Opinion
No. 1-654 / 00-1898.
Filed March 13, 2002.
Appeal from the Iowa District Court for Scott County, JAMES E. KELLY, Judge.
Plaintiff appeals a jury verdict in defendant's favor on plaintiff's statutory claim to recover for injuries she sustained after being chased by defendant's dog. AFFIRMED.
Daniel D. Bernstein and William J. Bribriesco of William J. Bribriesco Associates, Bettendorf, for appellant.
Elliott R. McDonald III and Patricia Rhodes Cepican of McDonald, Stonebraker, Cepican Woodward, P.C., Davenport, for appellee.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Quoting an unnamed poet, our highest court once said, "[l]et dogs delight to bark and bite, For God hath made them so." Brown v. Moyer, 186 Iowa 1322, 1327, 171 N.W. 297, 299 (1919). A meter reader who claimed a dog attacked or attempted to bite her, takes issue with this pronouncement. Having lost her statutory action against the dog's owner, she now challenges the district court's (1) admission of expert testimony on the dog's characteristics and behaviors; (2) admission of evidence relating to her comparative fault; and (3) refusal to instruct the jury on the meaning of the phrase "attacking or attempting to bite." We affirm.
Our research identifies the poet as Isaac Watts (1674-1748), an English pastor, preacher, poet and hymn writer. See Biography, available at www.bartleby.com/100/218.html.
I. Background Facts and Proceedings
Ronald Dittman owned a Brittany Spaniel named Ben Joseph Shane. When Dittman went to work, he left Ben outside his home on a thirty-foot metal chain. Janice Rodgers, a water meter reader for the city of LeClaire, Iowa, approached Dittman's house to read the meter. Knowing a dog lived there, she made some noise to alert him to her presence, but saw nothing. Rodgers proceeded up a flight of stone steps toward the meter. At the top, she heard a growl, turned, and saw Ben.
Ben jumped up and charged after Rodgers with his lips curled and his teeth bared, barking all the while. Rodgers flew back down the stairs with the dog at her heels. When she got to the bottom, she continued to run but slipped and fell outside the range of Ben's chain.
Rodgers sued Dittman, alleging he was strictly liable for the acts of his dog. See Iowa Code § 351.28. The case proceeded to trial and the jury returned a verdict in favor of Dittman. This appeal followed the court's denial of Rodgers's new trial motion.
Iowa Code section 351.28 provides:
The owner of a dog shall be liable to an injured party for all damages done by the dog, when the dog is caught in the action of worrying, maiming or killing a domestic animal, or the dog is attacking or attempting to bite a person, except when the party damaged is doing an unlawful act, directly contributing to the injury. This section does not apply to damage done by a dog affected with hydrophobia unless the owner of the dog had reasonable grounds to know that the dog was afflicted with hydrophobia and by reasonable effort might have prevented the injury.
II. Admissibility of Dog's Characteristics and Behavior
Before trial, Rodgers unsuccessfully sought to exclude testimony of a dog training expert and of a termite inspector who had encountered Ben without incident. On appeal, she contends: (1) the dog training expert was unqualified to give an opinion on dog behavior; (2) the expert's testimony about the dog's character was irrelevant and prejudicial in this absolute liability action; and (3) the pest control inspector's testimony concerning an incident that occurred two years after Rodgers' experience should have been excluded. Our review of these issues is for abuse of discretion. Mercer v. Pittway Corp., 616 N.W.2d 602, 628 (Iowa 2000).
A. Qualifications of Dog Training Expert . Rodgers contends defense expert James L. Stenfeldt was not qualified to testify about animal behavior because he held no degrees in that field, had not authored any articles, and had no "experience with dog behavior outside of a dog's response to training." We reject these contentions.
Iowa adheres to a liberal rule on the admission of expert testimony. IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 630-31 (Iowa 2000). "Although licensing carries a presumption of qualification to testify in the given field, `learning and experience may provide the essential elements of qualification.'" Hutchison v. American Family Mut. Ins. Co., 514 N.W.2d 882, 886 (Iowa 1994) (quoting Jones on Evidence § 14.13, at 619 (6th ed. 1972)).
