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HomeMy WebLinkAbout96-01513 " ~ '. :~ ,}{ .. I f I i ~. '1 ,,~ . ~ ' t-~-!Bl~ ~#~ . j ~ J I't) ........ , ~ ~,. ..,:} r ~f ", ..s I l'l I I -. 15 Hoffer CYNTHIA E, SMITH and JOSEF B. DUABENSPECK, husband and wi fe, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. MARY HALLETT. CIVIL ACTION - LAW 96-1513 CIVIL TERM Defendant IN RE: ..l'RfIRlAL.c.oHfERE1I.C.E ORDER OF COUR! A pretrial conference was held before the Honoroble George E. Hoffer. Judge. on Wednesday, October 23, 1996, In this negligence case, Pomela G. Shuman. Esquire, represents the plaintiff. and Donald B. Kaufman. Esquire, and Debra P. Four las. ESQui re. represent the defendant, It is a dog bite case in which plaintiff sustained s~rious bite to her eye requiring surgery and extended care, Trial is estimated to take two days with a jury, with four challenges each, during the week of November 12, 1996. Plaintiff's medical testimc~y has already been taken by video for use at trial; aside from that testimony, all other testimony is anticipated to be presented live in the courtroom. Each party hos requested the witness list of the other side. and defendant raises no prOblems with any of plaintiffs' witnesses or exhibits. Defendant may wiSh to include defendant's daughter, Stephanie, as a witness, Aside from the defendant, it is not cleor what Witness Hall and Witness Weiss will testify to, along with Stephanie. Defendant is directed to furnish to plaintiffs' '... 96-1513 Civil Term In Re: Pretrial Conference Page 2 counsel a complete written offer of the testimony of each of these witnesses so as to enable plointiffs to prepare proper ~otions in Limine ahead of time, rather than to get 1nto extended objections at triol, This shall be completed by November 4, 1996. transmitted to plaintiffs' counsel, Plaintiffs' counsel is directed to prepare a charge on dog bite negligence. only on the negligence question and her version of accepted defenses. to be given to the Court by November 4. 1996. Defense counsel shall likewise respond by November 8, 1996, to the Court ond. of course. exchange documents with eoch other, Plaintiff will not be Offering any evidence of the dog's subsequent behavior in June' of 1996. unless the defendant first raises this subject as to the cause of the dog's death or otherwise. By the Court. Pamela G. Shumon. Esquire 4503 North Front Street Harrisburg. Pa, 17110 For the Plaintiffs Donald B, Kaufman. Esquire Dehra P. Fourlas. Esquire P,O, Box 1166 ~arrisburg, Po. 17108 For the Defendant Prothonotary Court Administrator :mtf ,..,.., ,-') '" , r, ~. .., ., r, >.'"71 :q ~ :'.,) :~~ . ,~.;: . I r :'~ ;':"; ......:) ,rn ! (n _.J -< II. FACTS AS TO DAMAGES It is Defendant's position that any damages suffered by Plaintiffs were not the result of Defendant's conduct. III. PRINCIPAL ISSUES OF LIABILITY AND DAMAGES A, Liabilitv The principal issues of liability are whether Wesley had any prior vicious propensity; if so, whether Hallett was aware of such propensity; and if so, whether Hallett acted negligently in her handling of Wesley such that her negligence was the proximate cause of Smith's injury. Deardorff v. BurlZer, 414 Pa, Super. 45, 606 A.2d 489 (1992), aDDeal denied 532 Pa, 655,615 A.2d 1312 (1992). It is Delendant's position that Wesley had not displayed prior vicious behavior which would have warned her that he might bite Smith. At most, Wesley may once have jumped on a person unknown to him who entered Hallett's house while she was not at home, and had once barked, through a closed car window, at someone who approached the car and spoke loudly to Hallett while Wesley was asleep on the back seat. Moreover, Hallett was never provided with any details of the incident in which Wesley allegedly jumped on someone. It is Defendant's position that these incidents do not rise to the level of conduct which could be considered sufficiently aggressive or vicious to place Hallett on notice that Wesley would - 2 - CYNTHIA E. SMITH and JOSEF B. DAUBENSPECK, Husband and wife, Plaintiffs IN THE COURT or COMMON PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. 