Kathy Gentle appeals from a summary judgment in favor of the defendants Pine Valley Apartments and Evans Realty Company, in her action based on alleged personal injuries incurred by her son, Christopher Gentle, on the defendants' property. We affirm in part, reverse in part, and remand.
This action arose out of two separate incidents in which Ms. Gentle says Christopher was injured on these defendants' property by a dog. Christopher, at the times of these incidents, was 10 years old and was living in an apartment complex owned by Pine Valley Apartments ("Pine Valley") and managed by Evans Realty Company ("Evans").
In 1991, Ricky Roper and his family, like Christopher and his mother, resided in one of Pine Valley's apartments. Ms. Gentle's evidence indicated that on February 10, 1991, Mr. Ropers' dog, "Murphy," a chow-spitz crossbreed, was tied to a post on a stair rail outside Mr. Roper's apartment; that a group of children, including Christopher, was playing in a courtyard area of the apartments in the vicinity of the stair rail; that one of the children loosed the dog and it subsequently became frightened or agitated and began running around the courtyard; that Christopher attempted to capture the dog and that, while he was making that attempt, the dog bit him on the upper lip; and that the wound required reconstructive surgery.
Ms. Gentle's evidence indicated that a second incident occurred in July 1991, while Ricky Roper was leading the dog on a leash
On September 10, 1991, Ms. Gentle sued Roper, alleging that he had negligently or wantonly failed (1) to control the dog, and (2) to warn Ms. Gentle and Christopher of the dog's "dangerous propensities." On January 31, 1992, Ms. Gentle amended her complaint to add as defendants Pine Valley and Evans. On March 4, 1993, the trial court entered a summary judgment in favor of Pine Valley and Evans and certified the judgment as final, pursuant to Ala.R.Civ.P. 54(b). From that judgment Ms. Gentle appeals.
At the outset, we reiterate that Ms. Gentle's claims arise out of two separate alleged encounters with Roper's dog on the apartment premises, one occurring on February 10, 1991, and one occurring in July 1991. Because the incidents require different analyses, we shall address each incident separately. Moreover, the claims against Roper, the owner of the dog, are not involved in this appeal; therefore, Ala.Code 1975, § 3-6-1, setting out the liability of a dog owner, does not govern the disposition of this case.
I. The February Encounter
Ms. Gentle's claims against Pine Valley and Evans are based on alleged violations of duties owed by owners or lessors of real estate. More specifically, her claims are based on alleged (1) negligent creation or maintenance of an artificial condition on land, as defined by Restatement (Second) of Torts § 339 (1977), and (2) negligent or wanton maintenance of the common areas of the apartment complex.
A. Section 339.
Section 339, Restatement, reads:
See also Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976) (adopting § 339). Ms. Gentle contends that the facts surrounding the February encounter satisfy all elements of a cause of action pursuant to § 339.
Section 339(b) requires admissible evidence that "the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to ... children." (Emphasis added.) Thus, to impose liability on Pine Valley or Evans would require their pre-incident
However, the only evidence produced by Ms. Gentle to demonstrate such knowledge consisted entirely of statements taken from her deposition referring to what other tenants told her about the dog. Typical of this evidence are statements contained in the following colloquy:
Ms. Gentle offered these statements regarding the dog's alleged aggressive behavior to show that the dog had, in fact, misbehaved before February 1991 and, consequently, that the dog's propensity for violence had come, or should have come, to the attention of these two defendants. Thus, the assertions in Ms. Gentle's deposition were "out of court statement[s], being offered to show the truth of the matter asserted," Lavett v. Lavett, 414 So.2d 907, 910 (Ala.1982), and, consequently, constituted hearsay. Id.
"Hearsay cannot create an issue of fact." Black v. Reynolds, 528 So.2d 848, 849 (Ala.1988). Evidence consisting of inadmissible hearsay statements does not constitute "substantial evidence" and is insufficient to overcome a motion for a summary judgment. Welch v. Houston County Hospital Board, 502 So.2d 340, 342 (Ala.1987). Consequently,
Alternatively, Ms. Gentle attempts to base liability upon what she alleges to be the inherently dangerous nature of the breed of dog involved. More specifically, she says of Murphy: "A dog of this size, bred from spitz and chow, presents a clear danger to children." Brief of Appellant, at 20. For this proposition, she relies implicitly on Humphries v. Rice, 600 So.2d 975 (Ala.1992), in which this Court adopted the rule that "an owner or keeper of an animal [is] charged with knowledge of the propensities of the breed of animal he or she owns." 600 So.2d at 978.
Assuming, arguendo, that the Humphries rule somehow applies to defendants such as those involved in this appeal—the owner of the apartment complex and the management company—we note that Ms. Gentle produced no evidence that would bring her case within the rule. Indeed, some uncertainty remains in the wake of Humphries as to the quantity and quality of proof necessary to invoke its rule. This uncertainty results, in part, from the fact that the inherent propensity of the dog involved in Humphries was "not determinative of the result reached" in that case. 600 So.2d at 978.
