T]he slightly added risk due to their
dangerous character is counterbalanced by the desirability of raising livestock. ").
The law is not oblivious to the greater risk posed by male livestock used for
breeding in the context of liability for negligence, and greater precautions are typically
required in light of their characteristics. RESTATEMENT (SECOND) § 509 cmt. e. "The
amount of care required is commensurate with the character of the animal." Arnold,94
Wn.2d at 871. As the comments to § 518 explain, "the keeper of a bull or stallion is
required to take greater precautions to confine it to the land on which it is kept and to
keep it under effective control when it is taken from the land than would be required of
the keeper of a cow or gelding." RESTATEMENT (SECOND) § 518 cmt. g.
"Rules of law ... should not be changed for light or transient causes; but, when
time and events prove the need for a change, changed they must be." State ex rei. Wash.
State Fin. Comm. v. Martin, 62 Wn.2d 645, 666, 384 P.2d 833 (1963). Here, the utility
of domestic animals remains undiminished. Those who raise them and face the greatest
exposure to relatively more dangerous genders or breeds will be familiar with their
characteristics. Third parties continue to have recourse for an owner's negligence, and
9
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 32509-1-111
Rhodes v. MacHugh
owners are required to take greater precautions to confine and control animals in light of
their characteristics. Mr. Rhodes's unfortunate excursion with Mr. MacHugh's ram does
not persuade us that the limited scope of strict liability that Washington has historically
imposed on the owners of domestic animals should be enlarged.4
Affirmed.
-:hdhw¥r~Siddoway, C.J.
WE CONCUR:
Korsmo, J. 	'?I
s.
Fearing, J.
4 The legislature can, of course, act. 	We note that by statute, and in derogation of
the common law, it has imposed strict liability on the owner of a dog that bites a person,
as long as the victim was in a public place or lawfully in or on a private place. RCW
16.08.040; Sligar v. Odell, 156 Wn. App. at 727; Beeler v. Hickman, 50 Wn. App. 746,
751-52,750 P.2d 1282 (1988).
10