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IN THE COURT OF APPEALS OF IOWA No. 0-716 / 10-0566 Filed December 22, 2010

ROD E. PATTERSON, Plaintiff-Appellant, vs. MARIAH MARIE RANK, JOSHUA A. RAUHAUSER, MICAH R. BARTLETT, and REBECCA L. BARTLETT, Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Webster County, Thomas J. Bice, Judge.

Rod Patterson appeals from the district court's order granting Micah and Rebecca Bartlett's motion for summary judgment. AFFIRMED.

Jerry L. Schnurr III, Fort Dodge, for appellant. Joel T.S. Greer of Cartwright, Druker & Ryden, Marshalltown, and Mark R. Crimmins of Bennett, Crimmins & Smith, Fort Dodge, for appellees.

Heard by Eisenhauer, P.J., and Potterfield and Doyle, JJ.

2 POTTERFIELD, J. I. Background Facts and Proceedings Micah and Rebecca Bartlett owned a single-family house in Fort Dodge that they rented to Mariah Rank and Joshua Rauhauser. The Bartletts entered into a lease with Rank and Rauhauser on July 1, 2009. Before Rank and

Rauhauser signed the lease, they discussed their dog with Micah Bartlett. Rank and Rauhauser paid an extra thirty dollars per month for their pet, a pit bull named Chopper, pursuant to the terms of their lease. Before Rank and Rauhauser moved onto the property, they had never had any issues with Chopper. After they moved onto the property, Chopper bit a dog from a neighboring house that was loose and ran onto the property. The dog sustained a small cut on his lip, but nothing major according to Rauhauser. On September 6, 2009, Rod Patterson crossed the street to talk to Rank, who was sitting on the steps in front of her house. Patterson approached

Chopper on the sidewalk leading up to the front door and reached down toward Chopper. Chopper bit Patterson's hand, causing injury. On October 26, 2009, Patterson filed a petition against Rank, Rauhauser, and the Bartletts seeking damages to compensate him for his injuries. We are concerned here only with Patterson's action against the Bartletts. Patterson's petition alleged the Bartletts were negligent for failing to take reasonable precautions to protect those on the common areas of the property, for failing to warn of the presence of a dangerous dog on the property, and for failing to act as reasonable and prudent landlords under the circumstances.

3 On February 17, 2010, the Bartletts filed a motion for summary judgment alleging they owed no duties to third parties because they did not maintain control of any common areas on the property, they did not control the dog, and they did not know of any vicious propensities of the dog. On April 5, 2010, the district court issued an order granting the Bartletts' motion for summary judgment. Patterson appeals, arguing the district court erred in granting the Bartlett's motion for summary judgment. II. Standard of Review We review rulings on motions for summary judgment for the correction of errors at law. City of Cedar Rapids v. James Props., Inc., 701 N.W.2d 673, 675 (Iowa 2005). Summary judgment is appropriate only when the entire record demonstrates that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Stevens v. Iowa Newspapers, Inc., 728 N.W.2d 823, 827 (Iowa 2007). We examine the record in the light most favorable to the nonmoving party and draw all legitimate inferences the evidence bears in order to establish the existence of questions of fact. Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005). A party resisting a motion for summary judgment cannot rely on the mere assertions in his pleadings but must come forward with evidence to demonstrate that a genuine issue of fact is presented. Stevens, 728 N.W.2d at 827. III. Summary Judgment The elements of a negligence claim include the existence of a duty to conform to a standard of conduct to protect others, a failure to conform to that standard, proximate cause, and damages. Van Essen v. McCormick Enters.

4 Co., 599 N.W.2d 716, 718 (Iowa 1999). Though negligence cases are seldom capable of summary adjudication, the question as to the existence of a duty is a question of law for the court and may be adjudicated on a motion for summary judgment. Rieger v. Jacque, 584 N.W.2d 247, 250 (Iowa 1998). The Bartletts argued in their motion for summary judgment that under Iowa law, landlords owe no duty to third parties bitten by a tenant's dog, when the landlords do not control the dog or know of any vicious propensities. The district court agreed and determined the Bartletts had no duty of care, quoting Allison by Fox v. Page, 545 N.W.2d 281, 283 (Iowa 1996), for its conclusion that [t]he landlords did not have any right to control their tenant's dog . . . [t]herefore . . . the landlords have no liability for the injuries caused by their tenants' dog. We agree with Patterson that the district court erroneously focused on the control of the dog rather than the control of the premises. In Allison, the supreme court considered whether a landlord was liable for an injury inflicted by a tenant's dog in the tenant's fenced-in yard when the landlord knew or had reason to know the dog was dangerous. 545 N.W.2d at 282. The tenant in Allison had acquired the dog after having taken possession of the premises. Id. at 283. The court considered that as a general rule an owner who has leased property to another without an agreement to repair is not liable for personal injuries sustained because of an unsafe condition on the premises arising after the tenant takes possession. Id. The court determined in Allison that because the landlords did not have any right to control their tenant's dog, acquired after the tenants took possession, the landlords were not liable for injuries caused by the dog. Id.

5 We find that the general rule of landlord nonliability cited in Allison is not applicable to this case because the condition in question here arose at the time of the lease. In Allison, the dog came onto the premises after the property was leased. Id. In the present case, the dog came to the property at the time it was leased, and the Bartletts were aware of this. Thus, we disagree with the district court's reliance on Allison in concluding that the Bartletts had no duty of care. We turn to the other arguments in the summary judgment record to determine whether the Bartletts had a duty to protect others from their tenants' dog. See Beck v. Phillips, 685 N.W.2d 637, 646 (Iowa 2004) (stating it is within the court's discretion whether to uphold a summary judgment ruling on grounds urged before but not relied upon by the district court). Patterson argues the Bartletts had a duty to exercise reasonable care for the safety of others in those portions of the premises over which the Bartletts retained control and in the common areas over which the landlord and tenants had joint control, citing Fouts v. Mason, 592 N.W.2d 33, 39

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