Corey M. Searcy v. Walter Axley ( 2017 )

10/19/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 19, 2017 Session
COREY M. SEARCY, ET AL. v. WALTER AXLEY, ET AL.
Appeal from the Circuit Court for Benton County
No. 14-CV-27 Charles C. McGinley, Judge
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No. W2017-00374-COA-R3-CV
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Parents filed suit against dog owners following their son’s injury from a dog bite
that occurred at the owners’ home. The trial court granted the dog owners’ motion for
summary judgment, concluding that parents failed to show that owners knew or should
have known of their dog’s dangerous propensities as required by Tennessee Code
Annotated section 44-8-413. Finding no error, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which ANDY D.
BENNETT, and ARNOLD B. GOLDIN, JJ., joined.
Christopher V. Boiano and Stephanie A. Boiano, Hendersonville, Tennessee, for the
appellants, Corey M. Searcy and Demetria Searcy.
Charles M. Purcell and Andrew V. Sellers, Jackson, Tennessee, for the appellees, Walter
Axley, Irene Axley, and Melissa Axley.
OPINION
FACTS
This case arises from personal injuries incurred by a minor child from a dog bite.
On July 24, 2013, Demetria Searcy and her minor son traveled to Walter and Irene
Axley’s (together, “the Axleys”) home to visit with the Axleys’ daughter, Melissa
Axley.1 Demetria Searcy and Melissa Axley attended cosmetology school together and
1
Melissa Axley was originally joined with her parents as a defendant in this case. However, the
trial judge granted summary judgment to all claims, dismissing Melissa Axley from the suit. It does not
were friends. After remaining outside to pet some goats and chickens upon their arrival,
Mrs. Searcy, her son, and Melissa Axley ventured to the Axley home. The group
approached the residence, and the Axleys’ dog, an Australian Shepherd named Ruby, was
lying on the front porch. As the group crossed the front porch, the child reached down
and petted Ruby on the head and back without incident.
Later, inside the home, Mrs. Searcy sat in a recliner and her son sat in her lap. The
Axleys were also sitting in the living room. While in the living room, the Axleys’ dog
approached Mrs. Searcy and her son, jumped up, and put her paws on their lap. The two
petted the dog. At this point, Mr. Axley told the dog to get down a few times; however,
after the dog did not listen, Mr. Axley struck the dog on its rear.2 The dog then got down
from Mrs. Searcy and her son’s lap and went into an adjoining room.
The dog returned to the living room a little while later.3 After returning to the
living room, the dog immediately went back to Mrs. Searcy and her son and, again, put
her paws on their laps. As they did before, the two petted the dog. This time, however,
the dog suddenly bit the child in the face causing severe injuries. Due to the injuries,
Mrs. Searcy and son left the Axleys’ home immediately seeking medical attention.
PROCEDURAL HISTORY
On July 23, 2014, Corey M. Searcy and Demetria Searcy, as parents and next
friend of their minor child (together “the Searcys”), filed a complaint against Mr. Axley,
Mrs. Axley, and Melissa Axley.4 The complaint alleged two theories of liability: (1)
negligence per se pursuant to Tennessee Code Annotated section 44-8-413 (the “Dog Bite
Statute”) and (2) common law negligence due to Mr. Axley striking and provoking the
dog to bite the minor child.
On September 15, 2014, the Axleys filed an answer denying liability in both
causes of action. Additionally, the Axleys filed a motion for summary judgment on
February 17, 2016, arguing that the Searcys could not show that the Axleys knew or
should have known of their dog’s dangerous propensities. The Searcys submitted a
response in opposition to the motion for summary judgment on May 4, 2016.
appear that Appellants are appealing the trial court’s dismissal of Melissa Axley as defendant. For
clarification, throughout this Opinion, references to Mrs. Axley are to Irene Axley.
2
There is some factual dispute as to how hard Mr. Axley struck the dog. Appellants claim Mr.
Axley struck the dog hard enough that she yelped. The Axleys, however, claim that the dog did not yelp
when Mr. Axley struck her.
