Borns Ex Rel. Gannon v. Voss
2003 WY 74, 2003 Wyo. LEXIS 90, 70 P.3d 262 (2003)
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Rule of Law:
A dog owner may be held liable under a theory of common law negligence for failing to exercise reasonable care in controlling their animal, even if the owner did not have prior knowledge of the dog's dangerous propensities (scienter), as scienter is only an element of a strict liability claim.
Facts:
- Clayton and Mitsy Voss, owners of Lazy TX Outfitters, employed Jim Borns.
- The Vosses owned a male Red Heeler dog named Tramp.
- Jim Borns' seven-year-old daughter, Carmen, was staying at the Vosses' camp.
- On at least two occasions prior to the incident, both Clayton and Mitsy Voss witnessed Carmen hitting and kicking Tramp and told her to stop.
- Clayton Voss had previously warned Jim Borns to be careful around Tramp until the dog became accustomed to him.
- On a separate prior occasion, Tramp spun around and attempted to bite Jim Borns' hand while Clayton Voss was present.
- On July 18, 1999, while Carmen was interacting with Tramp at the camp, the dog bit her on the face, causing significant injury.
Procedural Posture:
- Carmen Borns, by and through her father Jim Borns, filed a lawsuit against Clayton and Mitsy Voss in a Wyoming district court (trial court).
- The Vosses filed a motion for summary judgment.
- The district court granted the Vosses' motion for summary judgment, finding they owed no duty to Borns because they had no prior knowledge of the dog's dangerous propensities.
- Carmen Borns (appellant) appealed the summary judgment order to the Supreme Court of Wyoming.
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Issue:
Does a dog owner's lack of prior knowledge of their dog's vicious propensities preclude a claim for common law negligence, and should the common law 'one free bite' rule, which requires scienter for strict liability, be abrogated?
Opinions:
Majority - Voigt, Justice
No. A dog owner's lack of prior knowledge of their dog's vicious propensities does not preclude a claim for common law negligence, and the court declines to abrogate the common law 'one free bite' rule. The court clarified that Wyoming recognizes three distinct theories of recovery in dog bite cases: common law negligence, common law strict liability, and negligence per se (violation of a statute). The court overruled prior precedents that erroneously required proof of scienter (knowledge of dangerous propensities) for a negligence claim, emphasizing that scienter is an element only of strict liability. A negligence claim requires only a showing of duty, breach, causation, and damages, where the duty is to exercise reasonable care under the circumstances. Here, genuine issues of material fact existed as to whether the Vosses were negligent in their control of Tramp, given their awareness of the child's repeated mistreatment of the dog. Regarding the 'one free bite' rule (the scienter requirement for strict liability), the court declined to abrogate it, concluding that such a significant policy change is better left to the legislature, which is better equipped to debate the policy implications and has already acted in this area. Stare decisis requires judicial restraint unless compelling reasons exist to alter established common law.
Analysis:
This case is significant for clarifying Wyoming's dog bite jurisprudence by firmly separating the legal analyses for negligence and strict liability. By explicitly overruling prior cases that had blurred the distinction, the court lowered the barrier for plaintiffs, allowing them to proceed with a negligence claim without having to prove the owner's prior knowledge of the dog's viciousness. This makes it easier for dog bite victims to survive summary judgment by focusing on the owner's failure to act reasonably under the circumstances. However, the court's deference to the legislature on abrogating the 'one free bite' rule demonstrates judicial restraint and preserves the high evidentiary standard for the separate cause of action in strict liability.
