Articles Posted in Dog Bite

The following blog entry is written to illustrate an example of an injury case. Reviewing this kind of lawsuit should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this big rig accident lawsuit and its proceedings.)

INJURIES: Callox was taken directly to a plastic surgeon from the school, where she underwent the first of five reconstructive surgeries to her chin. She underwent an initial flap procedure to stretch the skin from her neck over the area of her chin where she was bitten. She underwent four revisions of the original surgery, and now receives two filler injections a year to even out the appearance of her chin. She has also undergone laser procedures to neutralize the skin tone of her chin.

Facts:

In the afternoon in March 2005, plaintiff Kim Callox, 50, a bookkeeper, was picking up her daughter, plaintiff Ramsey Callox, 5, from her preschool in Sacramento, CA. Callox saw her friend Mr. Timothy seated in the rear hatchback of his truck, also waiting for his child, and went over to say hello. When Callox leaned over to hug Timothy, his dog, a German shorthair pointer, bit Callox on the chin and chewed off a portion of the skin and flesh. Ramsey witnessed the incident.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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(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.)

Moreover, there are significant inconsistencies in the declarations of Diana Topp and Maria Cantor. Please note, Ms. Topp’s first declaration indicates under penalty of perjury that Ms. Cantor was visiting her on 4-13-06 . However, in Ms. Cantor’s declaration she indicates that she was visiting Ms. Marta Jones on 4-13-06. Then, Ms. Topp submits a second declaration that indicates that Ms. Cantor was not visiting her on the date in question, but was visiting Marta Jones (see second declaration of Diana Topp) thereby changing her original story completely.

Admissions of material facts made in an opposing party’s pleadings are binding on that party as judicial admissions. They are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted by the party whose pleadings are used against him or her. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2002) 10:147, p. 10-49; Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 222, fn. 3; Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146.).

The dog was on the premises with the owners consent and/or the dog lived at the property. The dog had been spotted by neighbors at the residence of the defendant for years, as testified in deposition by both of the defendant’s neighbors
SIGNIFICANT DISCOVERY HAS STILL TO BE OBTAINED IN THIS CASE
Code of Civil Procedure, Section 437c (h) a Court shall deny a motion for summary judgment if the opposition establishes that there is additional discovery to be had. In this case, defendant’s misconduct in the discovery proceedings evidences willful abuse in this instance. (See responses to RFA’S.)

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(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.

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(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 DEFENDANT OWED A DUTY TO PLAINTIFF BECAUSE THE DOG IN QUESTION LIVED AT THE DEFENDANT’S RESIDENCE

The law in this area is governed by Civil Code Section 3242, which imposes strict liability against dog owners whose dog causes injury to another.

Although the defendant and most recently, Ms. Cantor, are attempting to claim that the dog had never been to the residence at Maddox before (See deposition of Diana Topp, and the declaration of Maria Cantor), the defendant’s neighbor, Jack Rose, testified in deposition and declaration that the large brown Pit Bull with spots who attacked and injured plaintiff had been living at defendant Diana Topp’s residence for a significant amount of time before the incident occurred. In deposition, the words he used indicated the dog had been living at defendant’s residence and that he had personally seen the dog “on a daily basis, for a period of years.” Further, he is certain that the dog lived at defendant’s residence because he would see the dog on a daily basis because the defendant and Mr. Rose share a common chain-link fence in their backyard. (See Declaration of Jack Rose.) Therefore, a question of fact is raised when the defendant declares that the dog had never once been to her residence when the next door neighbor indicates that the dog had been living there for years.

Second, another neighbor, Mr. Tory Brown, who also lives next to the defendant, said that he has he heard the bark of a large dog on a weekly basis coming from the defendant’s residence over the course of years while he was walking his own dog (See Brown deposition.) Further, on one occasion (approximately three weeks before the incident involving plaintiff) the subject dog aggressively charged Mr. Brown, who had to chase the dog away with a stick. In deposition, Mr. Brown testified that the dog returned to the residence of Ms. Topp after it charged him. (See Brown deposition.)

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(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.)

Plaintiff, Sandy White, by and through her attorney of record hereby submits this opposition to Motion for Summary Judgment of Defendant. This opposition will be based upon this motion, the attached declarations, the court file, and evidence and oral argument to be presented at the hearing.

MEMORANDUM OF POINTS AND AUTHORITIES
FACTS OF THE CASE

On or about April 13, 2006, plaintiff, Sandy White was walking past the defendant’s residence, located on Maddox Avenue in Sacramento, CA, when a vicious Pit Bull charged from the defendant’s residence and attacked and maimed Ms. White. The plaintiff sustained significant and permanent injuries both physically and emotionally.

The defendant’s are claiming that the dog who caused the injury to plaintiff wasn’t their dog and had never been to defendant’s property before the date of the incident and therefore, they are not responsible for the injuries sustained by the plaintiff. Further, the defendants have submitted the declaration of Maria Cantor in support of their motion for summary judgment. Ms. Cantor (the alleged owner of the dog) has suddenly reappeared solely in support of defendant’s motion for summary judgment. Ms. Cantor’s whereabouts were perpetually unknown to defendant even in the deposition of Diana Topp, she testified she had no idea of the whereabouts of Ms. Cantor. Then miraculously Cantor reappears and submits a vague declaration in support of defendant’s MSJ.

