Smith v. Meyring Cattle Co. , 302 Neb. 116 ( 2019 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    02/01/2019 12:10 AM CST
    - 116 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SMITH v. MEYRING CATTLE CO.
    Cite as 
    302 Neb. 116
    H arley Smith, appellant, v. Meyring
    Cattle Company, L.L.C., appellee.
    ___ N.W.2d ___
    Filed January 25, 2019.   No. S-18-184.
    1.	 Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling
    on a motion for directed verdict, an appellate court must treat the motion
    as an admission of the truth of all competent evidence submitted on
    behalf of the party against whom the motion is directed; such being the
    case, the party against whom the motion is directed is entitled to have
    every controverted fact resolved in its favor and to have the benefit of
    every inference which can reasonably be deduced from the evidence.
    2.	 Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion of law, for which an appellate court has an obligation to reach
    an independent conclusion irrespective of the decision made by the
    court below.
    3.	 Animals: Liability: Legislature: Words and Phrases. The meaning of
    each term in the list of acts by a dog which subject its owner to liability
    under 
    Neb. Rev. Stat. § 54-601
    (1)(b) (Reissue 2010)—currently, “kill-
    ing, wounding, injuring, worrying, or chasing”—is dependent on the
    other in the context that the Legislature chose to place them.
    4.	 Animals: Liability. The common-law basis for strict liability for the
    acts of one’s dog depends upon establishing that the dog has dangerous
    propensities or tendencies, because at common law, dogs are presumed
    harmless.
    5.	 Statutes. Statutes effecting a change in the common law should be
    strictly construed.
    6.	 Animals: Liability: Words and Phrases. “Injuring” under 
    Neb. Rev. Stat. § 54-601
    (1)(b) (Reissue 2010) is limited to bodily hurt caused by
    acts directed toward the person or animal hurt.
    Appeal from the District Court for Box Butte County: Travis
    P. O’Gorman, Judge. Affirmed.
    - 117 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SMITH v. MEYRING CATTLE CO.
    Cite as 
    302 Neb. 116
    James R. Welsh and Christopher Welsh, of Welsh & Welsh,
    P.C., L.L.O., for appellant.
    Steven W. Olsen and Jonathan C. Hunzeker, of Simmons
    Olsen Law Firm, P.C., L.L.O., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    A ranch employee was injured, allegedly as a result of the
    ranch’s herding dog nipping at a cow, causing the cow to
    charge into the employee. The question presented is whether,
    as a matter of law, such allegations fall outside the strict liabil-
    ity statute, which states in relevant part that the owner or own-
    ers of any dog or dogs shall be liable for any and all damages
    that may accrue to any person, firm, or corporation by reason
    of such dog or dogs killing, wounding, injuring, worrying, or
    chasing any person or persons.
    BACKGROUND
    Harley Smith worked for the Meyring Cattle Company,
    L.L.C. (Meyring), and was injured in an accident that occurred
    in December 2011. He sued Meyring under negligence theories
    and also under strict liability as set forth in 
    Neb. Rev. Stat. § 54-601
    (1) (Reissue 2010), alleging damages accruing from
    a Meyring herding dog “injuring” him. During a jury trial, the
    following evidence was adduced.
    On the day of the accident, Smith had been pouring a lice
    control product on cows’ backs, while Jay Meyring, a co-owner
    of Meyring, vaccinated them and another employee tagged
    them. This process involved herding cattle into holding pens,
    moving a few cows at a time into a “tub,” and then guiding
    them from the tub into an alley that led into a chute.
    Jerry Meyring, Jay’s father and co-owner of Meyring,
    herded the cattle into the holding pens. He then spent most
    - 118 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SMITH v. MEYRING CATTLE CO.
    Cite as 
    302 Neb. 116
    of the day moving them in small groups into the tub and
    then into the alley. From a platform outside the alley, Smith
    poured the lice control product onto the cattle as they moved
    in the alley toward the chute, where the tagging and vaccina-
    tions occurred.
