Shelly Carr, Appellant V. Jose And Lisa Riveros And State Farm, Respondents

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SHELLY CARR, individually,
Appellant,
JOSE AND LISA RIVEROS,
individually and in their marital
capacity,
Respondents,
STATE FARM FIRE & CASUALTY,
an Illinois corporation; and STATE
FARM GENERAL INSURANCE
COMPANY, an Illinois corporation,
Defendants.
No. 73927-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	November 28, 2016
Leach, J. — Shelly Carr appeals the trial court's summary dismissal of her
claims against Lisa and Jose Riveros. 	After the Riveroses' dog bit her, Carr sued
them, 	alleging 	common 	law 	negligence 	and 	statutory 	strict 	liability claims.
Because the Riveroses did not breach any duty of care owed to Carr and Carr
did not present any evidence that she had permission to enter the Riveroses'
home, as required for her strict liability claim, we affirm the trial court.
FACTS
Carr 	suffered 	a 	dog 	bite 	while 	accompanying 	her 	daughter, 	Brynn
Sutherland, on a home inspection. 	Brynn and her husband, Ryan Sutherland,

No. 73927-1-1/2
(buyers) were 	prospective 	buyers of a 	home owned 	by 	Nicholaas and 	Lisa
Groenveld-Meijer (sellers/landlords). 	Jose and Lisa Riveros rented the home
from the sellers.
The Riveroses had a 	Rottweiler-Labrador mix named "Kid." 	They had
owned 	Kid for over 13 years, 	and 	he had 	never bitten anyone or displayed
aggressive tendencies. 	At the time of the 	inspection, 	Kid 	had 	cancer and
difficulty walking. 	The Riveroses told the property manager and the sellers' real
estate broker, David Hogan, that they would leave Kid alone in the laundry room
with the door closed and that no one should enter that room. 	As a result, they
"understood no one would go in the laundry room as [they] had always insisted
that the dog be left alone."1
Before the scheduled inspection, Hogan sent an e-mail to Jose Riveros
asking, "Is it possible to crate the dog? 	The buyers will need full access to each
room in the house for their inspector." 	Jose and Hogan exchanged a few more
e-mails, but Jose never agreed to crate the dog or remove him from the home.
In an e-mail to the buyers' real estate broker, Henry Shim, Hogan said, "I have
asked them to make sure you have access to the entire house. 	Suggested
crating the dog but don't know their exact plans admittedly."
1 Carr disputes this 	fact 	but points 	to 	no 	evidence 	in the 	record 	to
contradict the Riveroses' assertion.
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No. 73927-1-1/3
On the day of the inspection, the Riveroses left Kid in the laundry room
before they left for work. 	The Sutherlands, Shim, Carr, Carr's husband, and the
inspector, Michael Linde, attended the home inspection. 	When the inspection
group arrived at the home, the laundry room door was closed.
Because Carr believed that she was experienced with dogs, she offered to
enter the laundry room with Linde to test the dog's character and watch him while
the inspector looked around the laundry room. 	Kid was lying on a pile of blankets
and sniffed Carr's hand but did not otherwise react to their presence.
When Linde and Carr left the laundry room, they left the door open. 	They
continued with the inspection, but Carr soon noticed Kid out of the laundry room
and lying on the hardwood floor, unable to stand. 	Kid appeared to be trying to
get back into the laundry room.
Because 	her 	previous 	interaction 	with 	Kid 	had 	seemed friendly, 	Carr
decided to help the dog back into the laundry room. 	She first tried to pick up the
dog. 	Kid made a noise, and Carr realized the potential danger of picking up a
dog she didn't know. 	She then crouched in front of Kid and held her hand six
inches in front of his nose. 	Kid bit her outstretched hand.
Carr sued for damages caused by the dog bite. 	Her complaint alleged
common law negligence and strict liability under RCW 16.08.040. 	The trial court
granted 	the 	Riveroses' 	summary 	judgment 	motion. 	Carr 	moved 	for

No. 73927-1-1/4
reconsideration, submitting the declaration of Henry Shim. 	The trial court denied
this motion. 	Carr appeals.
ANALYSIS
Standard of Review
This court reviews summary judgment orders de novo, engaging in the
same inquiry as the trial court.2 Summary judgment is proper if, viewing the facts
and reasonable inferences in the light most favorable to the nonmoving party, no
genuine issues of material fact exist and the moving party is entitled to judgment
as a matter of law.3 A genuine issue of material fact exists if reasonable minds
could differ regarding the facts controlling the outcome of the litigation.4 	Carr
claims that she raised issues of material fact about her two theories of liability:
common law negligence and strict liability under RCW 16.08.040.
