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Rhonda L. Rosenberry v. Tanya Evans

April 23, 2012

RHONDA L. ROSENBERRY, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF ALEXANDER W. PRINCE, A MINOR, APPELLANT
v.
TANYA EVANS, MITCHELL KING AND ROBERT MILLER, APPELLEES
v.
DALE CANNON AND LINDA CANNON, APPELLEES



Appeal from the Order of April 20, 2011 In the Court of Common Pleas of Fayette County Civil Division at No(s): 2768 of 2008

The opinion of the court was delivered by: Bowes, J.:

BEFORE: BOWES, OLSON, and PLATT*fn1 , JJ.

OPINION BY BOWES, J.:

Rhonda L. Rosenberry ("Mother"), acting individually and as parent and natural guardian of Alexander W. Prince, a minor, appeals from the trial court's order granting summary judgment in favor of Robert Miller ("Landlord")*fn2 in this negligence action arising from a dog bite. After a thorough review of the record and the applicable law, we affirm. The relevant facts underlying this appeal are as follows. On June 15, 2008, then ten-year-old Alexander accompanied his grandparents, Dale and Linda Cannon, to premises leased by Mitchell King from Landlord. The purpose of their visit was to choose a puppy from the litter of puppies born just hours before to Raven, a pit bull owned by Tanya Evans, Mr. King's girlfriend. Ms. Evans placed a newborn puppy with part of its umbilical cord still attached in Alexander's lap. Deposition of Linda Cannon, 9/17/09, at 16-17. First, Raven came near the child, licking his knee and hand. Id. They were face to face, each looking down at the puppy, and then they both looked up at the same time. At that point, Raven "had a hold of his nose." Id. Ms. Evans grabbed the dog, the child pulled back, and "there was a piece missing out of Alex's nose. . . ." Id.

Mother commenced a civil action against Landlord, Mr. King, and Ms. Evans, alleging that their negligence resulted in serious bodily injury to Alexander. Mother averred that the dog had dangerous propensities, that Landlord was in control of the property where the injury occurred, and that he knew or should have known of the dog's dangerous propensities. She asserted that he was negligent in permitting Mr. King and Ms. Evans to keep a vicious dog on the premises and in failing to warn others of the danger. Landlord denied that, at the time of the incident, he controlled, managed, or supervised the property. Miller's Answer and New Matter and Cross-Claim, 10/28/10, at ¶7. Furthermore, he denied that the dog was kept on the property or that he permitted Ms. Evans and Mr. King to keep the dog on the premises. Id. at ¶¶10, 12. Finally, he denied constructive or actual knowledge that the dog had any dangerous or vicious propensities. Id. at ¶14. He filed cross-claims against Ms. Evans and Mr. King seeking contribution and indemnification pursuant to Pa.R.C.P. 1031.1, and alleged that they were solely liable to Mother, or jointly and severally liable. Landlord joined Dale and Linda Cannon, the child's grandparents, as additional defendants.

The parties engaged in discovery, and thereafter, on December 17, 2010, Landlord filed a motion for summary judgment. He alleged that Mother had failed to adduce evidence that the dog had dangerous propensities or that Landlord had actual knowledge of any dangerous propensities of the dog that would give rise to a duty on his part to control the animal or protect the minor child. Mother responded, filed a brief in opposition and a supplement to the record pursuant to Pa.R.C.P. 1035.1. After oral argument, the trial court granted summary judgment in favor of Landlord, finding both that the dog did not have a dangerous that Landlord had no knowledge of any alleged dangerous propensity. This appeal followed.

Mother presents three questions for our review.

I. Whether the lower court erred and abused its discretion in finding that a genuine issue of material fact did not exist as to (A) the "dangerous propensities" of the pit-bull dog in question and (B) Defendant/Appellee, Robert Miller's knowledge of the dangerous propensities of this animal, when such determination was based purely on oral testimony of non-adverse parties?

II. Whether the lower court erred and abused its discretion in finding that there was no evidence that the pit-bull dog in question was dangerous?

III. Whether the lower court erred and abused its discretion in finding that there was no evidence that defendant/Appellee, Robert Miller, was aware that the pitbull dog in question was a dangerous animal?

Appellant's brief at 6.

"In reviewing an order granting summary judgment, our scope of review is plenary, and our standard of review is the same as that applied by the trial court." Brandon v. Ryder Truck Rental, Inc., 34 A.3d 104 (Pa.Super. 2011). We may reverse the entry of a summary judgment only where the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. Payne v. Commonwealth Department of Corrections, 871 A.2d 795, 800 (Pa. 2005). In making this assessment, we view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Where our inquiry involves solely questions of law, our review is de novo. Id.

Typically, in negligence actions arising from the conduct of animals, the animal's owner is the person responsible for injuries to others caused by his or her pet. Pennsylvania, however, does not impose absolute liability upon dog owners for injuries occasioned by their dogs. McCloud v. McLaughlin, 837 A.2d 541 (Pa.Super. 2003). Proof of the owner's negligence is required. Id.

In order to establish a cause of action in negligence against a landlord for injuries caused by his tenant's dog, it must be proven that the landlord owed a duty of care, that he breached that duty, and that the injuries were proximately caused by the breach. Martin v. Evans, 711 A.2d 458 (Pa. 1998). A landlord out of possession is not liable for attacks by animals kept by his tenant on leased premises where the tenant has exclusive control over the premises. However, a duty to use reasonable care will attach to prevent such injuries if the landlord has knowledge of a dangerous animal on the rented ...


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