    Occasionally, when Jerry had to move more cattle into the
    holding pens from “the hill” where the herd congregated,
    Smith was placed in charge of moving the small group of cows
    from the tub into the alley. Smith was performing that task
    at the time of the accident, which occurred near the end of
    the workday.
    According to Smith, there were two cows left in the tub.
    Smith moved toward the alley to see how many cows were
    inside. At that time, one cow moved past Smith from the tub
    into the alley. The other cow was still near the gate opposite the
    alley. Smith testified that he then saw the herding dog named
    “Gunner” on the outside of the gate leading into the tub, “nip-
    ping” or “snapping” at the remaining cow’s hooves through a
    6-inch opening at the bottom of the gate. Smith stated the cow
    immediately charged forward.
    Smith was trampled by the cow and sustained extensive
    injuries. Smith was found lying in the middle of the alley
    with three cows in front of him and one behind. Smith did
    not clearly describe how he got there but stated that it was
    the result of being knocked down by the cow that Gunner
    had nipped. Smith opined that the only reason the cow had
    “charged” at him was that Gunner was “nipping on the bottom
    of its foot.”
    Jerry confirmed that the herding dogs at the ranch were
    bred and trained to nip at the heels of cattle, which is designed
    to make the cattle move away from the dog, or “escape” in a
    “flight response.” Meyring’s herding dogs were not allowed to
    be near cattle in enclosed areas. That, Jerry conceded, would
    create a danger, especially if a person was in the enclosed
    space with the cattle.
    - 119 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SMITH v. MEYRING CATTLE CO.
    Cite as 
    302 Neb. 116
    Gunner was trained to stay away from the enclosed tub/
    alley/chute area and instead lie down by the “chute house”
    some distance away. Jay testified that he had never had any
    trouble with Gunner staying where he was supposed to be.
    Jay, Jerry, and another employee who testified had never seen
    Gunner around the tub area, and they did not see him there on
    the day of the accident.
    Both Jay and Jerry testified that Smith should have never
    entered the alley and that there were several other avenues
    of escape from an agitated cow in the tub. Evidence was pre-
    sented that the cow in question did not appear agitated imme-
    diately after the accident, and Jerry suggested that the tub was
    not large enough for any cow to build up significant speed. Jay
    testified that Smith should not have been near the alley, look-
    ing in, because that was not part of the process.
    Smith’s girlfriend at the time of the accident testified that
    she and Smith had stayed up the night before the accident
    “getting high on methamphetamine” and that Smith “smoked
    another bowl of meth” on his lunch break. There was medical
    evidence that Smith was under the influence of methamphet-
    amine at the time of the accident.
    The district court granted Meyring’s motion for a directed
    verdict on the strict liability claim under § 54-601. Smith’s
    negligence claims were submitted to the jury, which rendered a
    verdict in favor of Meyring. Smith appeals the directed verdict
    on the strict liability claim under § 54-601(1).
    ASSIGNMENTS OF ERROR
    Smith assigns that the district court erred in finding as a
    matter of law that § 54-601 did not apply to the facts of this
    case and in granting Meyring’s motion for partial directed ver-
    dict on the issue of strict liability.
    STANDARD OF REVIEW
    [1] In reviewing a trial court’s ruling on a motion for
    directed verdict, an appellate court must treat the motion as an
    - 120 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SMITH v. MEYRING CATTLE CO.