Common Law Negligence
Carr alleged that the Riveroses breached a duty of care when they failed
to crate their dog as the real estate brokers recommended. 	The common law
provides liability for dog bites based on strict liability and negligence.5 	A dog
owner has strict liability for injuries caused by the dog when the owner knows or
2 Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22
(2003).
3 CR 56(c); Michak, 148 Wn.2d at 794-95.
4 Hulbert v. Port of Everett, 159 Wn. App. 389, 398, 245 P.3d 779 (2011).
5 Sliqer v. Odell. 156 Wn. App. 720, 731, 233 P.3d 914 (2010).
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No. 73927-1-1/5
has reason to know that the dog has vicious or dangerous propensities.6 	Carr
does not dispute that the Riveroses had no notice that Kid had any dangerous
propensity; thus, she now asserts only a common law negligence claim.
The Restatement (Second) of Torts § 518 (1977) provides,
Except 	for animal 	trespass, 	one 	who 	possesses 	or 	harbors 	a
domestic animal that he does not know or have reason to know to
be abnormally dangerous, is subject to liability for harm done by the
animal if, but only if,
(a) he intentionally causes the animal to do the harm, or
(b) he is negligent in failing to prevent the harm.
"'[A] negligence cause of action arises when there is ineffective control of an
animal in a situation where it would reasonably be expected that injury could
occur, and injury does proximately result from the negligence.'"7 	"The amount of
control required is that which would be exercised by a reasonable person based
upon the total situation at the time, including the past behavior of the animal and
the injuries that could have been reasonably foreseen."8
Carr characterizes her common law claim as "negligent failure to confine."
The Riveroses counter that § 518 does not define the duty of care as the duty to
confine or crate their dog but only to exercise reasonable care and control. We
6 Arnold 	v. 	Laird, 	94 	Wn.2d 	867, 	870, 	621 	P.2d 	138 	(1980) 	(citing
Johnston v. Ohls, 76 Wn.2d 398, 457 P.2d 194 (1969)).
7 Sliger, 156 Wn. App. at 731-32 (quoting Arnold, 94 Wn.2d at 871).
8 Arnold, 94 Wn.2d at 871.
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No. 73927-1-1/6
agree that failure to confine is not, in itself, negligent. 	A dog owner's failure to
confine is only negligent when it caused foreseeable injury.
The Riveroses claim that they could not have foreseen the injury because
Kid had never shown any vicious or dangerous propensity. 	Carr contends that
lack 	of knowledge 	of the animal's dangerous 	propensity 	relates only to 	the
common law cause of action for strict liability, not negligence. 	But the relevant
case law considers knowledge of dangerous propensity in analyzing whether an
injury is foreseeable.9 	Thus, notice of dangerous propensity is relevant to both
strict liability and negligence common law causes of action.
Carr asserts that a jury should 	have decided whether her injury was
foreseeable. 	"Foreseeability is a question of fact for the jury unless reasonable
persons could reach but one conclusion."10 	In Beeler v. Hickman,11 this court
affirmed summary judgment dismissal of the plaintiff's common law negligence
claim because there was insufficient evidence of negligence when the dog owner
had no reason to know the dog would 	bite the plaintiff. 	The defendant dog
owner's admission that the dog would react if provoked was not enough evidence
of negligence to survive summary judgment.12 	Like in Beeler, the Riveroses had
9 See, e.g., Sliqer, 156 Wn. App. at 732; Beeler v. Hickman, 50 Wn. App.
746, 754, 750 P.2d 1282 (1988).
10 Schneider v. Strifert, 77 Wn. App. 58, 63, 888 P.2d 1244 (1995).
11 50 Wn. App. 746, 754, 750 P.2d 1282 (1988).
12 Beeler, 50 Wn. App. at 754.
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No. 73927-1-1/7
no reason to believe that Kid would bite anyone, particularly because he was old
and sick and could barely walk. 	Carr implies that the dog's breed, Rottweiler-
Labrador mix, shows dangerous propensity. 	But she offers neither evidence that
the particular breed is prone to attacks nor legal authority to show that breed is a
relevant consideration. 	She therefore fails to show how the breed creates a
question of fact. 	Because the Riveroses had no reason to believe Kid, confined
to a laundry room, would bite anyone, reasonable persons could reach no other
conclusion than that the Riveroses were not negligent.
