(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)
THE TESTIMONY OF SANDY WHITE ESTABLISHED THAT THE DOG HAD BEEN TO DEFENDANT TOPP’S RESIDENCE AT LEAST 5-6 TIMES.
a. Sandy White, the owner of the dog testified that the dog had been to the defendant’s property on at least 5-6 prior occasions; and
b. That she had lied in her declaration under penalty of perjury dated 10-21-07 regarding how many times the dog had been to defendant Topp’s property.
TESTIMONY OF TORY BROWN
The testimony of Mr. Tory Brown further supported a finding by a preponderance of the evidence that the defendant Topp was liable under both strict liability and premises liability for the plaintiff’s injuries. Mr. Brown testified to the witnessing the following:
c. That two weeks before the plaintiff’s incident, he was attacked by the same dog that attacked plaintiff and that the dog came from the defendant’s property (front yard) without a leash and unsupervised; and
d. One week before the incident involving plaintiff, he again saw the same dog unleashed, unsupervised in the front yard of defendant’s property.
All of the testimony by Mr. Brown further supported Officer Samuel’s testimony that Ms. Cantor had been keeping the dog at the residence of defendant Topp’s for the last several months, because the attack on Mr. Brown happened within the same time frame as the dog was living at defendant Topp’s house.
A. Statutory Authority For Motion For New Trial
The principal statutory authority for a new trial is CCP 657. The verdict may be vacated… and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any one of several specified causes.”
A motion for new trial calls for reexamination of an issue of fact or law in the same court after a trial and decision by a jury, court or referee. CCP 656, 657; Fountain Valley Chateau Blanc Homeowner’s Ass’n v. Department of Veterans Affairs (1998) 67 CA4th 743, 750-753.
Authority for a new trial is embodied in CCP 655-663.2. These statutes are directed generally at preventing a miscarriage of justice. The court can weigh the evidence and determine the credibility of witnesses. The court is asked to reconsider and weigh the evidence to determine if a different result clearly should have been reached. It may review conflicting evidence, weigh its sufficiency, consider credibility of witnesses, reject any testimony believed false, and draw any reasonable inferences from the evidence.
In this strict liability action, the evidentiary standard is a preponderance of the evidence, as indicated in the jury instructions given by the court. This means that the plaintiff will carry the burden of proof to establish by a preponderance of the evidence that the defendant, Topp was strictly liable.
The evidence presented at trial clearly indicated that the dog had stayed, was staying or had been living at defendant Topp’ property at the time of the incident. The undisputed testimony and evidence was that the dog was a big, vicious pit bull. There is no other testimony. Why would it matter under strict liability if the dog had been there once, twice or five times? If the defendant knew the dog was vicious, she is strictly liable for any harm the instant she permits the dog to stay at her property. It does not matter how long the dog was there either, one minute, one hour, or one day still carries with it strict liability if the defendant knew or should have known that the dog was vicious. (See Part 6 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.