3
There is also some dispute as to how long the dog stayed in the adjoining room. It is
undisputed, however, that the dog was out of the living room for at least thirty seconds or more.
4
See supra note 1.
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The trial court held a hearing on the Axleys’ motion for summary judgment on
May 12, 2016, and at its conclusion, the trial judge orally granted the Axleys’ motion on
the ground that the Axleys negated an essential element of the Searcys’ claim. On June
27, 2016, an order was entered dismissing all counts in the complaint. The Searcys filed
a motion to alter or amend judgment on July 21, 2016, arguing that the common law
claim should have survived summary judgment. The court held a hearing on this issue on
December 5, 2016. The trial judge entered an order denying the motion on January 10,
2017. The Searcys timely filed an appeal on January 30, 2017.5
ISSUES PRESENTED
The Searcys raise two issues on appeal. The issues, taken from the Searcys’ brief,
are whether the trial court erred in granting summary judgment regarding the Axleys’ (1)
“strict liability claim raised pursuant to Tennessee Code Annotated section 44-8-413
when it found no issue of material fact existed regarding whether the Axleys knew or
should have known of the dog’s dangerous propensities;” and (2) “common law
negligence claim by incorrectly applying its reasoning for dismissal of the statutory cause
of action as also requiring dismissal of the negligence claim.”
STANDARD OF REVIEW
Here, the trial court granted summary judgment in favor of the Axleys. The
Tennessee Rules of Civil Procedure provide that summary judgment is appropriate when
the record establishes that “there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04.
According to our supreme court:
when the moving party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production either (1) by
affirmatively negating an essential element of the nonmoving party’s
claim or (2) by demonstrating that the nonmoving party’s
evidence at the summary judgment stage is insufficient to establish
the nonmoving party’s claim or defense.
Rye v. Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 253, 264 (Tenn. 2015)
(italics omitted). Additionally, the party seeking summary judgment must do more than
“make a conclusory assertion that summary judgment is appropriate on this basis.” Id.Instead, the movant must support its motion with “‘a separate concise statement of
material facts as to which the moving party contends there is no genuine issue for trial.’”
Id. (quoting Tenn. R. Civ. P 56.03). After a motion for summary judgment is made, the
non-moving party must file a response to each fact presented by the moving party
5
We note that the Searcys are represented by different counsel in this appeal.
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“‘showing that there is a genuine issue for trial.’” Rye, 477 S.W.3d at 264 (quoting Tenn.
R. Civ. P. 56.03). In other words, the non-moving party must “demonstrate the existence
of specific facts in the record which could lead a rational trier of fact to find in favor of
the nonmoving party.” Rye, 477 S.W.3d at 264. Therefore, “’if there is a dispute as to
any material fact or any doubt as to the conclusion to be drawn from that fact’” this Court
must deny the motion for summary judgment. Meyers v. First Tennessee Bank, 503
S.W.3d 365, 373 (Tenn. Ct. App. 2016) (quoting Garner v. Coffee Cty. Bank, No.
M2014-01956-COA-R3-CV, 2015 WL 6445601 at *4 (Tenn. Ct. App. Oct. 23, 2015)
(quoting Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn.1993)).
To determine whether the trial court correctly granted summary judgment, this
Court must “’view the evidence in the light most favorable to the nonmoving party and
must draw all reasonable inferences in the nonmoving party’s favor.’” Meyers, 503
S.W.3d at 384–85 (quoting Thomas v. Carpenter, No. M2005-00993-COA-R9-CV, 2005
WL 1536218, at *3)(citing Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997)).
Lastly, [w]e review the trial court’s ruling on a motion for summary judgment de novo,
without a presumption of correctness. Rye, 477 S.W.3d at 250 (citing Bain v. Wells, 936
S.W.2d 618, 622 (Tenn. 1997)).
ANALYSIS
I.
