Opinion
No. S-09-150.
Filed December 18, 2009.
1. Summary Judgment. Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.
4. Statutes: Judicial Construction: Legislature: Presumptions: Intent. Where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court's determination of the Legislature's intent.
Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.
Gary J. Nedved and Joel Bacon, of Keating, O'Gara, Nedved Peter, P.C., L.L.O., for appellant.
Travis P. O'Gorman, of Cline, Williams, Wright, Johnson Oldfather, L.L.P., for appellee.
HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
NATURE OF CASE
The sole issue in this appeal is whether an amendment to Neb. Rev. Stat. § 54-601 (Reissue 2004), which inserted the word "injuring" to the list of recoverable actions, expands the statute's coverage to include damages caused by a dog's playful or mischievous behavior. Anne Underhill filed a complaint against Shiloh Hobelman, seeking damages for injuries she sustained when Hobelman's dog ran into her knee, causing her to fall. Underhill appeals the district court's order granting partial summary judgment in favor of Hobelman. The district court concluded that Hobelman was not strictly liable pursuant to § 54-601 for Underhill's injuries, because the dog was not acting maliciously. We affirm the decision of the district court.
BACKGROUND
The facts of this case are undisputed. Underhill and Hobelman are friends. On December 31, 2005, Underhill went to meet Hobelman at his dormitory room so that the two could go out for dinner. Underhill parked her car and, as she was walking toward Hobelman's dormitory room, she saw Hobelman's mother walking Brady, Hobelman's golden retriever. Brady has been trained to assist Hobelman with his day-to-day tasks, and Brady responds to both verbal commands and hand gestures. Brady recognized Underhill and began wagging his tail. Because Underhill was familiar with Brady, Hobelman's mother let him off his leash to greet Underhill.
Once Brady was off the leash, he started running toward Underhill. Underhill testified at her deposition that Brady was not running at her in a threatening manner and that he did not display any intent to harm her. However, Brady was running very fast and he ran into Underhill's left knee, causing her to lose her balance and fall. As a result of this fall, Underhill suffered injuries to her knee, which required surgery. Because Underhill could no longer afford her medical bills, she filed suit against Hobelman.
Underhill filed suit against Hobelman, asserting two theories of recovery: strict liability pursuant to § 54-601 and negligence. Underhill subsequently dismissed her cause of action for negligence. Underhill's main argument on appeal is that the amendment to § 54-601 inserting the word "injuring" to the list of recoverable damages expands the scope of coverage to include damages caused from a dog's playful or mischievous behavior.
The district court concluded that the amendment to § 54-601 was not intended to expand coverage from injuries sustained from a dog's playful or mischievous conduct. In so concluding, the district court explained that it is bound by the doctrine of vertical stare decisis and that thus, it relied on previous case law interpreting § 54-601 to exclude from its coverage the playful and mischievous acts of dogs. Underhill appealed, and we granted her petition to bypass the Nebraska Court of Appeals.
ASSIGNMENT OF ERROR
Underhill alleges, restated and consolidated, that the district court erred in granting partial summary judgment in favor of Hobelman, concluding that Hobelman was not strictly liable pursuant to § 54-601 because his dog was acting playfully and not maliciously.
STANDARD OF REVIEW
[1,2] Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.
Erickson v. U-Haul Internal., 278 Neb. 18, 767 N.W.2d 765 (2009).
Id.
Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court.
Metropolitan Comm. College Area v. City of Omaha, 277 Neb. 782, 765 N.W.2d 440 (2009).
ANALYSIS
This appeal turns on our application of § 54-601, which provides in relevant part that
the owner or owners of any dog or dogs shall be liable for any and all damages that may accrue (1) to any person . . . by reason of having been bitten by any such dog or dogs and (2) to any person . . . by reason of such dog or dogs killing, wounding, injuring, worrying, or chasing any person or persons.
In Donner v. Plymate, we reasoned that "the Legislature was fully aware of the need for protection from the intentional, deliberate, and purposeful acts of dogs and as a result restricted [§ 54-601] to those acts manifesting such qualities." As a result, we held that § 54-601 excluded strict liability for damages caused by "playful and mischievous acts of dogs."
Donner v. Plymate, 193 Neb. 647, 649-50, 228 N.W.2d 612, 614 (1975).
Id. at 650, 228 N.W.2d at 614. Accord Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269 (1993).
Underhill does not argue that our holding in Donner was incorrect. Rather, Underhill argues that 1992 Neb. Laws, L.B. 1011, abrogated our holding in Donner by adding the word "injuring" to the list of harms that could support liability. We agree with the general presumption that the Legislature, in adopting an amendment, intended to make some change in the existing law and that we should give effect to that change. But the legislative record does not support Underhill's interpretation of L.B. 1011.
See No Frills Supermarket v. Nebraska Liq. Control Comm., 246 Neb. 822, 523 N.W.2d 528 (1994).
Instead, the legislative record makes clear that L.B. 1011 was prompted by a court decision in which an injured person had been unable to recover for a broken hip that had allegedly been caused by a dog, because it was not a "wound" within the meaning of § 54-601. The purpose of L.B. 1011 was to expand the scope of § 54-601 to include "internal damages even if there are no external damages caused by the owner's dog." It did not address Donner, either implicitly or explicitly.
See, generally, Agriculture Committee Hearing, L.B. 1011, 92d Leg., 2d Sess. (Jan. 28, 1992).
Introducer's Statement of Intent, L.B. 1011, Agriculture Committee, 92d Leg., 2d Sess. (Jan. 28, 1992).
When we judicially construe a statute and that construction fails to evoke an amendment, we presume that the Legislature has acquiesced in our determination of its intent. And we presume that when we have construed a statute and the same statute is substantially reenacted, the Legislature gave to the language the significance we previously accorded to it. Nothing in the plain language of L.B. 1011, or its legislative history, rebuts the presumption that the Legislature acquiesced to our holding in Donner and reenacted § 54-601 without affecting that holding. We find no merit to Underhill's assignment of error.
See Lagemann v. Nebraska Methodist Hosp., 277 Neb. 335, 762 N.W.2d 51 (2009).
See Brown v. Kindred, 259 Neb. 95, 608 N.W.2d 577 (2000).
CONCLUSION
Relying on our holding in Donner, the district court correctly granted summary judgment for Hobelman. The judgment of the district court is affirmed.
AFFIRMED.
WRIGHT, J., not participating.