Stensrud v. Friedberg

• Court: District Court, D. Arizona
• Decided: March 31, 2023
• Docket: 4:22-cv-00062
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Betty Stensrud, No. CV-22-00062-TUC-JCH (BGM)

10 Plaintiff, ORDER

11 v.

12 Thomas Friedberg, et al.,

13 Defendants. 14 15 This is a dog-bite case. Before the Court are Plaintiff's Motion for Summary 16 Judgment, Doc. 40, and Magistrate Judge Bruce G. Macdonald's Report and 17 Recommendation ("R&R"). Doc. 79. Defendants are strictly liable for their dog's bite 18 unless Plaintiff provoked the dog. The parties dispute whether Plaintiff provoked the dog. 19 For that reason, the R&R recommends denying Plaintiff's Motion. The Court agrees. 20 I. Background 21 On April 11, 2021, Defendants' dog bit Plaintiff. Doc. 1-1 at 3; Doc. 16 at 2. On 22 February 9, 2022, Plaintiff filed a Complaint in Pima County Superior Court alleging 23 Defendants' negligence and strict liability for the bite. Doc. 1-1. Defendants removed to 24 federal court and answered. Docs. 1, 5. The undersigned referred the case to Judge 25 Macdonald for all pretrial proceedings and an R&R. Doc. 14. 26 On December 1, 2022, Plaintiff filed a "Motion for Summary Judgment," Doc. 40, 27 together with a statement of facts. Doc. 41. Plaintiff seeks summary judgment on 28 Defendants' provocation claim. Doc. 40 at 5. The Motion was fully briefed, Docs. 61, 62, 1 68, and the Court heard oral argument. Doc. 78. 2 On March 1, 2023, Judge Macdonald issued an R&R. Doc. 79. Judge Macdonald 3 recommends denying Plaintiff's Motion because the parties dispute whether Plaintiff 4 provoked Defendants' dog. Id. at 3–4. Neither party objected. See generally docket. 5 II. Legal Standards 6 A. R&R Review Standard 7 A district court reviews objected-to portions of an R&R de novo. 28 U.S.C. 8 § 636(b)(1); see also Fed. R. Civ. P. 72(b); United States v. Remsing, 874 F.2d 614, 617 9 (9th Cir. 1989). Failure to timely object may be considered a waiver of a party's right to 10 de novo consideration of the issues. United States v. Reyna-Tapia, 328 F.3d 1114, 1121– 11 22 (9th Cir. 2003) (en banc). 12 B. Summary Judgment Standard 13 Summary judgment is appropriate when the parties have no genuine dispute as to 14 any material fact. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 15 322–23 (1986). A dispute is genuine if a reasonable jury could return a verdict for the 16 nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986). A fact is 17 material if it might affect the outcome of the suit. Id. The nonmovant must "come 18 forward with specific facts showing that there is a genuine issue for trial." Matsushita 19 Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation 20 omitted); see Fed. R. Civ. P. 56(c)(1). The court must believe the nonmovant's evidence 21 and draw all inferences in the nonmovant's favor. Liberty Lobby, 477 U.S. at 255. 22 III. Undisputed Material Facts 23 Defendants' dog bit Plaintiff. Doc. 41 ¶ 6; Doc. 62 ¶ 6. 24 IV. Analysis 25 The Court agrees with the R&R that summary judgment is not appropriate on 26 Defendants' provocation defense. Arizona imposes strict liability for dog bites. A.R.S. 27 § 11-1020, -1025(A), -1001. The only defense is reasonable provocation. A.R.S. § 11- 28 1027; see also Litzkuhn v. Clark, 85 Ariz. 355, 360–61 (1959). Provocation means || "tormenting, attacking, or inciting a dog." A.R.S. § 11-1025(F)(3). Provocation "shall be 2|| determined by whether a reasonable person would expect that the conduct or 3 || circumstances would be likely to provoke a dog." A.R.S. § 11-1027. 4 Here, the parties disagree whether a reasonable person would expect □□□□□□□□□□□ 5 || dog to bite Plaintiff. Plaintiff asserts that "no reasonable person would expect that turning 6 || to walk away from a leashed dog[] would likely provoke [the] dog to attack and bite || them." Doc. 40 at 5. But Defendants assert that "it was reasonable for Plaintiff to know 8 || the dog would be agitated and fearful [after seeing two larger dogs charge it] and that 9|| [Plaintiff's] sudden movement of her leg toward the dog's face would provoke it." Doc. 10|| 61 at 14. The parties' dispute is genuine because a reasonable jury could choose to 11 || believe Defendants. Whether the dog was provoked is material to whether Defendants are strictly liable for the dog's bite. Plaintiff 1s therefore not entitled to summary judgment on 13} the provocation defense. 14], V. Order 15 Accordingly, 16 IT IS ORDERED ADOPTING IN FULL Judge Macdonald's R&R (Doc. 79). 17 IT IS FURTHER ORDERED DENYING Plaintiff's Motion (Doc. 40). 18 Dated this 30th day of March, 2023. 19 20 ‘

21 9 herb onorable John C. Hinderaker 22 United States District Judge 23 24 25 26 27 28

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