Roy v. Neibauer II

Is a Montana Landlord Liable When a Tenant’s Dog Bites Someone? Roy v. Neibauer, 191 Mont. 224, 623 P.2d 555 (1981)

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Not always. In Roy v. Neibauer, 191 Mont. 224, 623 P.2d 555 (1981) (Roy II), the Montana Supreme Court unanimously held that a landlord who had owned a duplex for about a week, had no control over a tenant’s dog and had no legal way to remove it in time owed no duty to a child the dog bit. Without a duty there can be no negligence, so summary judgment for the landlord was affirmed.

Key Takeaways

• A negligence claim requires a duty, a breach of that duty and a resulting injury, and whether a duty exists is a question of law for the court, not the jury (Roy II, 191 Mont. at 226).
• A landlord who has no control over a tenant’s dog and no right to remove it before the injury owes no duty to protect others from it (191 Mont. at 226–27).
• The landlord’s legal options were limited by the existing lease and by the notice periods in § 70-24-422, MCA (191 Mont. at 226–27).
• Deposition costs can be taxed against the losing party when the court relied on the depositions to decide summary judgment (191 Mont. at 227–28).

In this case sheet: At a glance · What the Court held · What changed · Statutes · When it applies · How hard · FAQ

The practice Tom Boland built is the practice that handles your case today. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

At a glance

What did the Montana Supreme Court hold in Roy v. Neibauer?

Walter Neibauer bought a duplex on August 19, 1978. Two families already lived there under an existing lease, and that lease expressly allowed one tenant family, the Carlsons, to keep a small cocker spaniel (191 Mont. at 225). On August 27, 1978, the Carlsons’ dog bit a child from the other tenant family on the duplex’s front lawn. The child’s father sued both the dog’s owner and the new landlord (191 Mont. at 225).

The case had reached the Supreme Court once before. That first appeal was dismissed as premature (Roy v. Neibauer, 188 Mont. 81, 610 P.2d 1185 (1980)). After the claims against the dog’s owner were dismissed, the case returned (191 Mont. at 225).

The Court affirmed summary judgment for the landlord:

• Duty comes first. Before anyone can be liable for negligence, the plaintiff must show a duty, a breach and a resulting injury. Whether a duty exists is a question of law for the court (191 Mont. at 226).
• No control, no duty. The landlord bought the property subject to a lease that allowed the dog. He could change the lease terms only on 30 days’ notice, and even if the dog were a nuisance he would have had to give the tenant written notice and at least 14 days to cure under § 70-24-422, MCA (191 Mont. at 226–27). The dog bit the child only days after he took ownership, so he “had no opportunity to remove the dog” and no control over how the tenant handled it (191 Mont. at 227).
• Knowledge did not matter. Because there was no duty, the claim failed “regardless of whether respondent had knowledge of any dangerous propensities of the dog” (191 Mont. at 226).
• Costs. The $328 in deposition expenses was properly taxed against the plaintiff because the trial court expressly relied on those depositions in granting summary judgment (191 Mont. at 227–28).

What did Roy v. Neibauer change in Montana law?

Roy II did not create a new doctrine. Its lasting value is as a clear, short statement of two rules Montana courts use constantly:

1. Duty is the threshold question, decided by the judge. Later Montana Supreme Court decisions cite Roy II for the elements of negligence and for the rule that the existence of a duty is a question of law, including Yager v. Deane (1993), Ganz v. United States Cycling Federation (1995), Fisch v. Montana Rail Link, Inc., 2003 MT 76, and Slack v. Landmark Co., 2011 MT 292.
2. Deposition costs. It is also cited on when deposition expenses are recoverable costs, for example in Mularoni v. Bing, 2001 MT 215, and Rodgers v. MONY Life Insurance, 2005 MT 290.

Courts outside Montana have cited it in landlord dog-bite cases, including the Maryland Court of Appeals in Matthews v. Amberwood Associates (1998) and a Texas appeals court in Batra v. Clark (2003).

The result turned on control and timing. A landlord who has owned a property for months, who knows of a dangerous dog and who has the legal right to act is in a different position, and Roy II does not decide that case.

