Let Sleeping Dogs Lie . . . Just Not In A Hallway Where They Might Create A Dangerous Condition?

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Sleeping dog (pd)When is a sleeping dog a dangerous condition? This is the burning question that the Appellate Division answered in Parella v. Compeau.

In Parella, plaintiff attended Christmas dinner at a friend's house along with approximately 20 other guests. After the second course, she got up from her chair to put her dish in the kitchen sink and check on her child who was in an another room. To do so, she had to walk behind several seated guests. She did not have to ask anyone to move until she got to the last guest in the row. That guest moved her chair in and plaintiff made a move familiar to anyone who has been to a crowded holiday dinner — she "lifted [her] glass and plate, turned her back to the wall and shuffled her feet to pass behind [the] chair." "As she cleared the chair, plaintiff turned right to enter the hall toward the kitchen, and fell." 

What caused her fall was a "tan, fairly large dog" that was "lying in the hallway, past the threshold of the dining room." The dog did not belong to defendants, the owners of the house and the hosts of the party, and was one of two dogs in the house for the party. When plaintiff fell, the wine glass she was holding broke, cutting her finger and severing a tendon. Plaintiff sued, alleging that defendants failed to warn of her of a dangerous condition — the dog — in their home. The trial court granted summary judgment to defendants and plaintiff appealed.

 The Appellate Division affirmed the trial court's decision. It noted that plaintiff was a social guest before discussing the limited duty owed by hosts to their social guests:

A host need  only  warn  "of  dangerous  conditions  of which [the host] had actual knowledge and of which the guest is unaware." A "host need not undertake to make improvements or alterations to render his [or her] home  safer  for  those  accepting  his hospitality than for himself." The host is under no duty to inspect  his  or  her  premises  to  discover defects which otherwise might not be known to the  casual  observer.  Where  a "guest is aware of the dangerous condition or by a reasonable use of his facilities would observe it, the host is not liable."

Plaintiff argued that defendants "knew that a dog they allowed to remain in front of a doorway posed a tripping hazard," and failed to either warn plaintiff or "eliminate the danger."  She further argued that "whether the dog, which is a moveable object, created a dangerous condition was a fact question for the jury to evaluate." (Incidentally, dogs may be called many things, both positive and not-so-positive, but I doubt they are frequently, if ever, referred to as "moveable objects.")

The Appellate Division rejected these arguments. It held that the dog was not hidden from view, plaintiff was aware of the presence of the dog in the home, the hallway in which the dog was sleeping was lit, and other guests walking into the dining room from the hallway saw the dog. The Appellate Division further held that "[p]laintiff's injuries were not caused by the dog's actions, causing her to trip and fall."  Moreover, it held that the dog's size "would make him clearly visible to anyone who was watching where he or she was walking." It then observed, rather sharply, that "[p]laintiff's suggestion that she could not see the dog because he was below eye level begs the question." (I assume "the question" was whether plaintiff was watching where she was going.) As a result, the Appellate Division "[could not] say the mere presence of the dog sleeping in the hallway created an unreasonable risk or a dangerous condition" that "trigger[ed] defendants' legal duty to warn guests walking in their home."

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