Wright v. Brown
Nature of the Case
Wright (P) appealed a decision which sustained the demurrer of Brown (D), a dog warden, and a town, to Wright’s counts for negligence and nuisance. Wright sued to recover damages for personal injuries sustained when the dog that was owned by Brown bit her.
Facts
A dog owned by Brown attacked and injured Wright. Less than fourteen days prior to Wright’s injury, Brown’s dog attacked another person and as required by law the dog was quarantined. The dog was released from quarantine before the mandatory 14-day period required by law.
Wright claims negligence against the dog warden and the town in that if they had complied with the statute, she would not have been injured. The town and dog warden demurred in that Wright was not within the class of persons designed to be protected under the statute; the statute was enacted to determine whether the person bitten would need a rabies shot. The trial judge found that Wright had not alleged the she had been bitten by a diseased dog and dismissed the action against the town and the dog warden. Wright appealed.
Issue
- In order to invoke violation of a statute as negligence per se, must the plaintiff be within the class of persons protected by the statute and the injury be the type of which the statute was intended to prevent?
Holding and Rule of Law
- Yes. In order to invoke violation of a statute as negligence per se, the plaintiff must be within the class of persons protected by the statute and the injury must be the type of which the statute was intended to prevent.
The statute was intended not only to protect persons bitten by a dog from the threat of rabies, but also to protect the general public from contact with diseased dogs. Where a statute is designed to protect persons against injury, one who has suffered such an injury as the statute was intended to guard against has a good ground of recovery. That principle of the law sets forth two conditions which must coexist before statutory negligence can be actionable. First, the plaintiff must be within the class of persons protected by the statute. Second, the injury must be of the type which the statute was intended to prevent.
Under this statute it is clear that the class of persons protected is not limited. The law was intended to protect the general public. Wright is a member of the general public and so falls within that ambit of the statute. But the second and fifth counts of Wright’s complaint allege only that the plaintiff was attacked and injured by a dog that was prematurely released from quarantine. That allegation does not claim an injury of the type the statute was intended to prevent.
Liability in nuisance can be imposed on a municipality only if the condition constituting the nuisance was created by the positive act of the municipality. Failure to remedy a dangerous condition not of the municipality’s own making is not the equivalent of the required positive act. This complaint alleges more than passive negligence. The release of the dog by the dog warden constitutes a positive act sufficient to withstand the challenge of the demurrer. Since the fifth count alleged negligence in the breaking of the quarantine, municipal immunity cannot be claimed.
Disposition
Judgment set aside and remanded with direction to overrule the demurrer to the last four counts of the complaint.