THE STATE OF SOUTH CAROLINA
IN THE COURT OF APPEALS

APPEAL FROM ANDERSON COUNTY
COURT OF COMMON PLEAS
JAMES C. WILLIAMS, CIRCUIT COURT JUDGE

CASE NO.:  2005-CP-04-643

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

v.

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

FINAL BRIEF OF RESPONDENT

Table of Contents

Table of Authorities

CASES

STATUTES

OTHER AUTHORITIES

Statement of Issues on Appeal

1. DID THE COURT PROPERLY GRANT SUMMARY JUDGMENT IN FAVOR OF RESPONDENT WHERE NO GENUINE ISSUE OF MATERIAL FACT EXISTS AND WHERE NEITHER THE COMMON LAW NOR S.C. CODE ANN. § 47-3-110 RENDERS THE RESPONDENT LIABLE FOR APPELLANT’S INJURIES?

2. UNDER S.C. CODE ANN. § 47-3-110, IS THE ISSUE OF LIABILITY A MATTER TO BE DETERMINED BY THE PETITIONER’S MERE CHOICE AS OPPOSED TO APPLICABLE PRINCIPLES OF TORT LAW?

3. DID THE COURT PROPERLY GRANT SUMMARY JUDGMENT IN FAVOR OF RESPONDENT WHERE RESPONDENT IS NOT LIABLE TO PETITIONER AS A MATTER OF LAW PURSUANT TO S.C. CODE ANN. § 15-78-60?

STATEMENT OF THE CASE

On March 7, 2005, Appellant Jennifer Marie Harris (“Harris” or “Appellant”) commenced this action in the Anderson County Court of Common Pleas against the Anderson County Sheriff and the Anderson County Sheriff’s Office (“ACSO” or “Respondent”).  Harris  alleged that the Anderson County Sheriff and the ACSO were liable to her for violation of S.C. Code Ann. § 47-3-110, as amended, and common law negligence after being bitten by a police dog owned by the ACSO while the dog was being boarded by Harris’ employer, a Townville, South Carolina veterinary clinic.  The Anderson County Sheriff was subsequently dismissed as a party-defendant by agreement of the parties.

Respondent timely answered the Complaint on May 10, 2005, by alleging a general denial, negligence by a third party, comparative negligence, South Carolina Tort Claims Act defenses, including S.C. Code Ann. §15-78-60, assumption of the risk, that the South Carolina Workers’ Compensation Act provided the exclusive remedy to Harris’s claim, and that the ACSO did not have the dog in its possession, care, custody, control, or keeping at the time of Harris’ injuries.

The parties filed cross motions for summary judgment, both of which were heard and ruled upon by the Honorable James C. Williams on August 2, 2006.  In an Order filed August 17, 2006, the trial court denied the Appellant’s motion for summary judgment and granted the Respondent’s motion for summary judgment.

Pursuant to its order dated November 15, 2006 and filed November 15, 2006, the trial court denied Appellant’s subsequent motion for reconsideration.

Appellant filed her Notice of Appeal on November 27, 2006.

STATEMENT OF FACTS

On June 26, 2003, ACSO Deputy Todd Caron brought his police dog, Slueber, to board at the Happistance Veterinary Clinic in Townville, South Carolina while he went on vacation.  (R. pp. 67, 85-86).  He was to board at the clinic until Monday, July 7, 2003.  (Id.)  Dr. Morris had treated Slueber since April of 2001 and was aware that Slueber was a law enforcement canine.  (R. pp. 74, 85-86).

Deputy Caron left explicit instructions with both the veterinary assistant/receptionist working the front desk and Dr. Joy Morris at the Happistance Veterinary Clinic that no one was to be in a kennel with Slueber.  (R. pp. 47-48).  Deputy Caron explained to the receptionist and to Dr. Morris that he did not want Slueber to bite anyone and did not want to lose his dog in the event of such an incident.  (Id.)  In her deposition, Dr. Morris testified that she did not recall any instructions by Deputy Caron and did not recall speaking with him.  (R. pp. 67-69).

Despite Deputy Caron’s explicit instructions to the contrary, no one at the Happistance Veterinary Clinic advised Appellant, an employee of the clinic who worked with the dogs, that no one was to be in a kennel with Slueber.  Instead, Harris was merely told not to touch the dog.  (R. p. 87).  In her deposition, Harris testified that it was possible to care for Slueber without ever being alone in the same enclosed area with the dog.  (R. pp. 89, lines 1-5, 93).  On Sunday, July 6, 2003, however, Harris entered the kennel run with Slueber.  (R. pp. 90-91).  Subsequently, Slueber attacked and bit Harris, injuring her.  (Id.)