96-1513 CIVIL TEPM MARY HALLETT, Defendant JURY TRIAL DEMANDED PLAI11'1'1 I'I'S ' I'D-TRIAL IIBKORAlmUJI I. Statement of Basic Facts on Liabilitv On December 13, 1995, Plaintiffs Cynthia smith and her husband Jos.f Daubenspeck, attended a Christmas party at the home of Defendant, Mary Hallett. Hallett had a seven year old dog known as "WeSley" who was part coon hound and part black Labrador, weighing approximately one hundred pounds. Although Defendant Hallett initially had the dog in the basement, she let the dog up into the main portion of the house during the party. When Ms. Smith bent down to pet the dog, it viciously attacked her, shredding her left eyelid and severing an artery in that area of her face. Immediately after the attack, Ms. Smith was taken by ambulance to POlyclinic Medical Center, where she came under the care of plastic surgeon Robert Wolf, M.D. He utilized extensive cauterization to stop the severe bleeding, and Dr. Wolf performed extensive surgical intervention to repair the muscle of Ms. Smith's eyelid that was ripped in halt by the dog's teeth. After the muscle was surgically repaired, additional stitches were required to repair the eyelid. Ms. Smith also suffered injury to her eye IOO70"IJS resulting in both dryness and excesalve tearing for which she treated by an eye specialist. She also suffered nerve injury and nerve palsy as well as continuing headaches, necessitating treat.ent with a neurologist. Because the injured eye had required removal ot a good dsal of tissue above it, the appearance of the two ot Ma. Smith's eyea waB very different, with the injured eye looking startled. Ma. Smith underwent additional surgery on both eye a to return her to a more normal appearance. Thia was not the firat time that "Wealey" demonatrated vicious propensities of which hia owner, Defendant Hallet, waa aware. Before Ma. Smith waa attacked, Ms. Hallet'a roollllllate'a mother, Bonnie Krepitch ot Mechanicaburg, was also menaced when she went to the Hallett home to viait her daughter. As was the case when Ms. Smith was attacked, Defendant Hallett was not in the room. Indeed, aa Defendant Hallett indicated in her deposition, she and her roollllllate had a disagreement about this incident: It waa because she was quite upaet that the dog did this and I -- I jusUUed it to the fact that the dog didn't know Pam's Mom, didn't know -- I wasn't home and was kind ot protecting the house. So Pam was very upset what the dog did to her Mom, and I said that the dog didn't know that it was her Mom, it was just a stranger to the dog. Hallett Deposition at page 19. The dog has aince been put down tor attaCking aomeone elae. 2 Why did this dog attack occur? Why would anyone let a dog with a history of violent propensities roam free during a party in which strangers were at the home? Defendant Hallett explains: He was whining to get up to see everybody. Hallett Deposition at page 10. In fact, according to Defendant Hallett, the night of her Christmas party in December, 1995, "I think that was the first time he was put in the basement for months." Hallett Deposition at page 24. Although on previous occasions when she had parties she had put the dog in a kennel, Defendant Hallett did not consider taking such action at the time of her December, 1995 Christmas party (Hallett Deposition at page 24-25). Ms. Smith will testify that after the dog attack, the Defendant told her the dog had always been aggressive, but in the six months before the attack, became even more aggressive. II. Statement of Basic Facts on Damaaes Ms. Smith immediately after the dog attack came under the care of Dr. Robert Wol f , a plastic surgeon. Dr. Wolf repaired Ms. Smith's severe left upper eyelid laceration by cauterizing the artery that was bleeding, sewing together the muscle that was severed and removing a good deal of damaged tissue. Because of persistent headaches and morning discharge, he referred her both to Dr. Schietroma, a retina and occulopastic specialist and to Dr. John Vickery, a neurologist. Dr. Schietroma found irritation of the interior cornea and an area of epithelial irregularity, directed her to cease wearing contact lenses, and prescribed non- preserved artificial tears to use during the day and lubricating 3 "-' ointment tor night time u.e. Dr. Vickery treated Ms. Smith for .igniticant headache. and neuropathic or nerve discomfort. Dr. Vickery prescribed Tegretol for the neuropathic pain, a drug also u.ed with patient. who have .eizure.. After .everal month.' u.e, and M.. Smith'. complaint. of decreased concentration, Dr. Vickery discontinued her use of Tegretol though he noted her continued complaints ot left tacial numbn.... Dr. Wolt pertormed a second surgery on Ms. Smith because the lett eye gave a startled appearance in light of the damaged tissue that had to be removed to repair the severe dog bite laceration. In March, 1996, M.. Smith underwent bilateral upper eyelid .urgery, trom which she has had an excellent re.ult. Her medical bill. total approximately $4,600. M.. Smith is the Executive Director of Preferred Health Care in Lanca.ter, Pennsylvania. A portion ot her income depends upon attaininq qoals .et every six months. For the period December 1, 1995, through May 31, 1996, Ms. Smith was unable to achieve the goal. set for her because she lost time trom work as a result ot the dog attack, her appearance limited her presentations, and the headaches and medication she took for tacial nerve injury intertered with her ability to concentrate. Her total of lost incentives was $13,000. Additionally, Ms. Smith was unable to complete satistactorily a Wharton School of Bu.iness and Management course as part of her studies to become a certitied eMployee benetits specialist. Thus, she has been put behind in attaininq her career goals. 