McClellan v. Nanos

BREARCLIFFE, JUDGE

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. C20205616 The Honorable Cynthia T. Kuhn, Judge

Kimminau Law Firm PC, Tucson By Chris J. Kimminau Counsel for Plaintiff/Appellant

Humphrey &Petersen P.C., Tucson By Andrew J. Petersen Counsel for Defendant/Appellee

Judge Brearcliffe authored the decision of the Court, in which Presiding Judge O'Neil and Judge Gard concurred.

MEMORANDUM DECISION

BREARCLIFFE, JUDGE

¶1 In this appeal, Samantha McClellan argues that that the trial court erred in denying her motion for judgment as a matter of law under Rule 50, Ariz. R. Civ. P. She contends that no evidence supported a provocation defense to the dog bite she sustained. Because the court correctly denied the motion, we affirm.

Factual and Procedural Background

¶2 "On appeal from a denial of a motion for judgment as a matter of law, 'we view the evidence and all reasonable inferences [from it] in a light most favorable to the non-moving party.'" Warne Invs., Ltd. v. Higgins, 219 Ariz. 186, ¶ 15 (App. 2008) (alteration in Warne Invs., Ltd.) (quoting Piper v. Bear Med. Sys., Inc., 180 Ariz. 170, 173 (App. 1993)). On March 2, 2020, Sergeant Eric Maldonado and Sergeant Joseph Murphy of the Pima County Sheriff's Department approached McClellan's apartment to return a set of keys. Sergeant Murphy was in plain clothes, but Sergeant Maldonado was in uniform and handling a K-9 police dog. Murphy knocked on the door, while Maldonado and his police dog stood by twenty-five feet away. McClellan answered, opening the door. Immediately, McClellan's dog ran through the open door towards the police dog. McClellan's dog "came up in an active pursuit without any disruption of speed" and tried to bite the police dog on its flank. A dogfight ensued. During the fight, Maldonado laid on top of the police dog to protect it, and attempted to "kick [McClellan's dog] away," "push [it] away," "choke" it and "control" it. "The level of aggression on [McClellan's dog's] part was so extreme that [Maldonado] had considered shooting" it but did not want to risk harming others in the apartment complex.

¶3 During the dogfight, Maldonado "observed [McClellan] leaning or lunging over [his] right shoulder and inserting her upper torso" between Maldonado and the two fighting dogs. The police dog bit into McClellan's arm and would not let go. In response, Maldonado squeezed the police dog's neck to restrict its breathing and cause a "gasping type of reflex" to cause it to release the bite. The police dog ultimately released its bite on McClellan, but McClellan sustained injuries as a result.

¶4 McClellan sued Christopher Nanos in his official capacity as Pima County Sherriff alleging strict liability for the dog bite pursuant to A.R.S. § 11-1025(A). See 1992 Ariz. Sess. Laws, ch. 242, § 2 (the version of § 11-1025(A) in effect at the time of the incident). At the end of the second day of trial, after the defense rested, McClellan moved for judgment as a matter of law, arguing that Nanos's defense to dog-bite liability under A.R.S. § 11-1027 is unsupported by the evidence. She argued that evidence may support that her dog had provoked the police dog, but that there is no evidence to support that she, McClellan, had provoked the dog. Nanos responded that sufficient evidence indicated that McClellan acted in a way that would "cause an animal to react in a manner that causes injury to the actor." Specifically, her "engaging over the top of a law enforcement officer while that dog is being attacked by her dog" constituted "provocation." Finally, Nanos argued that it was not necessary for provocation to be intentional and that unintentional provocation could suffice.

A second count alleging negligence was abandoned. The original complaint also named Sergeant Maldonado and his spouse as defendants, but both were voluntarily dismissed before trial concluded.

¶5 The trial court denied the motion. It noted that under § 111027, "the issue of provocation shall be determined by whether a reasonable person would expect that the conduct or circumstances would be likely to provoke a dog." The court explained,

There is a dispute in the facts. There is contradicting evidence and version[s] of how this event occurred, and, therefore, judgment as a matter of law is not appropriate. And the Court finds that it is a jury question as to whether or not there was provocation. And the defendants have the burden of proof as to whether or not there was provocation of the attack by the plaintiff.

¶6 The jury returned a verdict in favor of Nanos. The trial court granted Nanos his costs and entered final judgment under Rule 54(c), Ariz. R. Civ. P. McClellan appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

Discussion

¶7 On appeal, McClellan argues that the trial court erred in denying her Rule 50 motion for judgment as a matter of law because (1) the provocation defense in § 11-1027 does not apply to a trained police dog only defending its handler, and (2) there was insufficient evidence that McClellan provoked the dog by threatening it in some way, as opposed to merely acting to retrieve her own dog.