The Tennessee Supreme Court generally described liability for dog bite cases
under the common law stating:
[T]he general rule . . . [regarding] liability of owners or keepers of domestic
animals for injuries to third persons is that the owner or keeper of domestic
animals is not liable for such injuries, unless the animal was accustomed to
injure persons, or had an inclination to do so, and the vicious disposition of
the animal was known to the owner or keeper
Missio v. Williams, 167 S.W. 473, 474 (Tenn. 1914). In other words “where an animal is
accustomed or disposed to injure persons, and the owner or keeper has notice or
knowledge of that fact, he is liable for any injury which such animal may do to another
person.” Id. Additionally, “[k]nowledge of the owner or keeper that the dog is vicious is
sufficient to sustain liability, without showing that it had ever bitten any one.” Id.Therefore, dog owners “are liable for injuries done by [the dog], even without notice of
their vicious propensities, if the animals are naturally mischievous; but, if they are of a
tame and domestic nature, there must be notice of the vicious habits.” Id. Although
Missio was decided over a century ago, the common law in Tennessee has undergone
little change. See Moore v. Gaut, No. E2015-00340-COA-R3-CV, 2015 WL 9584389, at
*3 (Tenn. Ct. App. Dec. 30, 2015) (“Our review of subsequent appellate decisions in dog
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bite cases indicates that the common law has not substantially changed since [Missio].”);
Thompson v. Thompson, 749 S.W.2d 468, 470 (Tenn. Ct. App. 1988) (explaining that an
essential element in a dog bite claim is that plaintiffs “must prove that the defendants
knew or should have known about the dog’s dangerous propensities.”); Fletcher v.
Richardson, 603 S.W.2d 734, 734 (Tenn. 1980) (“The basic key to recovery of damages
for injuries caused by a dog is the knowledge of the owner or keeper that the animal is
vicious or has mischievous propensities.”); Alex v. Armstrong, 385 S.W.2d 110, 114
(Tenn. 1964) (“[W]hether or not the owner of a dog has notice of its vicious or
mischievous propensities . . . is essential to common law liability.”); Henry v. Roach,
293 S.W.2d 480, 481–82 (Tenn. Ct. App. 1956) (quoting Missio, 167 S.W. at 474).
Although most dog bite claims under the common law have required that the claimant
show the owner’s knowledge of their dog’s dangerous propensities, a few cases have
allowed liability even in the absence of such knowledge, based upon theories of general
negligence or failure to control. Mayes v. LaMonte, 122 S.W.3d 142, 145 (Tenn. Ct.
App. 2003)(“We believe this case is governed by general negligence principles, not that
aspect of dog bite law which imposes liability on an owner where there are “injuries
resulting from known vicious tendencies or propensities.”); McAbee v. Daniel, 445
S.W.2d 917, 925 (Tenn. Ct. App. 1968)(holding that the requirement that dog owner
knew of dog’s dangerous propensities as “required by Missio . . . is not required in the
case at bar where there is proof of negligence of the part of the defendant . . . in failing to
properly control the dog.”).
In 2007, however, the Tennessee General Assembly enacted Tennessee Code
Annotated section 44-8-413, regarding liability for injuries from dog bites. Under the
Dog Bite Statute, a dog owner “may be held liable regardless of whether the dog has
shown any dangerous propensities or whether the dog owner knew or should have known
of the dog’s dangerous propensities” if (1) the owner is unable to keep the dog under
reasonable control at all times; or (2) the dog is running at large. Tenn. Code Ann. § 44-
8-413(a)(1)–(2). In other words, a dog owner is held strictly liable if the owner’s dog
injures a person because the owner failed to exercise reasonable control over the dog or
the dog is running at large. See id. However, the statute provides certain exceptions, most
notably, the residential exception. See Tenn. Code Ann. 44-8-413(c)(1).
The residential exception states that if an owner’s dog injures a person while that
person is on the owner’s property, the claimant must prove that the owner knew or should
have known of the dog’s dangerous propensities to recover damages from the injury. See
id. The statute, in pertinent part, states,
If a dog causes damage to a person while the person is on residential, farm
or other noncommercial property, and the dog’s owner is the owner of the
property, or is on the property by permission of the owner or as a lawful
tenant or lessee, in any civil action based upon such damages brought
against the owner of the dog, the claimant shall be required to establish that
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the dog’s owner knew or should have known of the dog’s dangerous
propensities.