In a deposition for her Workers Compensation case on November 11, 2004, Harris had previously testified that Dr. Morris had told her that Slueber had previously attacked or “turned on” his trainer before the incident in which Harris was injured.  (R. p. 94).

STANDARD OF REVIEW

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.  Belton v. Cincinnati Ins. Co., 360 S.C. 575, 602 S.E.2d 389 (2004); McCall v. State Farm Mut. Auto. Ins. Co., 359 S.C. 372, 597 S.E.2d 181 (Ct. App. 2004); Rule 56(c), SCRCP; see also Higgins v. Medical Univ. of South Carolina, 326 S.C. 592, 486 S.E.2d 269 (Ct. App. 1997) (noting that when ruling on a motion for summary judgment, the trial judge must consider all of the documents and evidence within the record, including pleadings, depositions, answers to interrogatories, admissions on file, and affidavits).  "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."  Ferguson v. Charleston Lincoln Mercury, Inc., 349 S.C. 558, 563, 564 S.E.2d 94, 96 (2002); see also Schmidt v. Courtney, 357 S.C. 310, 592 S.E.2d 326 (Ct. App. 2003)(stating that all ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party).

Moreover, summary judgment is appropriate where further inquiry into the facts of the case is not necessary to clarify the application of the law.  Brockbank v. Best Capital Corp., 341 S.C. 372, 534 S.E.2d 688 (2000); Hawkins v. City of Greenville, 358 S.C. 280, 594 S.E.2d 557 (Ct. App. 2004).  Where plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. Hedgepath v. American Tel. & Tel. Co., 348 S.C. 340, 559 S.E.2d 327 (Ct. App. 2001); Pye v. Aycock, 325 S.C. 426, 480 S.E.2d 455 (Ct. App. 1997).

The party seeking summary judgment has the burden of clearly establishing the absence of a genuine issue of material fact.  McCall, 359 S.C. at 376, 597 S.E.2d at 183.  Once the party moving for summary judgment meets the initial burden of showing an absence of evidentiary support for the opponent's case, the opponent cannot simply rest on mere allegations or denials contained in the pleadings.  Regions Bank v. Schmauch, 354 S.C. 648, 582 S.E.2d 432 (Ct. App. 2003).  Rather, the nonmoving party must come forward with specific facts showing there is a genuine issue for trial. Peterson v. West American Ins. Co., 336 S.C. 89, 518 S.E.2d 608 (Ct. App. 1999); Rule 56(c), SCRCP.

The purpose of summary judgment is to expedite disposition of cases which do not require the services of a fact finder.  Dawkins v. Fields, 354 S.C. 58, 580 S.E.2d 433 (2003); Rumpf v. Massachusetts Mut. Life Ins. Co., 357 S.C. 386, 593 S.E.2d 183 (Ct. App. 2004).

ARGUMENT

I. THE COURT PROPERLY GRANTED SUMMARY JUDGMENT IN FAVOR OF RESPONDENT BECAUSE NO GENUINE ISSUE OF MATERIAL FACT EXISTS AND THE RESPONDENT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW.

A. Respondent is not liable to Appellant under Hossenlopp or Nesbitt.

Despite Appellant’s argument to the contrary, the ACSO is not liable to Harris under Hossenlopp v. Cannon, 285 S.C. 367, 329 S.E.2d 438 (1985) or under Nesbitt v. Lewis, 335 S.C. 441, 517 S.E.2d 11 (S.C. Ct. App. 1999) because the facts, the application of the law to those facts and the basis for the appellate court’s decision in those cases were materially different from the case at bar.

Initially, Hossenlopp is distinguishable on its facts from the case at bar.  In Hossenlopp, a four year old child was playing outside at the home of his babysitter while watching the babysitter’s dogs, which were fenced in.  Another dog, owned by the Defendants, charged toward the child.  In an effort to avoid the attack, the child tried to climb over the fence, failed, and was attacked by the dog, which dragged him by the ankle and leg causing injuries to the child.  The Court granted summary judgment in favor of the child on the issue of liability.  The dog owner appealed on the sole ground that a genuine issue of fact existed as to whether they had previous notice of the propensity of their dog to bite people.

The Supreme Court affirmed the trial court and observed:

Under Rule 44 of the Circuit Court, it is appropriate to grant summary judgment on all issues or on specified issues if there is no genuine issue of fact to be determined. The conventional dog-bite law in this state heretofore set forth in several cases is as follows:

. . . It is the rule in this State that domestic animals are not presumed to be dangerous to persons, and before recovery of damages may be had against the owner, the injured party must prove that the particular animals was of a dangerous, or vicious nature, and that his dangerous propensity was either known, or should have been known to the owner. The negligence that imposes liability upon the owner is the keeping of a dangerous animal with knowledge of its dangerous tendencies, or in the failure to restrain it from injuring persons . . . (citations omitted).