    Cite as 
    302 Neb. 116
    admission of the truth of all competent evidence submitted on
    behalf of the party against whom the motion is directed; such
    being the case, the party against whom the motion is directed
    is entitled to have every controverted fact resolved in its favor
    and to have the benefit of every inference which can reason-
    ably be deduced from the evidence.1
    [2] Statutory interpretation presents a question of law, for
    which an appellate court has an obligation to reach an inde-
    pendent conclusion irrespective of the decision made by the
    court below.2
    ANALYSIS
    The question in this case is whether strict liability under
    § 54-601(1) encompasses the act of a herding dog nipping
    at the heels of a cow, causing the cow to move forward, col-
    lide with a ranch employee, and inflict “bodily hurt” on the
    employee. Section 54-601(1) provides:
    Dogs are hereby declared to be personal property for all
    intents and purposes, and, except as provided in subsec-
    tion (2) of this section, the owner or owners of any dog
    or dogs shall be liable for any and all damages that may
    accrue (a) to any person, other than a trespasser, by rea-
    son of having been bitten by any such dog or dogs and (b)
    to any person, firm, or corporation by reason of such dog
    or dogs killing, wounding, injuring, worrying, or chasing
    any person or persons or any sheep or other domestic ani-
    mals belonging to such person, firm, or corporation. Such
    damage may be recovered in any court having jurisdiction
    of the amount claimed.
    Smith argues that he presented evidence from which a jury
    could have concluded that Meyring was liable by reason of
    Gunner “injuring . . . any person” as stated in § 54-601(1)(b).
    1
    Jacobs Engr. Group v. ConAgra Foods, 
    301 Neb. 38
    , 
    917 N.W.2d 435
    (2018).
    2
    Wisner v. Vandelay Investments, 
    300 Neb. 825
    , 
    916 N.W.2d 698
     (2018).
    - 121 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SMITH v. MEYRING CATTLE CO.
    Cite as 
    302 Neb. 116
    He points out that to “injure” has a broad definition of “‘to
    inflict bodily hurt on [someone or something],’”3 that stan-
    dard principles of proximate causation apply in strict liability
    actions,4 and that an animal’s normal response to an action
    is not a superseding cause in the chain of proximate causa-
    tion.5 Regardless of the merits of these propositions in the
    abstract, we agree with the district court that Smith misinter-
    prets § 54-601.
    [3] We have long strictly construed § 54-601, and the
    Legislature has repeatedly acquiesced to our understanding
    of its intent.6 In particular, we have held that the meaning
    of each term in the list of acts by a dog which subject its
    owner to liability under § 54-601(1)(b)—currently, “killing,
    wounding, injuring, worrying, or chasing”—“is dependent on
    the other in the context that the Legislature chose to place
    them.”7 We have consistently explained that the relevant
    context was the Legislature’s intent in enacting § 54-601 to
    derogate from the corresponding strict liability common-law
    action only by eliminating the need to prove that the owner
    had knowledge of the dog’s dangerous propensities—and only
    as to the acts and persons described in the statute.8 Under
    the common-law strict liability action that was modified by
    § 54-601 for those to which § 54-601 applies, a plaintiff
    had to demonstrate both (1) that the dog was vicious or had
    3
    Grammer v. Lucking, 
    292 Neb. 475
    , 478, 
    873 N.W.2d 387
    , 389 (2016),
    quoting Merriam-Webster’s Collegiate Dictionary 601 (10th ed. 2001).
    4
    See, Staley v. City of Omaha, 
    271 Neb. 543
    , 
    713 N.W.2d 457
     (2006);
    Rahmig v. Mosley Machinery Co., 
    226 Neb. 423
    , 
    412 N.W.2d 56
     (1987); 5
    American Law of Torts § 18:36 (2016); 65 C.J.S. Negligence § 250 (2010).
    5
    See Brown v. Kaar, 
    178 Neb. 524
    , 
    134 N.W.2d 60
     (1965).
    6
    See Underhill v. Hobelman, 
    279 Neb. 30
    , 
    776 N.W.2d 786
     (2009).
    7
    Donner v. Plymate, 
    193 Neb. 647
    , 650, 
    228 N.W.2d 612
    , 614 (1975).
    8
    See, Guzman v. Barth, 
    250 Neb. 763
    , 
    552 N.W.2d 299
     (1996); Paulsen
    v. Courtney, 
    202 Neb. 791
    , 
    277 N.W.2d 233
     (1979); Donner v. Plymate,
    
    supra note 7
    .