Id. Therefore, in cases where a dog causes injury at the home or property of that dog’s
owner, “the statute clearly retains and codifies the common law requirement that a
claimant ‘establish that the dog’s owner knew or should have known of the dog’s
dangerous propensities.’” Gaut, 2015 WL 9584389, at *5 (quoting Tenn. Code Ann. §44-
8-413(c)(1)).
Applying the clear language in the applicable section of the Dog Bite Statute, it is
undisputed in this case that the Axleys’ dog injured the child while on the Axleys’
property. This case therefore clearly falls under the purview of section (c)(1) of the Dog
Bite Statute. Accordingly, the statute requires that the Searcys prove that the Axleys
knew, or should have known, of their dog’s dangerous propensities to recover for their
minor son’s injuries.
The Searcys’ argue, however, that there are two “separate and distinct claims”
pleaded in their complaint and that the elements in each claim “do[] not rely upon the
other.” Furthermore, the Searcys contend that “while Tenn. Code Ann. § 44-8-413codified claims for strict liability which formerly existed in common law, the statute left
common law negligence claims untouched; they contend these claims remain separate
and distinct causes of action.” Respectfully, we cannot agree. Rather, we conclude that
the above rule is applicable to “any” claim involving damage caused by a dog on its
owners’ property.
The General Assembly has the constitutional and legislative power to change the
common law of the state of Tennessee. Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705,
712 (Tenn. 2002)(citing Lavin v. Jordan, 16.S.W.3d 362, 368 (Tenn. 2000)). However,
“‘[w]ithout some clear indication to the contrary, [the court] simply will not presume that
the legislature intended to change the common law by implication.’” State v. Howard,
504 S.W.3d 260, 270 (Tenn. 2016)(quoting Heirs of Ellis, 71 S.W.3d at 712). Therefore,
the statute may not alter the common law “any further than the statute declares or
necessarily requires.” Shore v. Maple Lane Farms, LLC., 411 S.W.3d 405, 423 (Tenn.
2013). Accordingly, we must determine if the Dog Bite Statute “clearly indicat[es] . . .
that the legislature intended to change the common law by implication.” Howard, 504
S.W.3d at 270.
When interpreting a statute, the role of this Court “is to assign a statute the full
effect of legislative intent without restricting or expanding its intended scope.” Frazier v.
State, 495 S.W.3d 246, 248 (Tenn. 2016)(citing State v. Springer, 406 S.W.3d 526, 533
(Tenn.2013); State v. Marshall, 319 S.W.3d 558, 561 (Tenn.2010)). To determine the
legislature’s intent, “we first look to the plain language of the statute, giving the statute’s
words their natural and ordinary meaning.” State v. Gibson, 506 S.W.3d 450, 455 (Tenn.
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2016)(citing State v. Davis, 484 S.W.3d 138, 145 (Tenn. 2016)); State v. Smith, 484
S.W.3d 393, 403 (Tenn. 2016). “’When a statute is clear, we apply the plain meaning
without complicating the task, and simply enforce the written language.’” Gibson, 506
S.W.3d at 456 (quoting Chartis Cas. Co. v. State, 475 S.W.3d 240, 245 (Tenn. 2015)).
Thus, “[w]hen th[e] words [of the statute] are clear and unambiguous, we enforce the
statute as written and need not consider other sources of information.” Gibson, 506
S.W.3d at 455–56 (citing Frazier, 495 S.W.3d at 249).
Despite the more than ten years since the enactment of section 44-8-413, few cases
have analyzed this statute and no cases have considered the question presented in this
case: whether section 44-8-413 abrogates any common law claim that may have existed
prior to the statute’s enactment in which the claimant in a dog bite case was not required
to show that the owner knew or should have known of the dog’s dangerous propensities.