Carr contends that an injury was foreseeable because the Riveroses knew
that prospective buyers would be inspecting the house. 	Carr further argues that
the 	Riveroses 	knew that the inspection 	required access to the entire home,
including the laundry room. 	But knowledge of the inspection does not create a
question of fact about the likelihood of injury when the dog has no history of
viciousness and was confined to a 	room to which the Riveroses had denied
access. 	Opportunity does not equal foreseeability.13
13 	The 	parties 	discuss 	the 	trespasser/licensee/invitee 	distinctions 	in
connection 	with 	the 	Riveroses' 	common 	law 	duty. 	But 	Carr's 	status 	as 	a
trespasser is not relevant to this case. 	The Riveroses explain the trespasser
analysis in anticipation of a premises liability argument, but Carr does not assert
a premises liability cause of action. 	Further, the trespasser analysis does not
relate to the 	Riveroses' duty of care under §518. 	We 	need 	not determine
whether Carr was a trespasser.
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No. 73927-1-1/8
Under the circumstances, the Riveroses exercised a reasonable amount
of control when they confined Kid to one room and declared that room to be off
limits. 	Because Carr does 	not create any issue 	of fact that the 	Riveroses
breached a duty of care, the trial court properly dismissed this claim.
Statutory Strict Liability
Carr also asserts a strict liability claim under RCW 16.08.040(1), which
provides,
The owner of any dog which 	shall 	bite any 	person while such
person is in or on a public place or lawfully in or on a private place
including the property of the owner of such dog, shall be liable for
such damages as may be suffered by the person bitten, regardless
of the former viciousness of such dog or the owner's knowledge of
such viciousness.
Carr does not claim she was in a public place. 	Instead, she argues that
she was lawfully in a private place.14
A person is lawfully upon the private property of such owner within
the meaning of RCW 16.08.040 when such 	person 	is 	upon the
property of the owner with the express or implied consent of the
owner: PROVIDED, That said consent shall not be presumed when
the property of the owner is fenced or reasonably posted.1151
14 	The 	parties 	discuss 	Carr's 	status 	as 	trespasser 	or 	licensee 	in
connection with her statutory strict liability claim. 	But the test for whether she
was 	lawfully 	on 	the 	premises 	under 	RCW 16.08.050 	does 	not 	involve 	the
trespasser/licensee analysis. 	See Sliqer, 156 Wn. App. at 730 ("The plain words
of the statute focus on express or implied consent of the owner of the dog to
determine 	whether one 	is 	legally 	on 	the 	dog 	owner's 	property. 	The word
trespasser is not found in the statute.").
15 RCW 16.08.050.
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No. 73927-1-1/9
Because the dog bite statute does not define "implied consent," courts use the
term's ordinary meaning.16 	"[Ijmplied consent may be communicated based on
'conduct, omission, or by means of local custom.'"17
Carr offers three alternative arguments to show that she was lawfully on
the property. 	First, she contends that she had the Riveroses' implied consent to
be on the premises. 	She also contends that she could presume consent through
custom. 	Lastly, she maintains that she did 	not need the Riveroses' consent
because she had the consent of the sellers. 	We find none of Carr's arguments
persuasive.
First, Carr fails to show that she had the Riveroses' permission. 	She
concedes that the Riveroses did not give her express permission to enter the
property, 	but she claims that she had their implied 	permission because they
knew about the home inspection and never forbade her entry. 	According to Carr,
the 	Riveroses' 	failure 	to 	expressly 	prohibit 	her 	entry 	implied 	that 	she 	had
permission to enter. 	But because the Riveroses never knew that Carr was going
to be on the property, they had no opportunity to object to her access. 	It was not
reasonable for Carr to infer she had permission simply because she was not
16 Sliqer, 156 Wn. App. at 728.
17 Sliqer, 156 Wn. App. at 728 (quoting Singleton v. Jackson, 85 Wn. App.
835, 839, 935 P.2d 644 (1997)).
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No. 73927-1-1/10
expressly excluded. 	We disagree with Carr's suggestion that the 	Riveroses'
failure to object can be interpreted as implied consent.
Even if Carr had implied permission to enter the property, that permission
did not extend to the laundry room. 	RCW 16.08.050 states that the consent of
the owner "shall not be presumed when the property of the owner is fenced or
reasonably posted."18 	Here, Carr does not dispute that all people involved were
aware that the door was closed in order to keep the dog isolated. 	With this
information, the closed door provided the functional equivalent of a fence or a
warning sign. 	Therefore, the Riveroses' implied permission to enter the laundry
room cannot be presumed.