Notably, Humphries involved a pit bull—a breed of dog that has achieved a remarkable notoriety for aggressiveness. In this case, however, nothing in the record indicates that a chow-spitz crossbreed is inherently dangerous. See Lundy v. California Realty, 170 Cal.App.3d 813, 216 Cal.Rptr. 575 (1985) (refusing to notice judicially that German shepherds are inherently dangerous). Consequently, Gentle failed to present substantial evidence (Ala.Code 1975, § 12-21-12) that the dog's presence at the apartment complex created a "condition" that Pine Valley and Evans knew or should have known "involve[d] an unreasonable risk of death or serious bodily harm to ... children." Restatement § 339(b).
B. Maintenance of Common Areas
Gentle also contends that these two defendants breached duties attendant upon their control of the courtyard where the incident occurred. Our cases have long recognized the rule that "[a] landlord has the duty to maintain common areas in a reasonably safe condition in order to avoid liability for injury to a tenant or a guest." Campbell v. Valley Garden Apartments, 600 So.2d 240, 241 (Ala. 1992); see also Bates v. Peoples Savings Life Ins. Co. of Tuscaloosa, 475 So.2d 484 (Ala. 1985); Coggin v. Starke Bros. Realty Co., 391 So.2d 111, 113 (Ala.1980); Pearce v. Sloss-Sheffield Steel & Iron Co., 211 Ala. 639, 101 So. 585 (1924); Mudd v. Gray, 200 Ala. 92, 75 So. 468 (1917); Comment, Liability of an Alabama Landlord for Defects in the Premises, 3 Ala.L.Rev. 335, 349 (1951).
This rule is also expressed in Restatement (Second) of Torts § 360 (1977):
Whether the presence of a tenant's vicious dog in areas shared by other apartment tenants constitutes a "dangerous condition" for which a landlord may incur liability appears to be a question of first impression in this Court. Other courts, however, have considered that question.
One of the earliest cases addressing this issue involved an action by a tenant who was bitten by a dog "on [the] common stairway in the main hall" of a multi-unit apartment building. Siegel v. 1536-46 St. John's Place Corp., 184 Misc. 1053, 1053, 57 N.Y.S.2d 473, 473 (N.Y. City Court 1945). The aggressive dog was owned by another tenant employed
184 Misc. at 1054, 57 N.Y.S.2d at 474 (emphasis added; citations omitted).
More recently, the Superior Court of New Jersey, Appellate Division, held that an attack in a common area by a dog known by the premises lessor to have vicious tendencies presented a jury question as to the lessor's breach of a duty to maintain common areas in a reasonably safe condition. Linebaugh v. Hyndman, 213 N.J.Super. 117, 516 A.2d 638 (1986), affirmed, 106 N.J. 556, 524 A.2d 1255 (1987). In that case, a child was bitten by a dog while in the care of her babysitter—a tenant in a two-unit apartment building—in the common backyard area of the building. The dog was owned by a tenant renting the other unit. In the resulting action against the landlord and others, the trial court, holding that "a residential landlord owes no duty to protect an invitee from the dangers attributable to a tenant's vicious dog kept in a shared common area," entered a summary judgment in favor of the landlord. 213 N.J.Super. at 120, 516 A.2d at 640.
In reversing that judgment, the Appellate Division explained:
213 N.J.Super. at 120-21, 516 A.2d at 640 (footnote omitted; emphasis added).
A comparable rule is recognized in Florida. In Noble v. Yorke, 490 So.2d 29 (Fla.1986), Yorke sued Noble, the apparent owner of a dog that bit her on Noble's premises. Her initial complaint alleged a cause of action based on Fla.Stat.Ann. § 767.04 (1984), which, like Alabama's statute, § 3-6-1, Ala. Code 1975, applies exclusively to the owner of a dog (see n. 1). 490 So.2d at 30. Later, Yorke sought the court's permission to amend her complaint to include an alternative count alleging common law negligence. In that count, she alleged that Noble, as nonowner of the dog, had negligently maintained the premises on which she was injured. The trial court, holding that the statute provided an exclusive remedy, refused Yorke's request.
The Florida Supreme Court reversed, holding that "a dog-bite victim may sue the non-owner of the dog upon a theory of common law liability." 490 So.2d at 31-32 (emphasis added). See also Giaculli v. Bright, 584 So.2d 187 (Fla.Dist.Ct.App.1991) (action against a landlord based on an attack by a dog in the common backyard of an apartment complex involved triable issues as to the extent of the landlord's notice of the dog's vicious propensity and the landlord's opportunity to remedy the condition); Anderson v. Walthal, 468 So.2d 291 (Fla.Dist.Ct.App. 1985) (commercial property manager's knowledge of dog's vicious propensity may be imputed to the property owner).