There is no serious argument but that the dog of the Cannons proximately caused substantial damages to the child. Nor can it be seriously argued that the Cannons were not negligent. Section 47-3-50 of the South Carolina Code of Laws (1976) provides as follows:

It shall be unlawful in any county adopting penalty provisions pursuant to the provisions of this article for a dog owner or other keeper of a dog to:
(a) allow his dog to run at large off of property owned, rented or controlled by him;

…

Hossenlopp v. Cannon, 285 S.C. at 369-70, 329 S.E.2d at 440.

In Hossenlopp, the facts, the underlying law (as it existed then) and the rationale for the Court’s ruling were all patently different from the case presently before this Court.  In response to those dissimilar facts and circumstances, the Supreme Court stated:

The dog-bite law is of common law origin. It may be changed by common law mandate. The time has come when our rule must give way to the more commonly accepted rule of law indicated in other states by both case law and by statute.

When a child, as in this case, has been injured by the dog of another, the burden of damages, medical expenses, hospital, etc. must be paid by either the owner of the dog or the parents of the child. It is common knowledge that dogs have a tendency to bite. The owners know this and should be made to respond in damages when the dogs they keep do injuries to others regardless of whether the injury is a result of the first bite, the second or other bite. In this state, we have a paradoxical situation in that § 15-75-30, Code of Laws of South Carolina (1976) gives to an injured party the right to collect damages from parents where an unmarried minor child under the age of seventeen years does damages to the property of another; but if that same parents' dog does damage to the property of another, money may not be collected unless it be shown that he had bitten before or was known to be of a mischievous nature. In tort cases, the culpable party should be responsible for not only the second delict but the first.

California has dealt with this matter by way of statute. Out of that statute has come a jury instruction found in California Jury Instructions -- Civil (1950 Supp.). We approve. It reads as follows:

The law of California provides that 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 [herself], or if, when on the property of the dog owner, a person voluntarily, knowingly, and without reasonable necessity, exposes himself [herself] to the danger, the owner of the dog is not liable for the consequences . . .

Hossenlopp v. Cannon,  285 S.C. at 371-72, 329 S.E.2d at 441.

The Court continued to say “[w]e think the California rule is sound.  It is short of the rule of strict liability for dogs.”  Id. (emphasis added)[1].  Despite this language, Appellant urges this Court to conclude that “[u]nder Hossenlopp, the owner’s negligence is expressly made irrelevant.”  Final Brief of Appellant, p. 8

Nevertheless, the case at bar does not present the situation where a child has been injured by the dog of another or where the burden of damages, medical expenses, hospital, etc. must be paid by either the owner of the dog or the parents of the child.  More importantly, in Hossenlopp, the Court made an express finding of negligence on the part of the defendants in “the keeping of a dangerous animal with knowledge of its dangerous tendencies, or in the failure to restrain it from injuring persons . . .“  Hossenlopp, 285 S.C. 369-70, 329 S.E.2d 438.

Likewise, the Nesbitt case involved materially different facts from the case at bar.  In Nesbitt, a mother and her two adult children (“the defendants”) owned a residence, where only the brother and sister lived and kept three Chow dogs on their property. The plaintiff was cutting the defendants’ lawn while his minor child played outside with appellants' dogs. The dogs attacked the minor child, requiring a hospital stay and causing permanent scars. After a jury trial, the plaintiff was awarded compensatory and punitive damages.  When the defendants appealed, the Court of Appeals affirmed judgment for the plaintiff, but held that the trial court erred in failing to grant the mother's motion for a directed verdict because there was no duty owed to plaintiff because the mother lacked possession and control over the house and dogs.

In finding as a matter of law that the mother did not owe a duty to the plaintiff because she lacked possession and control over the house and the dogs, the Court of Appeals stated:

In Hossenlopp the supreme court adopted a quasi-strict liability rule known as the California rule. Hossenlopp, 285 S.C. at 372, 329 S.E.2d at 441. This rule does not require any knowledge of a vicious propensity before liability attaches. Id. 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.

Ordinarily, one in possession of personal property is presumed to be the owner . . . ." Stephenson Fin. Co. v. Wingard, 238 S.C. 506, 511, 121 S.E.2d 1, 3 (1961). "One who controls the use of property has a duty of care not to harm others by its use. Conversely, one who has no control owes no duty." Miller v. City of Camden, 329 S.C. 310, 314, 494 S.E.2d 813, 815 (1997) (citations omitted); see S.C. Code Ann. § 47-3-110 (1987) (placing liability on "the owner of the dog or other person having the dog in his care or keeping.").

