THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Appeal From Anderson County
Court of Common Pleas

James C. Williams, Circuit Court Judge

2005-CP-04-643

Jennifer Marie Harris. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellant,

v.

Anderson County Sheriff’s Office . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . .  Respondent.

APPELLANT’S FINAL BRIEF

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases

STATEMENT OF ISSUES ON APPEAL

I. WHETHER IN GRANTING THE DEFENDANT SUMMARY JUDGMENT, THE CIRCUIT COURT ERRED BY INJECTING FAULT-BASED PRINCIPLES OR CONSIDERATIONS  INTO ITS  ANALYSIS IN FINDING THE DEFENDANT NOT LIABLE AS A MATTER OF LAW.

II. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT INASMUCH AS DEFENDANT’S FAULT IS NOT A CONSIDERATION IN DETERMINING ITS LIABILITY UNDER S.C. CODE ANN. §47-3-110 OR UNDER THE COMMON LAW; AND THERE IS NO GENUINE ISSUE OF MATERIAL FACT THAT PLAINTIFF’S CLAIM DOES NOT FALL UNDER ANY OF THE ARTICULATED DEFENSES AVAILABLE TO DEFENDANT.

III. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT INASMUCH AS UNDER THE STATUTORY,  COMMON LAW AND THE UNDISPUTED FACTS IN THIS CASE, THE DEFENDANT IS STRICTLY LIABLE FOR THE PLAINTIFF’S INJURIES; NOTWITHSTANDING, THE COURT INJECTED ISSUES OF FAULT INTO ITS DETERMINATION WHEN IT BASED ITS DECISION UPON GROUNDS OF CONTROL OF THE DOG AND PREMISES.

IV. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT, THE ERROR BEING THAT UNDER THE STATUTORY AND COMMON LAW LIABILITY IS STRICTLY IMPOSED UPON THE OWNER NOTWITHSTANDING THE FACT THAT THE OWNER MAY HAVE TAKEN ALL REASONABLE MEASURES, INASMUCH AS LIABILITY IS NOT BASED UPON CONCEPTS OF THE OWNER’S FAULT AND  THE UNDISPUTED FACTS REVEAL THAT PLAINTIFF WAS LAWFULLY ON THE PREMISES AND DID NOT PROVOKE THE ATTACK OR INVITE THE ATTACK ON HERSELF.

V. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT INASMUCH AS THE DEFENDANT ACKNOWLEDGED THAT PLAINTIFF WAS LAWFULLY ON THE PREMISES AND DID NOT PROVOKE THE ATTACK OR INVITE THE ATTACK UPON HERSELF.  ACCORDINGLY, DEFENDANT IS STRICTLY LIABLE FOR THE INJURIES SUSTAINED HEREIN.

VI. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT UNDER S.C. CODE ANN. §47-3-110, THE ERROR BEING THAT THIS CODE SECTION PROVIDES THAT “THE OWNER OF THE DOG OR OTHER PERSON HAVING THE DOG IN ITS CARE OR KEEPING” IS LIABLE, THE USE OF THE WORD “OR” BEING A DISJUNCTIVE PARTICLE THAT MARKS A CHOICE BETWEEN TWO ALTERNATIVES; AND ACCORDINGLY, PLAINTIFF HAD THE RIGHT TO PURSUE THE OWNER OR THE KEEPER.

VII. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT UNDER  THE COMMON LAW ARTICULATED IN HOSSENLOPP BY AND THROUGH HOSSENLOPP v. CANNON, 285 S.C.367, 329 S.E.2D 438 (1985) INASMUCH AS THE COMMON LAW PROVIDES FOR QUASI-STRICT LIABILITY ON THE OWNER OF THE DOG AND DOES NOT PROVIDE FOR ALTERNATIVE LIABILITY ON THIRD PARTY KEEPERS.

VIII. WHETHER THE CIRCUIT COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT INASMUCH AS THE COURT’S INTERPRETATION OF THE STATUTORY AND COMMON LAW CLAIMS FRUSTRATES THE PUBLIC POLICY BEHIND S.C. CODE ANN. §47-3-110, BY LIMITING LIABILITY OF DOG OWNERS IN SITUATIONS WHERE THE OWNER DOES NOT HAVE THE ANIMAL IN ITS POSSESSION.

STATEMENT OF THE CASE

On March 7, 2005, Jennifer Marie Harris [hereinafter Harris] filed her action against Anderson County Sheriff’s Office (hereinafter ACSO) pursuant to S.C. Code Ann. §47-3-110 (as amended) and the common law for injuries she sustained as the result of being bitten by a dog owned by ACSO  [R. pp.7-10].

