There is an old aphorism from the musical The Man of La Mancha– “Whether the pitcher hits the stone or the stone hits the pitcher, it’s going to be bad for the pitcher.”
We can paraphrase the pithy line delivered by Sancho Panza to: “Whether the dog hits the motorcycle or the motorcycle hits the dog, it’s going to be bad for the dog.” In this Virginia case, the contact was lethal for the dog, bad for the motorcycle, and caused serious injury to the Plaintiff, the motorcycle rider.
The Plaintiff and 2 friends were riding their motorcycles in a rural area of Campbell County, Virginia. They were riding in a formation with the Plaintiff leading and the other 2 riders behind her and alongside one another. While traveling below the 45 mph rural speed limit, on a clear day, with excellent weather, an Australian Shepherd dog suddenly bolted from its property and impacted the front tire of the motorcycle.
Subsequently, the motorcycle crashed to the ground, the Plaintiff became dislodged from her motorcycle and slid violently across the roadway, one of the riders behind her ran over her, and the dog was ejected to a ditch on the opposite side of the roadway. The Plaintiff suffered lacerations, contusions, and severe orthopedic and internal injuries. The dog survived for several minutes, but died before anyone could transport him to a veterinarian.
The first impression from an attorney is to exuberantly shout, “Slam dunk! Strict liability!”
However, Campbell County subdivides areas where dogs may or may not run at large. Unfortunately for the Plaintiff, the incident occurred in a location where owners were permitted to allow their dogs to run freely, even onto public roadways. Therefore, for Plaintiff counsel to obtain the highest probability of indemnification the legal team needed to prove negligence- and conclusively proving negligence required proving scienter.
Consequently, the Plaintiff’s law firm hired CPT. The CPT expert read interrogatories, depositions, police reports, medical reports, local and state statutes, and other pertinent documents; conducted research; and wrote a compelling affidavit.
The CPT affidavit focused on the following legal arguments
- In her deposition, the Defendant admitted to knowing that motorcycles travel on her road “all the time.”
- The Defendant admitted to purposefully allowing her Australian Shepherd and a companion Australian Cattle Dog to run free and unsupervised when she left the property, even though she had facilities to house or pen the dogs.
- The Defendant admitted that she knew her dogs entered the roadway while loose and unsupervised.The Defendant was quoted as saying, “I mean they got free will. They can go wherever they want.” Depositions of neighbors corroborated that the dogs entered the roadway.
- In the expert’s 26 years of professional experience, Australian Shepherds were one of the breeds most likely to require behavior modification training for predatory or territorial vehicle chasing. The expert also produced written materials from 10 reliable industry authorities, where the opinions concurred with the experiences and opinions of the expert. In addition, the expert produced excerpts from notable peer-reviewed scientific research where the conclusions of the studies validated the opinions of the expert and the industry authorities.
- In addition to being a pet owner, the Defendant admitted to being an Australian Shepherd and Australian Cattle Dog breeder for 20 years. In her deposition, she stated she, “has read manuals, publications, books, and articles about the breed.” She also described knowledge of the breed’s herding predilections, commenting that, “They more herd from the front than the back.” Interestingly, the dog contacted the front tire of the motorcycle.
- The Defendant admitted to knowledge that her Australian Cattle Dog was accused of injuring a motorcyclist 5 months prior to the Plaintiff’s incident.
- The Defendant foresaw or should have foreseen the likelihood of her Australian Shepherd crossing the property boundaries, entering the roadway, and/or chasing a motor vehicle. Moreover, in the opinion of the CPT expert, “the unreasonable and imprudent election on the part of the Defendant to allow her dogs to run free constituted a violation of a duty of care she was obligated to provide as a pet owner and a community citizen, which further perhaps progressed beyond the point of carelessness and ordinary negligence to a level where it meets the definition of ‘reckless behavior,’ especially given her knowledge of the previous injurious event and fact that the ability to safely confine her dogs was simple and readily available.”
- The Defendant admitted to knowing that impact with a motorcycle traveling at 45 mph could cause serious injury to the motorcyclist.
- There was no compensatory or contributory negligence on the part of the Plaintiff. She was an experienced motorcycle operator. She had never previously been involved in a motor vehicle accident, either while operating a car or a motorcycle. She had ridden previously with the same riders, in the same formation, without incident or injury. She was driving at a safe speed. She was not under the influence of alcohol, illegal narcotics, or prescription medication. She was deemed not at fault by the investigating state trooper.
- To further substantiate the lack of culpability of the Plaintiff, although the weather was clear, an aroused Australian Shepherd dog can travel between 25 – 30 mph, which gives little time for a motorcyclist traveling 40 mph to successfully undertake evasive maneuvers that avoids collision with a canine traveling quickly in a perpendicular direction. In this regard, the expert cited experiences in protection sports, where dogs move very quickly toward people who may try to avoid impact.
The case was scheduled for trial. The CPT expert was prepared to appear. However, one month prior to trial the case settled favorably for the Plaintiff. The law firm replied that CPT’s assistance was vital in achieving such a satisfactory outcome, as prior to CPT’s inclusion and the submission of CPT’s compelling affidavit Plaintiff attorneys believed opposing counsel would not settle- and certainly not for an acceptable financial figure.
