Warner, B. v. Cummings, J.

• Court: Superior Court of Pennsylvania
• Decided: December 1, 2023
• Docket: 463 WDA 2023
• Status: Unpublished

Opinion

J-S33016-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

BREANNAH WARNER : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JAMES CUMMINGS, GERI LYNN : No. 463 WDA 2023 CUMMINGS, AND UNCHAINED : CANINES, LLC :

Appeal from the Order Entered March 28, 2023 In the Court of Common Pleas of Beaver County Civil Division at No(s): No. 10529-2022

BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED: December 1, 2023

In this dog bite case, Breannah Warner (Appellant) appeals from the

order entered in the Beaver County Court of Common Pleas, granting

summary judgment in favor of James Cummings, Geri Lynn Cummings, and

Unchained Canines, LLC (collectively, Appellees). Appellant argues the trial

court erred in finding there was no evidence Appellees knew their dog had

vicious tendencies. We affirm.

I. Facts & Procedural History

Appellant’s action stems from a dog bite incident in Beaver Falls, Beaver

County. The trial court summarized the underlying facts as follows:

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S33016-23

[Appellant] alleges that on approximately June 2, 2021, while [she] was performing the second day of yardwork at [Appellees’] residence, [Appellant] or one of her co-workers severed [Appellee’s] electric fence, exposing [Appellant] to [Appellees’] dog who was also in the yard. Afterwards, while [Appellant] was working, [Appellees’] dog attacked [Appellant] and bit her in the face. As a result of the bite, [Appellant] was diagnosed with:

[several injuries, including multiple penetrating and puncture wounds to the face; lacerations of the cheeks; and permanent scarring and disfigurement of the face].

[Appellant] alleges [Appellees] failed to warn [her] of the vicious nature of the dog, failed to warn [Appellant] that the dog would be in areas where she was working, and failed to fix the invisible fence that was severed on the property prior to . . . the attack.

Trial Ct. Op., 3/28/23, at 1-2 (footnotes omitted).

Appellant filed a complaint on April 28, 2022, raising three counts: (1)

negligence against Appellees James and Geri Lynn Cummings; (2) negligence

and vicarious liability against Unchained K9, LLC;1 and (3) negligence against

Unchained K9, LLC. Appellant asserted that on June 2, 2021, she was an

invitee at Appellants’ property in her capacity as a landscaper. See

1 Unchained K9, LLC, is owned and operated by Appellees and is in the business of installing and maintaining invisible fences for the purpose of confining dogs within a designated area. Appellant’s Complaint, 4/28/22, at ¶ 5.

In a brief filed in opposition to the summary judgment motion, Appellant stated she “will withdraw the negligence claim against” Unchained K9, LLC. Appellant’s Brief in Opposition to Appellee’s Motion for Summary Judgment, 3/8/23, at 8 (unpaginated). However, she did not formally file any such withdrawal, and the trial court’s summary judgment order included Unchained K9, LLC. See Order, 3/8/23.

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Appellant’s Complaint at ¶ 12. Appellant alleged that Appellees “were the

owners of and were in custody and control of a large (approximately 125-lb)

American Akita or Akita-type dog” that “was not at all times appropriately

confined, fenced in, or otherwise under the proper control of” Appellees. Id.

at ¶¶ 7, 11. Moreover, Appellant asserted Appellees knew of their dog’s

vicious and dangerous propensities, but did not fix the cut fence or warn her

of the vicious nature of their dog. Id. at ¶¶ 20, 23. Appellant concludes the

dog bite was a direct and proximate result of Appellees’ failure to take proper

steps to prevent it. See id. at ¶¶ 11, 39.

We note that in a deposition on November 22, 2022, Appellant further

stated the following: before commencing the yardwork, Appellee James told

her that the dog “couldn’t get down into the mulch bed” where Appellant was

working. N.T., Deposition of Appellant, 11/22/22, at 36—37. When the fence

was cut, an alarm sounded in Appellees’ house. Id. at 23. Appellee Geri Lynn

went outside and told Appellant that the fence was cut but did not warn

Appellant to “watch [her] back” or that the dog may be dangerous. Id. at 23,

37—38.

On February 21, 2023, Appellees filed a motion for summary judgment,

arguing there was “no genuine issue of material fact [that they had]

knowledge and or/notice of their animal’s aggressive, dangerous, and/or

violent behavior.” Appellees’ Motion for Summary Judgment, 2/21/23, at ¶

17.

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On March 8, 2023, Appellant filed a response and brief, arguing that

several factors contributed to Appellees’ knowledge of their dog’s vicious and

dangerous propensities. Appellant argued, without citation to authority, that

Akita dogs are a dangerous, “aggressive, territorial breed” and that “as owners

of a business involving fencing and containment of animals, [Appellees] have

a heightened knowledge of the dangerous breeds of dogs and the dangers

associated with not containing [them] properly especially when strangers will

be near the animal making unexpected movements.” Appellant’s Brief in

Opposition to Appellees’ Motion for Summary Judgment at 6, 8. Appellant

relied on the deposition of Appellee James to assert that Akita dogs generally

“easily become overheated,” and the deposition of Appellee Geri Lynn that the

temperature, on the day in question, “reach[ed] [80] degrees or higher.” Id.

at 2. Appellant characterized this weather as “an extremely hot environment.”