ACSO timely answered and asserted multiple affirmative defenses, including, inter alia, third (3^rd) party negligence, comparative negligence, statutory defenses under the S.C. Tort Claims Act and assumption of the risk  [R. pp.11-15].

After engaging in pre-trial discovery, both Harris and ACSO filed cross-motions seeking summary judgment [R. pp.16-18].   A motion hearing was held on August 2, 2006 before Honorable James C. Williams, Circuit Judge.  By way of Order filed August 17, 2006, Judge Williams denied Harris’s Motion for Summary Judgment and granted ACSO’s, based on grounds that ACSO did not have control of the animal or the premises at the time of the attack  [R. pp.1-5].

Harris filed and served her Motion for Reconsideration pursuant to Rule 59(e), SCRCP on August 29, 2006.  [R. pp.19-22], the same being denied by way of Form Order filed November 15, 2006  [R. p.6].  Harris filed and served her Notice of Appeal on November 27, 2006.

SEPARATE STATEMENT OF FACTS

The incident occurred on July 6, 2003 while Harris was working as a veterinary technologist at Happistance Veterinary Clinic (“Happistance”).  The dog, “Sleuber”, had been left at Happistance to board by ACSO on or around June 26, 2003 while his handler was on vacation  [R. pp.31-34] [R. pp.65-67].

As part of her duties, Harris let the dog into the dog run on the day of the attack  [R. pp.87-88, lines 9-5] [R. pp.89-91, lines 21-11] [R. p.69, lines 18-22 ].   When she attempted to return Sleuber to his kennel, he jumped on Harris, severely mauling her leg [R. pp.31-34].

Harris was instructed by Dr. Morris of Happistance “not to touch” Sleuber [R. p.92, lines 3-10] [R. p.93, lines 6-15].  At all relevant times, Harris adhered to Dr. Morris’s instructions  [R. pp.87-88, lines 9-5] [R. p.92, lines 3-10].  ACSO officer Todd Caron, Sleuber’s handler, maintained that he told Dr. Morris and the receptionist at Happistance that no one was to enter the kennel with Sleuber [R. p.34] [R. pp.47-48].  Dr. Morris did not remember Caron leaving these instructions; and testified that Sleuber’s chart does not reflect that these instructions were ever given [R. pp.67-68, lines 16-20] [R. pp.70-72, lines 1-1] [R. pp.85-86].  Although Dr. Morris described Sleuber as “high strung”, she said that he was friendly to deal with and was not aggressive.  She was not concerned with anyone’s safety unless Sleuber was getting a shot  [R. pp.72-73, lines 17-25] [R. p.74, lines 1-18] [R. p.76, lines 12-18] [R. pp.77-78, lines 21-7] [ R. pp.79-80, lines 23-8] [R. p.82, lines 15-21] [R. pp.83-84, lines 22-4].

In the attack, Harris suffered severe lacerations to her left leg.  Harris was taken to the Anderson Area Medical Center (AAMC), where she underwent surgery.  Harris will need extensive scar revision surgeries [R. pp.35-37] [R. pp.31-34].

The DHEC “Animal Incident/Rabies Investigation Report” filed as a result of the attack describes the incident as “unprovoked”^[1] [R. p.38].   Following the attack, ACSO traded ownership of Sleuber on July 22, 2003 to an outside party in exchange for dog training services.  A signed statement on ACSO letterhead provides, inter alia, “I understand that the above named dog had (sic.) been fully trained by the Canine Branch of the Anderson County’s Sheriff’s Office and has six documented bites in the last three years”  [R. p.39].

Harris believes the following facts to be undisputed:

1)    ACSO was the sole owner of Sleuber on July 6, 2003;

2)    Sleuber was being boarded at Happistance on July 6, 2003 while his handler was on vacation;

3)    Harris was lawfully on Happistance’s premises at the time of the attack;

4)    Harris did not provoke the attack or knowingly and voluntarily invite the attack upon herself;

5)    Sleuber severely attacked and bit Harris on July 6, 2003;

6)    Harris was working within the course and scope of her employment at the time of the attack;

7)    Sleuber had a history of multiple, documented dog bites prior to July 6, 2003;

ARGUMENT

(A)  Standard of Review

Lanhan v. Blue Cross & Blue Shield of South Carolina, Inc., 349 S.C. 356, 563 S.E.2d 331 (2002) articulated the standard of review of an order granting summary judgment as follows:

