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HomeMy WebLinkAbout01-3222 CivilPAMELA KICHMAN, a minor, by JOHN KICHMAN and JENNIFER MERCURIO, her parents and natural guardians and JOHN KICHMAN and JENNIFER MERCURIO, in their own right, Plaintiffs Vo NELSON GONZALEZ, FELICIA COURTNEY and KENDRA COURTNEY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-3222 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE HOFFER, P.J., and OLER, J. OPINION and ORDER OF COURT OLER, J., June 4, 2003. In this action for negligence and violation of the Dog Law, a child and her parents have sued another child and her parents as the result of an incident in which the minor plaintiff was allegedly attacked by a pit bull. For disposition at this time is Defendants' motion for partial summary judgment, seeking dismissal of Plaintiffs' claims for negligence and punitive damages. The matter was argued on February 12, 2003. For the reasons stated in this opinion, Defendants' motion will be granted in part and denied in part. STATEMENT OF FACTS On a motion for summary judgment, the record includes pleadings, depositions, answers to interrogatories, admissions, affidavits and expert reports. Pa. R.C.P. 1035.1. The record "must be viewed in the light most favorable to the non-moving party .... " Dean v. Commonwealth, 561 Pa. 503, 507, 751 A.2d 1130, 1132 (2000). In the present case, the record consists of Plaintiffs' complaint, Defendants' answer with new matter, Plaintiffs' reply to Defendants' new matter, Defendants' motion for partial summary judgment, Plaintiffs' answer to Defendants' motion for partial summary judgment, and a number of depositions appended to the motion and answer. Viewed in the light most favorable to Plaintiffs, the evidence may be summarized as follows: On March 26, 2001, Plaintiff Pamela Kichman, who was seven years old,2 was attacked by a pit bull owned by Defendants Nelson Gonzalez and Kendra Courtney.3 The attack occurred at a house in Cumberland County owned by Mr. Gonzalez and Ms. Courtney.4 The incident happened when the minor plaintiff went to the residence to deliver a message from the mother of two children who happened to be visiting in the residence.5 At the time, the residence was occupied by four children:6 a daughter of Defendant Kendra Courtney,7 who lived in the residence and was about thirteen;8 the minor Defendant, Felicia Courtney, who was the daughter of : Plaintiffs' complaint, para. 3; Defendant's answer with new matter, para. 3. 3 Defendants' motion for partial summary judgment, para. 2; Plaintiffs' answer to Defendants' motion for partial summary judgment, para. 2; N.T. 12-14, Deposition of Pamela Kichman; N.T. 8; Deposition of Nelson Gonzalez. It does not appear that the child's injuries were life threatening. See N.T. 16, Deposition of Brittany Spotts. 4 Plaintiffs' complaint, para. 7; Defendants' answer with new matter, para. 7; Defendants' motion for partial summary judgment, para. 2; Plaintiffs' answer to Defendants' motion for partial summary judgment, para. 2; N.T. 5, Deposition of Nelson Gonzalez. 5 N.T. 7, Deposition of Pamela Kichman. 6 N.T. 25, Deposition of Nelson Gonzalez. 7 N.T. 4, Deposition of Kendra Courtney. 8 N.T. 8, Deposition of Christopher Spotts; N.T. 6, Deposition of Kendra Courtney. 2 Defendants Nelson Gonzalez9 and Kendra Courtney,~° lived in the residence, ~ and was twelve;~2 a visiting girl of about ten;~3 and a visiting boy of about eight.TM Immediately preceding the attack, the minor defendant had been speaking to the minor plaintiff from the porch of the residence.~5 When the minor defendant opened the door to reenter the residence,~6 the adult male pit bull~7 slipped past her and escaped from the house,la The attack took place in the yard as the minor plaintiff tried to flee.~9 Defendant Nelson Gonzalez was at work at the time of the incident,2° and Defendant Kendra Courmey had moved out of the residence in August of 2000, leaving the pit bull and her two children with Defendant Gonzalez.~ Defendants were aware of the dog's dangerous propensities. Prior to this incident, the dog had attacked another little girl in a similar incident which had occasioned police involvement.~ He "ha[d] a temper,''~3 behaved aggressively toward people in uniforms,24 seized mail in his teeth as it was delivered through ~0 N.T. n N.T. ~2 N.T. ~3 N.T. ~4 N.T. ~s N.T. 16 N.T. ~7 N.T. ~8 N.T. ~9 N.T. 20 N.T. 2~ N.T. 9 N.T. 6, Deposition 4, Deposition 8, Deposition 7, Deposition 5, Deposition 4, Deposition 9, Deposition 9, Deposition of Nelson Gonzalez. of Kendra Courtney. of Nelson Gonzalez. of Kendra Courtney. of Brittany Spotts. of Christopher Spotts. of Pamela Kichman. of Pamela Kichman. 12, Deposition of Nelson Gonzalez. 9, Deposition of Pamela Kichman; N.T. 12-13, Deposition of Felicia Courtney. 13, Deposition of Felicia Courtney. 25, Deposition of Nelson Gonzalez. 5, Deposition of Kendra Courtney. 22 N.T. 18, Deposition of Nelson Gonzalez; N.T. 13-15, Deposition of Kendra Courtney; N.T. 8, Deposition of Felicia Courtney. 23 N.T. 18, Deposition of Christopher Spotts. 24 N.T. 23-24, Deposition of Nelson Gonzalez. 