Second, Carr does not provide sufficient evidence to create a question of
fact that she could presume she had permission based on industry custom. 	Carr
claims that she had 	implied permission to be on the premises because it is
industry 	custom 	to 	have 	family members 	of 	potential 	buyers 	attend 	home
inspections. 	But evidence from a single person or business is insufficient to
establish industry custom.19 At summary judgment, Carr introduced only Linde's
18 See Sliqer, 156 Wn. App. at 729.
19 Swartlev v. Seattle Sch. Dist. No. 1, 70 Wn.2d 17, 21, 421 P.2d 1009
(1966) ("'Although, where negligence is in issue, the usual conduct or general
custom of others under similar circumstances is relevant and admissible, such
custom may not be established by evidence of conduct of single persons or
businesses.'" 	(quoting 	Miller 	v. 	Staton, 	58 	Wn.2d 	879, 	885, 	365 	P.2d 	333
(1961))).
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No. 73927-1-1/11
deposition testimony 	as 	evidence 	of custom. 	Linde 	testified that 	he 	had
performed "thousands" of home inspections and that buyers' family members
attended approximately 50 percent of those inspections. 	Linde's testimony relies
solely on his personal experiences in his own business practice. 	His testimony
does not include any opinion about any industry-wide practice. 	Linde's testimony
alone does not establish an issue of fact about industry custom.20
Finally, Carr contends that she had the sellers' permission to be on the
land.21 	But Carr fails to establish that the sellers, and not the Riveroses, should
be considered the owners for purposes of determining lawful presence under
RCW 16.08.050. 	Carr contends that as the actual owners of the land, only the
20 	Carr 	submitted 	a 	declaration 	from 	Shim 	with 	her 	motion 	for
reconsideration to 	corroborate 	Linde's testimony, 	but, 	as discussed 	below in
connection 	with 	the 	motion 	for 	reconsideration, 	we 	do 	not 	consider Shim's
testimony.
21 Carr cites Hansen v. Sipe. 34 Wn. App. 888, 664 P.2d 1295 (1983), in
support of her assertion that she had adequate permission from the sellers. 	But
the conclusions from Hansen are not relevant to any determination in this case.
Hansen interprets a previous version of the RCW that drew a distinction between
lawful presence on the dog owner's property and 	lawful presence on a third
party's property. 	Hansen, 34 Wn. App. at 890-91. 	Carr argues that because the
sellers and not the dog owners are owners of the property in question, a less
restrictive definition of "lawful" should apply. 	But the dog bite statute no longer
draws a distinction between lawful presence on the dog owner's property and
lawful presence on a third party's property. 	See RCW 16.08.050. 	The ordinary
definition of "lawful" applies in both circumstances. 	See Sliqer, 156 Wn. App. at
728. 	Hansen does not help Carr's case.
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No. 73927-1-1/12
consent of the sellers is required for "lawful" entry.22 	But Carr's interpretation of
"lawful" ignores the rules that govern landlord and tenant rights and duties.
Carr offers no convincing explanation or authority for her assertion that the
landlords' limited right to exhibit the property provides them with authority to give
permission 	to 	all persons who 	wish 	to 	enter the 	property for an 	inspection
associated with a 	prospective sale. 	"Except as 	limited by the terms of the
leasehold, a tenant has a 	present interest and estate in the property for the
period 	specified, 	which 	gives 	him 	exclusive 	possession 	against 	everyone,
including the lessor."23 	Washington 	law requires tenants to permit landlords
access to their home for certain limited purposes, including to show the house to
potential buyers:
The tenant shall not unreasonably withhold consent to the landlord
to enter the dwelling unit at a specified time where the landlord has
given at 	least one day's 	notice of intent to enter to exhibit the
dwelling 	unit to prospective or actual purchasers or tenants. 	A
landlord shall not unreasonably interfere with a tenant's enjoyment
of the rented dwelling unit by excessively exhibiting the dwelling
unitJ24!
22 Carr cites McMilian v. King County, 161 Wn. App. 581, 601, 255 P.3d
739 (2011), for the proposition that the ordinary meaning of "lawful" requires the
consent of the actual third party owners of the property, the sellers in this case.
But McMilian is distinguishable because that case does not involve a landlord-
tenant relationship.
23 Aldrich v. Olson, 12 Wn. App. 665, 667, 531 P.2d 825 (1975).
24 RCW 59.18.150(6); see also RCW 59.18.150(1).
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No. 73927-1-1/13
The Supreme Court has observed that the scope of the landlords' entrance
should 	not 	exceed 	the 	purposes 	contemplated 	by the 	Residential 	Landlord-
Tenant Act of 1973.25 	Here, Carr's attendance at the inspection was not within
the scope of the landlords' right to exhibit the property. 	Thus, the landlords' right
to exhibit under RCW 59.18.150 cannot be the basis for Carr's permission to
enter. 	Even if the landlords could grant the Sutherlands permission to enter their
tenants' 	home, 	Carr was not a 	prospective 	purchaser, 	and 	she provides no
evidence that the sellers ever gave her, 	specifically, permission to enter the
property.