In this case, Pine Valley has cited no authority contrary to the rule expressed in the New York, New Jersey, and Florida cases, and we have found no such authority. In fact, a number of cases have recognized a broader application of this rule. The first class of cases has imposed liability on a landlord for attacks by a tenant's dog occurring on the demised premises themselves. See, e.g., Uccello v. Laudenslayer, 44 Cal.App.3d 504, 118 Cal.Rptr. 741 (1975); Vigil v. Payne, 725 P.2d 1155 (Colo.App.1986); Strunk v. Zoltanski, 62 N.Y.2d 572, 479 N.Y.S.2d 175, 468 N.E.2d 13 (1984); and Palermo v. Nails, 334 Pa.Super. 544, 483 A.2d 871 (1984). A second class of cases has imposed liability on a landlord for attacks by a tenant's dog on the property of third parties. See, e.g., Cronin v. Chrosniak, 145 A.D.2d 905, 536 N.Y.S.2d 287 (1988); Salazar v. Webb, 44 Colo.App. 429, 618 P.2d 706 (1980); Park v. Hoffard, 315 Or. 624, 847 P.2d 852 (1993). The duty recognized in both of these classes of cases was based on the right to control the premises (1) inherent in the owner at the commencement of the tenancy; (2) renewed periodically, as by a month-to-month tenancy; or (3) reserved through a specific lease provision.
We need not, and, therefore, do not, determine the extent to which a landlord in Alabama may be liable for harm caused by a dog on the demised premises themselves or on the premises of third parties. Our reference to those cases that have imposed such liability merely emphasizes the correctness of a rule requiring the landlord to exercise reasonable care to protect tenants from dog attacks in common areas.
We hold that the presence of a tenant's vicious dog in areas shared by other tenants constitutes a "dangerous condition" and that a landlord must exercise reasonable care to prevent injuries from such a dangerous condition. In so holding, we do no more than apply ordinary negligence principles, analogizing this particular condition to a variety of comparable dangers traditionally triggering the duty of due care. See, e.g., Campbell v. Valley Garden Apartments, 600 So.2d 240, 241 (Ala.1992) ("steel plate suspended over a drainage ditch"); Bates v. Peoples Savings Life Ins. Co. of Tuscaloosa, 475 So.2d 484 (Ala.1985) (loose carpet); Coggin v. Starke Bros. Realty Co., 391 So.2d 111 (Ala.1980) (steep stairway without a handrail); Pearce v. Sloss-Sheffield Steel & Iron Co., 211 Ala. 639, 101 So. 585 (1924) (defective wiring); Mudd v. Gray, 200 Ala. 92, 75 So. 468 (1917) (defective banister).
Applying this holding, however, we are compelled to conclude that the summary judgment was proper as to Ms. Gentle's claim based on the February attack. Under either theory of recovery advanced by Ms.
II. The July Encounter
A. Section 339
Ms. Gentle's argument for recovery for the July encounter based on § 339 is also flawed for reasons in addition to those discussed above. A necessary condition for liability under § 339 is the inability of children, "because of their youth," to "discover the [dangerous artificial] condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it." Section 339(c).
Ms. Gentle's version of the events negates, rather than satisfies, this element of her cause of action. According to her, the attack in July resulted from a second courtyard encounter in which the dog, while being led by Roper, trampled and scratched Christopher. The only evidence regarding the details of this encounter was contained in the following testimony by Ms. Gentle:
This testimony is inadmissible hearsay, but even if it were admissible, it would indicate only that Christopher Gentle did not, in any sense, "intermeddle" with the dog or come "within the area made dangerous by it," within the meaning of § 339(c). On the contrary, this testimony indicates that the dangerous condition was brought to Christopher, who, having been severely injured by the same dog five months earlier, apparently appreciated the danger and, understandably, exhibited fear and distrust. Gentle, therefore, failed to produce evidence sufficient to overcome a properly supported motion for summary judgment against her claim based on § 339.
B. Maintenance of Common Areas
Ms. Gentle's claim for relief under the common law rule relating to a lessor's maintenance of common areas, however, stands on better ground. Ms. Gentle testified that she complained to the resident manager immediately after the encounter on February 10, 1991. It is undisputed that Pine Valley and Evans took no action to shield tenants from further unpleasant encounters or attacks, such as the one Ms. Gentle says occurred in July 1991.
The evidence thus presents a number of factual issues requiring a jury's resolution. For example, a jury must determine the extent of the dog's propensity for aggression.
The judgment of the trial court, to the extent that it precludes recovery for the encounter on February 10, 1991, is affirmed. As to the July encounter, the judgment, to the extent that it precludes recovery on the
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, ALMON, SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.