We find as a matter of law Brenda did not owe a duty to the Nesbitts because she lacked possession and control over Gloria's house and the dogs. See id. (noting that one who has no control over property owes no duty); Stephenson Fin., 238 S.C. at 506, 121 S.E.2d at 1 (noting possession creates a presumption of ownership). The evidence precludes a finding that Brenda owned the dogs or had them in her care or keeping. We therefore reverse that part of the verdict holding Brenda liable.

Nesbitt v. Lewis, 335 S.C. 441, 517 S.E.2d 11 (S.C. Ct. App. 1999)(emphasis added).

Under Nesbitt, therefore, Appellant is required to demonstrate that the Respondent had ownership and control of either or both the dog and the premises because the injury occurred on private property.  Appellant has not, and cannot, meet her burden in this regard.  Although the Respondent clearly owned the dog that bit Appellant, it did not have the requisite control of the dog at the time of Appellant’s injury.  Moreover, the Respondent lacked any ownership or control over the premises where the injury occurred.

Neither Hossenlopp nor Nesbitt may reasonably be interpreted as imposing liability on the Respondent, whether individually or jointly and severally with Harris’s employer, as suggested by the Appellant.  See, Final Brief of Appellant, p. 9.

B. Respondent is not liable to Petitioner under S.C. Code Ann. § 47-3-110.

As noted by the Appellant, S.C. Code Ann. § 47-3-110 codified the holding of the Hossenlopp case.  Final Brief of Appellant, p. 9; see also, Nesbitt, supra.

Section 47-3-110 provides in pertinent part:

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 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.

 S.C. Code Ann. § 47-3-110.

At least one South Carolina appellate decision has limited the application of the statute by holding that “[t]he statute imposes strict liability on dog owners when the victim is lawfully on the owner's property, except where the victim provokes the dog.  Elmore v. Ramos, 327 S.C. 507, 510, 489 S.E.2d 663, 665 (Ct. App. 1997).[2]  In this case, it is undisputed that Appellant was on the property of her employer, the Happistance Veterinary Clinic, when the Appellant was injured.

Appellant relies heavily on the notion that the word “or” in the statute is a disjunctive particle, which gives the Appellant her choice between “the owner of the dog or other person having the dog in his care or keeping” for purposes of liability.  Appellant’s notion in this regard lacks any supporting authority under South Carolina common law.  Additionally, the word “or,” as used in the statute at issue, is not limited solely to use as a disjunctive particle.

In Martin v. Carolina Water Service, Inc., 280 S.C. 235, 312 S.E.2d 556 (Ct. App. 1984), the Court of Appeals stated: “As used in its ordinary sense, the word "or" is a disjunctive particle that denotes an alternative [citing State v. Pilot Life Ins. Co., 257 S.C. 383, 186 S.E. (2d) 262 (1972)]; however, the word "or" may also be employed as a coordinate conjunction introducing a synonymous word or phrase or it may join different terms expressing the same idea or thing and it may be used as a particle to connect two words meaning the same thing. State v. Spindel, 24 N.J. 395, 132 A. (2d) 291 (1957).”  Accordingly, as it relates to the legislature’s intent, the word “or” may have alternate uses or meanings from that which is attributed to the legislature by the Appellant.

Furthermore, as noted below, there is no basis under South Carolina law for leaving the issue of tort liability up to the mere whim or fancy of the Appellant.  Harris argues that she should have “her choice of Defendants.[3]”  Nevertheless, her argument lacks any evidentiary support or legal authority, whether by the clear legislative intent of S.C. Code Ann. § 47-3-110 or otherwise.   

It is an unfortunate circumstance that the “other person having the dog in his care or keeping” in this case is the Appellant’s employer, whose liability to Harris is limited to the exclusive remedy of the South Carolina Worker’s Compensation Act.  (R. p. 15, line 14  - p. 16, line 21).  Even if she had been bitten by a dog in the keeping of a third party other than her own employer, however, the Appellant’s argument that she has, or should have, her choice of Defendants would still be erroneous.

C. Courts in other jurisdictions have declined to extend strict liability to the dog               owner in the same or similar factual situations.

In similar factual situations, several courts in other jurisdictions have declined to impose liability on dog owners.  For instance, in Georgia, a veterinary technician sued the owner of an Akita who attacked the technician while she was attempting to place a collar around him. The trial court denied the dog owner's motion for summary judgment, and the owner appealed.    In reversing the trial court, the Court of Appeals of Georgia reinforced the notion that the general doctrine of assumption of risk applied to workers in certain professions:

Assumption of the risk in certain professions refers to the risk that the situation is potentially dangerous; it is not necessary to the assumption of the risk that she acted negligently, as Lundy perhaps did in his sudden movement in the Lundy case. Assumption of the risk is a matter of knowledge of the danger and intelligent acquiescence in it. Id. at 75. We find it significant that, as in Lundy, the veterinarian voluntarily entered into a contract for the care of Griffiths' dog with full knowledge of the Akita breed's violent and aggressive potential. So did the attendant. As we said in Lundy, every adult is presumed to be endowed with normal faculties, both mental and physical. Id. at 74. No evidence has been presented to us that Schafer was compelled or forced to do this work or to put a collar on this particular dog, beyond her ability and prerogative as an adult to refuse.

