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Searcy v. Axley

Court of Appeals of Tennessee, Jackson

October 19, 2017

COREY M. SEARCY, ET AL.
v.
WALTER AXLEY, ET AL.

          Session September 19, 2017

         Appeal from the Circuit Court for Benton County No. 14-CV-27 Charles C. McGinley, Judge

         Parents 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 judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          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 Axley.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which Andy D. Bennett, and Arnold B. Goldin, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         FACTS

         This 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.[1] 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 without incident.

         Later, 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.[2] The dog then got down from Mrs. Searcy and her son's lap and went into an adjoining room.

         The dog returned to the living room a little while later.[3] 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.

         PROCEDURAL HISTORY

         On July 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.[4] 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.

         On 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.

         The 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.[5]

         ISSUES PRESENTED

         The 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 ...


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