The Prelude:
In Michigan, a Plaintiff with a Norwegian Elkhound and an Australian Cattle Dog arrived at a gated public school soccer field. Once unlocking the gate, she allowed her dogs to play and to chase geese off the fields. A Board of Education employee in charge of the grounds provided the Plaintiff a key to the field. The Board permitted the key for her dogs to deter the presence of geese, which limited avian fecal deposits. The intent was for the generally inaccessible field to remain cleaner and more hygienic when children played soccer.
On the date of the incident, the Plaintiff invited the Defendant, the Defendant’s Bernedoodle, and the Defendant’s sister’s Goldendoodle to join the activities. The meeting was planned. The Plaintiff and Defendant were friends who periodically scheduled dog get togethers. They treated the gated middle school soccer field as their impromptu private dog park. The persons and dogs typically got along and had a good time. Thus, supervision of the dogs waned as the dogs became more familiar and the persons trusted the dogs’ behavior.
The 4 dogs played amicably for 15 minutes. Subsequently, a person moderately familiar to the Plaintiff passed outside the gate while walking her large, male Labrador Retriever mix. The acquaintance and her dog then independently entered the gate to enjoy the private “dog park” activities. The Lab mix owner’s presence was unplanned. Moreover, she did not receive an express invitation from either the Plaintiff or Defendant.
The Plaintiff’s dogs and the Defendant’s dog were familiar with the Lab mix. However, the Defendant’s sister’s dog, for which the Defendant had agency, was not familiar with the Lab mix.
Deposition Statements:
There were differing witness statements regarding what happened immediately subsequent to the entrance of the fifth dog. The Plaintiff claimed the Lab mix lifted his leg and urinated on the Defendant. The dog then raised his hackles when approached by the Defendant’s sister’s dog. Accordingly, the Plaintiff and the Lab mix’s owner walked toward the opposite end of the field . The Plaintiff stated she walked away to redirect the Lab mix and separate the dogs.
The Defendant claimed the Lab mix urinated on her distant from the location of her sister’s dog. Per her recollection, her sister’s dog was playing amicably with the Plaintiff’s dogs. She did not believe her sister’s dog interacted with the Lab mix.
When the owner of the Lab mix was deposed, she stated she was concerned about dogs surrounding her dog. However, she did not observe raised hackles or any behaviors indicating disharmony between the dogs.
Nevertheless, amongst the depositions of all 3 witnesses, there was consensus that:
- the Defendant’s sister’s dog was running with high energy;
- the Defendant was distant from her sister’s dog (for which she had agency);
- the Defendant was not directly supervising her dog at the key moment; and
- the Defendant was not exercising control of her sister’s dog at the key moment.
The Collision:
Resultantly, while energetically running about the field, outside the control of his handler, the Defendant’s sister’s dog collided with the Plaintiff at a high rate of speed.
The dog contacted the Plaintiff at a 45° angle upon her posterior right thigh, immediately superior to her knee. The impact spun the Plaintiff, whereupon she toppled to the ground. Mechanical force from contact with the dog and/or the ground, perhaps with abnormal orthopedic torsion related to the angle and location of impact, and deceleration forces once contacting the ground, resulted in a fracture of the Plaintiff’s right tibial plateau.
The Injury:
Treatment for the severe injury required surgical reduction under general anesthesia. The surgical procedure included the implantation of a metal plate, metal screws, and 32 staples. Furthermore, the Plaintiff suffered great physical pain, was non-weight bearing for an almost 3-month period, experienced permanent scarring about her leg, needed dental treatment to replace a crown lost during the incident, required anti-coagulation injections in her stomach for a 30-day period, lost 2 days of work while undergoing surgery and recovery, and remains psychologically cautious due to an increased risk of injury from falls.
The Defendant agreed the collision with the dog was the proximate cause of the Plaintiff’s substantial injuries. She also agreed she had agency for the dog. Nevertheless, the Defendant and her insurance company disputed whether the cavalier manner in which the Defendant supervised the dog and her associated actions and inactions constituted negligence.
Deposition Construction and Responses:
The CPT expert supported the Plaintiff’s case by opining that the Defendant did not act with the “watchfulness, attention, caution, and prudence” inherent to the definition of duty of care. The expert also helped Plaintiff counsel in designing deposition questions.
Subsequently, in her deposition responses, the Defendant agreed:
- that when dogs meet a new dog they may not get along;
- dogs meeting for the first time have a higher than normal probability of fighting;
- a person supervising new dog greetings should be on “high alert;”
- she was the person responsible for controlling her sister’s dog;
- she was too far from the dog to exert control;
- the dog is a large dog;
- large dogs can cause serious injury to humans;
- large dogs running into a person can cause serious injury;
- it is important for a dog handler to manage her dog to prevent injury to others;
- allowing a large dog to run loose in a manner that may cause injury may be careless;
- allowing a large dog to run loose with other dogs may raise its energy and arousal; and
- she did not use verbal commands that day to manage the dog’s behavior.
The strategically constructed deposition questions accomplished our objective of establishing scienter. Nevertheless, the fact that injury resulted from a collision, not an aggressive bite, provided a potential roadblock. Therefore, the CPT expert conducted research on pertinent case law.
