United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendants' motion for
summary judgment. (Doc. 23.) The matter has been fully
briefed and is ripe for decision. (Docs. 24, 25, 26.) For the
reasons stated herein, Defendants' motion is GRANTED.
March 6, 2016, Plaintiff Todd Braschler was on his motorcycle
on 112th Road in Cowley County, Kansas, when Defendants'
dog collided with the motorcycle (“the
accident”). Defendants Devere and Joy Lynne Brothers
operate a farm on their property. Their home directly adjoins
112th Road, which is a public highway (the
“highway”). Defendants owned a dog named Cleo.
The dog was a Giant Schnauzer weighing around 80 pounds. In
2016, the dog was three years old and she stayed primarily
inside Defendants' home. When Defendants were away from
the home, the dog was placed in an outside kennel. During the
day, the dog was allowed to run loose on the property. She
would routinely run to the barn and also go to the pasture
where the cattle were kept. Prior to the accident, the dog
did not pay any attention to traffic on 112th Road and she
did not demonstrate any inclination to run onto the highway.
The dog had never bitten anyone or shown any vicious
had another dog, Sadie. Sadie was an outdoor dog and kenneled
outside most of the time. The kennel was a shared space for both
dogs. The kennel has both an inside and outside component.
The inside entrance was inside a metal storage building. A
day or two before the accident, Cleo was sprayed by a skunk.
She was placed in the kennel because of the smell. Defendants
then went out of town and the dog remained in the kennel.
Defendants arrived home after the overnight trip and Devere
went to the kennel to check the food and water. Devere did
not intend to let the dog out of the kennel because she still
had a skunk odor and he did not want her in the house. Joy
Lynne testified that they knew that the dog would want out of
the kennel but that they were not intending to let her out.
entering the shed, Devere failed to close the outside door of
the shed. Devere then went to the kennel door to check on the
food. Upon opening the kennel gate door, the dog darted
between Devere's legs and got outside of the kennel and
ran towards the barn. The dog then turned towards the
highway. Devere called for the dog to stop and she did stop
and sit down near the mailbox for a brief moment. Devere
testified that he did not want the dog going to the highway
because it was dangerous. Devere then heard the approaching
motorcycle and observed the dog start to go towards the
highway. Devere did not see the accident which caused
Plaintiff to be thrown from his motorcycle and the dog to be
killed. Plaintiff suffered injuries as a result of the
the dog attended obedience training on a few occasions, the
training was not completed. Plaintiff has retained an expert
who has offered opinions regarding animal control by owners.
Plaintiff's expert opined that Devere should have shut
the second enclosure before allowing the dog to escape.
Plaintiff's expert further opined that there are several
potential consequences of a dog escaping an enclosure,
including interference with traffic. Plaintiff's expert
opined that “[i]t is not at all unexpected that a dog,
kept in a kennel which it does not like or for some extended
period of time without human interaction, will be anxious to
run free either by escaping or upon release.” (Doc. 25
at 6.) Devere testified that most of the time he could get
inside the kennel without letting the dog out. On two or
three previous occasions, the dog did not obey Devere's
commands to return.
filed this action against Defendants alleging that Defendants
were negligent in failing to properly contain their dog and
allowing the dog to run onto the highway. Defendants now move
for summary judgment.
Summary Judgment Standards
judgment is appropriate if the moving party demonstrates that
there is no genuine dispute as to any material fact, and the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). A fact is “material” when it
is essential to the claim, and the issues of fact are
“genuine” if the proffered evidence permits a
reasonable jury to decide the issue in either party's
favor. Sotunde v. Safeway, Inc., 716 Fed.Appx. 758,
761 (10th Cir. 2017). The movant bears the initial burden of
proof and must show the lack of evidence on an essential
element of the claim. Thom v. Bristol-Myers Squibb
Co., 353 F.3d 848, 851 (10th Cir. 2004) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986)). The nonmovant must then bring forth specific facts
showing a genuine issue for trial. Id. The court
views all evidence and reasonable inferences in the light
most favorable to the nonmoving party. Life Wise Master
Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
contend that Plaintiff's claim fails as a matter of law
because the dog did not have a propensity for running onto
the highway, and, therefore, it was not foreseeable to
Defendants that the dog would run onto the highway and cause
an accident after being let out of the kennel. Plaintiff
essentially argues that the facts support a finding that this
type of incident was foreseeable given the fact that the dog
had been restrained for two days, the dog liked to run,
Defendants knew the highway was dangerous, and the dog had
previously failed to heed Defendants' commands. Plaintiff
also argues that the facts would support a claim for
negligence under a theory of strict liability.
Kansas law, an owner of a domestic animal is subject to
liability under three circumstances: 1) the owner knows or
has reason to know of the animal's dangerous
propensities, i.e. strict liability, and, if there is no
reason to know of its dangerous propensities, 2) the owner
“intentionally causes the animal to do harm;” or
3) the owner is “negligent in failing to prevent the
harm.” White v. Singleton, No. 90, 550, 2004
WL 48884, *1 (Kan.Ct.App. 2004) (citing Mercer v.
Fritts, 9 Kan.App.2d 232, 236, aff'd, 236
Kan. 73, 689 P.2d 774 (1984). The second circumstance is
clearly inapplicable in this case.