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G.T.R. v. Dicandia

United States District Court, M.D. Pennsylvania

June 7, 2017

G.T.R. minor, by and through her father, Michael Rose, et al., Plaintiffs,


          KAROLINE MEHALCHICK United States Magistrate Judge.

         Before 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).

         I. Background and Procedural History[1]

         On 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.[2] (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).

         Jennifer 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).

         The 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).[3] 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).

         On 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.

         II. Motion for Summary Judgment Standard

         Under 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).

         A 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.

         III. Discussion

         In 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[4] 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).

         “Generally, 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)).

         In order to state a claim based on negligence per se, ...

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