4 Psycholoqically, Ms. smith has been unable to overcome her fear of doqa as a result of this attack. She further s.eks pain and suffering for the severe injuries she suffered and multiple surgical repairs she has undergone. Moreover, Ms. smith's husband, Josef Daubenspe~k, asserts a claim for loss of consortium. III. statement ot PrinciDal Issues at Liabilitv and Damaaes OWNERS AND KEEPERS ON NOTICE OF A DOG'S VICIOUS PROPENSITIES ARE RESPONSIBLE FOR INJURIES CAUSED BY THE DOG. , Following English Common Law, Pennsylvania has, for more than a century, held that the owner or keeper of a doq who has notice at the dog'S ferocious nature is bound to keep him so as to guard against similar conduct; it the mode of securing is insufticient, he is liable to the person atterward injured. Mann v. Weiand, 81 * Pa. 243 (1875). In HAnD, the supreme Court stated: We think one instance may show such unmistakable evidence at a vicious propensity as to maka the owner of the doq, with notice, liable for any subsequent act ot a similar character. The giat of the action tor the subsequent misconduct of the dog, is tor keeping it atter knowledge ot its vicious propensity: Mav v. Burdett, 9 O.B., 101; Wheeler v. Brant, 23 Bar., 324. It thereupon becomes the duty ot the owner so to keep his dog as to guard against a repetition ot similar misconduct. He is bound to secure it at all events, and is liable to parties atterwards injured it the mode he has adopted to secure it proves insutficient: Wood on Nuisance, section 763; Jones v. Perrv, 2 Esp. 482; Mason v. Keelina, 12 Mod., 332. Thfl principle on 5 which this rule rest. was held in Mann v. Reed, 4 Allen, 431, to be, that a ferocious a~imal, liable to do injury to men or property, is a nuisancti, and that keeping it after notice of such liability is so wrongful, that the owner is chargeable for any neglect to keep it with such care that it cannot do any damage to a person who without any essential fault is injured thereby. Mann v. Weiand, 81 * Pa. at ~54. ~ AlAg, Andrews v. Smith, 3~4 Pa. 455, 188 A. 146 (1936) I Darbv v. Clare Food and Relish Co., 111 Pa. Super. 537, 170 A. 387 (1934)1 Fink v. Miller, 330 Pa. 193, 198 A. 666 (1938)1 Zarek v. Fredericks, 138 r.~d 689 (3d Cir. 1943)1 and Groner v. Hedrick, 403 Pa. 148, 169 A.~d 30~ (1961). Once a dog has demonstrated vicious propensities, "it is his master's duty to see that he is not afforded an opportunity to take a 'first bite.'" Andrews v. Smith, 188 A. at 147-48. IV. Summary of Legal Issues Regarding Admissibility of Testimony, Exhihits or other Matters Plaintiffs are unaware of any legal issues regarding these matters other than the normal legal issues found in most cases. V. Witnesses to be Called The Plaintiffs may call the following witnesses at trial: Cynthia Smith and Josef Daubenspeck, Plaintiffs Mary Hallett, Defendant, as on cross-examination Dr. Robert Wolf, Ms. Smith's plastic surgeon, whose video-taped deposition for use at trial was taken on August 16, 1996 Bonnie lCrepitch Pamela I<repitch Rosemary Lumadue 6 .-_! Dennis Spencer Kelly Corrigan Tim O'Brien Cathy O'Brien Mary Bolger Dick Baker Dee Baker Plaintiffs reserve the right to supplement this list of witnesses in a timely fashion, and to utilize witnesses,identified by thQ Defendant. VI. EXhibits Plaintiffs may utilize the fOllowing exhibits at trial of this matter: Medical records and medical records summary Medical bills and medical bills summary Photographs of Cynthia Smith (color photographs attached to Court's copy; photographs previously suppli3d to Defendant) Videotape deposition of Dr. Robert Wolf Documentation establishing lost income Plaintiffs reserve the right to supplement their list of exhibits in a timely fashion and to utilize exhibits identified by the Defendant. VII. CUrrent Status of Settlement Neaotiations In response to a request from the Defendant, a demand of $165,000 in full and final settlement of all claims was made July 7 CYNTHIA E. SMITH and JOSEF B. DAUBENSPECX, Husband and Wife, Plaintiffs IN THE COURT OF COKKON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. 