United States District Court, M.D. Pennsylvania
G.T.R. minor, by and through her father, Michael Rose, et al., Plaintiffs,
JOSEPH DICANDIA, Defendant.
KAROLINE MEHALCHICK United States Magistrate Judge.
the Court is a motion for summary judgment filed by the
Plaintiffs, seeking redress for the injuries suffered by
G.T.R. inflicted by Defendant's dog, Jax. (Doc. 26).
Background and Procedural History
December 7, 2014, Plaintiff Jennifer Rose, along with her
daughter, went to visit Jennifer's sister, Kimberly
DiCandia, and Kimberly's husband, Joseph, the Defendant
in this matter. The adults and children were scattered
throughout the house, with Jennifer Rose and the Defendant
watching a movie in the same room as the children and the
Defendant's two dogs. (Doc. 29-1, at 16). The
Defendant's two dogs were playing, while the children
played separately but nearby. (Doc. 29-1, at 18). Plaintiff
G.T.R. moved around Jax towards her mother, and in the course
of these movements, Jax bit G.T.R. on her face. (Doc. 29-1,
at 18). In the course of discovery, each of the parties, as
well as Kimberly DiCandia, have testified that they did not
see the incident take place. (Doc. 29-1, at 18-19; Doc. 29-2,
at 10; Doc. 29-3, at 12; Doc. 28-2, at 4).
Rose and Kimberly DiCandia transported G.T.R. to Pocono
Medical Center for emergency treatment, where G.T.R. received
stitches and was released. (Doc. 29-3, at 13-15). The Roses
have since taken her for follow ups with physicians and
cosmetic surgeons. (Doc. 29-3, at 20). After the incident,
Jennifer Rose, through her son, learned that the
Defendant's daughter had also had an incident with Jax
(Doc. 29-3, at 24-26), which the Defendant describes as a
“nip” due to his daughter's repeated pulling
of Jax's tail, despite the Defendant's warnings.
(Doc. 29-1, at 11). Jax's nip did not break the skin
(Doc. 29-1, at 11), although Jennifer Rose states the
Defendant's daughter showed Rose bumpy sores that
resulted from the bite. (Doc. 29-3, at 25-26).
Plaintiffs filed the instant action on November 15, 2015.
This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1332(a)(1). The complaint alleges that the
Defendant failed his duty of care by allowing a dangerous dog
to roam the property free of restraint, in violation of
Pennsylvania's Dog Law. (Doc. 1, at 3). The Plaintiffs
further assert that the Defendant should have known of
Jax's violent propensities, and thus were negligent in
allowing Jax to roam free, which allowed Jax to attack G.T.R.
(Doc. 1, at 3). The Plaintiffs seek monetary damages for the
medical care and treatment of G.T.R., as well as her pain,
suffering, and diminished ability to enjoy life's
pleasures. (Doc. 1, at 4).
February 18, 2016, all parties returned consent to proceed
before the undersigned. (Doc. 13). On November 9, 2016, the
Plaintiffs filed the instant motion for summary judgment.
(Doc. 26; Doc. 28). Defendant filed a brief in opposition on
November 21, 2016. (Doc. 29). The motion fully briefed is now
ripe for review.
Motion for Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment should be granted only if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
fact is “material” only if it might affect the
outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute of material
fact is “genuine” only if the evidence “is
such that a reasonable jury could return a verdict for the
non-moving party.” Anderson, 477 U.S. at 248.
In deciding a summary judgment motion, all inferences
“should be drawn in the light most favorable to the
non-moving party, and where the non-moving party's
evidence contradicts the movant's, then the
non-movant's must be taken as true.” Pastore v.
Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
federal court should grant summary judgment “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.” Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 278 (3d Cir. 2000). In making this
determination, “a court must view the facts in the
light most favorable to the nonmoving party and draw all
inferences in that party's favor.” Armbruster
v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The
Court need not accept mere conclusory allegations, whether
they are made in the complaint or a sworn statement.
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,
888 (1990). In deciding a motion for summary judgment, the
court's function is not to make credibility
determinations, weigh evidence, or draw inferences from the
facts. Anderson, 477 U.S. at 249. Rather, the court
must simply “determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249.
support of their motion for summary judgment, the Plaintiffs
argue that no genuine dispute of material fact exists and the
elements for establishing negligence per se under
Pennsylvania's Dog Law are met. (Doc. 8, at 4). The Defendant
argues Plaintiff's theory is more akin to strict
liability as opposed to negligence per se, and that
genuine disputes still exist. (Doc. 29, at 3). According to
the Defendant, the Plaintiffs have not proven the attack was
unprovoked, and that the Defendant did not have reason to
know of any vicious tendencies by Jax. (Doc. 29, at 5).
it is the animal's owner that is responsible for injuries
to others caused by his or her pet.” Dick v.
Detwiler, 7 Pa. D. & C.4th 629, 631 (Blair County
C.C.P. 1990) (citing Miller v. Hurst, 448 A.2d 614
(Pa. Super. Ct. 1982) superseded on other grounds as
recognized in Billig v. Skvarla, 853 A.2d 1042,
1046-48 (Pa. Super. Ct. 2004); Villaume v. Kaufman,
550 A.2d 793 (1988)). However, “Pennsylvania . . . does
not impose absolute liability upon dog owners for injuries
occasioned by their dogs. Proof of the owner's negligence
is required.” Rosenberry v. Evans, 48 A.3d
1255, 1258 (Pa. Super. Ct. 2012) (citing McCloud v.
McLaughlin, 837 A.2d 541 (Pa. Super. Ct. 2003)). In
other words, “‘proof of negligence, in contrast
to holding one absolutely liable, is the vehicle by which
accountability for injury sustained because of a dog bite is
to be established.'” McCloud, 837 A.2d at
544 (quoting Deardorff v. Burger, 606 A.2d 489, 493
(Pa. Super. Ct. 1992)).
order to state a claim based on negligence per se,