See Moore v. Gaut, No. E2015-00340-COA-R3-CV, 2015 WL 9584389, at *5 (Tenn. Ct.
App. Dec. 30, 2015) (affirming summary judgment where the injured party could not
show that the owner knew or should have known of the dog’s dangerous propensities, but
not specifically addressing whether the statute abrogated other types of common law dog
bite claims); Ragland v. Morrison, No. W2013-00540-COA-R3-CV, 2013 WL 4805624,
at *2 (Tenn. Ct. App. Sept. 10, 2013) (citing section 44-8-413 with regard to the question
of whether the defendant should be responsible for certain dogs when he was not the
dogs’ owner, but ultimately vacating the judgment and remanding for the trial court to
state its legal reasoning for the grant of summary judgment). As such, this is an issue of
first impression.
Given the lack of authority on this issue, we find guidance in decisions
considering whether a statute abrogated the common law in other situations. For example,
in Ellithorpe v. Weismark, 479 S.W.3d 818 (Tenn. 2015), the Tennessee Supreme Court
recently considered a similar question with regard to the Tennessee Health Care Liability
Act (“THCLA”). In 2011, the General Assembly amended the Tennessee Medical
Malpractice Act “by removing all reference to ‘medical malpractice’ from the Tennessee
Code and replacing them with ‘health care liability’ or ‘health care liability action’ as
applicable.” Id. at 826. An additional section was added to the Code defining “health
care liability action” as “any civil action . . . alleging that a health care provider or
providers have caused an injury related to the provision of, of failure to provide, health
care services to a person, regardless of the theory of liability on which the action is
based.” Tenn. Code Ann. § 29-26-10(a)(1)(first emphasis added). In Ellithorpe, the
parties disputed as to whether certain claims fell within the statute or remained governed
by the common law and therefore not subject to the THCLA’s stringent pre-suit notice
requirements. See id. at 824. The court held that Tennessee Code Annotated section 29-
26-101
establishe[d] a clear legislative intent that all civil actions alleging that a
covered health care provider or providers have caused an injury related to
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the provision of, or failure to provide health care services be subject to . . .
[certain] requirements, regardless of any other claims, causes of action, or
theories of liability alleged in the complaint.
Id. at 827. Thus, the statute controlled all actions involving health care liability; no
common law claim involving that type of conduct remained after the passage of the
statute. Id.
Similar to the THCLA, the Dog Bite Statute states that where a dog injures a
person on its owner’s property, the claimant “shall be required to establish that the dog’s
owner knew or should have known of the dog’s dangerous propensities” in “any civil
action” for damages brought against the dog’s owner. Tenn. Code Ann. §44-8-413(c)(1).
The language of the Dog Bite Statute, like the language of the THCLA, requires that
claimants in any civil claim prove that the owner knew or should have known of the
dog’s dangerous nature. Further, upon a plain reading of the statute, giving the word
“any” its natural and ordinary meaning, we conclude that the statute applies to each and
every civil suit falling within the specific category of cases dealt with by section (c)(1).
Because we have determined that the words of the statute are clear and unambiguous, our
analysis may end here. Gibson, 506 S.W.3d at 455–56 (citing Frazier, 495 S.W.3d at
249). As such, section (c)(1) of the Dog Bite Statute abrogates common law claims
falling within its parameters, just as the THCLA abrogates the common law claims in
health care liability cases. For the foregoing reasons, we hold that where the Searcys
claim that a dog injured the child while on its owners’ property, they must comply with
the substantive requirements of section 44-8-413(c). We therefore turn to address whether
the undisputed evidence in the record establishes that the Searcys failed to meet their
burden under that statute.
II.