3 the door, leaving bite marks on it,25 got "mad" when he was teased26 or was made to come in the house,27 became "real mad" when Mr. Gonzalez yelled at him,~8 was "rough" around children~9 and sometimes left scratches on them.3° Defendant owners had posted "Beware of Dog" signs on the property. Mr. Gonzalez would sometimes confine the dog to another room to avoid contact with friends of Mr. Gonzalez.32 Subsequent to the attack, an animal control officer described the dog as the most aggressive she had ever encountered.33 DISCUSSION Statement of lam. With respect to motions for summary judgment, Pennsylvania Rule of Civil Procedure 1035.2 provides as follows: 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 (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) 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 :s N.T. 10, Deposition of Felicia Courtney; N.T. 21-22, Deposition of Brittany Spotts. 26 N.T. 7, Deposition of Brittany Spotts. :v N.T. 21, Deposition of Brittany Spotts. 28 N.T. 24, Deposition of Brittany Spotts. 29 N.T. 24, Deposition of Nelson Gonzalez. 30 N.T. 30, Deposition of Brittany Spotts. 3~ N.T. 10-11, Deposition of Nelson Gonzalez. 32 N.T. 23, Deposition of Christopher Spotts. 33 N.T. 30, Deposition of Debra Baker. The dog was euthanized. N.T. 31, Deposition of Nelson Gonzalez; N.T. 19, Deposition of Debra Baker. 4 or defense which in a jury trial would require the issues to be submitted to a jury. On such a motion, "[t]he adverse party may not rest upon the mere allegations or denials of the pleadings .... "Pa. R.C.P. 1035.3(a). In a civil case, as a general rule, the plaintiff bears the burden of proving, by a fair preponderance of the evidence, those claims which entitle him or her to relief. Rossa v. Workers' Compensation Appeal Board, 794 A.2d 919, 931 (Pa. Commw. Ct. 2002) (Friedman, J., concurring), citingAddington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). This rule applies to the issue of a defendant's negligence34 as well as liability for punitive damages.35 Ordinary negligence, in general, consists of "the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, in light of all the surrounding circumstances established by the evidence in [a] case." Pennsylvania Suggested Standard Civil Jury Instructions 3.01 (rev. 1984); see Martin v. Evans, 551 Pa. 496, 503, 711 A.2d 458, 462 (1998). With respect to minors, the Pennsylvania Supreme Court has stated as follows: Both an adult and a minor are under an obligation to exercise reasonable care; however, the "reasonable care" required of a minor is measured by a different yardstick--it is that measure of care which other minors of like age, experience, capacity, and development would ordinarily exercise under similar circumstances. In applying that yardstick, we place minors in three categories based on their ages; minors under the age of seven years are conclusively presumed incapable of negligence; minors over the age of fourteen years are presumptively capable of negligence, the burden being placed on such minors to prove their incapacity; minors between the ages of seven and fourteen years are presumed incapable of negligence, but such presumption is rebuttable and grows weaker with each year until the fourteenth year is reached. 34 Raibley v. Marvin E. Kanze, Inc., 221 Pa. Super. 234, 238, 289 A.2d 161,164 (1972). ~5 Sprague v. Walter, 441 Pa. Super. 1, 67, 656 A.2d 890, 923 (1995). 5 Kuhns v. Brugger, 390 Pa. 331, 340, 135 A.2d 395, 401 (1957). "In Pennsylvania, punitive damages are awarded for 'outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others.'" Judge Technical Services, Inc., v. Clancy, 2002 WL 318192238, at **8 (Pa. Super. Ct.), quoting Shared Communications Services of 1800-80 JFK Blvd Inc. v. Bell ~4tlantic Properties Inc., 692 A.2d 570, 576 (Pa. Super. Ct. 1997). ~4pplication of law to facts. In the present case, the evidence recited above, if credited by a trier-of-fact, would in the court's view be sufficient to permit a finding that all Defendants failed to exercise ordinary care to protect others from a known risk of physical harm, in the form of a dangerous dog, and that the conduct of the adult defendants, in leaving the dog in the circumstances presented, rose to the level of reckless indifference. However, given the minor defendant's age and level of momentary inadvertence as alleged, the court is of the view that Plaintiffs' evidence could not support a finding of outrageous conduct on her part. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 4th day of June, 2003, upon consideration of Defendants' motion for partial summary judgment, and for the reasons stated in the accompanying opinion, the motion is granted to the extent that Plaintiffs' claim for punitive damages against Defendant Felicia Courmey is dismissed and is otherwise denied. BY THE COURT, s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 6 Clark DeVere, Esq. P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 Clark DeVere, Esq. P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 7 9 PAMELA KICHMAN, a minor, by JOHN KICHMAN and JENNIFER MERCURIO, her parents and natural guardians and JOHN KICHMAN and JENNIFER MERCURIO, in their own right, Plaintiffs Vo NELSON GONZALEZ, FELICIA COURTNEY and KENDRA COURTNEY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 01-3222 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT BEFORE HOFFER, P.J., and OLER, J. ORDER OF COURT AND NOW, this 4th day of June, 2003, upon consideration of Defendants' motion for partial summary judgment, and for the reasons stated in the accompanying opinion, the motion is granted to the extent that Plaintiffs' claim for punitive damages against Defendant Felicia Courmey is dismissed and is otherwise denied. BY THE COURT, J. Wesley Oler, Jr., J. 12 Clark DeVere, Esq. P.O. Box 5300 3211 North Front Street Harrisburg, PA 17110-0300 Attorney for Plaintiffs Scott Grenoble, Esq. 525 South 8th Street P.O. Box 49 Lebanon, PA 17042-0049 Attorney for Defendants