Appeal from Superior Court, Rutland Unit, Civil Division
Samuel Hoar, Jr., J.
C. Bixby of Law Offices of Thomas C. Bixby, LLC, Rutland, for
L. Burchard of McCormick, Fitzpatrick, Kasper & Burchard,
P.C., Burlington, for Defendant-Appellee Turner.
Palmer of Downs Rachlin Martin PLLC, St. Johnsbury, for
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. In this negligence action, we consider whether a landlord
and a social guest of a tenant may be held liable for
injuries caused by the tenant's dogs to a third person
outside of the landlord's property. We conclude that
plaintiffs failed to establish that either defendant owed a
duty of care to the injured plaintiff in this case, and
2. The following facts were undisputed for purposes of
summary judgment. On January 15, 2016, Antonio Flores, his
wife, and their two young children arrived at the residence
of William and Charity Pearo in Fair Haven. The Pearos had
invited the Floreses for dinner. The Pearos were not yet home
but had told the Floreses that the door would be open so they
could wait inside. Based on previous visits, Antonio Flores
assumed the Pearos' three dogs would be near the front
door, so the family decided to go in through the side door.
The Floreses' son opened the side door. Without warning,
the Pearos' three dogs ran out of the house. Mr. Flores
called to the dogs to try to get them back inside.
3. At that moment, plaintiff Eric Gross was walking his dog
down the sidewalk near the Pearos' home. The Pearos'
three dogs ran over and attacked his dog. One of the dogs
grabbed plaintiff's hand, which was covered by a glove,
and pulled on his arm, dislocating his shoulder.
4. The Pearos leased their residence in October 2015 from
defendant Elizabeth Turner, who lives in New York. When
Turner rented the property to the Pearos, she was aware they
had three pet dogs and permitted them to keep the dogs at the
property. She was not aware of any prior incidents involving
the dogs at the time the lease was signed. She had known the
Pearos and their dogs for several years and had not observed
any of the dogs to have aggressive tendencies. For this
reason, she did not make any inquiries about the dogs or
their temperament before renting to the Pearos.
5. Antonio Flores testified in a deposition that he had
allowed the Pearos' dogs to be around his six- and
seven-year-old children and they had never posed a threat to
the children. He said that he would not have brought his
children to the house or allowed them to go near the door if
he felt the dogs were vicious. He described Buck, the largest
dog, as "hyper," with high energy, but not
aggressive. Jedi, the oldest and smallest dog, growled on
occasion if someone got too close to her, but never bit at
anyone. The third dog, Harley, was very intelligent and laid
6. In January 2017, Eric Gross and his wife Adrian filed a
complaint alleging negligence against Elizabeth Turner and
Antonio Flores. Flores, in turn, filed a third-party
complaint against the Pearos seeking indemnification for any
judgment in favor of plaintiffs. The Pearos failed to
respond, and default judgment was entered in favor of Flores.
7. After the parties conducted discovery, each defendant
moved for summary judgment. In December 2017, the court
granted summary judgment to defendants in separate orders.
The court determined that plaintiffs had failed to establish
that either defendant owed a duty to plaintiffs to control or
restrain the Pearos' dogs. The court dismissed the
third-party complaint against the Pearos as moot. Plaintiffs
filed a motion to reconsider, which the court denied in
January 2018. This appeal followed.
8. We review a decision granting summary judgment de novo,
using the same standard as the trial court: summary judgment
is appropriate if the moving party shows that the material
facts are not genuinely disputed and that he or she is
entitled to judgment as a matter of law. White v. Quechee
Lakes Landowners' Ass'n, 170 Vt. 25, 28, 742
A.2d 734, 736 (1999); V.R.C.P. 56(a). In determining whether
a genuine dispute of material fact exists, the nonmoving
party "is entitled to the benefit of all reasonable
doubts and inferences." Carr v. Peerless Ins.
Co., 168 Vt. 465, 476, 724 A.2d 454, 461 (1998). Once a
claim is challenged by a properly supported motion for
summary judgment, the nonmoving party may not rest upon the
allegations in the pleadings, but must come forward with
admissible evidence to raise a dispute regarding the facts.
Alpstetten Ass'n v. Kelly, 137 Vt. 508, 514, 408
A.2d 644, 647 (1979); V.R.C.P. 56(c) (requiring factual
assertions at summary judgment stage to be supported by
9. To prevail on their negligence claims, plaintiffs had to
prove that each defendant breached a duty of care owed to
plaintiffs, thereby causing them harm. O'Connell v.
Killington, Ltd., 164 Vt. 73, 76, 665 A.2d 39, 42
(1995). The only issue in this appeal is whether defendants
owed a legal duty to plaintiffs. The existence of a duty
"is primarily a question of law" for the court to
decide. Langle v. Kurkul, 146 Vt. 513, 519, 510 A.2d
1301, 1305 (1986).
Liability of Landlord
10. We first consider whether the Pearos' landlord,
Elizabeth Turner, owed a duty to protect third persons
outside of the leased premises from harm caused by the
Pearos' dogs. Plaintiffs argue that Turner is legally
responsible for the injuries suffered by Eric Gross because
she permitted the Pearos to keep aggressive dogs on her