Mangino v. Cowher

13 Pa. D. & C.5th 427
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedJune 11, 2010
Docketno. 11194 of 2008, C.A.
StatusPublished
Cited by2 cases

This text of 13 Pa. D. & C.5th 427 (Mangino v. Cowher) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mangino v. Cowher, 13 Pa. D. & C.5th 427 (Pa. Super. Ct. 2010).

Opinion

PICCIONE, J.,

Before this court for disposition is defendants’ motion for summary judgment. The current action arises out of a bicycle accident that [429]*429occurred on May 17, 2007 at approximately 6:30 p.m. Plaintiff Robert F. Mangino Jr. alleges that he was riding his bicycle near property owned by defendants Katherine and Earl Cowher when a dog owned by defendants began charging from defendants property toward Mr. Mangino. In an effort to avoid the dog, Mr. Mangino pedaled faster and subsequently fell from the bicycle onto the pavement, resulting in severe injuries to Mr. Mangino.

As a result of the head trauma caused by the fall, Mr. Mangino suffered amnesia causing him to forget certain details regarding the accident and events occurring shortly thereafter. His last memory prior to awakening in the hospital was that the dog was within two or three feet of his right foot. Mr. Mangino does not remember the dog hitting the bicycle, nor does he remember speaking to paramedics after the accident. Other than Mr. Mangino, there are no known witnesses to the accident, as defendants were not home at the time.

On July 15,2008, plaintiffs Robert and Diana Mangino brought suit against defendants by filing a complaint containing claims of common-law negligence and negligence per se under 3 P.S. §§459-305 and 459-502-A. Following discovery, defendants filed the instant motion for summary judgment on January 20, 2010. This court held oral argument regarding defendants’ motion on April 26, 2010.

Under Pennsylvania law, the standard for summary judgment is set forth by Rule 1035.2 of the Pennsylvania Rules of Civil Procedure. The rule states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party [430]*430may move for summary judgment in whole or in part as a matter of law

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

The moving party bears the burden of proving that no genuine issue of material fact exists. Rush v. Philadelphia Newspapers Inc., 732 A.2d 648, 650 (Pa. Super. 1999). In determining whether summary judgment is appropriate, the trial court is required to view the record in a light most favorable to the non-moving party, and “all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party.” P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999) (citing Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994)). Atrial court should only grant a motion for summary judgment when the facts of record are so clear that reasonable minds could not disagree on the outcome. Basile v. H & R Block Inc., 563 Pa. 359, 364, 761 A.2d 1115, 1118 (2000) (citing Cochran v. GAF Corp., 542 Pa. 210, 215, 666 A.2d 245, 248 (1995). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and [431]*431to determine the truth of the matter. Keenheel v Pennsylvania Securities Commission, 134 Pa. Commw. 494, 504, 579 A.2d 1358, 1363 (1990).

“A proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury.” McCarthy v. Dan Lepore & Sons Co. Inc., 724 A.2d 938, 940 (Pa. Super. 1998). “[I]f a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action.” Basile v. H & R Block Inc., 777 A.2d 95, 100 (Pa. Super. 2001). Therefore, if a plaintiff fails to present sufficient evidence of any element of the cause of action, the defendant is entitled to judgment as a matter of law. Ertel v. Patriot-News Company, 544 Pa. 93, 101, 674 A.2d 1038, 1042 (1996).

In Counts I and II of the complaint, plaintiffs allege that defendants violated 3 P.S. §459-305 by permitting their dog to roam and by failing to restrain their dog. Plaintiffs also allege that defendants violated 3 P.S. §459-5 02-A by harboring what plaintiffs consider to be a dangerous dog. Plaintiffs claim that violations of these statutes constitute negligence per se.

“The concept of negligence per se establishes both duty and the required breach of duty where an individual violates an applicable statute, ordinance or regulation designed to prevent a public harm.” Cabiroy v. Scipione, [432]*432767 A.2d 1078, 1079 (Pa. Super. 2001). Having proven negligence per se, a plaintiff cannot recover unless it is demonstrated that the negligence was the proximate cause of the injury. J.E.J. v. Tri-County Big Brothers/Big Sisters Inc., 692 A.2d 582, 585 (Pa. Super. 1997) The violation of the statute must be shown to be a substantial factor in causing the injury. Gravlin v. Fredavid Builders and Developers, 450 Pa. Super. 655, 661, 677 A.2d 1235, 1238 (1996). “Whether a party’s conduct has been a substantial factor in causing injury to another is ordinarily a question of fact for the jury, and may be removed from the jury’s consideration only where it is clear that reasonable minds cannot differ on the issue.” Vernon v. Stash, 367 Pa. Super. 36, 46, 532 A.2d 441, 446 (1987).

3 P.S. §459-305 prohibits an owner of any dog from failing to keep the dog at all times either: “(1) confined within the premises of the owner; (2) firmly secured by means of a collar and chain or other device so that it cannot stray beyond the premises on which it is secured; or (3) under the reasonable control of some person[.]” 3 P.S. §459-305(a). This section of what is known as the “Dog Law” was enacted to protect against “personal injury, property damage and other hazards created by roving dogs.” Miller v. Hurst, 302 Pa. Super. 235, 243, 448 A.2d 614, 618 (1982) (overruled on other grounds).

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Bluebook (online)
13 Pa. D. & C.5th 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mangino-v-cowher-pactcompllawren-2010.