'j . . J NO. q~. /~1_1 CU'" - I,k? .......... MARY HALLETT, Defendant JURY TRIAL DEMANDED COMPLAIII'l' 1. Plaintiffs, cynthia E. Smith and Josef B. Daubenspeck, husband and wife, are adult residents of Marysville, Perry County, Pennsylvania. 2. Defendant, Mary Hallett, is an adult individual who resides in Shiremanstown, CUmberland County, Pennsylvania. 3. All of the event. hereinafter related occurred on or after December 13, 1995. 4. On December 13, 1995, the Plaintiffs attended a Christmas party at the home of the Defendant. S. At the time, the Defendant owned a dog known as "Wesley," who was part coon hound and part black Labrador, weighing approximately one hundred pounds. 6. Although the Defendant knew that the dog had attacked others in the past, she let the dog into the kitchen during the Christmas party. 7. When cynthia E. Smi th bent down to pet the dog, it viciously attacked her, shredding her left eyelid and severing an artery in that area of her face, and forcing her head into a doorframe. 854a9/UI 8. Defendant Hallett was aware of the violent propensities of this doq before December 13, 1995, and although the dog had viciously attacked and attempted to attack others in the past, sh. did nothing to assure that the dog was isolated from quests in her hom., nor did she warn guests of the vicious propensities of this dog of which she was aware. 9. Immediately after the dog attack, cynthia E. Smith was taken by ambulance from the home of the Defendant to Polyclinic Medical Center. 10. There, extensive cauterization was performed to stop the severe bleeding. 11. Extensive surgical intervention was required to repair the muscle in the Plaintiff's eyelid that was ripped in half by the dog's teeth. 12. After the muscle was surgically repaired, additional .titche. were required to repair the eyelid. 13. All such repairs were performed by a plastic surgeon. 14. Ms. Saith has recently been informed that she will require additional surgery on both of her eyelids since their appearance is abnormal. 15. Ms. Smith has also suffered injury to her eye, reSUlting in both dryness and excessive tearing, for which she has treated with an eye specialist. 16. Ms. Smith has also suffered nerve injury and nerve palsy as well as continuing headaches, necessitating treatment with a neurologist. ;I 17. Aa a result of the dog attack, Ma. smith, who is the president of her own buaineas, waa initially ott work for three weeka and has missed much additional work in the past and will mi.. more in the future in an effort to restore her.elf to health. 18. Ma. Smith has incurred expen.e. for medical care, treatment, prescription drugs and other similar needs necessitated by the dog attack. 19. Not only has Ms. Smith experienced qreat pain and sutterinq, loss ot life's pleasures and enjoyment, and interference with her daily activities as a result ot the doq attack, but also her husband has been deprived of the society, companionship and consortium ot his wite as a result ot the attack. :ZOo All ot the hereinmentioned injuries and damaqes sustained by the PlaintiUs are the direct result ot the neqligent, carele.., reckless, outraqeous, wanton and wilful manner in which the Defendant allowed her dog to attack Plaintitt cynthia E. Smith a. tollows: (a) tailinq to assure that the dog was physically restrained; (b) failinq to keep the dog under reasonable control; (c) failinq to muzzle the dog; (d) while knowinq the dog had attacked and attempted to attack others in the past, tailinq to confine the doq away from quests; (e) while knowinq the vicious propensities ot the dog, permittinq the doq to be present amonq quests; and 3 (f) failing to warn cynthia E. smith and other gue.t. of the vicious propensities of the dog. 31. The dog that attacked cynthia E. Smith had bitten and attempted to bite and attack others betore it attacked cynthia E. smith, and the Detendant wa. aware ot those previou. attack.. comrr I CYnthia B. Smith v. Xarv Hsllett 33. Paragraphs 1 through H ot the Complaint are incorporated herein by reterence. 