Where plaintiff entered defendant’s property to return two pot-bellied pigs that were owned by defendant’s stepson but lived on defendant’s property and were running loose, and plaintiff had been on the property before without defendant objecting, plaintiff was not a trespasser and had implied permission to come onto the property.
In Cook v. Fuqua, No. M2021-00107-COA-R3-CV, 2022 WL 244532 (Tenn. Ct. App. Jan. 27, 2022), plaintiff’s father and defendant were neighbors. Defendant’s adult stepson lived at defendant’s residence and kept pot-bellied pigs on the property. When plaintiff was visiting her father, she heard the pigs at her father’s door, rounded them up, then went onto defendant’s porch to inform someone at the residence that the pigs were loose. While she was knocking, one of the pigs knocked her off the porch and she sustained injuries. Notably, defendant had not been to the residence in the preceding month due to an order of protection, but he was still the owner.
Plaintiff filed this negligence suit, and defendant filed a motion for summary judgment asserting that plaintiff was a trespasser and he thus only “owed her a duty to not cause her injury intentionally, with gross negligence, or by willful and wanton conduct.” The trial court agreed and granted summary judgment, but that ruling was reversed on appeal.
The Court began its analysis by looking at whether plaintiff was a trespasser on defendant’s property. A trespasser is defined as “a person who enters or remains on the real property of another without actual or implied permission, or a person who engages in conduct that constitutes a criminal trespass or offense under Tenn. Code Ann. §§ 39-14-405 to -407.” (quoting Tenn. Code Ann. § 29-34-208(a)(2)). In this case, plaintiff argued that she had implied permission to be on defendant’s property, and the Court of Appeals agreed. The property owner’s consent can be implied “when the owner’s conduct would warrant a reasonable person to believe that the owner had given consent to enter the premises, even in the absence of an invitation to enter.” (internal citation omitted). Plaintiff pointed out that she had entered the property to inform defendant about the pigs running at large, and that she had been on defendant’s property before and he had not objected to her prior entry. The Court concluded that “in light of [defendant’s] inaction after the prior entry, it may be implied that [plaintiff] had his permission to come onto the property on the day of the incident.” The ruling that plaintiff was a trespasser was therefore reversed.
This finding, however, did not end the analysis. Having found that plaintiff was not a trespasser, the Court next considered what duty defendant owed under the circumstances. “The owner of a domesticated animal may be held liable for the harm the animal causes if he or she negligently failed to prevent the harm.” (internal citation omitted). Defendant argued that he did not owe plaintiff a duty of reasonable care because he did not own the pigs and had not been at the property in a month. While there were no Tennessee cases directly on point, the Court of Appeals explained that this case “share[d] similarities with cases involving a landlord who leases property to a tenant who maintains a vicious dog on the property.” In such cases, the defendant landowner/landlord “may be held liable for the acts of the animal if he or she had knowledge of the propensity of the animal to violence and… he retained sufficient control over the premises to afford an opportunity for the [landowner] to require the tenant to remove the animal.” (internal citation omitted).
With this framework in mind, the Court pointed out that there was contradictory evidence regarding defendant’s knowledge of how the pigs had behaved in the past and defendant’s then-current level of control of the property. The Court concluded that there were genuine issues of material fact here regarding “whether [defendant] had sufficient knowledge of the pigs’ harmful behaviors and whether he had sufficient control over the property allowing him an opportunity to remove or secure the pigs,” and summary judgment was reversed.
This case is a good example of the analysis surrounding trespass and implied consent. Whether a plaintiff is considered a trespasser will greatly affect the potential duty owed by defendant, and anyone litigating this issue should read this opinion.
This case was released 3.5 months after oral arguments in this case.
Note: Chapter 5, Section 1 and Chapter 30, Section 1 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
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