COREY M. SEARCY, ET AL.
WALTER AXLEY, ET AL.
Session September 19, 2017
from the Circuit Court for Benton County No. 14-CV-27 Charles
C. McGinley, Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Andy D. Bennett, and Arnold B. Goldin, JJ.,
STEVEN STAFFORD, JUDGE
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. Demetria Searcy and Melissa Axley
attended cosmetology school together and 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
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. The dog then got down from Mrs. Searcy and
her son's lap and went into an adjoining room.
returned to the living room a little while
later. 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.
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. 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.
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.
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.
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 ...