33. All the injurie. and damages .u.tained by cynthia E. Smith were as a direct result ot the negligence, careless, reckless, outrageous, wiltul and wanton manner in which the Defendant allowed her dog to roam tree and attack cynthia E. Smith as follows: (a) tailing to assure that the dog was physically restrained: (b) tailing to keep the dog under reasonable control, (c) tailing to muzzle the dog: (d) while knowing the dog had attacked and attempted to attack others in the past, tailing to contine the dog away trom guests, (e) while knowing the vicious propensities of the dog, peraitting the dog to be present among guests, and (t) tailing to warn cynthia E. Smith and other guests ot the vicious propensities ot the dog. 4 WHEREFORE, Plaintiff, Cynthia E. Smith, demand. jud91llent again.t Detendant in an amount of eompen.atory damage. in exee.. ot Twenty-Five Thou.and Dollar. ($~5,OOO), exclu.ive ot intere.t and co.t., a',nd in exce.. of any juri.dictional amount requiring co.puleory arbitration. COtJll'll I r Joaet a. DaUbeDaaeck v. NarY Hallett ~4. Paragrapha 1 through ~ 1 and Count I ot the complaint are incorporated herein by reference. ~5. The injurie. and damage. .ustained by Joset B. DaUbenapeck are the direct rellult ot the negligence, careleaa, reckle.., outrageoua, wilful and wanton manner in which the Detendant allowed her dog to roam tree and attack Cynthia E. Smith a. tollow.: (a) failing to asaure that the dog was phydcally re.trainedl (b) tailing to kee~ the dog under reasonable controll (c) failing to muzzle the dogl (d) while knowing the dog had attacked and attempted to attack others in the past, failing to contine the dog away from guest. 1 (e) while knowing the vicious propensities of the dog, peraitting the dog to be present among gue.t.; and (f) failing to warn Cynthia E. Smith and other guests of the vicious propeneitie. of the dog. 5 WHEREFORE, plaintiff, Josef B. Daubenspeck, demands jUdgment against Defendant in an amount of compensatory damages in exce.s of Twenty-Five Thousand Dollars ($35,000), exclusive of interest and costs, and in exce.s of any jurisdictional amount requiring compulsory arbitration. CLAI. I CYnthia .. Smith v. .arv Hallett 26. Paragraphs 1 through 21, Count I and Count II of the Complaint are incorporated herein by reference. 27. Plaintiff Cynthia E. Smith has suffered permanent injuries as a result of the dog attack, and claim is made therefor. 28. As a result of said injuries, Plaintiff Cynthia E. Smith has undergone and in the future will undergo great mental and physical pain and suffering, great inconvenience in carrying out her daily activities and lo.s of life's pleasures and enjoyment, and claim is made therefor. 29. As a result of said injuries and by reason of said permanent disfigurement, Plaintiff Cynthia E. Smith has been and in the future will be Subjected to great humiliation and embarrassment, and claim is made therefor. 30. As a direct and proximate result of the aforesaid injuries, Plaintiff Cynthia E. Smith has incurred and will in the future incur additional medical, prescription, and rehabilitative expenses, and claim is made therefor. 31. As a direct and proximate result of the aforesaid injuries, Plaintiff Cynthia E. Smith has in the past and will in 6 the future suffer a loss of earninqs and earning capacity, and claim is made theretor. WHEREFORE, Plaintiff, Cynthia E. Smith, demands judqment aqai:tst Detendant in an amount ot compensatory damages in excess ot Twenty-Five Thousand Dollars ($25,000), exclusive of interest and costs, and in excess of any jurisdictional amount requirinq compulsory arbitration. CLAIM :1% Josef B. DaUbeDsD.ok v. .arv Hallett 32. Paraqraphs 1 throuqh 21, Count I, Count II, and Claim I ot the Complaint are incorporated herein by reterence. 33. As a result ot the neqliqence of the Detendant, Plaintiff Joset B. Daubenspeck has suffered severe harm by incurrinq expenses for past medical care and treatment as well as future medical care and treatment for his wife and claim is made therefor. 34. As a result ot Cynthia E. smith's injuries, Josef B. Daubenspeck has been deprived ot the assistance, companionship, consortiUlll, and society ot his wite, allot which has been and will in the tuture be to his qreat damaqe and loss and claim is made theretor. WHEREFORE, Plaintitf, Josef B. Daubenspeck, demands judqment against Defendant in an amount of compensatory damages in excess of Twenty-Five Thousand Dollars ($25,000), exclusive ot interest and costs, and in excess ot any jurisdictional amount requirinq 7 I C) <. , It 1 ~ -,' " II ~ , C' , l. l__ j \ " <. CYNTHIA E. SMITH and JOSEF B. DAUBENSPECK, Husband and Wife, plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW v. NO. MARY HALLETT, Defendant JURY TRIAL DEMANDED COMPLAINT 1. Plaintiffs, cynthia E. smith and Josef B. Daubenspeck, husband and wife, are adult residents of Marysville, Perry county, Pennsylvania. 2. Defendant, Mary Hallett, is an adult individual who resides in Shiremanstown, CUmberland County, Pennsylvania. 3. All of the events hereinafter related occurred on or after December 13, 1995. 4. On December 13, 1995, the Plaintiffs attended a Christmas party at the home of the Defendant. 5. At the time, the Defendant owned a dog known as "Wesley," who was part coon hound and part black Labrador, weighing approximately one hundred pounds. 6. Although the Defendant knew that the dog had attacked others in the past, she let the dog into the kitchen during the Christmas party. 7. When cynthia E. Smi th bent down to pet the dog, it viciously attacked her, shredding her left eyelid and severing an artery in that area of her face, and forcing her head into a doorframe. llS4lI9/IJS 8. Defendant Hallett was aware of the violent propensities ot thia dog before December 13, 1995, and although the dog had viciously attacked and attempted to attack ot~ers in the past, she did nothinq to assure that the doq was isolated from quests in her home, nor did she warn quests of the vicious propensities of this dog of which she was aware. 9. Immediately after the dog attack, Cynthia E. smith was taken by ambulance trom the home ot the Detendant to Polyclinic Medical Center. 10. There, extensive cauterization was pertormed to stop the severe bleedinq. 11. Extensive surqical intervention was required to repair the muscle in the Plaintitf's eyelid that was ripped in half by the dog's teeth. 12. Atter the lIIuscle was surqically repaired, additional stitches were required to repair the eyelid. 13. All such repairs were pertormed by a plastic surqeon. 14. Ms. Smith has recently been informed that she will require additional surqery on both of her eyelids since their appearance is abnormal. 15. Ms. Smith has also suttered injury to her eye, resultinq in both dryness and excessive tearinq, for which she has treated with an eye specialist. 16. Ms. Smith has also suffered nerve injury and nerve palsy as well as continuinq headaches, necessitatinq treatment with a neurologist. 2 17. As a result ot the doq attack, Ms. Smith, who is the pre.id~nt ot her own bu.ine.s, wa. initially ott work for three weeks and has missed much additional work in the past and will mis3 more in the future in an effort to restore herselt to health. 18. Ms. smith has incurred expenses tor medical care, treatment, prescription drugs and other similar needs necessitated by the dog attack. 19. Not only has Ms. smith experienced great pain and sutterinq, loss of life's pleasures and enjoyment, and interterence with her daily activities as a result of the doq attack, but also her husband has been deprived ot the society, companionship and consortium at his wite as a result of the attack. 20. All ot the hereinmentioned injuries and damaqes sustained by the Plaintitts are the direct result of the negliqent, careless, reckless, outrageous, wanton and wilful manner in which the Detendant allowed her doq to attack Plaintiff cynthia E. Smith as tallows: (a) tailing to assure that the dog was physically restrained: (b) tailinq to keep the dog under reasonable control: (c) failing to muzzle the dog: (d) while knowing the doq had attacked and attempted to attack others in the past, tailing to contine the doq away from guests; (e) while knowing the vicious propensities of the dog, permitting the doq to be present among guests: and 3 (t) failing to warn Cynthia E. Smith and other guests ot the vicious propensities at the dog. :no The dog that attacked cynthia E. smith had bitten and attempted to bite and attack others before it attacked Cynthia E. Smith, and the Defendant was aware of those previous attacks. COUH'l' I CYntbia B. saitb v. Marv Hallett 22. Paragraphs 1 through 21 of the Complaint are incorporated herein by reference. 23. All the injuries and damages sustained by Cynthia E. Smith were as a direct result of the neqligence, careless, reckless, outrageous, wiltul and wanton manner in which the Detendant allowed her dog to roam free and attack cynthia E. Smith as follows: (a) tailing to assure that the dog was physically restrained; (b) failing to keep the dog under reasonable control; (c) failing to muzzle the dog; (d) while knowinq the dog had attacked and attempted to attack others in the past, failing to confine the dog away from quests I (e) while knowinq the vicious propensities of the dog, permitting the dog to be present among guests; and (f) failinq to warn cynthia E. Smith and other guests of the vicious propensities of the doq. 4 WHEREFORE, Plaintift, Cynthia E. Smith, demands judgment againat Defendant in an amount ot compensatory damages in excess of Twenty-rive Thousand Dollars ($25,000), exclusive of interest and costa, and in excess of any jurisdictional amount requiring compulaory arbitration. comrr II Joaet B. DaubenaDeok v. Marv Hallett 24. Paragraphs 1 through 21 and Count I of the complaint are incorporated herein by reference. 25. The injuries and damages sustained by Joset B. Daubenspeck are the direct result of the negligence, careless, reckless, outrageoua, wilful and wanton manner in which the oefendant allowed her dog to roam free and attack Cynthia E. smith as follovs: (a) tailing to assure that the dog was physically restrained; (b) tailing to keep the dog under reasonable controll (c) tailing to muzzle the dog; (d) while knowing the dog had attacked and attempted to attack others in the past, failing to confine the dog away trom quests; (e) while knowinq the vicious propensities of the dog, permitting the dog to be present amonq quests; and (f) failinq to warn Cynthia E. Smith and other quests of the vicious propensities of the dog. 5 WHEREFORE, Plaintiff, Josef B. Daubenspeck, demands judgment aqainst Defendant in an amount of compensatory damaqes in excess of Twenty-Five Thousand Dollars ($25,000), exclusive of interest and costs, and in excess of any jurisdictional amount requirinq compulsory arbitration. CLAIM I CYnthia .. S.ith v. Marv Hallett 26. Paraqraphs 1 through 21, Count I and Count II of the Complaint are incorporated herein by reference. 27. Plaintiff cynthia E. smith has suffered permanent injuries as a result of the dog attack, and claim is made therefor. 28. As a result of said injuries, Plaintiff cynthia E. Smith has underqone and in the future will underqo great mental and physical pain and sufferinq, qreat inconvenience in carryinq out her daily activities and loss of life's pleasures and enjoyment, and claim is made therefor. 29. As a result of said injuries and by reason of said permanent r.listiqurement, Plaintiff cynthia E. Smith has been and in the future will be subjected to qreat humiliation and embarrassment, and claim is made therefor. 30. As a direct and proximate result of the aforesaid injuries, Plaintiff cynthia E. Smith has incurred and will in the future incur additional medical, prescription, and rehabilitative expenses, and claim is made therefor. 31. As a direct and proximate result of the aforesaid injuries, Plaintiff cynthia E. Smith has in the past and will in 6 the future suffer a loss of earnings and earning capacity, and claim is made therefor. WHEREFORE, plaintiff, cynthia E. smith, demands judqment against Defendant in an amount of compensatory damages in excess or Twenty-Five Thousand Dollars ($25,000), exclusive of interest and costs, and in excess of any jurisdictional amount requiring compulsory arbitration. CLAIK II Josef B. DaubeneDeok v. Karv Hallett 32. Paragraphs 1 through 21, Count I, Count II, and Claim I of the Complaint are incorporated herein by reference. 33. As a result of the negligence of the Defendant, Plaintifr Josef B. Daubenspeck has suffered severe harm by incurring expenses for past medical care and treatment as well as future medical care and treatment for his wife and claim is made therefor. 34. As a result of cynthia E. smith's injuries, Josef B. Daubenspeck has been deprived of the assistance, companionship, consortium, and society of his wife, all of which has been and will in the future be to his great damage and loss and claim is made therefor. WHEREFORE, Plaintiff, Josef B. Daubenspeck, demands judqment against Defendant in an amount of compensatory damages in excess of Twenty-Five Thousand Dollars ($25,000), exclusive of interest and costs, and in excess of any jurisdictional amount requiring 7 .... OFFIC!: OF TII~ :;H;:~IFF Cl:'" ~ '1"'" liAR 20 a III AH '96 l'1\ \ I ~._I PE N tb T LV MilA l I' t. I " ,t- ;" . " i ~ " ! i ~ . ~ ~ i ~ !', ., -' , ; I ,:' , :, 8. Denied, It is denied that the dog had violent propensities. It is denied that Defendant was aware of any such violent propensities of the dog prior to December 13, 1995. It is denied that the dog had viciously attacked or attempted to attack others in the past. It is denied that Defendant failed to warn guests of vicious propensities of the jog of which she was aware. 9, Admitted in part and denied in part. It is admitted that immediately after being bitten by the dog. plaintiff Smith was transported by ambulance to Polyclinic Medical Center. The characterization of the dog bite as an "attack" is denied, 10,-19. Denied. After reasonable investigation. Defendant is without knowledge or information sufficient to form a belief of the truth of the averment of paragraphs 10 through 19 of Plaintiffs' Complaint, and the same is therefore denied, 20. The averments of paragraph 20 of Plaintiffs' Complaint set forth conclusions of law to which no response is required, To the extent that a response is deemed required. it is denied that Defendant.s conduct was negligent, careless. reckless, outrageous. wanton or willful. It is denied that Defendant allowed her dog to attack Plaintiff Smith, (a) It is denied that Defendant failed to assure that the dog was physically restrained. 2 (b) It is denied that Defendant failed to keep the dog under reasonable control. (c) It is admitted that Defendant did not muzzle the dog. It is denied that a muzzle was needed. (d) It is denied that the dog had attacked or attempted to attack others in the past. It is denied that Defendant knew the dog had attacked or attempted to attack others in the past, (e) It is denied that the dog had any "vicious propensities," It is denied that Defendant knew of any such vicious propensities. (f) It is admitted that Defendant did not warn guests that the dog had vicious propensities. It is denied that the dog had any such vicious propensities, and it is therefore denied that any warning was needed. 21, Denied. It is denied that the dog "attacked" Plaintiff Smith. It is denied that the dog had bitten or attempted to bite or attack others before it bit Plaintiff Smith, It is denied that Defendant was aware of any previous attacks. COUN'l' I CYnthia E. Smith v. Marv Hallett 22, Defendant's responses in paragraphs 1 through 21 above are incorporated by reference as if fully set forth herein, 3 23. The averments of paragraph 23 of Plaintiffs' Complaint set forth conclusions of law to which no response is required, To the extent that a response is deemed required, it is denied that Defendant's conduct was negligent, careless, reckless, outrageous, willful or wanton. It is denied that Defendant allowed her dog to "roam free and attack" Plaintiff Smith, (a) It is denied that Defendant failed to assure that the dog was physically restrained, (b) It is denied that Defendant failed to keep the dog under reasonable control. (c) It is admitted that Defendant did not muzzle the dog. It is denied that a muzzle was needed. (d) It is denied that the dog had attacked or attempted to attack others in the past, It is denied that Defendant knew the dog had attacked or attempted to attack others in the past. (e) It is denied that the dog had any "vicious propensities." It is denied that Defendant knew of any such vicious propensities. (f) It is admitted that Defendant did not warn guests that the dog had vicious propensities. It is denied that the dog had any such vicious propensities, and it is therefore denied that any warning was needed, 4 WHEREFORE, Defendant requests the entry of judgment in her favor and against Plaintiff Smith on Count I of Plaintiffs' Complaint. COUNT II Joeef B. DaubeneDeok v. Marv Hallett 24. Defendant's responsEs in paragraphs 1 through 23 above are incorporated by reference as if fully set forth herein. 25. The averments of paragraph 25 of Plaintiffs' Complaint set forth conclusions of law to which no response is required. To the extent that a response is deemed required, it is denied that Plaintiff Daubenspeck suffered injuries and damages. It is denied that Defendant's conduct was negligent, careless, reckless, outrageous, willful or wanton. It is denied that Defendant allowed her dog to "roam free and attack" Plaintiff Smith. (a) It is denied that Defendant failed to assure that the dog was physically restrained. (b) It is denied that Defendant failed to keep the dog under reasonable control. (c) It is admitted that Defendant did not muzzle the dog, It is denied that a muzzle was needed. (d) It is denied that the dog had attacked or attempted to attack others in the past. It is denied that 5 CLAIM I CYnthia B. Smith v. Marv Hallett 26. Defendant's responses in paragraphs 1 through 25 above are incorporated by reference as if fully set forth herein. 27.-31, Denied. After reasonable investigation, Defendant is without kno~ledge or information sufficient to form a ~elief of the truth of the averment of paragraphs 27 through 31 of Plaintiffs' Complaint, and the same are therefore denied, WHEREFORE, Defendant requests the entry of judgment in her favor and against Plaintiff Smith on Claim I of Plaintiffs' Complaint. CLAIM II Josef B. Daubenspeok v. Marv Hallett 32. Defendant's responses in paragraphs 1 through 31 above are incorporated by reference as if fully set forth herein. 33. The averment of paragraph 33 of Plaintiffs' Complaint sets forth a conclusion of law to which no response is required, To the extent that a response is deemed required, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief of the truth of the averment of paragraph 33 of Plaintiffs' Complaint, and the same is therefore denied, 34, After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief of the truth 7 ~- r-- c: '. r" ): f-' .. , {'. r', r-:J C.' N . lll- ~;, , .i LI_. .J.. I I:. ..... . i t. ,.... J C (J' .J I I i