    - 122 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SMITH v. MEYRING CATTLE CO.
    Cite as 
    302 Neb. 116
    dangerous propensities and (2) that the owner knew the dog
    to be vicious or dangerous.9
    [4,5] The common-law basis for strict liability for the acts of
    one’s dog depends upon establishing that the dog has danger-
    ous propensities or tendencies,10 because at common law, dogs
    are presumed harmless.11 The common law recognizes the right
    of the owner to keep a vicious dog for the necessary protection
    of life and property, but that one exercising the right to keep
    an inherently dangerous dog must do so at his or her own risk
    and be held strictly liable for any damage resulting to ­another.12
    The vicious or dangerous nature of the dog is essential to
    such a claim.13 Statutes effecting a change in the common law
    should be strictly construed.14
    Thus, we have held that the terms in the list of actions
    described in § 54-601(1)(b) must be “read together”15 in light
    of the context of the statute to provide for strict liability with-
    out proof of the owner’s knowledge of the dog’s “‘dangerous
    propensities.’”16 It is improper to read the words as “detached
    and separated.”17 Instead, “the meaning of each is dependent
    on the other.”18 And we have noted that many of the words
    9
    See Netusil v. Novak, 
    120 Neb. 751
    , 
    235 N.W. 335
     (1931). See, also,
    Paulsen v. Courtney, 
    supra note 8
    ; Lee v. Weaver, 
    195 Neb. 194
    , 
    237 N.W.2d 149
     (1976); Fritz v. Marten, 
    193 Neb. 83
    , 
    225 N.W.2d 418
     (1975);
    7 American Law of Torts § 21:50 (2018).
    10
    See, e.g., 1 Restatement (Third) of Torts: Liability for Physical and
    Emotional Harm § 23 (2010); 4 J.D. Lee & Barry A. Lindahl, Modern Tort
    Law: Liability and Litigation § 37:4 (2d ed. 2006).
    11
    See 7 American Law of Torts § 21:52 (2018).
    12
    See Netusil v. Novak, supra note 9.
    13
    See, generally, id.
    14
    See Paulsen v. Courtney, 
    supra note 8
    .
    15
    Donner v. Plymate, 
    supra note 7
    , 193 Neb. at 650, 
    228 N.W.2d at 614
    .
    16
    Paulsen v. Courtney, 
    supra note 8
    , 
    202 Neb. at 795
    , 
    277 N.W.2d at 235
    .
    17
    Donner v. Plymate, 
    supra note 7
    , 193 Neb. at 650, 
    228 N.W.2d at 614
    .
    18
    
    Id.
    - 123 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SMITH v. MEYRING CATTLE CO.
    Cite as 
    302 Neb. 116
    of this statutory list inherently entail violence or an intent to
    harm. Thus, a “‘wound’” is “‘[a]n injury of a person or animal
    in which the skin or other membrane is broken, as by violence
    or surgery.’”19 To “‘worry’” is “‘to treat roughly as with con-
    tinual biting’ or ‘to bite or tear with the teeth.’”20 To “‘chase’”
    under the statute has been defined variously as “‘to follow
    quickly or persistently in order to catch or harm,’” “‘to make
    run away; drive,’” or “‘to go in pursuit.’”21 In other words,
    the element that the dog be vicious or have dangerous pro-
    pensities is implicitly part of the statute through these terms,
    read jointly.22
    Because the acts described in § 54-601(1)(b) were intended
    to be understood as violent acts stemming from dangerous
    propensities, we have held that playful and mischievous acts
    of dogs directed toward the person sustaining bodily hurt
    were not encompassed by § 54-601.23 In Donner v. Plymate,24
    for example, we affirmed summary judgment in favor of the
    dog owner on a § 54-601 claim when the plaintiff sustained
    an injury after a dog collided with her knee in the course of
    chasing her playfully as part of the dog’s exercise. Similarly,
    in Holden v. Schwer,25 we held that acts of a puppy playfully
    running after a three-wheeler and abruptly stopping in front
    of it, causing the driver to sustain injuries when she veered to
    avoid the puppy, were not encompassed by § 54-601. We have
    explained that “[o]bviously the Legislature was fully aware
    of the need for protection from the intentional, deliberate,
    19
    Id. (emphasis supplied).