An appellate court reviews a grant of summary judgment under the same standard applied by the trial court pursuant to Rule 56, SCRCP. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Under Rule 56[c], the party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact.  With respect to an issue upon which the nonmoving party has the burden of proof, this initial responsibility may be discharged by pointing out to the trial court that there is an absence of evidence to support the nonmoving party's case.  In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn therefrom must be viewed in the light most favorable to the nonmoving party.  Summary judgment is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Summary judgment should not be granted even when there is no dispute as to evidentiary facts if there is disagreement concerning the conclusion to be drawn from those facts.  On appeal from an order granting summary judgment, the appellate court will review all ambiguities, conclusions, and inferences arising in and from the evidence in a light most favorable to the non-moving party below.   (Citations omitted.)

            Id., at 361 - 362, 565 S.E.2d  at 333.

(B)  Discussion

I. THE COURT ERRED BY INJECTING FAULT-BASED CONSIDERATIONS IN GRANTING SUMMARY JUDGMENT TO ACSO WHEN ACSO SHOULD HAVE BEEN STRICTLY LIABLE UNDER THE UNDISPUTED FACTS.

            (Stated Issues Nos. I, II, III, IV, V, VII and VIII)

ACSO’s Lack of Control of Sleuber or Control of the Premises

The Order granting ACSO summary judgment, in pertinent part, provides “[b]ecause I find that the ACSO had neither control of the premises where the dog was kept nor control over the dog, the ACSO could not reasonably have done anything to prevent the Plaintiff’s injuries and summary judgment in favor of ACSO is appropriate”.  [R. p.3].  (Emphasis added.)  This passage is illustrative inasmuch as it underscores the trial Court’s rationale in granting ACSO summary judgment.

Appellant respectfully asserts that the trial Court’s consideration of whether ACSO could have “done anything to prevent Plaintiff’s injuries” was to inappropriately inject traditional negligence considerations into its analysis, contrary to both the common law and dog bite statute.

In Hossenlopp v. Cannon, 285 S.C. 367, 329 S.E.2d 438, 441 (1985), South Carolina Supreme Court adopted a quasi-strict liability rule for dog bites  known as the California Rule.  This rule provides:

...the owner of any dog which bites a person while such person is on or in a public place or is lawfully on or in a private place, including the property of the owner of such dog, is liable for such damages as may be suffered by the person bitten regardless of whether or not the dog previously had been vicious, regardless of the owner’s knowledge or lack of knowledge of any such viciousness, and regardless of whether or not the owner has been negligent in respect to the dog, provided however, that if a person knowingly and voluntarily invites attack upon himself, or if, when on the property of the owner a person voluntarily, knowingly and without reasonable necessity, exposes himself to the danger, the owner of the dog is not liable for the consequences... Id., (Citations omitted.) (Emphasis added.)

Stated another way, regardless of an animal’s dangerous propensity, the owner’s knowledge of the dangerous propensity or the owner’s negligence, the owner of a dog that bites someone in a public or private place is strictly liable unless the victim knowingly and voluntarily invites attack upon herself.  Id.    Additionally, if on the animal owner’s premises, there is no recovery if the victim voluntarily, knowingly and without necessity exposes herself to the danger.  Id.

Under Hossenlopp, the owner’s negligence is expressly made irrelevant.  Id.  Notwithstanding, the Court’s Order granting ACSO summary judgment makes repeated references to factors apparently reflecting ACSO’s lack of negligence  [R. p.2]. “...[n]either Deputy Carron nor any member of the Anderson County Sheriff’s office was even remotely near...”, [R. p.2] “....[and] the Anderson County Sheriff’s office...did not have control of the dog...”, [R. p.3]  “Because I find that the ACSO had neither control of the premises where the dog was kept nor control over the dog, ACSO could not reasonably have done anything to prevent Plaintiff’s injuries...”,  [R. p.4] “...The Plaintiff was not on ACSO’s property, but rather on her employer’s property”.

ACSO points to Nesbitt v. Lewis, 335 S.C.441, 517 S.E.2d 11, (Ct. App.1999) for the proposition that it is insulated from liability for its dog’s attack on Harris because “care, custody and control” of Sleuber was with Happistance at the time.  Specifically, ACSO points to the following language:

In Hossenlopp the supreme court adopted a quasi-strict liability rule known as the California rule.  This rule does not require any knowledge of a vicious propensity before liability attaches.  The rule, however, does not abrogate a requirement of ownership and control of either or both the dog and the premises if the injury occurs on private property.  Common law concepts control this analysis.