…

The provisions of O.C.G.A. § 4-8-30 that "the owner of a dangerous dog or potentially dangerous dog shall be solely liable for any injury to or death of a person caused by such dog" does not impose absolute liability on the owner of a dog who has bitten before. O.C.G.A. § 4-8-30 means that if any person is liable for such bite, it is the owner, and not a government official. Each case depends on its facts. In general, veterinary employees know that practically any dog will bite in certain circumstances and that particularly violent and aggressive breeds are more likely to bite and even to inflict severe wounds. Such employees are either trained to handle such cases, or being adults, may leave them alone. But there may come a case where, for example, veterinary employees have never dealt with a particular dog and are actively misled by an owner about its tendencies, or there may be a case involving a "demon dog" (see Lundy, dissent) whose propensities for violence extend far beyond any risk such employees may ever be deemed to assume in their employment. This is not such a case. Accordingly, we find the trial court erred in denying summary judgment to the defendant dog owner in this case.

Griffiths v. Schafer, 223 Ga. App. 560, 478 S.E.2d 625 (1996)(citing Lundy v. Stuhr, 185 Ga. App. 72, 363 S.E.2d 34 (Ga. App. 1987) for the proposition that a kennel attendant assumed a known risk that a dog "might bite" when opening the animal's cage to retrieve his water bowl).

Moreover, cases from at least two additional jurisdictions have held that the definition of "owner" – as applied in the states’ dog-bite statutes -  includes the veterinarian or kennel owner who undertakes  care, custody, and control of a dog.  See Tschida v. Berdusco, 462 N.W.2d 410 (Minn. Ct. App. 1990) (dog owners not liable under Minnesota dog-bite statute when their dog bit veterinarian's employee because both actual owners and veterinarian were statutory owners); Wilcoxen v. Paige, 174 Ill. App. 3d 541, 528 N.E.2d 1104, 124 Ill. Dec. 213 (Ill. App. Ct. 1988) (dog owner not liable under Illinois statute when his dog bit owner/operator of dog boarding and grooming business because both actual owner and business owner were statutory owners of dog).

The most compelling case from another jurisdiction, however, is Priebe v. Nelson[4], a 2006 case heard by the California Supreme Court, in the very jurisdiction that originated the “California rule.”  In Priebe, a commercial kennel technician sued the owner of a dog for personal injuries suffered when she was bitten and seriously injured by the dog while it was boarded at the kennel, which employed her.  In declining to hold the dog owner liable, the California Supreme Court reasoned:

We see nothing in the language of the statute to suggest the Legislature ever contemplated or intended that such a duty of care, and imposition of strict liability for its breach, should apply in those situations where the care, custody, and control of a dog has been entrusted to trained professionals in exchange for compensation, as is the case when a dog is left with a veterinarian for medical treatment, or placed in a licensed commercial kennel for boarding.

 We agree with the observations of the Court of Appeal below, that "the business of kenneling is such that the kennel operators assume the care and handling of dogs entrusted to their professional care during the absence of their owners," and that "[o]nce a dog has been accepted for kenneling and the owner leaves, the kennel staff are in charge of the dog, not the owner. They determine the best way to handle the dog while at the kennel, and what protective measures, if any, should be taken to ensure employee safety." It seems counterintuitive to hold a dog owner strictly liable to a kennel worker for breach of the duty of care under section 3342 under circumstances where the dog owner has completely relinquished the care, custody, and control of his or her dog to a veterinarian or similar professional trained to care for and safely handle dogs, and the dog owner is therefore not in a position to supervise or prevent any conduct on the part of the dog.

Notwithstanding the general intent and purpose behind section 3342, we must also ask, is there is any clear public policy that would justify excusing the specific duty of care imposed on dog owners under the statute by extending the veterinarian's rule as a bar to personal injury suits by kennel workers injured on the job by dogs left in their exclusive care and control? The pertinent case law identifies several relevant public policies.

