Loading...
HomeMy WebLinkAbout99-3699 civilDONNA K. HURLEY, Plaintiff VS. CRAIG BERDANIER and JAMES J. COLLINS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-3699 CIVIL CIVIL ACTION - LAW IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT,_JAMES J. COLLINS BEFORE BAYLEY AND HESS, J.J_. ORDER AND NOW, this day of June, 2001, the motion of the defendant, James J. Collins, for summary judgment, is DENIED. BY THE COURT, Joseph D. Buckley, Esquire For'the Plaintiff John A. Statler, Esquire For Defendant Collins Craig Berdanier, Pro Se RR 4, Box 4012 Duncannon, PA 17020-9406 'rlm DONNA K. HURLEY, Plaintiff VS. CRAIG BERDANIER and JAMES J. COLLINS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-3699 CIVIL CIVIL ACTION - LAW IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT, JAMES J. COLLINS BEFORE BAYLEY AND HESS, J.J: OPINION AND ORDER Before the court is a motion for summary judgment filed by defendant, James J. Collins. This action has been brought against Mr. Collins, as a landlord, for injuries caused by a dog kept by his tenant. According to the complaint filed in the case, on May 17, 1999, the plaintiff, Donna Hurley, was attacked by an Akita dog owned by her then neighbor, Craig Berdanier, as she was attempting to return the dog to Mr. Berdanier's property after it had been found roaming the neighborhood. Mr. Berdanier was, at the time, renting a home located at 403 North Hanover Street, Carlisle, Cumberland County, from Mr. Collins. According to filed depositions, the dog in question, Hoss, had never bitten nor attacked anyone prior to causing injury to Donna Hurley. Mr. Berdanier had, however, informed Mr. Collins about the high-strung tendencies of this specific breed of dog. (Deposition of Craig Berdanier, p. 41, 1.9-19) Mr. Berdanier had concerns about Hoss. When the dog was around strangers it had a tendency to growl. Mr. Berdanier placed a sign on the doghouse that read "Beware of Dog." Mr. Collins had visited the premises at 403 North Hanover Street on a number of occasions. Mr. Berdanier and Mr. Collins had agreed that Mr. Berdanier was to restrain the dog by a rope or 99-3699 CIVIL chain and was to construct a fence to keep the dog confined when the dog was outside. A lease provision prohibiting pets was deleted. The defendant's motion for summary judgment is based on Pennsylvania Rule of Civil Procedure 1035.2(2) which states: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. When determining a motion for summary judgment, the court must consider the facts in a light most favorable to the nonmoving party and all doubts of the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 98,674 A.2d 1038, 1041 (1996). Summary judgment is applicable only in cases that are clear and free from doubt. Hoffman v. Brandywine Hospital, 443 Pa. Super. 245,250, 661 A.2d 397, 399 (1995). The present case involves the responsibility of an out-of-possession landlord for an attack by his tenant's dog. An out-of-possession landlord is generally not liable for attacks by animals kept by his tenants. Palermo v. Nails, 334 Pa. Super. 544, 547, 483 A.2d 871,873 (1984). A landlord may, however, be held liable for injuries caused by animals kept by his tenants if the landlord has knowledge of the dangerous nature of the animal and where the landlord has the right to control the animal by retaking possession of the premises. Id___~. In order to grant summary judgment in this case, it must be shown that the plaintiff has failed to produce evidence of the 99-3699 CIVIL landlord's knowledge of the dog's viciousness and, also, the right of the landlord to retake possession of the premises. There is no question in this case that the landlord had knowledge of the presence of the animal. The question then becomes whether he had reason to believe that the animal was dangerous. Courts have recognized various criteria that helped determine whether a person is aware of an animal's vicious propensities. These include the breed and size of dog, the purpose for which the dog is kept, frequent snapping at and biting of people, complaints brought to the owner's attention, fighting with other dogs, frequent confinement, occasional muzzling, warning signs on the owner's premises and statements by the owner as to the dog's character. 