Because the Searcys’ claim falls within the ambit of section (c)(1) of the Dog Bite
Statute, we must now determine whether summary judgment on this issue was
appropriate. Here, the Axleys’ statement of undisputed material facts contains the
following relevant facts: (1) while the child was petting Ruby, she gave no indication that
she was uncomfortable with the contact or otherwise showed aggression to the child; (2)
Ruby bit the child without warning; (3) Ruby had never bitten anyone before; (4) there
was no proof to show that the Axleys knew or should have known of the dog’s dangerous
propensities. We conclude that these facts, if true, show that the Axleys did not know nor
should they have known that the dog had dangerous propensities for purposes of section
44-8413(c). See Rye, 477 S.W.3d at 264 (holding that a moving party may shift the
summary judgment burden to the non-moving party by “demonstrating that the
nonmoving party’s evidence at the summary judgment stage is insufficient to establish
the nonmoving party’s claim”).
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The burden therefore shifted to Appellants to show that the Axleys in fact knew or
should have known of the dog’s dangerous propensities. This court has previously
described this burden as requiring that not only the dog owner knew of the dangerous
disposition of the dog, but that the “‘injuries result[ed] from [such] known vicious
tendencies or propensities.’” Mayes, 122 S.W.3d at 145 (quoting McAbee, 445 S.W.2d at
925). Thus, “it must be shown [by the non-moving party] that the animal had vicious or
dangerous propensities and it must be shown further that the owner knew of such
propensities and that the injury complained of resulted therefrom.” Wells v. Beach, 315
S.E.2d 23 (Ga. App. 1984) (citing Connell v. Bland, 177 S.E.2d 833 (1970)). Stated
another way, “a dog owner’s liability must be predicated solely upon his knowledge that
the errant animal has the propensity to cause the specific type of harm from which the
cause of action arises.” Wells, 315 S.E.2d at 23. Consequently, “[t]he question in each
case is whether the notice was sufficient to put the owner on his guard and to require him,
as an ordinarily prudent man, to anticipate the injury which has actually occurred.” 13
AM. JUR. 2d Knowledge of Animal’s Vicious Propensities § 3.
As an initial matter, we note that despite the fact that the Searcys disputed many of
the factual allegations in the Axleys’ statement of undisputed material facts, the Searcys
failed to submit any specific evidence to show a genuine dispute of fact. For example, the
Searcys disputed the Axleys’ allegation that Ruby did not show discomfort or aggression
toward the child prior to the bite but rather bit the child without warning. Later in their
response to the Axleys’ statement of undisputed facts, however, the Searcys concede that
“[t]here was no indication that Ruby was going to bite [the child]. She showed no
aggression and was friendly [until Mr. Axley struck her].” Likewise, an affidavit filed by
Mrs. Searcy stated that “[t]here was no warning sign or indication that the dog intended
to bite [the child].” The Searcys also disputed that Ruby had never bitten anyone before.
Specifically, the Searcys stated that “[t]here is no evidence presented to prove or disprove
Ruby has ever bitten anyone prior to this incident.” We disagree. The Axleys’ statement
of undisputed facts cites Mr. Axley’s deposition testimony on this issue, which
specifically states that Ruby has never bitten anyone prior to this incident. The only
support for the Searcys’ assertion that this fact was disputed was Mrs. Searcy’s affidavit
stating that she did not have prior knowledge sufficient to “definitively” state whether
Ruby had attacked another person. Respectfully, Mrs. Searcy’s statement regarding her
lack of knowledge is insufficient to negate Mr. Axley’s unequivocal statement that the
dog had in fact never bitten anyone prior to this incident. See Gaut, 2015 WL 9584389,
at *5 (affirming summary judgment where Defendant “testif[ied] in his affidavit that his
dog had never bitt[en] or attacked anyone before [biting] Plaintiff” and Plaintiff failed to
present any evidence creating a genuine issue of material fact.); Eden v. Johnson, No.
01A01-9603-CV-00141, 1996 WL 474428, at *2 (Tenn. Ct. App. Aug. 21,
1996)(affirming summary judgment when Defendants “produced an affidavit in support
of their motion for summary judgment attesting to the fact that the dog had never bitten
anyone since they had owned him, nor had the dog otherwise exhibited any dangerous
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propensities” and the Plaintiffs “offered no evidence to rebut the Defendants affidavit as
to the issue of notice.”).