…

One rationale given in these cases for excusing the dog owner's usual duty of care under the veterinarian's rule lies in " 'the nature of the activity' " that characterizes the veterinary profession. (Neighbarger, supra, 8 Cal.4th at p. 545; Cohen, supra, 16 Cal.App.4th at p. 655.) As the Nelson court explained, "The risk of dog bites during treatment is a specific known hazard endemic to the very occupation in which plaintiff voluntarily engaged. Therefore, in voluntarily engaging in the occupation of assisting veterinarians in the medical treatment of dogs, plaintiff assumed the risk of being bitten during the course of treatment." (Nelson, supra, 165 Cal. App. 3d at p. 714.) The Nelson court observed further, "A veterinarian or a veterinary assistant who accepts employment for the medical treatment of a dog, aware of the risk that any dog, regardless of its previous nature, might bite while being treated, has assumed this risk as part of his or her occupation. The veterinarian determines the method of treatment and handling of the dog. He or she is the person in possession and control of the dog and is in the best position to take necessary precautions and protective measures." (Id. at p. 715.)

Hence, one public policy supportive of the veterinarian's rule is the commonsense recognition that veterinarians, their trained assistants, and those in similarly situated professions (e.g., dog groomers, kennel technicians) are in the best position, and usually the only position, to take the necessary safety precautions and protective measures to avoid being bitten or otherwise injured by a dog left in their care and control.

…

A second rationale given in the case law for excusing the dog owner's usual duty of care under the dog bite statute arises from the special nature of "the relationship between the defendant and the plaintiff." (Neighbarger, supra, 8 Cal.4th at p. 545; see Cohen, supra, 16 Cal.App.4th at p. 655.) It can be observed that in dog bite cases, unlike most other tort actions, the very instrumentality that causes the harm or injury to the plaintiff, i.e., the dog that bites or attacks, has oftentimes been physically separated from the custody and control of the supposed tortfeasor, i.e., the dog's legal owner, and relinquished to the care, custody, and control of the plaintiff, most often pursuant to a contractual agreement providing compensation for services such as medical care, grooming, or boarding. That state of affairs arguably leaves little if anything left to be done on the part of the dog owner to make good on his specific duty of care under section 3342, once custody and care of his dog is relinquished to the professional. As one court put it, "where a person accepts responsibility for controlling an animal, she cannot maintain a cause of action for injuries resulting from her own failure to control the animal." (Wilcoxen v. Paige (1988) 174 Ill. App. 3d 541 [528 N.E.2d 1104, 1106, 124 Ill. Dec. 213].)

…

We therefore conclude that Priebe, by virtue of the nature of her occupation as a kennel worker, assumed the risk of being bitten or otherwise injured by the dogs under her care and control while in the custody of the commercial kennel where she worked pursuant to a contractual boarding agreement. The Court of Appeal correctly concluded a strict liability cause of action under the dog bite statute (§ 3342) was therefore unavailable to Priebe.

Priebe v. Nelson, 39 Cal. 4th 1112, 47 Cal. Rptr. 3d 553, 140 P.3d 848 (2006)(emphasis added).

Finally, Appellant’s reliance upon Maccarone v. Hawley, 7 Conn. App. 19, 507 A.2d 506 (1986) is misplaced.  In Maccarone, which has been limited almost exclusively to cases in Connecticut, the Court identified the central issue of the case, which is distinguishable from the case at bar, as well as the particular circumstances of, and limitations upon, its decision:

We begin our analysis of this case by noting that in this factual context both counts of the third party complaint are affected by principles of the Workers' Compensation Act which limit the Clinic's liability as an employer. The underlying complaint of the plaintiff, the validity of which is not involved in this appeal, alleges that she was injured by the defendant's dog on the premises of the Clinic while she was working at the Clinic. Although the defendant, in his answer, denied those allegations, his third party complaint is premised on the plaintiff's prevailing against him on her complaint. Thus, for purposes of the motion to strike the third party complaint, we must view this as a case in which a third party, namely the defendant, seeks indemnity from an employer, namely the Clinic, for injuries suffered by the employer's employee in the course of his employment.

In this factual and procedural context,  the governing rule is that "[a]bsent an independent legal relationship, a third party's action against an employer for indemnification is barred by the Workers' Compensation Act. Ranta v. Bethlehem Steel Corporation, 287 F. Sup. 111, 113 (D. Conn. 1968); Stevens v. Polinsky, 32 Conn. Sup. 96, 102, 341 A.2d 25 (1974)." Mable v. Bass Transportation Co., 40 Conn. Sup. 253, 258, 490 A.2d 548 (1985), adopted as opinion of the Appellate Court in Mable v. Bass Transportation Co., 3 Conn. App. 547, 490 A.2d 538 (1985). Thus, the question under each count of the third party complaint is whether the defendant  has sufficiently alleged an independent legal relationship between him and the Clinic to avoid the bar of the Workers' Compensation Act.

Maccarone v. Hawley, 7 Conn. App. at 22-23, 507 A.2d at 507-508 (emphasis added).