¶8 A Rule 50(a)(1) directed verdict on a claim or defense is appropriate where "the court finds that a reasonable jury would not have a legally sufficient evidentiary basis" to grant a verdict on a given issue or claim. "We review de novo the denial of a motion for judgment as a matter of law under Rule 50." Goodman v. Physical Res. Eng'g, Inc., 229 Ariz. 25, ¶ 6 (App. 2011). Where the claim is insufficient evidence, "[w]e will uphold the ruling unless 'the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense." Id. (quoting A Tumbling-T Ranches v. Flood Control Dist. of Maricopa Cnty., 222 Ariz. 515, ¶ 14 (App. 2009)). "We review the trial court's ruling on a motion for judgment as a matter of law de novo." Torres v. Jai Dining Servs. (Phoenix) Inc., 252 Ariz. 28, ¶ 9 (2021). Likewise, we review de novo the court's interpretation of a statute. Nicaise v. Sundaram, 245 Ariz. 566, ¶ 6 (2019).

A. Application of provocation defense under § 11-1027

¶9 In general, the owner of a dog is strictly liable for injuries caused by the dog while the dog is not confined or leashed. See A.R.S. §§ 111020, 11-1001(2); 1992 Ariz. Sess. Laws, ch. 242, § 2. Even if an owner's dog is leashed or confined, the owner is liable when his dog injures someone who is lawfully present where the attack occurs. 1992 Ariz. Sess. Laws, ch. 242, § 2. Nonetheless, a lawsuit alleging injury from a dog bite cannot be maintained

against any governmental agency using a dog in military or police work if the bite occurred while the dog was defending itself from a harassing or provoking act, or assisting an employee of the agency in any of the following:

1. In the apprehension or holding of a suspect where the employee has a reasonable suspicion of the suspect's involvement in criminal activity.

2. In the investigation of a crime or possible crime.

3. In the execution of a warrant.

4. In the defense of a peace officer or another person.

1992 Ariz. Sess. Laws, ch. 242, § 2(B)(1)-(4) . Nanos did not contend below, and does not contend on appeal, that the police dog here (or, more correctly, its handler) was engaged in any of the activities under subsections (B)(1) through (4); he only argues that McClellan provoked the bite, and that this alone was sufficient to permit the defense. McClellan argues that for an agency to be immune from suit for injuries, the police dog must be engaged in one of the listed activities under subsections (B)(1) through (4) when it is provoked to attack. McClellan argues that because the police dog was not engaged in any of the activities listed in subsections (B)(1) through (4), Nanos may not claim the provocation defense. McClellan is incorrect.

¶10 In interpreting a statute, we rely on the statute's plain meaning. See State ex rel. Ariz. Dep't of Revenue v. Tunkey, 254 Ariz. 432, ¶¶ 31-32 (2023) (Bolick, J., concurring); Roberts v. State, 253 Ariz. 259, ¶ 20 (2022) ("[C]ourts will not read into a statute something which is not within the manifest intention of the legislature as gathered from the statute itself," and "will not inflate, expand, stretch or extend a statute to matters not falling within its expressed provisions." (quoting City of Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965))). A plain reading of subsection (B) indicates, by the legislature's use of the disjunctive "or," that no suit may arise from injuries caused by a police dog that is either "defending itself from a harassing or provoking act" or engaged in one of the listed activities. See State v. Pinto, 179 Ariz. 593, 595 (App. 1994) ("The word 'or,' as it is often used, is '[a] disjunctive particle used to express an alternative or to give a choice of one among two or more things.'" (alteration in Pinto, emphasis in Rutledge) (quoting Rutledge v. Ariz. Bd. of Regents, 147 Ariz. 534, 556-57 (App. 1985))). There need be no showing of both provocation and engagement in a listed activity under subsections (B)(1) through (4) when the provocation occurred. The legislature did not require that provocation occur while the dog was engaged in a listed activity. Because § 11-1027 protects an agency from suit for any police dog attack that was provoked, the provocation defense was available to Nanos under these circumstances.

We also reject McClellan's argument that Nanos abandoned the provocation defense before trial by omitting it from the parties' joint pretrial statement. Even if it was omitted, the matter was tried. "When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if it had been raised in the pleadings." Ariz. R. Civ. P. 15(b)(2). McClellan fails to identify how this issue was litigated without her consent.

B. Evidence of provocation

¶11 McClellan's principal argument on appeal is that she only acted to retrieve her own dog and did not threaten the police dog, and that her attempt to retrieve her dog was "incorrectly interpreted by [the police dog] as a threat to [its handler]" by virtue of its training. She asserts that, because she only intended to pull her dog out of the fight, and did not threaten the police dog in any way, her conduct "could not have been a provocation."

