Wednesday, December 30, 2015

Size Doesn't Matter In Dog Bite Claim

The Tennessee Court of Appeals affirmed dismissal of a civil claim predicated on a dog bite

Plaintiff James Anthony Moore was at Defendant Michael Gaut’s residence to do maintenance on his satellite dish when he was bitten by Defendant’s dog, a Great Dane. The dog was in Defendant’s fenced-in backyard, Plaintiff was on the other side of the fence, and the dog bit Plaintiff on his face. The trial court granted Defendant summary judgment based on its finding that there was no evidence that Plaintiff knew or should have known that the dog had any dangerous propensities. On appeal, Plaintiff argues that the large size of the Great Dane, a breed Plaintiff characterizes as being in a “suspect class,” should be enough, standing alone, to establish a genuine issue of material fact as to whether Plaintiff should have known the dog had dangerous propensities. We disagree and affirm the trial court’s judgment...

As the trial court observed, all the evidence presented by Plaintiff tends to show that Defendant believed his dog was friendly, gentle, and jovial before the bite occurred. Nor is there any evidence that Defendant was aware of any prior playful or mischievous behavior that could be dangerous. Moreover, it is undisputed that the dog did not get outside the fence, and that Plaintiff is the one who approached the dog.

A legal theory of liability failed to persuade

The trial court also correctly observed that what Plaintiff is asking us to do here is to create a “big dog exception” to the notice requirement established by centuries-old common law and Tenn. Code Ann. § 44-8-413. In his arguments to the trial court and in his appellate brief, Plaintiff states that “it is common knowledge that Great Danes are an extraordinarily large breed” and “submits that its size alone placed the Defendant on notice of any dangerous propensity.” (Emphasis added). Plaintiff asserts that “Great Danes are a suspect class of dog” because they are “a large and naturally dangerous animal, based on size, weight, and strength.” We, like the trial court, decline to craft an exception to the long and well established rules in dog bite cases, based solely on a dog’s size or breed.

The court rejected the suggestion that the appeal was frivolous.

The Maryland Court of Appeals reached a different result with respect to pit bulls. On a motion to reconsider, the Maryland Court

amended [its opinion] to delete any reference to cross-breds, pit bull mix, or cross-bred pit bull mix.

The Maryland decision is analysed here . 

(Mike Frisch)

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