The Searcys contend, however, that they presented specific evidence to negate the
Axleys’ allegation that no evidence was presented to show the Axleys’ knowledge of the
dog’s dangerous propensities. Specifically, the Searcys alleged that the Axleys
should have known of the possibility of a bite because [Mr. Axley]
smacked Ruby on the rear because she wouldn’t listen when he was telling
her to get down, at least two or three times. He has also shown concern
when he did not want Ruby to jump on [the Searcys] because he did not
want anything to happen.
The Searcys therefore contend that they met their burden to show the Axleys’ knowledge
of the dog’s dangerous propensity because of the incident wherein Mr. Axley hit the dog.
It is undisputed that Mr. Axley hit the dog after he jumped onto the chair and put its paws
on Mrs. Searcy’s and her son’s laps. It is disputed, however, the nature and extent of the
incident, such as whether the dog “yelped” following the contact. Mr. Axley explained
his action in hitting the dog by noting that the dog had previously scratched others such
as himself while jumping and that the contact was to make the dog get down and prevent
only that type of conduct. Every witness testified that other than jumping on and
scratching people, the dog had shown no other vicious or dangerous behavior.
Indeed, every person whose deposition is included in the record noted that the dog
was simply not acting dangerous or aggressive on the day of the incident. Based upon the
totality of the evidence, we cannot conclude that this single incident establishes that the
Axleys knew the dog was dangerous, or were on notice that the dog might bite someone.
The only evidence the Searcys presented is that the Axleys had notice that their dog
might jump on or scratch Mrs. Searcy and her son. Respectfully, we cannot conclude that
this evidence is sufficient to show that the Axleys were on notice, constructive or actual,
that their dog would bite the Searcys’ son. Rather, even viewing the evidence in the light
most favorable to the Searcys, we must conclude that this evidence merely shows that
Mr. Axley was concerned about his guest being merely scratched, not that he had any
knowledge that his dog was dangerous, as this evidence simply does not rise to the level
of other cases in which knowledge has been found. See Dykeman v. Heht, 52 A.D.3d
767, 76970 (N.Y. App. Div. 2008)(holding that there was a genuine issue of material
fact as to whether the dog owner knew of should have known of dog’s vicious
propensities because “upon each of [the child’s] two arrivals at the defendant’s home, the
dog growled, barked, snarled, and bared its teeth directly at her and her family.”). Thus,
the Searcys did not meet their burden of providing evidence that the Axleys knew or
should have known that their dog would have vicious propensities. As a result of the
Searcys’ failure to provide sufficient evidence to this effect, the Axleys successfully
“negat[ed] an essential element of the [the Searcys’] claim[,]” Rye, 477 S.W.3d at 264,
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and the trial court properly granted the Axleys’ motion for summary judgment. The trial
court’s order granting the Axleys’ motion for summary judgement is, therefore, affirmed.
III.
Finally, the Searcys’ argue that “a dog’s playfulness or mischievousness can be
[considered] a ‘dangerous propensity’” for the purposes of determining whether a dog
owner had notice of the dog’s vicious propensities in dog bite cases. Unfortunately, the
first time this argument was presented was in the Searcys’ brief to this Court. It is well
established that the Court of Appeals’ “purpose is to correct errors made by trial courts,
not make initial rulings on arguments not presented to the trial court.” Estate of
Cunningham v. Epstein Enterprises LLC., No. W2015-00498-COA-R3-CV, 2016 WL
3662468 (Tenn. Ct. App. June 30, 2016) (Stafford, J., concurring). Respectfully, we
conclude that the Searcys’ have waived this argument by failing to present it at the trial
level.
Tennessee courts have long dealt with the issue of waiver of arguments not
introduced at the trial level. Indeed “[i]t has long been the general rule that questions not
raised in the trial court will not be entertained on appeal . . . .” City of Memphis v.
Shelby County, Tennessee, 469 S.W.3d 531, 560 (Tenn. Ct. App. 2015)(citing Lawrence
v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983)); see also Villages of Brentwood
Homeowners Ass’n, Inc., No-01A01-9708-CH-00388, 1998 WL 289342, at *2 (Tenn.