Helpful Case Law:
The CPT expert found multiple cases strengthening the client’s position. In Trager v. Thor, the Michigan Supreme Court wrote a court must consider the “normal characteristics of the animal” and “characteristics of which the Defendant has knowledge.” For a duty to arise, the owner must have “knowledge of some dangerous propensity” or awareness “foreseeable harm might arise.” Within the opinion of Hiner v. Mojica (MI), “the possessor has a legally recognized duty to control the animal to an extent reasonable to guard against foreseeable danger.”
Other states also had relevant judicial opinions. From Owen v. Hampson (AL), “The law makes no distinction between an animal dangerous from viciousness and one merely mischievous or dangerous from playfulness, but puts on the owner of both the duty of restraint when he knows of the animal’s propensities.” In a New Jersey case, a judge ruled impact from a dog jumping on a person can be even more injurious than wounds resulting from a bite.
In Collier v. Zambito (NY), “Vicious propensities include the propensity to do any act that might endanger the safety of the persons.” Even when the animal “behaves in a manner that would not necessarily be considered dangerous or ferocious,” but the manner constitutes a “proclivity that puts others at risk of harm,” can be deemed “to have vicious propensities… when such proclivity results in the injury giving rise to the lawsuit.”
Yet, Collier v. Zambito also states “normal canine behavior” such as “running around” is not evidence of vicious propensities. Lauder v. Vealey (NY) declared the burden is upon the Plaintiff “to produce evidence that Defendant had notice of a proclivity… to collide with people.”
From New Jersey, “scienter must be proved to establish liability when a dog injures a person, but does not inflict a bite (Januzzelli v. Wilkins, Hayes v. Mongiovi). “Scienter extends to the trait or propensity which has caused the damage, and knowledge by the owner that the disposition of the animal is such that it is likely to commit a similar injury to that complained of, be it in anger or in play (Januzzelli v. Wilkins, Emmons v. Stevane). “Knowledge by an owner of his dog’s overly demonstrative affection or playfulness, with a propensity for enthusiastically jumping on visitors, is enough to establish scienter in an action for damages resulting from such an act (Januzzelli v. Wilkins, Restatement, Torts 2d, § 509 at 16-19 ).
Therefore, the Defendant’s acknowledgement that a large dog running loose may collide with people and cause injury was highly advantageous. We achieved a bonus when the Defendant admitted failure to manage and prevent injury may aver carelessness.
Furthermore, in Pennsylvania, the case of Clark v. Clark was very similar to our Michigan case. The jury produced a verdict in favor of the Plaintiff. The court then reversed the verdict, granting the Defendant’s motion for summary judgement, since the dog was injurious, but not vicious. However, the Pennsylvania Supreme Court supported the Plaintiff, citing a case Groner v. Hedrick. The Groner court wrote, “A large, strong, and overly-friendly dog may be as dangerous as a vicious one”… and knowledge by its owners “when considered together with its size” and “apparent knowledge” of its behavior, poses duty upon the owner. Citing Owen v. Hampson, the case discussed above from Alabama, the Groner court stated, the law imposes a “duty of restraint” upon the owner “when he knows of the animal’s playful but dangerous propensities.”
Consequently, regardless of a whether a dog exhibited aggressive intent or an aggressive act, if the action of the dog was foreseeable, and preventable by superior owner management, then the owner acted carelessly and is liable for injuries suffered by the victim.
The CPT Expert Report:
Consistent with the preceding case precedent, in his report, the CPT expert opined that in the Defendant’s deposition testimony she admitted to foreseeability, accepted a duty of care, and admitted to acting carelessly and negligently. He also elaborated on aspects of canine behavior, whereby he explained rationale for the dog’s actions, the importance of owner supervision, and other information that reinforced an argument of Defendant negligence. To further validate the Plaintiff’s position, the CPT expert discussed pertinent peer-reviewed research, including a study he co-authored.
The scientific papers cited in the expert’s report concluded that:
- convergent evolution enhances interspecies cooperation and communication;
- dogs are more attentive to the olfactory scent of their owner than to the scent of strangers;
- brain regions associated with emotion and attachment processing are more readily activated when viewing owners than when viewing strangers;
- dog-human emotional contagion is more apt to occur with an owner than with a stranger;
- dogs are more apt to mimic the actions of their owner than a stranger;
- dog-human behavioral synchronization is more apt to occur with an owner than a stranger;
- dogs prefer their owner to a stranger when following social cues; and
- dogs are more apt to listen to commands communicated by their owner than commands communicated by a stranger.
Therefore, the dog in question was more apt to respond to the olfactory, physical, social, and verbal communication of the owner than to the Plaintiff (a relative stranger).
Consequently, the absence of direct supervision by the Defendant carelessly raised the probability that a foreseeable injurious event would occur. Moreover, the Plaintiff likely could have prevented the injurious event by closely supervising her sister’s dog and by managing the dog with verbal commands. Thus, the Defendant’s lack of fulfilling her duty to implement supervision, and concomitant commands or protocols that safely managed her sister’s dog’s energy, arousal, and motion, directly and negligently caused physical, emotional, and financial injury to the Plaintiff. In conclusion, even though the Plaintiff’s injury did not result from a bite, and even though the dog’s action was not an act typically deemed aggressive, the injury nevertheless occurred due to the Defendant’s negligence. Moreover, the dog’s action resulted in injuries more severe than persons receive from the majority of dog bites, whereby the Plaintiff legally and morally deserves indemnification.
The Successful Outcome:
The CPT expert report was thorough and compelling. After reading the report, the previously resistant insurance company subsequently agreed to a reasonable settlement.