Id., at 446, 517 S.E.2d at 14 (Citations omitted.).

Harris submits Nesbitt does not so clearly delineate ACSO’s liability (or lack thereof).  In Nesbitt, a mother, her son and her daughter were held liable at trial for injuries and damages resulting when three (3) chows attacked a minor child whose father was cutting grass on their property.  Id., at 444, 517 S.E.2d at 13.  The attack occurred at the mother’s residence, where the son also resided.  Id.  Son and daughter owned minority interests in the property due to their father dying intestate, with mother having the majority share.  Id.  The mother owned the dogs, but was legally blind. Id.   The son “tended the dogs, taking them to the veterinarian, feeding them and playing with them on occasion”.  Id. at 446 517 S.E.2d at 14.    The mother told the victim and her father it was all right to pet the dogs.  Id. at 414, 517 S.E.2d at 13.  Further,  the son allowed the victim and her father into the yard where the dogs were located.  Id., at 446,  517 S.E.2d, at 14.   Conversely, the daughter did not own the dogs or control the premises where the attack occurred.   Id.  She was married and had lived elsewhere for five (5) years.   Id.  She did not care for the dogs.  She simply owned a minority interest in the realty.  Id.  The judgment against the daughter was reversed; however it was affirmed as to both mother and son.   Id.

Harris submits that Nesbitt does not define if or when an owner’s liability allegedly ends and the keeper’s begins.  In fact, Nesbitt can be interpreted as providing for joint and/or several liability for dog owners and keepers.

Hossenlopp involved the Court’s review and modernization of dog bite liability called for in Justice Littlejohn’s concurring opinion in McQuaig v. Brown,  270 S.C. 512, 242 S.E.2d 688, 690 (1978).  Dog bite liability was expanded to reflect a more modern view^[2].  Hossenlopp, at 371,  329 S.E.2d at 441.   Harris respectfully submits that the trial court’s restrictive interpretation of dog bite liability is contrary to the modern view adopted by the Supreme Court. 

The reasoning in Maccarone v. Hawley, 7 Conn.App. 19, 507 A.2d 506 [Conn.Ct. App. 1986] is persuasive.  Maccarone arose from a claim that a dog owned by Hawley and boarded by a veterinary clinic, bit an employee of the clinic.   Id., at 19, 507 A.2d at 507. 

In Maccarone, the factual circumstances are very similar to the case at hand.  The Plaintiff was an employee of a veterinary clinic.   Id., at 19, 507 A.2d at 507.  She was injured when Hawley’s dog bit her while it was being boarded at the clinic.   Id., at 20.   The employee commenced suit against Hawley as owner.   Hawley filed a third party complaint against the clinic seeking indemnification for any judgment rendered against him based in large part on the clinic’s status as a keeper of the dog at the time of the incident.   Id.

Disagreeing with Hawley, the Appellate Court of Connecticut stated:

The statute^[3] creates strict liability in the owner or keeper to third parties for injuries caused by a dog.  Its purpose is to abrogate the common law doctrine of scienter as applied to damage by dogs to persons and property, so that liability of the owner or keeper become no longer dependent upon his knowledge of the dog’s ferocity or mischievous propensity...(Citation Omitted.)  It is an example of the common law principle that, as between two innocent persons, namely the injured third party and the owner or keeper, the loss should fall on the one who caused it, rather than on the one who had no  part in doing so.

Thus, the statute does not make fault a factor in determining whether the owner or keeper should be responsible to any injured third party.  The owner or keeper must pay the injured party, not because he was at fault in properly controlling the dog or in not being aware of the dog’s potential for harm, but because justice and social policy require that he bear the loss rather than the injured party.

            !

Merely by shifting possession of his dog to a temporary keeper, the owner should not also be able to shift to that keeper his liability for injuries caused by his dog.  The fact that the Clinic had physical possession and thus an arguably greater potential to control the dog, is not sufficient to shift the basis of legal liability to the keeper.  The liability of either owner or keeper under the statute is imposed even if the keeper takes all reasonable measures to control the dog.  Thus, the keeper’s degree of control, or lack of control is irrelevant.

            Id.,  at 24-25, 507 A.2d at 508-09.

