A Carluzzo Rochkind & Smith note: Following is an excellent article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important points your personal injury lawyers should be familiar with. For more than 30 years our personal injury lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Negligence: Homeowners liable for dog’s seventh biting incident
By Virginia Lawyers Weekly – 9/16/2024
Where the homeowners’ dog bit a man visiting the property, and there had been six prior biting incidents involving the dog, the compensatory and punitive damages’ awards were affirmed.
Background
A jury found David and Barbara Jones liable for $25,000 in compensatory damages and $20,000 in punitive damages after their dog attacked and injured Minsung Kim, who had come to their property while canvassing for a political campaign.
Status
The first matter to address is Kim’s status as either a trespasser or licensee. A possessor of land ordinarily owes trespassers a duty only to avoid causing injury through wanton and willful conduct but owes additional duties to licensees. A reasonable jury could have found that Kim, as a member of the public walking up to the front door and as a political canvasser surveying registered voters, was a licensee and not a trespasser.
Regardless of how many guests visited the Joneses’ property, it was still a residence in suburban Fairfax County that saw occasional visitors and service workers. Barbara Jones even testified that she could see joggers and bicyclists on the street in the neighborhood. The Joneses had no visible fencing on the exterior property line, no “no trespassing” or “no entry” signs and only an orange traffic cone on the driveway.
The “beware of dog” sign alone does not withdraw the consent or license to approach. The orange traffic cone reasonably could have been interpreted to discourage vehicular traffic, not pedestrians.
Duty
A possessor of land owes a licensee the duty to exercise reasonable care arising from affirmative conduct. Here, the Joneses were aware of their dog’s propensity to bite visitors. The Joneses also should have realized that merely keeping the dog in an invisible fence, in the expected path of ingress of their property, was an unreasonable risk to visitors. Their knowledge of the dog’s propensity to attack visitors put the Joneses on notice of injuries that could occur by leaving it outside and supplied a duty of reasonable care.
The Joneses argue they took some action that would put Kim on notice of the danger — their yellow “beware of dog” sign. But this sign did not prevent six previous biting incidents. Thus, it is sufficient for a reasonable jury to find that posting the sign alone was not “reasonable care.” The jury could have reasonably found that the Joneses failed to meet this duty, and thus, the circuit court’s denial to strike on claims of no legal duty was correct.
A landowner also has a duty to not intentionally, wantonly or willfully injure a trespasser or licensee. Given that at least six visitors to their property suffered harm from their dog, a reasonable juror could find that the Joneses were aware of or should have anticipated that future guests could be injured and that their failure to take further protective measures after each incident was a conscious disregard for the rights of others. Thus, the circuit court was correct to deny the motion to strike and to allow the matter of wanton and willful conduct to be decided by a jury.
Causation
The Joneses allowed the dog to be in the yard, and the Joneses would put the dog away when they expected guests. The dog, allowed in the outer yard, attacked Kim as he approached the front door. A reasonable jury could find that allowing the dog outside is an act that, in sequence, led to the dog injuring Kim. The circuit court did not err in letting this question of causation go to the jury.
Contributory negligence
The Joneses emphasize that Kim was warned not to enter properties with a “beware of dog” sign, and therefore failing to check for the sign on their property was careless and sufficient for contributory negligence. Yet Virginia law does not place a general duty on visitors to search for warning signs when entering a residential property. Again, Kim, approaching the front porch on an unenclosed portion of the property but for an orange cone in the driveway, had no reason to suspect unreasonable danger without seeing the sign. Thus, reasonable minds could differ regarding whether Kim was contributorily negligent.
Second, if the jury could reasonably find that the Joneses were wantonly or willfully negligent, the Joneses would need sufficient evidence to demonstrate that Kim, too, was wanton or willful in his contributory negligence. No such argument was presented, and no facts suggest that Kim was aware of any circumstances posing a threat of injury.
Affirmed.
Jones v. Kim, Record No. 1348-22-4, Sept. 3, 2024. CAV (unpublished opinion) (Chaney). From the Circuit Court for Fairfax County (Bernhard). Gary B. Mims (Benjamin C. Charlton; Frei, Mims & Perushek, L.L.P., on briefs), for appellants. J. Chapman Petersen (Won Y. Uh; Chap Petersen & Associates, PLC, on brief), for appellee. VLW 024-7-279. 14 pp.
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