Day on Torts
Where the plaintiffs had no evidence to refute the defendant dog owner’s sworn statement that they had no way to know of their dog’s dangerous propensities, summary judgment for the defendants was affirmed.
In A.M. by Amanda M. v. Masek, No. W2024-01412-COA-R3-CV (Tenn. Ct. App. Sept. 23, 2025), the plaintiffs visited the defendants’ home to celebrate Christmas. The plaintiffs’ minor son stayed the night, and the next morning he went into the defendants’ back yard with the defendants’ dogs. The defendants had not left the child alone with the dogs before and intended to join him in the yard soon. Within three minutes, one of the dogs attacked the boy.
The plaintiffs filed this suit, and the defendants moved for summary judgment. The trial court granted summary judgment based on the filings of the parties, finding that the plaintiffs did not prove an essential element of their claim. The Court of Appeals affirmed.
After determining that the harmless error doctrine was applicable to the plaintiffs’ assertion that the trial court erred by deciding the motion for summary judgment on the filings of the party even though the plaintiffs had requested a hearing, the Court turned to the plaintiffs’ dog bite claim. Tennessee’s Dog Bite Statute, Tennessee Code Annotated § 44-8-413, “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” in order to establish liability when the dog bite occurred on the dog owner’s property. Because the child in this case was bitten at the defendants’ residence, the plaintiffs had to show that the defendants “knew or should have known of the dog’s dangerous propensities.”
The defendants submitted a sworn statement averring that they had no reason to believe the dog was dangerous. In response, the plaintiffs pointed to alleged facts that they argued should have put the defendants on notice, or should have at least created a genuine issue of material fact regarding whether the defendants had constructive knowledge of the dog’s dangerous propensities.
First, the plaintiffs stated that one of the defendants’ cats was found dead a few weeks before the incident. The Court noted, though, that the only testimony about the dead cat was that there was no sign the cat was attacked, and the fact that the cat died “without any evidence indicating the cause of death or tying the cat’s death to the dog at issue [was] insufficient to create a genuine dispute of material fact.”
Second, the plaintiffs pointed to the fact that the defendants had adopted the dog only eight months before the incident. The Court noted that lengthy ownership may “buttress an owner’s claim to a lack of knowledge,” but that the fact that the dog was adopted or that the defendants had only had the dog eight months were not enough to show that they should have known it was dangerous.
Third, the plaintiffs alleged that the defendants’ choice to keep the dog in a fence showed that they knew it was dangerous. The Court rejected this claim, noting that many state and local laws require that dogs not run at large, and that many other considerations can come into play when deciding to keep a dog in a fenced area.
Finally, the plaintiffs pointed to the fact that the defendants had not left the child alone with the dog before. The Court found that this evidence did not establish that the defendants’ “decision was based in any way on a fear that the dog at issue was dangerous.” If fact, the evidence showed that the defendants typically supervised the boy both inside and outside the house. The Court found that drawing the conclusion pushed by the plaintiffs would amount to speculation.
At the end of its opinion, the Court addressed the plaintiffs’ argument that the burden for plaintiffs in residential dog bite cases is essentially “insurmountable” without “direct proof of actual knowledge by the owner.” The Court cited a recent case wherein a residential dog bite plaintiff was able to survive summary judgment by showing that the owner had been present when a dog growled and showed its teeth to another person. Moreover, the Court wrote that it was “not the purview of this Court to ease a burden established by the Tennessee General Assembly.”
Because the plaintiffs did not have evidence that the defendants knew or should have known about the dog’s dangerous propensities, summary judgment was affirmed.
This opinion was released three months after oral arguments.