    20
    Id. (emphasis supplied).
    21
    Id. (emphasis supplied).
    22
    See, Holden v. Schwer, 
    242 Neb. 389
    , 
    495 N.W.2d 269
     (1993); Paulsen v.
    Courtney, 
    supra note 8
    ; Donner v. Plymate, 
    supra note 7
    .
    23
    See 
    id.
     See, also, Underhill v. Hobelman, 
    supra note 6
    .
    24
    Donner v. Plymate, 
    supra note 7
    .
    25
    Holden v. Schwer, 
    supra note 22
    .
    - 124 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SMITH v. MEYRING CATTLE CO.
    Cite as 
    302 Neb. 116
    and purposeful acts of dogs and as a result restricted section
    54-601 . . . to those acts manifesting such qualities.”26
    We have also explained in relation to the meaning of the
    language of § 54-601(1)(b) that “[t]he purpose of the original
    statute was to protect domestic animals, which are ordinary
    prey of dogs.”27 In fact, it was not until 1961 that the language
    of this “nonbiting” subsection of the statute was amended to
    apply to a “person or persons” “kill[ed], wound[ed], worr[ied],
    or chas[ed]” by the dog.28 Before that time, the provision here
    at issue encompassed only actions directed toward domestic
    animals owned by the plaintiff and allowed recovery only for
    damages caused by harm to such domestic animals.29 Before
    1961, bodily hurt sustained directly by a person fell under
    § 54-601 only if such person had been bitten as described in
    subsection (1)(a) of the statute.
    When the Legislature added “any person or persons” as
    an object of the dog’s acts described by § 54-601(1)(b), the
    Legislature clearly meant to expand compensability under the
    statute to harm to a person caused by acts other than biting,
    acts which manifested the dangerous propensities that are the
    historical foundation for the common-law strict liability claim.
    Thus, after the amendment, people could bring strict liability
    claims under § 54-601(1)(b) for injuries they sustained dur-
    ing falls precipitated by dogs “worrying, or chasing” them;
    whereas before, they could not.
    That language, however, has never been understood as
    encompassing bodily hurt to a person by way of a dog wor-
    rying or chasing “any sheep or other domestic animals” that,
    in turn, collided with the person. Such behavior toward the
    dog’s “ordinary prey” has historically been compensable under
    26
    Donner v. Plymate, 
    supra note 7
    , 193 Neb. at 649-50, 
    228 N.W.2d at 614
    .
    27
    
    Id. at 649
    , 
    228 N.W.2d at 614
    .
    28
    See 1961 Neb. Laws, ch. 268, § 1, p. 786. See, also, Donner v. Plymate,
    
    supra note 7
    .
    29
    
    Id.
    - 125 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SMITH v. MEYRING CATTLE CO.
    Cite as 
    302 Neb. 116
    § 54-601 only if the owner of the “prey” sustained indirect
    damages by virtue of the harm to the animal. And, as stated,
    all the words of § 54-601(1)(b) must be read together in the
    context that the Legislature chose to place them.
