Personal Injury Lawyer Blog
(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.)
THE MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THERE ARE ISSUES OF MATERIAL FACT IN THIS CASE
Summary judgment is proper only where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 473c, subd. (c). A defendant moving for summary judgment based on an affirmative defense has the overall burden of showing there is a complete defense to the plaintiff’s action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 849. In this regard, the defendant must first produce evidence to support a prima facie showing of the nonexistence of any triable issue of material fact as to the defense. (Id. at p. 850.)
Under strict liability theory, a person is liable for any injuries caused by the subject. Here the testimony of the defendant and Ms. Cantor is the complete polar opposite of the testimony of the defendant’s neighbors (Rose & Brown) and clearly raises a triable issue of fact as to ownership of the dog, residence of the dog, and whose is responsible for the plaintiffs injuries. Only a jury can decide these ultimate questions of fact.
In addition to the declaration and deposition testimony of both of the neighbors, the law states that once the owner has knowledge of the dog on her premises, she is liable for any and all injuries that are caused by the attacking dog.
Under general principles of negligence law, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. (Knight v. Jewett (1992) 3 Cal. 4th 296, 315; Whelihan v. Espinoza (2003) 110 Cal. App. 4th 1566. (See Part 4 of 4.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.