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Braschler v. Lynne

United States District Court, D. Kansas

May 22, 2019

TODD BRASCHLER, Plaintiff,
v.
DEVERE and JOY LYNNE BROTHERS, Defendants.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Facts

         On 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 behavior.

         Defendants had another dog, Sadie. Sadie was an outdoor dog and kenneled outside most of the time.[1] 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.

         Upon 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 accident.

         Although 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.

         Plaintiff 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.

         II. Summary Judgment Standards

         Summary 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).

         III. Analysis

         Defendants 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.

         Under 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.

         A. ...


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