13 AM.Jurs.2d Proof of Facts, Section 10, Page 496 (1977). In Palermo, the court held that the landlord did have actual knowledge of the vicious propensities of the tenant's dog. Palermo, 334 Pa. Super. at 548,483 A.2d at 873. In that case, the defendant, Mary Castrogiovanni, owned a house where her nephew, Raymond Nails, lived as a tenant at sufferance. Id. The court found that the defendant had a close and personal relationship with her tenant and frequently visited the residence, allowing her to observe the dog's vicious behavior. Id. at 548,483 A.2d at 873. The court also noted that a police officer had informed the defendant of an attack by the tenant's dog prior to the incident involving the plaintiff. In Snyder v. Milton Auto Parts, Inc., the court held that the defendant did have knowledge about the viciousness of its dogs. Snyder v. Milton Auto Parts. Inc,., 285 Pa. Super. 559, 563,428 A.2d 186, 188 (1981). In the case, the defendant, Milton Auto Parts, occupied land enclosed by a fence, and inside the fence were several large watchdogs. Id. at 560, 428 A.2d 99-3699 CIVIL at 187. One of the dogs attacked the plaintiff, James Snyder, outside of the fenced area. Id___:. The court found that the dog attacked in a manner of a trained attack dog. Id_. at 561,428 A.2d at 188. There were several signs placed around the fence that read "Beware of Dogs" and the dogs were seen regularly jumping on the fence and trying to get out at people. I__d, The court found that the frequent confinement of the dogs was to keep the dogs from getting too friendly because they were used for the purpose of preventing trespassers and theft from the business. Id. at 562, 428 A.2d at 188. All of the above circumstances led the court to reason that the defendant did have knowledge of the dangerous propensities of the dog prior to the incident. Id__:. Courts have also recognized that knowledge of tendencies that may cause harm, not necessarily of vicious propensities, is sufficient to hold the defendant liable. Groner v. Hedrick, 403 Pa.'148, 151,169 A.2d 302, 303 (1961). In Groner v. Hedrick, the court held that the defendant did have knowledge of the possibility of harm from the dog's tendency to jump up on people. Id. In the case, the dog owned by defendants, Dorothy and Frank Hedrick, jumped on the plaintiff, Bertha Groner, and injured her. Id. at 150, 169 A.2d at 303. The defendants were aware of the dog's tendency to jump on people. Id. The court reasoned that the knowledge of the dog's tendency to jump on people and possibly cause harm was sufficient to satisfy the knowledge requirement. Id. at 151, 169 A.2d at 303. The court further reasoned that a large, strong and overly friendly dog can be as dangerous as a vicious one. Id. It is true that the facts in the matter sub judice are arguably not as egregious as those presented in Palermo and Snyder. Nonetheless, we cannot agree with the defendant that his right to summary judgment is clear and free from doubt. The landlord, in this case, was informed concerning the high-strung tendencies of the specific breed of dog. A "Beware of Dog" warning 99-3699 CIVIL eliminate the presence of the dangerous animal. The Court reasoned that it was legally and socially unacceptable for a landlord to fail to act when he knows that it is likely that the dangerous animal will attack an innocent person on his tenant's property. We agree with the holding and reasoning set forth in Uccello .... Id., at 873. The lease in this case, as in Uccello, is also month to month. Mr. Collins not only tolerated the presence of the dog; having had the right to exclude pets on the leased premises, he waived that restriction in the lease. We are satisfied that the evidence proffered concerning Mr. Collins's control of the presence of the dog at 403 North Hanover Street is sufficient to allow this case to survive summary judgment. ORDER AND NOW, this day of June, 2001, the motion of the defendant, James J. Collins, for summary judgment, is DENIED. BY THE COURT, Joseph D. Buckley, Esquire For the Plaintiff John A. Statler, Esquire For Defendant Collins Craig Berdanier, Pro Se RR 4, Box 4012 Duncannon, PA 17020-9406 :rlm K~A. Hess, J.