This was originally posted on the SGR Blog.
Are Mom and Dad Liable for the Injury?
Dog bite cases and their factual differences and distinctions abound. Liability is often based on who owned or controlled the dog. But, as a recent case illustrates, another determinant of liability may be where the incident occurred.
Jessica Sigmund claimed that she was bitten by a dog named Luke belonging to Christopher Porreca while she was a guest at the home of his parents, Francis and Rosemary Porreca, on January 10, 2019.
After discovery was complete, Francis and Rosemary Porreca moved for summary judgment dismissing Sigmund’s strict liability claim against them, relying on the rule that liability will not be imposed when there is no evidence that the defendant owned, possessed, harbored, or exercised dominion and control over the dog. They submitted their depositions in which they asserted that they did not own the dog and did not harbor, control, maintain or care for the dog at the time of the incident and that the dog’s owner, their son, Christopher, who was merely a temporary guest in their home at the time, never relinquished control of the dog to them. They also submitted Christopher’s deposition testimony. He testified that the dog had always been under his care, custody, and control while he and Sigmund were at his parents’ residence.
In opposition, Sigmund maintained that the dog had a history of exhibiting vicious propensities, about which the senior Porrecas knew from an action brought by Erick Brois against Christopher Porreca in the Superior Court of New Jersey in 2018, arising out of a dog bite, and deposition of Erick Brois held in that action. In both of his depositions, Christopher discussed a 2017 incident that occurred at his parents’ home outside of his presence, about which his father had subsequently informed him, in which his dog, Luke, bit a friend of his father’s, a man named Jim, who had tried to get Luke to play with him, causing Luke to bite him on the finger. Christopher also testified to the incident involving Erick Brois, in which, according to Christopher, Brois was provoking Luke, when he (Brois) tripped over himself and fell onto the dog, at which time Luke bit him on his leg.
Brois’s deposition testimony was that he had just walked into Porreca’s apartment, and when he tried to pick up a dog toy, the dog attacked and bit him on his leg or foot. Brois added that the next morning he traveled to the medical office of Francis Porreca to consult him about how to treat the wounds. Francis Porreca acknowledged Brois’s visit to his medical office, although he recalled the wounds as “superficial nips” and “scratches.”
Francis Porreca also testified regarding a prior incident in which Luke bit his friend Jim Peroli. According to his testimony, Jim was very aggressive with the dog, grabbed the dog by his snout, and the dog nipped his finger. They cleaned the area, put antiseptic ointment on it, and no further action was necessary.
Sigmund also relied on the portion of Christopher’s deposition testimony in which he acknowledged that he purchased a muzzle to put on Luke in the common areas of his apartment building due to a complaint from another building resident about what Christopher termed the dog’s “leash aggression” toward other animals.
Summary judgment has been awarded in dog bite liability cases where the defendants presented evidence that the dog had never bitten, jumped on, or growled at anyone before the incident in question or exhibited any other aggressive or vicious behavior. In addition, owners of properties in which dog bite incidents occurred had been awarded summary judgment where they submitted undisputed evidence establishing that they were not aware, nor should they have been aware, that the dog in question had ever bitten anyone or exhibited any aggressive behavior. However, neither line of cases was applicable where, as was the case here, there was evidence of prior incidents of aggression by the dog and some evidence that the property owner knew that history.
Although merely being the owner of the property in which the incident occurred, or from which the dog emerged before injuring a plaintiff, is insufficient as grounds for liability, evidence that a property owner or co-resident participated in caring for the dog may create a question of fact precluding summary judgment.
In a prior case, the Court ruled that two co-tenants could be held strictly liable for an attack by dogs owned exclusively by a third co-tenant. The Court explained that liability could extend to other co-tenants who participated in the care of the dogs in their household to a sufficient degree to support a finding that they joined with the dog’s owner in harboring the animal. And, in another even a mere building landlord was held liable for injuries caused by a tenant’s dog on a theory of strict liability if the plaintiff demonstrated that the landlord had noticed that a dog was being harbored on the premises; knew or should have known that the dog had vicious propensities; and had sufficient control of the premises to allow the landlord to remove or confine the dog.
There was evidence that the Porrecas were present on the premises at the time, knew of Luke’s presence and his propensities, and had the right to demand that action be taken to protect a guest from harm due to Luke’s propensities. Accordingly, their contentions merely created triable issues of fact rather than establishing entitlement to summary judgment.