Notwithstanding, there remains a triable issue of fact regarding ownership of the dog because two of the defendant’s neighbor’s (including a neighbor who shares an adjoining chain link fence with the defendant) have come forward in declaration and deposition and unequivocally testified that the dog in question was seen at, and lived at, the defendant’s residence (See depositions of Jack Rose and Tory Brown.

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(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.)

Jury Misconduct As Grounds For New Trial

Jury misconduct (CCP 657(2): Juror misconduct so seriously infringes on the right to a fair trial that it raises a rebuttable presumption of prejudice. Enyart v. City of Los Angeles (1999) 76 CA4th 499, 507.

Here the entire jury panel took less than one hour (after the court’s response to jury questions #1 & #2) to return a verdict of no liability for the defendant, this after five full days of testimony. The jury deliberated very quickly and it appears they did not review all the evidence or jury instructions, as evidenced by the failure of the jury to read and evaluate the recorded statement of the defendant, or to review all of the testimony offered by both the plaintiff as well as the eyewitness to this accident.

The court should consider such factors as whether the misconduct has diminished a party’s burden of proof on a critical issue, impeached witnesses or contradicted a defense, or conveyed information that would bias the other jurors. Young v. Brunicardi (1986) 187 CA3d 1344.

That a juror concealed a bias or prejudice on voire dire. Bardessono v. Michels (1970) 3 C3d 780; Enyart v. City of Los Angeles (1999) 76 CA4th 499, 506, 509-511.

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(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.)

B. Verdict Or Other Decision Against The Law (CCP 657(6)

A motion for new trial may be granted on the ground of insufficiency of the evidence to justify the verdict or other decision against the law. (CCP 657(6).)

In jury trials, each party in fact has two hearings, one before the jury and the other before the court as a thirteenth juror. Norden v. Hartman (1952) 111 CA2d 751, 758. As explained by one court: In weighing and evaluating the evidence, the court is a trier of fact and is not bound by factual resolutions made by the jury. The court may grant a new trial even though there is sufficient evidence to sustain the jury’s verdict on appeal, so long as the court determines the weight of the evidence is against the verdict. Candido v. Huitt (1984) 151 CA3d 918, 923. It is the trial judge’s responsibility on motion for new trial to determine the weight of the evidence: A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision… unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. (CCP 657.)

In this vicious dog bite case, based upon all of the testimony offered by the plaintiff, including, but not limited to, the inconsistent testimony of Topp and Cantor, coupled with the accuracy of the animal control officer’s testimony, the jury clearly should have reached a different verdict.

This includes the power to consider the credibility of witnesses and to draw reasonable inferences contrary to those drawn by the jury. Valdez v. J.D. Diffenbaugh Co. (1975) 51 CA3d 494, 512; Fountain Valley Chateu Blanc Homeowner’s Ass’n v. Department of Veterans Affairs (1998) 67 CA4th 743, 751. New trial motions allow judges to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury.

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(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 court may decide to disregard a witness’ testimony because untrustworthy in light of inconsistencies and vagueness; then, weighing the remaining evidence, the motion for new trial should be granted if the verdict clearly cannot stand without that witness’s testimony. CCP 657, para 10; Montijo v. Western Greyhound Lines (1963) 219 CA2d 342; Locksley v. Ungureanu (1986) 178 CA3d 457; Dominguez v. Pantalone (1989) 212 CA3d 201, Ashcraft v. King (1991) 228 CA3d 604, 616-617.

In this case, the testimony of defendant Topp and Cantor falls directly into the category of inconsistent and vague testimony. In fact, their testimony was downright perjurious and false. In cross-examination, both Topp and Cantor admitted that the information contained in the declaration they signed were not accurate. This was with respect to the most material facts of this case (i.e., what kind of dog was it; how many times had it been to the defendant’s property; had it bitten before, etc…). On the basis of the vague and inconsistent testimony, the motion for new trial should be granted, as the weight of the evidence indicated that the defendant was strictly liable for this incident.

The trial court has wide discretion in granting or denying a motion for new trial. Its ruling will not be upset on appeal unless the court demonstrated a manifest and unmistakable abuse or discretion, or based its order exclusively upon an erroneous concept of legal principles. Schelbaur v. Butler Mfg. Co. (1984) 35 C3d 442; Ashcraft v. King (1991) 228 CA3d 604, 616; Neal v. Montgomery Elevator Co. (1992) 7 CA4th 1194, 1199-1200

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(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.

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(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.)

TESTIMONY OF PLAINTIFF SANDY WHITE
A. Testimony from plaintiff White indicated that the dog that attacked her (twice) on the day of the incident not only came from the defendant Topp’ residence, but that the dog could not be controlled by the residents of Topp home who were home at the time of the attack.

B. White’s testimony was further supported by his deposition testimony wherein, White ‘ testimony remained consistent and truthful.

TESTIMONY OF DEFENDANT DIANA TOPP

A. The testimony from defendant Topp was clearly perjurious and false as to the most basic and crucial of facts in this accident such as:

a. What type of dog it was that was at her property;
b. How many times she had seen the dog;
c. Who the dog had come to visit;
d. How many times had the dog been to her property;

e. What were the propensities of the dog:

B. The defendant clearly lied in her deposition as exposed during her trial testimony that was completely inconsistent with her deposition testimony.

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