    To understand the statute more broadly, as Smith sug-
    gests, would vastly expand the scope of strict liability for
    dog owners. In fact, Smith’s proposed interpretation of the
    statute would effectively abrogate the common-law negligence
    action that has traditionally coexisted with § 54-601 and with
    the common-law strict liability action. A broad reading of
    the statute limited only by proximate causation and without
    any additional requirement that the dog’s behavior somehow
    manifest dangerous propensities would eliminate any reason
    for nontrespassing persons suffering bodily hurt to proceed in
    negligence, where they would have the additional burden to
    prove that the owner of the nonvicious dog should have rea-
    sonably anticipated the occurrence.30
    To accept Smith’s suggested interpretation of the statute
    would make dog owners strictly liable for actions directed
    toward “ordinary prey” whenever the prey’s inadvertent physi-
    cal harm to a bystander was part of that animal’s normal
    response to the dog. It would make cattle ranch owners suscep-
    tible to strict liability whenever a herding dog’s normal behav-
    ior directed toward a cow leads the cow to collide with and
    injure a ranch employee. Based on the history of the statute
    and the Legislature’s prior acquiescence to our understanding
    of the statute’s limited scope in light of such history, we cannot
    conclude that this was the Legislature’s intent. We have never
    held that a dog’s actions directed toward another animal can
    lead to strict liability under § 54-601 for bodily hurt to a person
    by way of such animal instrumentality.
    [6] Perhaps Gunner’s alleged act of nipping at a cow’s
    heels is not properly characterized as “playful and mischie-
    vous,” but it was nothing more than the normal behavior of
    30
    See Donner v. Plymate, 
    supra note 7
    .
    - 126 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SMITH v. MEYRING CATTLE CO.
    Cite as 
    302 Neb. 116
    a herding dog, which has never been considered vicious. In
    this case, unlike the cases where we have concluded that play-
    ful and mischievous acts do not fall under § 54-601(1)(b), the
    dog’s acts were not even directed toward the entity suffering
    the bodily hurt. Gunner had no direct contact with Smith, and
    there is no evidence that Gunner’s actions were in any way
    directed toward Smith. Indeed, this is our first occasion to
    address the applicability of § 54-601(1)(b) in circumstances
    where the dog’s acts were directed solely toward its “ordi-
    nary prey” and harm to the animal is not the basis for the
    plaintiff’s claim. Given that other words in § 54-601(1)(b)—
    “worrying” and “chasing” “any person or persons or any sheep
    or other domestic animals belonging to such person, firm,
    or corporation”—entail action directed toward the injured
    person or toward the injured animal owned by the dam-
    aged plaintiff, we hold that “injuring” must also be limited
    to bodily hurt caused by acts directed toward the person or
    animal hurt.
    Even resolving every controverted fact in Smith’s favor and
    giving him the benefit of every inference that can reasonably
    be deduced from the evidence,31 there was no evidence that
    Gunner bit Smith, worried Smith, or chased Smith. And while
    Smith allegedly was hurt by a cow that was put in motion by
    Gunner, there was no evidence that Gunner’s actions were
    directed toward Smith. There might be situations where a dog,
    in an act manifesting aggression toward a person, utilizes an
    instrumentality to cause the person bodily hurt, but this is not
    that case.
    Whether Meyring should have foreseen that Gunner would
    attempt to herd cattle in an enclosed space and thereby injure
    one of its employees was a question of negligence that was
    properly presented to the jury. The district court did not err in
    concluding that the evidence presented did not fall within the
    purview of strict liability under § 54-601.
    31
    See Jacobs Engr. Group v. ConAgra Foods, 
    supra note 1
    .
    - 127 -
    Nebraska Supreme Court A dvance Sheets
    302 Nebraska R eports
    SMITH v. MEYRING CATTLE CO.
    Cite as 
    302 Neb. 116
    CONCLUSION
    For the foregoing reasons, we affirm the district court’s
    order granting a directed verdict in favor of Meyring on
    Smith’s statutory strict liability claim.
    A ffirmed.
    Miller-Lerman, J., concurring.
    I do not read our opinion herein as necessarily endorsing the
    majority opinion in Underhill v. Hobelman, 
    279 Neb. 30
    , 
    776 N.W.2d 786
     (2009), regarding “injuring” under § 54-601(1)(b),
    from which I dissented, and accordingly, I concur.