Given this liberal standard, we cannot conclude the district court abused its discretion in finding Stenfeldt qualified to testify about dog behaviors. Stenfeldt had twenty-six years of dog training experience and had been exposed to about 200 Brittany Spaniels, including one that he owned. Notwithstanding claimed advances in canine research that raise distinctions between training and behavior, we believe Stenfeldt's experiences qualified him to speak to both. Accordingly, we reject Rodgers's first challenge to the admissibility of Stenfeldt's testimony.
B. Relevance of Dog Training Expert's Testimony . At trial, Stenfeldt was permitted to testify to the results of a reenactment of the incident. He stated he read Rodgers's deposition, then did what she did. According to Stenfeldt, Ben responded by barking, but did not attempt to bite him. He further testified that a dog would "probably" exhibit "following behavior" if a stranger came within range of the chain and then ran, but that such behavior was not correlated with biting behavior.
Rodgers maintains this testimony was irrelevant because Iowa Code section 351.28 does not allow for a defense based on the propensities of a dog. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Iowa R. Evid. 5.401. Evidence that is not relevant is not admissible. Iowa R. Evid. 5.402.
Formerly Iowa R. Evid. 401.
Our highest court has addressed the question of whether evidence of dog propensities and behavior is relevant in a statutory dog liability case. See Collins v. Kenealy, 492 N.W.2d 679, 682 (Iowa 1992); Le Mars Mut. Ins. Co. v. Bonnecroy, 304 N.W.2d 422, 424 (Iowa 1981); Forsythe v. Kluckhohn, 161 Iowa 267, 271, 142 N.W. 225, 227 (1913); Sanders v. O'Callaghan, 111 Iowa 574, 579, 82 N.W. 969, 969 (1900). Under every version of the statute since its enactment in the 1800s, the court has held that a dog owner's knowledge of a dog's vicious propensities is not a prerequisite to imposition of liability. Id. However, the court has affirmed admission of dog propensity and behavior evidence to establish or refute the canine conduct described in the statute. See Iowa Code § 351.28 (holding owner liable for "worrying, maiming or killing a domestic animal", or "attacking or attempting to bite" element in the statute); Kluckhohn, 161 Iowa at 271, 142 N.W. at 227; accord Luick v. Sondrol, 200 Iowa 728, 731, 205 N.W. 331, 333 (1925) (noting that although the vicious habit of the dog did not need to be shown in an action under the statute, it was relevant to establish statutory conduct).
Cf. Steinkuehler v. Brotherson, 443 N.W.2d 698, 699-700 (Iowa 1989) (holding knowledge of a dog's vicious propensities was also not an essential element for recovery in a common law negligence action). Contrast Restatement of the Law Second Torts § 509 (1989) (including knowledge component in common law claim for harm done by abnormally dangerous animals); Chance v. Ringling Bros. Barnum Bailey, Combined Shows, Inc., 478 P.2d 613, 618 (Or. 1970) (holding expert testimony on dog behavior admissible in negligence action). See also 4 Am Jur. 2d Animals § 111 (1995) (noting statutes in some jurisdictions have imposed absolute liability without regard to scienter, fault or negligence); Ward Miller, Annotation, Modern Status of Rule of Absolute or Strict Liability for Dogbite, 51 A.L.R. 4th 446 (1987) (comparing various theories of liability); Annotation, Liability of Dog Owner for Injuries Sustained by Person Frightened by Dog, 30 A.L.R. 4th 986 (1984) (noting gravamen of such common law claims is owner's knowledge of animal's viciousness or mischievousness).
In Kluckhohn, a dog owner challenged the district court's admission of testimony relating to the dog's general vicious characteristics as well as its prior bad acts. The court stated the challenged evidence was admissible on the question of whether the dog was "attacking or attempting to bite." The court reasoned:
The well-known classification of animals of the same general family into breeds is a recognition of the fact that by breeding, training, and environment for considerable periods of time they develop distinct traits, habits, and characteristics, and we see no reason why these may not be legitimate matters of evidence in cases where their acts and conduct under a given state of circumstances become a matter of dispute.Kluckhohn, 61 Iowa at 271, 142 N.W.2d at 225.