Which Montana laws and rules apply?

• § 70-24-422, MCA: a landlord’s right to terminate for a tenant’s noncompliance. Roy II applied the 1977 version, which required written notice and at least 14 days. The statute has been amended many times since. The current version keeps a 14-day general notice period and adds a 3-day period for an unauthorized pet (§ 70-24-422(1)(b), (d)). A pet the lease allows, as in Roy II, is not “unauthorized.”
• § 27-1-701, MCA: general liability for negligence (not cited in the opinion; included for background)
• M. R. Civ. P. 56: summary judgment

When might Roy v. Neibauer apply to you?

• A tenant’s dog injures a neighbor or visitor. The question is not only who owned the dog, but whether the landlord had control over the animal or the legal right to remove it before the injury.
• A property changes hands. A new owner who takes the property subject to existing leases may have limited rights at first, and the timing of the injury matters.
• Choosing whom to sue. In an injury case, the claim is only as strong as the duty owed by each defendant. Identifying the person or business with real control over the danger often decides the case.

Every case turns on its facts. Roy II rested on a very short period of ownership and a lease that expressly allowed the dog (191 Mont. at 227).

How hard is it to win a negligence case that turns on duty in Montana?

• Duty is decided by the judge. Because the existence of a duty is a question of law (191 Mont. at 226), a defendant can win on summary judgment without a trial if the court finds no duty.
• No duty ends the case. Without a duty “there could be no negligence,” whatever else the evidence shows (191 Mont. at 226).
• Costs can follow a loss. A plaintiff who loses on summary judgment may be ordered to pay the deposition costs the court relied on (191 Mont. at 227–28).

The practical lesson is to build the duty case early. That means the lease, the ownership dates, who could control the danger and what notice the law required.

The Boland Aarab Way

Thomas E. Boland represented the landlord in this appeal. The win came from the paperwork: the lease terms, the ownership dates and the statutory notice periods showed there was nothing the landlord could lawfully have done in time. Tom practiced in Great Falls from 1979, after his admission to the bar in 1974. His daughter, Caitlin Boland Aarab, and Samir F. Aarab founded Boland Aarab PLLP in 2017 as the successor to his practice. The same attention to who owed what duty goes into the serious trucking and injury cases and catastrophic injury cases the firm handles today. When you hire Boland Aarab, you work directly with the attorneys whose names are on the firm’s appellate opinions.

Frequently Asked Questions

Is a Montana landlord automatically responsible for a tenant’s dog? No. In Roy II, a landlord with no control over the dog and no legal means to remove it before the bite owed no duty to the injured child (191 Mont. at 226–27).

Who decides whether a defendant owed a duty in a Montana negligence case? The court. The existence of a duty is a question of law for the judge, not the jury (Roy II, 191 Mont. at 226).

Can the losing side be ordered to pay deposition costs in Montana? Yes, in some cases. In Roy II the Court upheld $328 in deposition costs because the trial court relied on those depositions to grant summary judgment (191 Mont. at 227–28).

Work With the Practice Behind These Cases

The practice Tom Boland built continues today as Boland Aarab PLLP, a Great Falls trial firm. The same attorneys who brief and argue before the Montana Supreme Court handle our clients’ serious injury, trucking and wrongful-death cases from the first call. Contact Boland Aarab PLLP for a free consultation at (406) 315-3737.

About Boland Aarab PLLP: Boland Aarab PLLP is a Great Falls, Montana trial firm. Its attorneys, Caitlin Boland Aarab and Samir F. Aarab, have appeared in more than 40 matters before the Montana Supreme Court and have argued twice before the U.S. Court of Appeals for the Ninth Circuit. The firm carries on the Great Falls practice Thomas E. Boland began in 1974. Meet our attorneys.

Sources:

• Roy v. Neibauer, 191 Mont. 224, 623 P.2d 555 (1981) (opinion PDF, CourtListener)
• Roy v. Neibauer (1981), opinion text (CourtListener)
• § 70-24-422, MCA
• § 27-1-701, MCA
• M. R. Civ. P. 56

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship.