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HomeMy WebLinkAbout96-03336 GLORIA HECK and ROBERT HECK, Plaintiffs IN THB COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 1996-3336 CIVIL TERM ROLAND BAIR and BARBARA BAIR, Defendants JURY TRIAL DEMANDED DEFENDANTS' PRETRIAL MEMORANDUM 1. FACTS: Plaintiff Gloria Heck is the sister of Defendant Roland Bair. Their mother was living with the Bairs, who owned a large English Mastiff. The Bairs had placed a gate at the rear of their entrance foyer. On November 9, 1994 Mrs. Heck had returned her mother from a doctor's appointment. She was talking with Mrs. Bair across the gate. As she bent forward to tie her shoe, the dog lunged over the gate and bit her on the face. 2. DAMAGES: Mrs. Heck sustained a rather severe injury, primarily to her upper lip. Cosmetic surgery has been quite successful. 3. ISSUES: Whether the Defendants were on notice of their dog's vicious propensity, and if so, whether they were negligent in securing the dog. Deardorff v. Berqer, 414 Pa. Super. 45, 606 A.2d 489 (1992). 4. EVIDENCE: 5. WITNESSES: 6. EXHIBITS: 7. SETTLEMENT No problems are anticipated. Defendants Roland and Barbara Bair. None anticipated. NEGOTIATIONS: Continuing. Respectfully submitted, FOWLER, ADDAMS & RUNDLE BY:/~~~ ,~(~~. Addams Supreme Court 1.0. No. 06265 28 South Pitt Street P.O. Box 208 Carlisle, PA 17013 (717) 249-8300 Attorneys for Defendants DATE: February 26, 1997 GLORIA HECK and ROBERT HECK, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 1996-3336 CIVIL TERM ROLAND BAIR and BARBARA BAIR, Defendants . JURY TRIAL DEMANDED 1. rACTS: PLAIHTIrrS' PRETRIAL HEKORANDUK Plaintiff Gloria Heck is the sister of Defendant Roland Bair. On November 9, 1994, Plaintiff was at the Defendants' residence for the purpose of returning her mother fOllowing a doctor's appointment. While plaintiff was talking to Defendant Barbara Bair Plaintiff was viciously attacked by the Defendants' dog, an English Mastiff. There were previous incidents of behavior by the Defendants' dog which put them on notice that the dog had vicious propensities. 2. DAMAOBS: Plaintiff suffered severe injuries to her face as a result of the attack by the dog. A large portion of Plaintiff's upper lip was almost completely torn from her face as a result of the attack. She also suffered canine puncture wounds below her lower lip and underneath her jaw. Although plastic surgery should be considered to have been successful in this case in terms of diminishing the scarring it needs to be noted that Plaintiff has yet to recover feeling in her upper lip and it is likely that this feeling will never return. This causes various problems for the Plaintiff, not the least of which is an impact on the quality of her voice and drooling caused by unfelt food particles when she is eating or drinking. In addition, Plaintiff does have scarring and emotional problems as a result of this attack. Plaintiff is deathly afraid of all dogs and has on several occasions been placed in unnatural fear merely from being in the presence of dogs. Under the dog laws it is specifically stated that the owner of the dog is liable for all medical bills caused by the owner's dog when the dog has attacked a person. 3. I88UB8: 1) Whether the Defendants were on notice of the dog's vicious propensities, and if so, whether they were negligent in securing the nog. 2) The amount of damages suffered by the Plaintiff. 4. BVIDBHCB: No problems are anticipated. 5. WITHB88B8: (a) Plaintiffs Gloria Heck and Robert Heck (b) Joanne Rader, Plaintiff's sister who has knowledge of the dog's vicious propensities, as well as testimony showing that the Plaintiffs also had knowledge of the dog's vicious propensities (c) William Castle, expert (d) testimony of Dr. srouji, (plastic surgeon) . .1 \.,,1,,-1.. (_~"l\''''~"./ (e) Records custodian, Holy spirit Hospital (f) Plaintiffs reserve the right to identify additional witnesses as they become available. 6. BXHIBITS: (a) Various photographs depicting Plaintiff's injuries 2 (b) Photographs ot and the dog who inflicted the injuries (c) If attainable, a model of a Mastiff's jaw (d) Records from the Defendants' veterinarian (e) Medical records from Holy Spirit Hospital (f) Medical records from Dr. Srouji (g) Plaintiffs reserve the right to identify additional exhibits if they become available. 7. 81TTLBKBNT HBGOTIATION8: Continuing. Respectfully sUbmitted, ~~~ R. Mark Thomas, Esquire Attorney for Plaintiffs 54 E. Main street Mechanicsburg, PA 17055 (717)697-4650 1.0.# 41301 Date: February 24, 1997 3 GLORIA HECK and ROBERT HECK, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAN~ COUNTY, PENNSYLVANIA . . v. NO. 1(,- j-3,{, CIVIL TERM ROLAND BAIR and BARBARA BAIR, Defendants CIVIL ACTION - LAW NOTICB YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written a~pearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a jUdgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. COURT ADMINISTRATOR 4 th FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717)-240-6200 GLORIA HECK and ROBERT HECI<, P1ainUffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NO. CIVIL TERM ROLAND BAIR and BARBARA BAIR, Defendants CIVIL ACTION - LAW COMPLAINT AND NOW, this j.:2Uday of Jwr-e. , 1996, come the Plaintiffs by and through their attorney, R. Mark Thomas, Esquire, and file this Complaint in Trespass and respectfully aver as follows: 1. Plaintiffs Gloria Heck and Robert Heck are husband and wife and they reside at 6023 Hummingbird Drive, Mechanicsburg, Cumberland County, Pennsylvania. 2. Defendants Roland Bair and Barbara Bair are husband and wife and they reside at 77 Beachcliff Drive, Carlisle, Cumberland County, Pennsylvania. COUNT I - NEGLIGENCE 3. On or about November 9, 1994 Plaintiff Gloria Heck was lawfully at the residence of the Defendants. 4. Present at the Defendants' home was the Defendant Barbara Bair and a large English Mastiff dog which is owned, possessed and maintained by the Defendants. 5. The Defendants knew, or should have known, that the dog was of a dangerous and vicious nature. 6. At all times relevant hereto the Defendants either took no actions, or unreasonably inadequate precautions, to properly restrain and control the animal. 7. On November 9/ 1994/ while Plaintiff Gloria Heok was lawfully in D~fendants' residence the dog, without provocation or warning, viciously attacked Plaintiff Gloria Heck by locking his jaws on her face. S. Solely as a result of the vicious attack from the Defendants' dog, Plaintiff suffered serious, painful and disfiguring injuries to the bottom half of her face and her neck area, including but not limited to: a. A severe avulsive injury involving most of her upper lip, full thickness in nature/ extending from the right lateral one-third of the lip involving the philtrum, the vestibule, and back to the left oral commissurer b. An avulsive injury involving the lower lip, mainly the mucosa and connecting to the outside by an L- shaped laceration over the chin arear c. A deep laceration of the submental area extending down and involving the muscler and d. Scarring about the lower half of her face and her neck area. 9. Allor some of the injuries are likely to be permanent. 10. Solely as a result of the attack by Defendants' dog Plaintiff has expended various sums of money for medicine and medical attention and treatment of the injuries caused by the dog, 2 and likely will continue to need some medical treatment in the future. 11. As a further result of the attack by Defendants' dog, the Plaintiff has been hindered and prevented from attending to her usual and daily occupation to her great financial loss and damage. 12. The Defendants' were negligent in not properly restraining and controlling the dog. 13. The Defendants' negligence was the proximate cause of Plaintiffs' injuries and damages. WHEREFORE, Plaintiff Gloria Heck seeks damages from the Defendants' in an amount in excess of $20,000.00 plus costs as the law may allow. COUNT II - PUNITIVB DAMAGES 14. pax'agraphs 1 - 13 are incorporated herein as if set f.orth at length. 15. Defendants trained this dog to be vicious. 16. Despite the training provided to this dog and knowledge of the. dog's vicious propensities the Defendants took no precautions to protect plaintiff from this dog. 17. The failure of Defendants to take precautionary steps to control and restrain their dog, particularly in light of the training they gave the dog, was outrageous under the circumstances of this case. WHEREFORE, Plaintiff seeks punitive damages from Defendants in an amount in excess of $20,000.00 plus costs. 3 COUNT III - LOSS OW CONSORTIUK lB. Paragraphs 1 - 17 are incorporated herein as if set forth at length. 19. Plaintiff Robert Heck, as a direct and proximate result of the injuries suftered by his wife has had to provide and car.e for his wife when she was unable, by reason of the injuries complained of herein, to provide and care for herself. 20. Plaintiff Robert Heck had to take over sole maintenance and care for the household since Plaintiff Gloria Heck injuries prevented her from contributing. WHEREFORE, Plaintiff Robert Heck seeks damages in an amount in excess of $10,000.00. RespBctfu1ly submitted, J m",,~l.dL R. Mark Thomas, Esqu re Attorney for Plaintiffs 54 E. Main street Mechanicsburg, PA 17055 (717)697-4650 1.0.* 41301 ~ \D c; ... '" "> ~Q .... .. "~i r ." \ t.i -~ ):< 'C:l '" \~ ,- ".'1 ~ ~' u.. '. ,>- ~;~ M ,;:;J ~:~,:, ;~,0 \,..., -- "..,; H~ ,. ...... ;":j'IL) f." :.:J '~ ~ -, :.':0. ,.. ,-,", .' .:j 0 0' ,oj ........... I>'" ~ u ~ ~ ~ 'OJ:> ~. 'i ~, -- , SHERIFF'S RETURN - REGULAR CASE NOI 1996-03336 P CO""ONWEALTH OF PENNSYLVANIA, COUNTY OF CU"BERLAHD HECK GLORIA ET AL VS. BAlR ROLAND ET AL KRISTIN D. "ERTZ . Sheriff or Deputy Sheriff of CU"SERLAND County, Penn.ylv~nia, who being duly .worn according to law, .ay., the within CO"PLAINT wa. .erved upon BAIR ROLAND the defendant, at 1713100 HOURS, on the 12ih day of June 1922 at 77 BEECHCLIFF DRIVE CARLISLE. PA 17013 .CU"BERLAND County, Penn.ylvania, by handing to BARBARA BAIR. ADUL.T IN CHARGE AT TI"E OF SERVICE a true and attested copy of the CO"PLAINT together with NOTICE . and at the same time directing ~ attention to the contents thereof. Sheriff's Costs I Docketing Service Affidavit Surcharge 18.00 5.04 .00 2.00 So anBWe~~./ r'"~~~~ H. Thomas IU1ne, ;r e2~.~4 H. "ARK THO"AS 06/20/1996 by JJ -I' ~ 'h tt IA t..vt..{J I Deputy r1~~ I I ! t ! [ I i I Sworn and subsoribed to before me this ~/..r day of 9--- 19 ~ A.D. Q:., "- C;, )k.M~ 1/:;", . prothonotarylr" - '" SHERIFF'S RETURN - REGULAR CASE NO. 1996-03336 P COnMONWEALTH OF PENNSYLVANIA, COUNTY OF CUnBERLAND HECK GLORIA ET AL VS. BAIR ROLAND ET AL KRISTIN D. MERTZ . Sheriff or Deputy Sh.riff of CUnSERLAND County, Penn.ylvania, who b.ing duly sworn acoording to law, .ays, th. within COnPLAINT was ..rv.d upon BAIR BARBARA the d.f.ndant, at t71:1IQlQl HOURS, on the .l!ti.h day of .1un.. 192Q at 77 BEECHCLIFF DRIVE CARLISLE. PA 17013 . CUMBERLAND County, P.nnsylvania, by handing to BARBARA BAIR a true and atte.t.d copy of the COnPLAINT togeth.r with NOTICE and at the same time directing ~ attention to the contents thereof. Sheriff'. Costs I Docketing Service Affidavit SurCharge 6.00 .00 .00 2.00 So a~}':f"..#" ~ r ~~"""...:.c ~ 'C.f! H. Thomas Kline, Sheri%% GB.f/Il1l H. tlARK THOnAS 06/20/1996 by ~;,~() ~ eputy :1:% Sworn and subscribed to be~ore me this J./.tJ- day of ~ 19 9(.. A.D. ~ ~)~. u-- Lt- fl.-.J J , t'rot ono{ary' '-M' GLORIA HECK and ROBERT HECK, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. NO. 1996-3336 CIVIL TERM ROLAND BAIR and BARBARA BUR, Defendants JURY TRIAL DEMANDED ANSWER AND NOW, come the Defendants, by their attorneys, Fowler, AddamB, Shughart & Rundle, and make the following answer to the plaintiffs' complaint: 1-2. Admitted. COUNT I 3-4. Admitted. 5. Denied in accordance with Pat R.C.P. 1029(e). 6-7. The answer to Paragraph 5 is incorporated herein by ::eference. 8. After reasonable investigation, the defendants are without knowledge sufficient to form a belief as to the truth of the averments regarding the Plaintiff's injuries and damages. The same are therefore denied. 9-11. The answer to Paragraph 8 is incorporated herein by reference. 12. The answer to Paragraph 5 is incorporated herein by reference. 13. The conclusion of law is denied. WHEREFORE, the Defendants request Count I be dismissed. COUNT II 14. The answers to Paragraphs 1-13 are incorporated herein by re1'erence. 15. Denied in accordance with Pat R.C.P. 1029(e). 16. The answer to Paragraph 15 is incorporated herein by re1'erence. 17. The conclusion 01' law is denied. WHEREFORE, the Defendants request Count II be dismissed. COUNT III 18. The answers to Paragraphs 1-17 are incorporated herein by reference. 19-20. The answer to Paragraph 8 is incorporated herein by reference. WHEREFORE, the Defendants request Count III be dismissed. FOWLER, ADDAMS, SHUGHART & RUNDLE BY'~~~~ . /~1;~Kr~~ Supreme Court I.D. No. 06265 28 South Pitt Street P.O. Box 20S Carlisle, PA 17013 (717) 249-8300 Attorneys for Defendants VERIFICATION Barbara Bair hereby verities that the tacts set torth in the toreqoinq Answer are true and correct to the best ot her knowledqe, intormation and beliet, and understands that ta1se statements herein are made subjoct to the penalties ot 18 Pat C.S. 54904 relatinq to unsworn ta1sitications. y<2 ( .:pf~1' - DATE: G, - ;l~ - crt PRAECIPE FOR LISTING CASE FOR TRIAL (Must be typewritten and submlUed In duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY Please list the following case: (Check one) x for JURY trial at the nextlerm of civil courl. for trial without a jury. . .............................................................................................................................................................................. CAPTION OF CASE (entire caption must be slated In lull) (check one) (i, .L' ,-) -..1 I . : ''1 1,-,. ., :-~-1 " . d~:J , ' .j! ie' ") ." .. " .(") - ), " .. I r.- ,- I:) ..~ Assumpsit Gloria Heck and Robert Heck (X) Trespass ," Trespass (Motor Vehicle) . .~. (Plaintiff) (other) vs. The trial list will be called on Feb. 18, 1997 Roland Bair and Barbara Bair and Trials commence on March 17, 1997 (Defendant) Pretrials will be held on Feb. 26, 1 997 (Briefs are due 5 days before pretrials.) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) vs. No. 96-333~ Civil 19 __~ Indicate the attorney who will try case for the party who flies this praecipe: R. Mark Thomas, Esquire Indicate trial counsel for other parties If known: William A. Addams, Esquire This case Is ready for trial. ..-.....,.-..-. -..- --r'---- .____0'__ .--- Signed: _~~'Z2~~/YZ~IV~ Dale: ,/,)1/ lor) - -1--1------------- Print Name:...!~ Ml\r.~_~'~?!n~f?___ Altorney for: TJ.~dnt.iJ,rH__._,____.._.. . ~ GLORIA HECK and ROBERT HECK, Plaintiffs . . . . . . 22 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ROLAND BAIR and BARBARA BAIR, CIVIL ACTION - LAW Defendants NO. 96-3336 CIVIL TERM IN RE: PRETRIAL CONFERENCE At a pretrial conference held Wednesday, February 26, 1997, before the Honorable Harold E. Sheely, President Judge, present for the Plaintiffs was R. Mark Thomas, Esquire, and present for the Defendants was William A. Addams, Esquire. This is a jury trial which should take no longer than two days to complete. Mr. Addams will not be available on Monday, March 17th, 1997, as of this time. The Plaintiff, Gloria Heck, was inside the house of her brother, Roland Bair, and as she bent down to tie her shoe, the dog lunged over a gate separating two rooms inside the house and bit Mrs. Heck on the face. Cosmetic surgery w~s required. There was a slight disagreement as to the exact amount of the medical bills sustained by Mrs. Heck. I would ask that counsel for the Plaintiffs give to counsel for the Defendants an up-to-date list of all medica1s, and I would hope that they could be stipulated to at trial rather than having to call any witnesses to prove the medical expenses. If there is a problem with this stipulation, I would . . . ~, direot that oounse1 let me know on or betore Wednesday, Maroh 12th, 1997. It was indicated at this time that the medicals were somewhere in the area ot $11,000.00. There are no lost wages involved in this case. The plastic surgeon, Dr. srouji, will be deposed on Wednesday, March 12th, 1997. Counsel tor the P1aintitts has li&ted an expert witness by the name of William Castle. I'm not sure in this case what he would be permitted to testify to or what his purposes would be, and if the Plaintiffs do propose to call him as an expert at trial, I would ask that counsel furnish to me and to Mr. Addams an offer of proof on or before Wednesday, March 12th, 1997, as to what Mr. Castle would be testifying to if he were called. Both counsel have cited the law on this type of a case, and that is whether the Defendants were on notice of their dog's vicious propensity and if so whether they were negligent in securing the dog. Apparently this law has been set forth in Deardorff vs. Berger, 414 Pa. Super. 45, 606 A.2d 489 (1992). At the pretrial today Mr. Thomas was of the belief that the Defendants would be liable for the medical expenses even though the jury found no liability otherwise. We were not able to find this statute under the dog law, and I would ask that Mr. Thomas provide that statute both to me and Mr. Addams on or before Monday, March 10th, 1997. The P1aintitfs have demanded $65,000.00 to settle the ... r-. >- b; N ~.~ .. .~: r, c'"; Uf.. .. , 0- , F-\ .... , ;: r'~ '-. ":.i '-.. 9,~', ;" , 1 6" I . :;.r. ~/, c. jiJ (i'" .....1 11.\. 'OF.-: - to, ,- ::j 0 Q) (J . . . -.. (') b: j.' i:.1 LI.I~ ',~ () .. I : ' ~ (' . .. r). ~ !-I ! ~:j rt (:1 if! , (,,: r ,(tJ ,: . _1':1.. :L t r- i c. m U "