Carr claims the Riveroses' lease agreement gave the landlords the right to
give permission to third parties to enter the property. 	The lease permitted the
landlords to conduct inspections of the property. 	But the Sutherlands, not the
landlords, were inspecting the property. 	The lease agreement gives inspection
rights to the landlords specifically and cannot be the basis for the Sutherlands'
authority to inspect the property. 	The Sutherlands were not agents of the sellers,
and Carr certainly was not. 	The lease provisions about inspection do not show
Carr was lawfully present.
25 City of Pasco v. Shaw. 161 Wn.2d 450, 461, 166 P.3d 1157 (2007)
(citing Kalmas v. Wagner. 133 Wn.2d 210, 219-20, 943 P.2d 1369 (1997)); ch.
59.18 RCW.
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No. 73927-1-1/14
Carr also contends that only the sellers had the right to object to the scope
of the inspection because they were in privity with the buyers but the Riveroses
were not. 	The buyers' right to inspect, Carr asserts, came from the purchase
agreement between the sellers and the buyers. 	The Riveroses could voice their
objections only to the sellers, with whom they were in privity. 	Carr cites no
authority for this privity argument. 	Moreover, the logic of her argument is flawed.
A landowner is not in privity with the general public, and yet the landowner may
restrict the public's entry on her private land.26 	In the context of this case, the
presence or absence of privity does not dictate the scope of a tenant's right to
exclude others from her property.
Carr did 	not present any evidence from which she could infer she had
permission to enter the Riveroses' 	home. 	The trial court properly dismissed
Carr's statutory claim.
Motion for Reconsideration
After the trial court dismissed her claims, Carr moved for reconsideration
under CR 59, providing the newly acquired declaration from Shim. 	Carr asked
that 	the 	court 	reconsider 	its 	decision 	on 	the 	following 	grounds:
CR 59(a)(4), newly 	discovered 	evidence 	that 	the 	proponent 	could 	not 	have
26 17 William B. Stoebuck & John W. Weaver, Washington Practice:
Real Estate: Property Law § 1.2, at 4 (2d ed. 2004) ("A key attribute of [land]
possession is that it carries with it the legally protected right to exclude other
persons completely and with or without reason from the land possessed.").
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No. 73927-1-1/15
discovered with reasonable diligence at the time of the hearing; CR 59(a)(7), no
evidence or reasonable inference from the evidence justifies the verdict or the
decision or verdict is contrary to law; CR 59(a)(8), there was an error in law; or
CR 59(a)(9), substantial justice has not been done. 	This court reviews denial of
a motion for reconsideration for abuse of discretion.27
First, 	Carr's claim about newly 	discovered evidence fails 	because she
offers 	no 	explanation, 	either 	in 	her 	appellate 	briefing 	or 	her 	motion 	for
reconsideration, for why the deposition of Shim could not have been taken before
the summary judgment hearing. 	Further, Shim's testimony did not offer new
evidence.28 	"The realization that [the] first declaration was insufficient does not
qualify the second declaration as newly discovered evidence.'"29 Shim was not a
newly discovered witness. 	Carr has failed to demonstrate that the trial court
abused its discretion in denying reconsideration based on CR 59(a)(4).
As to CR 59(a)(8) and (9), Carr has not shown that the trial court made an
error in law or that substantial justice has not been done.30 	And CR 59(a)(7)
does not provide any basis for reconsideration because, as explained above, the
27 Klever v. Harborview Med. Ctr. of Univ. of Wash., 76 Wn. App. 542,
545, 887 P.2d 468 (1995).
28 See Sliger, 156 Wn. App. at 734.
29 Go2Net, 	Inc. v. C I Host, 	Inc., 115 Wn. App. 	73, 	91, 60 P.3d 1245
(2003) (alteration in original) (quoting Adams v. W. Host, Inc., 55 Wn. App. 601,
608, 779 P.2d 281 (1989)).
30 See Sliger, 156 Wn. App. at 734.
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No. 73927-1-1/16
evidence on record supports dismissal of Carr's claims. 	The trial court did not
abuse its discretion in denying Carr's motion for reconsideration.
CONCLUSION
Carr 	has 	not 	identified 	any 	material 	issue 	of fact that the 	Riveroses
breached their duty of care in controlling their dog. 	Nor has she created an issue
of fact about whether she was 	lawfully on 	the 	premises when the dog 	bite
occurred. 	For these reasons, the trial court did 	not err in granting summary
judgment in favor of the Riveroses.
We affirm.
WE CONCUR:
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