Spirlong v. Browne – 10/28/2014
Arizona Court of Appeals Division One holds that under Arizona’s “dog-bite” statutes “keeping” a dog requires the person to have exercised care, custody or control over the dog.
Plaintiffs Kevin and Anne Spirlong filed suit against Charles Browne, his girlfriend Shasta Russell, and David Mayes—an individual renting two rooms from Browne. Mayes owned a large dog that, while Browne and Mayes were out of the house, escaped from the backyard and bit the Spirlongs’ son. Russell and Mayes did not answer and default was entered against them. Browne and the Spirlongs cross-moved for summary judgment as to the question of whether Browne was the statutory owner of the dog. Under A.R.S. § 11-1001(10), “any person keeping an animal other than livestock for more than six consecutive days” is considered the dog’s owner and is strictly liable for any injuries or damages caused by the dog. Browne argued that “keeping” requires something more than merely “housing” the dog, but the trial court ruled in the Spirlongs’ favor. After a jury found in Browne’s favor, the Spirlongs appealed.
The Court of Appeals explained that, despite the issues raised on appeal regarding comparative fault, the dispositive issue is whether Browne is the statutory owner under Section 11-1001(10). Recognizing that the word “keeping” is ambiguous, the Court explained that the common definition of keeping—“to manage, tend, or have charge of”—is most consistent with the general legal definition of keeping.
The Court explained that when the legislature revised Arizona’s dog-bite statutes, it did not incorporate the terms “harboring” and “maintaining” into the definition of “owner,” but, rather, restricted an owner to a person “keeping an animal.” This approach is consistent with Perazzo v. Ortega, 29 Ariz. 334, 342, 241 P. 518, 520 (1925), appeal after remand, 32 Ariz. 154, 256 P. 503 (1927). Although the case arose before the dog-bite statutes, it stands for the proposition that ahead of a household may be liable by allowing a relative who exercises custody, control, or care for a dog to live in the home. Finally, the Court relied on several cases from various states in which “keeping” requires something more than merely harboring the dog.
The Court explained that while the question of whether Browne exercised sufficient care, custody, or control to be the statutory owner of the dog would normally present an issue of fact, the Spirlongs had not presented any evidence Browne cared for or controlled the dog. Instead, the evidence showed that Browne merely allowed Mayes to live in his home and that Mayes cared for the dog. Given this record, the trial court should have dismissed the claim against Browne as a matter of law. On that basis, the Court affirmed the judgment entered in Browne’s favor.
Presiding Judge Norris authored the opinion; Judge Winthrop and Judge Gemmill concurred.