The court went on to hold:
[P]roof of specific acts, or of the habit of the animal to bite or seize the clothing of persons on the street, was admissible as a circumstance tending to sustain plaintiff's charge that he so acted at the time of her injury.Id. The court's holding in Kluckhohn is dispositive. We conclude that evidence of Ben's propensities and his behavior at times other than the date of the incident with Rodgers was relevant to the issue of whether he attacked or attempted to bite Rodgers. Contrast Quellos v. Quellos, 643 N.E.2d 1173, 1181 (Ohio Ct.App. 1994) (holding that because dog bite statute established liability without regard to fault or dog owner's negligence, evidence of dog's gentle nature was irrelevant); James v. Cox, 634 P.2d 964, 966-67 (Ariz.Ct.App. 1981) (holding evidence of dog's gentle nature inadmissible under dog bite statute except to prove statutory defense of provocation).
Our conclusion that the evidence is relevant generally would not end our inquiry, as our rules of evidence also permit a court to exclude relevant evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice. See Iowa R. Evid. 5.403. Although Rodgers argues on appeal that the challenged evidence was "highly prejudicial", she did not seek or obtain a Rule 403 ruling from the district court. Therefore, this issue has not been preserved for review. Accordingly we conclude that the district court did not abuse its discretion in admitting Stenfeldt's expert testimony.
Formerly Iowa R. Evid. 403.
C. Testimony of Pest Control Inspector . Rodgers contends the district court also should not have admitted the testimony of pest control inspector Shawn Wogomon. Wogomon testified he made visits to Dittman's home two years after the incident with Rodgers. He stated he never had a confrontation with Ben on these visits. We have serious reservations concerning the probative value of this testimony. Cf. Moura v. Randall, 705 A.2d 334, 340 (Md.Ct.App. 1998) (affirming admission of behavior testimony occurring five days after date of incident giving rise to lawsuit). However, in light of our highest court's holding in Kluckhohn, we cannot conclude that the district court abused its discretion in admitting it. See Kluckhohn, 161 Iowa at 271, 142 N.W. at 225.
III. Admission of Comparative Fault Testimony
Rodgers contends the district court impermissibly allowed Dittman to introduce evidence of her comparative fault, including testimony about her footwear, the wetness of the grass, and Rodgers's failure to use her city-issued mace. Dittman responds that Rodgers waived error on this issue. We agree.
After obtaining an adverse ruling on her motion in limine, Rodgers proceeded to testify on direct examination to the facts she had earlier claimed were inadmissible. We have held that a party cannot complain of error that party invited. McCracken v. Edward D. Jones, 445 N.W.2d 375, 378-9 (Iowa Ct.App. 1989). Contrast State v. Daly, 623 N.W.2d 799, 801 (Iowa 2001) (holding defendant did not waive error by introducing evidence of prior convictions on direct examination). Accordingly, we decline to address Rodgers' challenge to the court's admission of what she characterizes as comparative fault evidence.
IV. Jury Instruction
Rodgers contends the district court should have instructed the jury on the meaning of "attacking or attempting to bite." We review the court's refusal to give a requested jury instruction for prejudicial error. City of Cedar Falls v. Cedar Falls Comm. Schl. Dist., 617 N.W.2d 11, 20 (Iowa 2000).
Rodgers sought the following instruction:
A dog "attacks" or "attempts to bite a person" when such person would reasonably believe that the dog is acting in a hostile and/or threatening manner toward that person and the dog has the present capacity to inflict injury upon such person.
The district court did not err in refusing to give this instruction. The phrase "attacking or attempting to bite" includes only words of ordinary usage, and such words need not be defined. Henderson v. Scurr, 313 N.W.2d 522, 525 (Iowa 1981). Additionally, the proposed instruction adds elements not contained in the statute. Cf. Shulz v. Griffith, 103 Iowa 150, 153, 72 N.W. 445, 446 (1897) (affirming court's refusal to give instruction that added element of proof). As the district court pointed out, Iowa Code section 351.28 makes no mention of the victim's reasonable belief, a key component of Rodgers's proposed instruction. Cf. Miles v. Schrunk, 139 Iowa 563, 568, 117 N.W. 971, 972 (1908) (affirming refusal to give jury instruction in dog bite case that added an implausible element); Sanders v. O' Callaghan, 111 Iowa 574, 581, 82 N.W. 969, 970 (1900) (affirming district court's refusal to give instructions that set forth incorrect rules of law). For these reasons, we reject Rodgers's contention.
V. Disposition
"Even the tale of a dog should have an end." Kluckhohn, 161 Iowa at 274, 142 N.W. at 227. We affirm the judgment in favor of Dittman.
AFFIRMED.