(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)
IT WAS AN ERROR OF LAW FOR THE COURT TO GRANT DEFENDANT’S MOTION FOR NON-SUIT ON THE PREMISES LIABILITY CAUSE OF ACTION AGAINST THE DEFENDANT DURING THE PENDENCY OF THE TRIAL.
Plaintiff alleged in her complaint that the defendant Topp was liable under the theory of premises liability. Prior to commencement of the trial, the court read a statement of the case that referenced plaintiff’s premises liability claim against the defendant as well as the strict liability cause of action for dog bites. Prior to opening statement, plaintiff’s counsel sought and obtained this court’s permission to address all of the causes of action separately, including, but not limited to, premises liability to the jury in opening statement.
Then, as plaintiff’s counsel was beginning to explain all three causes of action to the jury in opening statement, the court interjected and stated You can’t talk about that . And although plaintiff’s counsel inquired of the court as to the permission it had earlier granted to address all three causes of action individually, the court replied that further discussion of the distinct causes of action against the defendant Topp were not going to be permitted.
Essentially, the jury was prevented from any further explanation in opening statement about the causes of action other than what the court allowed prior to it interjecting. The court interjecting would not have had any adverse effect of the plaintiff’s ability to establish its case under the theory of premises liability, nor have constituted an error of law, except for the fact that the court then granted defendant’s motion for non-suit on the premises liability cause of action for inadequately addressing the cause of action in opening statement .
No specific reasons were stated by the court for granting the motion for non-suit, only that the court was inclined to grant the motion. There wasn’t any review of the transcripts of the opening statement by the court, nor did the court address the fact that the court specifically granted plaintiff’s counsel permission to address all three causes of action in opening statement separately and then precluded plaintiff’s counsel from going into further detail in opening statement
Further, to support the preponderance of evidence of the issue of premises liability, the jury even inquired in jury question #2, whether the liability extends to the homeowner Topp because the dog was on her property? And the court answered: No. The liability extends to only defendant Topp individually. Thereby effectively precluding the jury to find liability based upon the premises liability cause of action. This question by the jury by itself indicates that the jury felt the defendant was liable for the dangerous condition of having a vicious dog on her property, but plaintiff was non-suited without even having the opportunity to present the cause of action to the jury. This is clearly an error of law and sufficient basis for the granting of a new trial. (See Part 3 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.