¶12 McClellan posits that "a dog" in § 11-1027 is limited to a "generic" dog and does not encompass "a police dog trained to bite under specific circumstances." She contends that if training can be considered under § 11-1027, then a dog could be "trained to attack when people approached [a] dishwasher" and it would be "readily arguable that [the injured person] 'provoked' the dog's attack against her by moving toward the dishwasher." Or, McClellan similarly argues, a dog could be trained to bite people based on their skin color, or to bite individuals wearing certain perfumes. That specialized training, she argues, caused this police dog to bite her when it perceived a threat to its handler. Although Nanos argues that the jury could properly consider the dog's specialized training under the circumstances, he also asserts that "[a] reasonable jury could find any dog, not just [a] highly trained [police dog,] would have the same reaction after being aggressively attacked by [McClellan] and in defense, . . . bite."

¶13 We assume, without deciding, that a jury must not take into account a dog's specialized training in determining whether the dog was provoked under § 11-1027. But even without evidence of the police dog's specialized training, McClellan's conduct of intervening in an active dogfight was sufficient-whether intentional or unintentional-to provoke the dog to bite her, causing her injuries.

Ultimately, the jury instructions provided by the trial court did not refer to any consideration of the police dog's specialized training.

¶14 The evidence at trial indicated that McClellan interfered in an active dogfight. Maldonado testified that McClellan's "coming over [his] shoulder, encroaching in [his] personal space where [he's] armed and in a[n] altercation with an animal, . . . would probably classify as some sort of aggressive response on [McClellan's] part." After the incident, in an interview with the Sherriff's department, McClellan had stated that her dog had "already been agitated" when she answered her door. McClellan had said "[i]t was [her] fault," "[she] went out there" and "knew [her dog] was going to go straight after [the police dog]," and "[she knew she] shouldn't get in the middle of dogfights, but [she] didn't want [her dog] to die."

¶15 In ruling on McClellan's motion for judgment as a matter of the law, the trial court "must give 'full credence to the right of the jury to determine credibility, weigh the evidence, and draw justifiable conclusions therefrom." McBride v. Kieckhefer Assocs., Inc., 228 Ariz. 262, ¶ 11 (App. 2011) (quoting State v. Clifton, 134 Ariz. 345, 348 (App. 1982)). The testimony above was for the jury to weigh, and the court correctly deemed that substantial evidence had been presented supporting a determination that McClellan's conduct-reaching into the midst of an active dogfight-or the circumstances created thereby, would reasonably be expected to provoke the dog here. The court properly denied the motion for directed verdict and submitted the matter to the jury.

Relatedly, McClellan argues that the trial court also "err[ed] in failing to limit the scope of the defendant's closing argument on provocation to only [her] conduct . . . directed at [the police dog]." McClellan does not develop this argument on appeal, so it is waived. See Ariz. R. Civ. App. P. 13(a)(7)(A) (opening brief must offer "contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities and appropriate references to the portions of the record on which the appellant relies"); Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009) (failure to comply with Rule 13 results in waiver). But even if it were not waived, in light of our decision, there would have been no grounds to so limit closing argument.

¶16 Despite the evidence presented, McClellan further argues that specific conduct now embodied in § 11-1025, as amended, must be shown. In 2022, after the incident here, § 11-1025 was amended to define provocation as "tormenting, attacking or inciting a dog and includes the standard for determining provocation prescribed in section 11-1027." § 11-1025(F)(3). The amendment was not expressly retroactive, and so we need not apply its standards here. See A.R.S. § 1-244 ("No statute is retroactive unless expressly declared therein."); 2022 Ariz. Sess. Laws, ch. 243, § 1 (does not contain retroactivity provision). Nonetheless, McClellan argued below, and argues again here, that the later amendment was not substantive, but merely codified existing caselaw, expressly citing to our supreme court's holding in Massey v. Colaric, 151 Ariz. 65 (1986), on appeal.

¶17 In Massey, our supreme court-while addressing available defenses to strict liability in a dog bite case under the statutes in effect at the time-stated that the law

. . . permits a person injured by a dog while at large to recover simply by proving that the statute has been violated. If the elements of the statute are satisfied, the legislature has decided to impose liability without fault. The only defense provided is provocation, . . . with the common law defenses of contributory negligence and assumption of risk superseded. The legislature apparently believed that only when the injured party kicks, hits, teases or in some way provokes the dog, should the claimant be denied recovery.

Id. at 66-67. Our supreme court was not laying out a detailed list of what does or does not constitute legal provocation. Given its context, in which the court was declaring that assumption of the risk no longer survived as a defense to a dog injury case, this was dicta. Id. Even so, the Massey court was only reciting kicking, hitting, or teasing as examples of provocation, not as an exhaustive list, and expressly contemplated the inclusion of other acts that "in some way" provoke the dog. Id. Massey does not compel us to retroactively apply the current language of § 11-1025, or to require any specific manner of provocation, here.

Disposition

¶18 For the foregoing reasons, we affirm. McClellan requests her costs on appeal. Because she is not the prevailing party on appeal, we decline her request.