Ct. App. June 5, 1998)(“[A]ppellate courts will ordinarily decline to consider issues
being raised for the first time on appeal . . . [t]hus arguments not asserted at trial are
deemed waived on appeal.” (internal citations omitted)). Further, this Court in City of
Memphis, found that because the argument “was neither presented nor decided in the trial
court [the Defendants] waived [their] right to argue the issue for the first time on appeal.”
Id. at 561 (citing In re M.L.P., 281 S.W.3d 387, 394 (Tenn. 2009)).
Moreover,
[s]ummary judgment standards are both well settled . . . and difficult for the
moving party to meet. Parties on both sides of a summary judgment motion
must heed those standards. The non-moving party must fully oppose a
motion for summary judgment before it is granted rather than [seek to]
overturn a summary judgment after only weakly opposing the motion.
Estate of Cunningham, 2016 WL 3662468 (Stafford, J., concurring)(quoting Chambliss
v. Stohler, 124 S.W.3d 116, 121 (Tenn. Ct. App. 2003)). Accordingly, a party’s appeal
to “this Court of a trial court’s order granting summary judgment is not an opportunity
for the parties to set forth novel arguments not previously raised before the trial court.”
Estate of Cunningham, 2016 WL 3662468 (Stafford, J., concurring). Therefore, “a party
may not litigate an issue on one ground, abandon that ground post-trial, and assert a new
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basis or ground on appeal.” Edmunds v. Delta Partners LLC., 403 S.W.3d 812, 825
(Tenn. Ct. App. 2012) (citing State v. Leach, 148 S.W.3d 42, 55 (Tenn. 2004)); see also
Estate of Cunningham, 2016 WL 3662468 (Stafford, J., concurring) (citing State v.
Abbott, No. 01C01-9607-CC-00293, 1996 WL 411645, at *2 (Tenn. Crim. App. July 24,
1996)) (“Tennessee courts have held that it is inappropriate to allow a party to take one
position regarding an issue in the trial court, and then ‘change its strategy or theory in
midstream, and advocate a different ground or reason in this Court.’”).
In their brief, the Searcys contend that “the record in this matter clearly sets forth
multiple parties citing repeated examples of the [the Axleys’] knowledge of the dog’s
dangerous propensities, including a history of mischievousness or playfulness as
applicable to the definition of same.” However, the Searcys failed to advance this theory
in the trial court. We concede that at the trial level, the Searcys argue that the Axleys
knew or should have known of their dog’s dangerous propensity. But, the sole theory set
forth by the Searcys in the trial court for this knowledge includes only that “[Mr.] Axley
knew of the violent condition thereby striking and ordering [the dog] to leave the first
time she jumped on [Mrs. Searcy and her son] . . . . By [Mr. Axley’s] actions prior to the
bite, he knew or should have known of the dog’s potential dangerous propensities.”
However, on appeal, the Searcys assert a new theory of the case, arguing that Mr. Axley
knew or should have known of the dog’s dangerous propensity because of its
mischievous or playful nature. Because the Searcys failed to make this argument in the
trial court, the trial court “[h]aving never been presented with this argument at the trial
level . . . was unable to make a specific finding” about this particular basis for liability.
Edmonds, 403 S.W.3d at 825. Accordingly, the Searcys waived their ability to present
this claim on appeal.
In conclusion, the Searcys’ do not have a common law claim because section
(c)(1) of the Dog Bite Statute abrogates their claim for general negligence. Further, the
Searcys did not provide sufficient proof to show that the Axleys knew or should have
known that their dog would bite the Searcys’ minor son. Lastly, the Searcys’ failed to
raise their argument concerning the mischievousness of the dog at the trial level;
therefore, that argument is waived on appeal. Thus, we affirm the trial court’s order to
grant the Axleys’ motion for summary judgment. Costs of this appeal are assessed to
Appellants Corey and Demetria Searcy, and their surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
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