Contrary to the position taken by Appellant in this case that the apportionment of liability among the owner of the dog and the keeper of the dog is left to her choice,  the Maccarone court clearly stated that “…we need not decide whether the liability to an injured third party under the dogbite statute is strictly in the alternative, or whether such an injured third party can recover against both the owner and keeper upon proof that each defendant is either an "owner or keeper” (citations omitted). That question is not determinative of whether the statute imposes on a keeper of a dog an implied obligation of indemnity in favor of the owner of the dog.”

II. UNDER S.C. CODE ANN. § 47-3-110, LIABILITY IS NOT DETERMINED BY THE PETITIONER’S MERE CHOICE BUT BY APPLICABLE PRINCIPLES OF TORT LAW.

Harris argues that any consideration of fault by the trial court is inappropriate and contrary to both South Carolina common law and S.C. Code Ann. § 47-3-110 regarding dog bites.  Instead, Appellant contends that, in enacting § 47-3-110, the legislature intended to give a dog-bite victim “her choice of Defendants.”  Final Brief of Appellant, p. 13.

In 1991, notably after S.C. Code Ann. § 47-3-110 was enacted, South Carolina Court of Appeals Judge Randall Bell, in discussing the proper application of strict liability, wrote:

The risk of harm is an inescapable fact of human life. When a person seeks a remedy at law for some harm that befalls him, the court must decide among several possible responses. It may let the loss lie where it falls, leaving the injured person with no legal remedy.  On the other hand, it may allocate the loss to another person according to some principle of liability. If the parties have already allocated the risk of a particular harm by agreement (private choice), the court may simply enforce the agreement. In that case, liability arises in contract. If the risk has been allocated by legislation (political choice), the court will enforce the legislation. Liability arises by statute. If the court itself must allocate the loss (adjudication), it has a range of legal theories upon which relief may be granted. The court may determine that the act of one party or another caused the harm and allocate the loss on the basis of causation alone. If the act of a party both caused the harm and was an unjustified act, the court may allocate the loss on the basis of fault. It may also conceivably allocate the loss to a party who neither directly caused the loss nor acted in an unjustified manner, but who is in a "better" position to bear the loss than the injured party. In all of these cases, liability is said to arise in tort by operation of law.

At common law, tort liability has primarily been grounded not on the notion that the defendant by his mere act or omission has caused harm to the plaintiff, but rather on the notion that the defendant by his wrongful act or omission has caused harm to the plaintiff. The root idea of tort law is that the defendant must be "in the wrong," "at fault," "unjustified," "blameworthy," or "culpable" for liability to attach to his conduct.

This idea, which we shall call the fault principle, underlies civil liability from the early history of the common law to modern times. ² It is reflected in the very words the law has chosen to denote the nature of this liability--tort (law French), transgressio (Latin), trespass (English)--all of which mean "wrong." ³ It is manifested in the language by which the defendant pleaded the general issue in the early law: in nullo est inde culpabilis--"in no way is he at fault." Fault remains a foundational principle of tort liability today. In the words of our Supreme Court, "There is no tenet more fundamental in our law than liability follows the tortious wrongdoer." Fitzer v. Greater Greenville South Carolina Young Men's Christian Assoc., 277 S.C. 1, 3, 282 S.E.2d 230, 231 (1981).

…

The extent to which the common law recognizes liability without fault is quite limited. Traditionally, "no fault" or "strict" liability was confined to a few narrowly defined categories such as cattle trespass, public callings, certain kinds of nuisance, and so-called ultrahazardous activities. In the nineteenth century, the English courts added two general exceptions to fault based liability: the rule in Rylands v. Fletcher and the modern doctrine of respondeat superior which imposes liability on a master for the wrongdoing of his servant even though the master himself is not at fault. See South Carolina Insurance Co. v. James C. Greene Inc., 290 S.C. 171, 178-183, 348 S.E.2d 617, 621-624 (Ct. App. 1986). 

                      …

…just as it is impossible to avoid all harm in the conduct of human affairs, it is impossible to insure against all harm. At some point the marginal cost of insuring against risks becomes greater than the marginal benefit of conducting the enterprise that gives rise to those risks. Given the complexity of human activity, this threshold is difficult to establish by legal rules of general application; often it may be much lower than expected for particular activities. As a result, imposition of no fault liability, though a well meaning attempt to compensate an injured party, may give rise to unintended consequences, including the refusal of people or public bodies to engage in highly desirable activities.

Snow v. Columbia, 305 S.C. 544, 409 S.E.2d 797 (Ct. App. 1991).