Id. at 6. Appellant additionally cited both Appellees’ depositions in stating the

dog suffered from, and was prescribed medication for, “chronic pain and

discomfort in his hind legs,” “an autoimmune condition in his hips,” allergies,

and arthritis. Id. at 2. Lastly, Appellant cited her own deposition in stating

the dog was “likely blind” in its left eye. Id.

The trial court did not hold a hearing, but on March 28, 2023, it granted

summary judgment in favor of Appellees, finding “the record lacks any

evidence that [Appellees] knew or should have known of their dog’s vicious

propensities.” Trial Ct. Op. at 5. Appellant filed a timely notice of appeal and

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subsequently complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.

II. Sufficiency of the Evidence for Summary Judgment

Appellant presents a single question for our review:

Whether the [trial] court erred when it granted Appellees’ Motion for Summary Judgment, finding that . . . Appellant had failed to adduce evidence from which a jury could reasonably conclude that Appellees knew or had reason to know of their dog’s vicious tendencies?

Appellant’s Brief at 5.

Appellant contends the trial court “erred in determining that there was

no evidence from which a reasonable jury could find that Appellees had

knowledge that their dog possessed vicious propensities such that they should

have taken action to prevent said tendencies from manifesting.” Appellant’s

Brief at 8. Specifically, Appellant asserts that Appellees “were fully cognizant

of 1) the dog’s aggressive nature as an Akita; 2) the dog’s discomfort during

hot summer months; 3) the dog’s multiple health conditions[;] and 4) the

presence of strangers on the property, all of which exacerbated the propensity

of the dog to violence.” Id. at 12. No relief is due.

When reviewing a grant of summary judgment, this Court’s standard of

review is de novo, and our scope of review is plenary. Pyeritz v.

Commonwealth, 32 A.3d 687, 692 (Pa. 2011). This Court has stated:

“[S]ummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” When considering a motion for summary

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judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment “where the right to such judgment is clear and free from all doubt.”

On appellate review, then,

an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals.

Summer v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citations

omitted & paragraph break added).

There are four elements to establish a negligence claim: “(1) a legally

recognized duty that the defendant conform to a standard of care;” (2) a

breach of that duty by the defendant; “(3) causation between the conduct and

the resulting injury; and (4) actual damage to the plaintiff.” Truax v.

Roulhac, 126 A.3d 991, 997 (Pa. Super. 2015) (en banc).

“A dog owner is subject to liability for negligence for injuries caused by

his dog when he knows or has reason to know that the dog has dangerous

propensities and yet fails to exercise reasonable care to secure the dog to

prevent it from injuring another.” Franciscus v. Sedvik, 135 A.3d 1092,

1094-95 (Pa. Super. 2016). This Court has explained:

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Before liability for the bite of an animal attaches, the defendant must know or have reason to know that the animal will display vicious tendencies, as set forth in the Restatement (Second) of Torts § 518, and [Andrews v. Smith, 188 A. 146 (Pa. 1936)]:

§ 518 Liability for Harm Done by Domestic Animals That Are Not Abnormally Dangerous.

Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if,

(a) he intentionally causes the animal to do the harm, or

(b) he is negligent in failing to prevent the harm.

Kinley v. Bierly, 876 A.2d 419, 422. (Pa. Super. 2005) (citations omitted).

Here, the trial court determined that “the record lacks any evidence that

[Appellees] had knowledge of the dog’s vicious tendencies prior to the attack,

and therefore, cannot be held liable under the law.” Trial Ct. Op. at 4. In

reaching its decision, the trial court did not specifically address Appellant’s

arguments concerning the dog’s alleged discomfort during the summer and

health conditions, nor the presence of strangers on the property.

Nevertheless, we observe that Appellant did not cite any expert or objective

evidence to support her theories that, on the day in question, the dog was

vicious due to the hot weather or pain and allergy medications or, in any

event, that such conditions caused the dog to have a vicious disposition and

bite her on that day. See Appellant’s Brief at 6. Appellant also failed to

establish Appellees’ purported knowledge of this particular dog’s vicious

propensities.

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III. Conclusion

Accordingly, we agree with the trial court that there was no genuine

issue of material fact to overcome the summary judgment motion. See

Summer, 997 A.2d at 1159. The record supports the trial court’s

determination that Appellant has identified no evidence creating a genuine

question of fact as to whether Appellees “knew or should have known of their

dog’s vicious propensities.” See Trial Ct. Op. at 5. Our review of Appellant’s

pleadings reveals no such evidence, and thus we affirm the trial court’s order

granting Appellees’ motion for summary judgment.

Order affirmed.

DATE: 12/1/2023

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