Dargen v. King , 87 Or. App. 349 ( 1987 )

ROSSMAN, J.

Plaintiff brought this action as guardian ad litem for his minor dáughter to recover damages for injuries sustained when she was bitten by defendants’ dog. The trial court granted defendants’ motion for summary judgment and entered judgment accordingly. We reverse.

In his complaint, plaintiff alleges that defendants were negligent in failing properly to supervise and control their dog, that the dog attacked his daughter when she was a visitor in defendants’ home, that defendants were aware of their dog’s vicious propensities and that, as a result of the attack, his daughter suffered a severe laceration of the right upper lip and cheek, requiring 25 sutures and causing permanent scarring. Defendants moved for summary judgment under ORCP 47 on the ground that no genuine issue of material fact exists with respect to whether they knew of the dog’s vicious propensities and that they were entitled to summary judgment as a matter of law.¹ In support of their motion, defendants submitted affidavits of their daughter, a neighbor and Alphonso King (defendant) stating, in effect, that the dog appeared friendly and that defendants had no reason to believe otherwise. However, defendant acknowledges in a supplemental affidavit that a “beware of dog” sign was attached to the gate to their back yard.

Plaintiff contends that a “beware of dog” sign supports an inference that the dog’s owners were aware that a dog is vicious. He contends, therefore, that the existence of the “beware of dog” sign on the gate raises a genuine issue of material fact with respect to whether defendants knew that their dog was vicious. In his supplemental affidavit, defendant asserts that the sign was in place to alert representatives of the public utilities that a dog was present and that the gate should be closed immediately after entering.²

Before it is appropriate to grant a summary judgment, the moving party must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. ORCP 47. We review the record in the light most favorable to the party opposing the motion, giving that party the benefit of all reasonable and proper inferences of fact that can be drawn from the pleadings, affidavits and depositions. In the absence of counter-affidavits or conflicting evidence, facts set forth in a supporting affidavit will be taken as true. Seeborg v. General Motors Corporation, 284 Or 695, 588 P2d 1100 (1978); Sheppard v. Weekly, 72 Or App 86, 695 P2d 53 (1985); Dowd v. Weyerhaeuser Co., 50 Or App 211, 622 P2d 1137 (1981).

We agree with plaintiff that the existence of the “beware of dog” sign supports an inference that defendants knew that their dog might bite an unsuspecting visitor. Accordingly, because the opposing party is entitled to the benefit of all inferences that can be drawn from the evidence before the court, even though the record indicates that plaintiff did not submit counter-affidavits or other materials in opposition to defendants’ motion for summary judgment, we conclude that a genuine issue of material fact does exist with respect to defendants’ knowledge of their dog’s vicious propensities. Because plaintiff is entitled to have that issue of fact resolved by a jury, we hold that the trial court erred in granting defendants’ motion for summary judgment.³

Reversed and remanded.

1 Plaintiff does not contend that defendants are liable for his daughter’s injuries, regardless of whether they were aware of their dog’s vicious propensities. See generally Westberry v. Blackwell, 282 Or 129, 577 P2d 75 (1978).

2 Defendants also submitted a portion of a deposition in which defendant Alphonso King asserts that the sign said “keep gate closed” in addition to “beware of dog.”

3 It is the duty of the jury and not, as the dissent suggests, the duty of this court, to determine whether defendants knew of their dog’s dangerous propensities. The existence of a “beware of dog” sign permits an inference that a dog’s owners know that their dog is vicious. In this case, that inference is contravened by defendants’ assertions to the contrary. A genuine issue of material fact thus exists, the resolution of which lies within the exclusive province of the jury. As tempting as it might be to decide that issue, we would be trespassing on the jury’s domain by doing so.