In this case, Harris does not allege that the Respondent (1) caused the harm suffered, (2) was at fault for the harm suffered, (3) engaged in any unjustifiable act that led to the harm suffered or (4) is in a better position than her employer, the “other person having the dog in his care or keeping,” to bear the cost of the harm suffered.

Moreover, in Hossenlopp, the Court clearly considered the concept of fault when it observed “[t]here is no serious argument but that the dog of the Cannons proximately caused substantial damages to the child. Nor can it be seriously argued that the Cannons were not negligent.”  Hossenlopp v. Cannon, 285 S.C. at 369-70, 329 S.E.2d at 440.  Likewise, in Nesbitt, the Court gave due regard to fault in its consideration of the possession and control of both the animal and the premises as well as its consideration of the existence of a duty, the initial element of common negligence.  See, Nesbitt v. Lewis, 335 S.C. at 446-47, 517 S.E.2d at 14.

Contrary to Appellant’s assertions, fault-based considerations are not only appropriate in the determination of liability, but they are also necessary.

III. THE COURT PROPERLY GRANTED SUMMARY JUDGMENT IN FAVOR OF RESPONDENT BECAUSE IS NOT LIABLE TO PETITIONER PURSUANT TO S.C. CODE ANN. § 15-78-60.

S.C. Code Ann. § 15-78-60(20) provides in pertinent part that “[t]he governmental entity is not liable for a loss resulting from … an act or omission of a person other than an employee including but not limited to the criminal actions of third persons…”.

To the extent that Harris’ employer failed to note or communicate Sleuber’s history as a law enforcement canine or Deputy Caron’s explicit instructions to the employees who were charged with the actual care of the dog, the Anderson County Sheriff’s Office cannot, and should not, be held liable for such conduct.  As the Priebe court noted in its recent decision, “it seems counterintuitive to hold a dog owner strictly liable to a kennel worker…under circumstances where the dog owner has completely relinquished the care, custody, and control of his or her dog to a veterinarian or similar professional trained to care for and safely handle dogs, and the dog owner is therefore not in a position to supervise or prevent any conduct on the part of the dog.  Priebe v. Nelson, 39 Cal. 4th at 1129, 47 Cal. Rptr. 3d at 566, 140 P.3d at 859.

In this case, Deputy Caron told Dr. Morris and another employee at the Happistance Veterinary Clinic that no one was to be in a kennel with Slueber.  (R. pp. 47-48).  Deputy Caron explained that he did not want Slueber to bite anyone and did not want to lose his dog in the event of such an incident.  (Id.)  Furthermore, Harris knew from Dr. Morris that Slueber had reportedly “turned on” his trainer in an incident prior to the one in which Harris was injured.  (R. p. 94). 

Accordingly, to the extent that the trial court determined that there was no genuine issue of material fact that an act or omission of Dr. Morris or the Happistance Veterinary Clinic was the proximate cause of the Appellant’s injuries, the Respondent is not liable for those injuries as a matter of law.[5]  That Appellant is precluded from recovering from her employer (beyond the relief provided in the South Carolina Worker’s Compensation Act) should not have influenced, and did not influence, the trial court’s decision to grant summary judgment in favor of the Respondent.   (R. pp. 62-63).

CONCLUSION

For the reasons stated, this Court should affirm the judgment of the circuit court.

[1] Later that same year, the Supreme Court, citing Hossenlopp,wrote: “This Court recently extended the liability of dog owners for personal injury and property loss caused by their dogs. We did not, however, impose a standard of strict liability in tort.”  Couillard v. Hawkins, 285 S.C. 463, 330 S.E.2d 29 (S.C. 1985)(emphasis added).

[2] To the extent that Petitioner would rely on Elmore v. Ramos, 327 S.C. 507, 489 S.E.2d 663 (S.C. Ct. App. 1997), it is likewise distinguishable on its facts from the case at bar.  In Elmore, the plaintiff was visiting the defendants and accompanied one of the defendants to the backyard to feed some rabbits. The defendants' dog was also in the backyard. While Mrs. Ramos fed her rabbits, Elmore, at Mrs. Ramos's request, walked up a ramp to a shed to get more rabbit food. Upon exiting the shed with the rabbit food, the Ramos’ dog "jumped on [Elmore] from behind" causing her to fall off of the ramp.  Elmore, 327 S.C. at 509, 489 S.E.2d at 665.

[3] See, Final Brief of Appellant, p. 13.

[4] 39 Cal. 4th 1112, 47 Cal. Rptr. 3d 553, 140 P.3d 848.

[5] In her brief, Appellant did not specifically addressed the applicability of S.C. Code Ann. § 15-78-60(20) to the case at bar beyond a general argument that “there is no issue of material fact that Plaintiff’s claim does not fall under any of the articulated defenses available to Defendant.”  Final Brief of Appellant, p. 1, paragraph III.