SC Code Ann.§47-3-110 codified the holding of Hossenlopp.   Nesbitt, at 447,  517 S.E.2d at 15.  The statute provides:

Whenever any person is bitten or otherwise attacked by a dog while the person is in a public place or is lawfully in a private place, including the property of the owner of the dog or other person having the dog in his care or keeping, the owner of the dog or other person having the dog in his care or keeping is liable for the damages suffered by the person bitten or otherwise attacked. For the purposes of this section, a person bitten or otherwise attacked is lawfully in a private place, including the property of the owner of the dog or other person having the dog in his care or keeping, when the person bitten or otherwise attacked is on the property in the performance of any duty imposed upon him by the laws of this State, by the ordinances of any political subdivision of this State, by the laws of the United States of America, including, but not limited to, postal regulations, or when the person bitten or otherwise attacked is on the property upon the invitation, express or implied, of the owner of the property or of any lawful tenant or resident of the property. If a person provokes a dog into attacking him then the owner of the dog is not liable.

Harris submits that S.C. Code Ann. §47-3-110 not only codified Hossenlopp,  but expanded dog bite liability further by making “keepers” of animals strictly liable along with owners.

A literal reading of the statute evinces no language delineating liability other than the use of the disjunctive particle “or” between “the owner of the dog or other person having the dog in his care or keeping”.  (See argument below.)   That is, the literal language of our dog bite statute does not provide when, or if, liability passes from an owner to a keeper, or vice versa.

S.C. Code Ann. §47-3-110 was enacted subsequent to Hossenlopp,  by 1986 Act No. 343.  Accordingly, Harris submits that the legislature’s intent, as previously stated, was to expand not limit dog bite liability by the inclusion of “persons having the dog in his care or keeping”.

All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in the light of the intended purpose of the statute.

If the legislature’s intent is clearly apparent from the statutory language, a court may not embark upon a search for it outside the statute.  When the language of a statute is clear and explicit, a court cannot rewrite the statute and inject matters into it which are not in the legislature’s language, and there is no need to resort to statutory interpretation or intent to determine its meaning.  While it is true that the purpose of an enactment will prevail over the literal import of the statute, this does not mean that this Court can completely rewrite a plain statute.

What a legislature says in the test of a statute is considered the best evidence of the legislative intent or will.

State v. Leopard, 349 S.C. 467, 471, 563 S.E.2d 342, 344-45 (Ct.App.2002). (Citations omitted.)  (Emphasis added.)

Harris submits that the Court’s construction of S.C. Code Ann. §47-3-110 not only defies the plain meaning of this enactment but defeats the legislature’s intent as well.

II. IN CONSTRUING S.C. CODE ANN. §47-3-110, THE COURT ERRED WHEN IT REFUSED TO INTERPRET THE WORD “OR” AS A DISJUNCTIVE PARTICLE.

            (Stated Issue No. VI)

Harris’ Choice of Defendants

As stated, S.C. Code Ann. §47-3-110 provides, in pertinent part, that “the owner of the dog or other person having the dog in his care or keeping is liable for damages suffered by the person bitten or otherwise attacked”.  (Emphasis added.)

The word “or” when used in a statute is a disjunctive particle that marks an alternative.  The word “or” used in a statute imports choice between two alternatives and as ordinarily used, means one or the other of the two but not both.  Brewer v. Brewer, 242 S.C.9, 129 S.E.2d 736, 738 (1963); State v. Pilot Life Insurance, 257 S.C.383, 186 S.E.2d 262, 268 (1972);  Investor’s Premium Corp. v. SC Tax Commission, 260 S.C.13, 93 S.E.2d 642, 645 (1973).

Harris submits that adopting this construction of S.C. Code Ann. §47-3-110 is in keeping with the Court’s and the legislature’s intent to modernize the basic concept of liability as relates to dog bites by providing for joint liability and giving the victim her choice of Defendants.

CONCLUSION

Harris respectfully submits that the Order granting ACSO summary judgment should be reversed and that judgment as a matter of law  as to ACSO’s liability be granted to her. 

April 27, 2007

^[1]ACSO does not dispute the attack was unprovoked or that Harris was lawfully on Happistance’s premises at the time [R. p.56, lines 10-11].

^[2]Interestingly, ACSO should also be liable under pre-Hossenlopp case law based upon its knowledge of Sleuber’s multiple, documented prior attacks  [R. p.39].

^[3]The statute provides, in pertinent part, [I]f any dog does any damage to either the body or property of any person, the owner or keeper...shall be liable for such damage... Id., at 22, 507A.2d at 507.