Friday, May 8, 2020

Various Claims in Dog Bite Case Allowed to Run Free

In the case of O’Mara-Conley v. Boudaher, No. CV-2019-11232 (C.P. North. Co. March 24, 2020 Morganelli, J.), the court overruled in part and sustained in part the Defendant’s Preliminary Objections filed in a dog bite case.

More specifically, the court overruled the Defendant’s Preliminary Objections to the Plaintiff’s claims for punitive damages but sustained the Defendant’s Preliminary Objections with respect to the Plaintiff’s claim of negligence per se based upon the Lease Law, 3 P.S§459-305.

However, the court also overruled the Defendant’s Preliminary Objections with respect to the Plaintiffs’ claim of negligence per se with respect to “The Dangerous Dog Law,” 3 P.S. §459-502A.

The court also overruled the Defendants’ Preliminary Objections to the Plaintiff’s claim for medical expenses/strict liability.

According to the Opinion, the minor Plaintiff was attacked by the Defendant’s pit bull or pit bull mix. 

On the issue of punitive damages, the Plaintiff relied upon claims that the Defendants harbored a dangerous dog and, therefore, violated the Dangerous Dog Law.

The Plaintiff additionally alleged indifference, along with allegations of willful, and/or reckless intentional conduct on the part of the Defendants.

In allowing the punitive damages claims to proceed based upon the allegations of willfulness, wantonness, or recklessness, this court fell in line with those other trial courts that have followed the Pennsylvania Superior Court case of Archbald v. Kimble, 971 A.2d 513, 519 (Pa. Super. 2009) appeal denied 989 A.2d 914 (Pa. 2010) in which that court held that, under Rule 1019(b) “[a]n example of a condition of the mind that may be averred generally is ‘wanton conduct’ and that [b]ecause recklessness is also known as ‘wanton and willful misconduct,’ ‘recklessness’ is a condition of the mind that may be averred generally.”

In addition to finding that the Plaintiff’s Complaint generally averred the necessary conditions of the mind required for an award of punitive damages, the court also pointed to the alleged facts that the Defendants owned a large pit bull/pit bull mix dog with an unknown temperament, that the dog had previously bitten another child, and that the dog routinely jumped at/on visitors to the Defendant’s property, all of which the Defendants were allegedly aware of.

The court noted that, accepting all of the allegations of the Plaintiff as set forth in the Complaint as required by the standard of review, the court could not conclude that it was free and clear from any doubt that the Plaintiff would be unable to prove their case for punitive damages. As such, this claim was allowed to proceed.

The court’s Opinion is also notable for its other analysis of the Lease Law in dog bite cases.

The court also notably allowed a claim for strict liability for medical expenses to proceed, which claim was based upon Article V-Offenses of Dogs, 3 P.S. §459-502(B). Under that section, it is provided that any cost to a victim for medical treatment resulted from a dog bite must be paid fully by the owner or keeper of the dog.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Neil O’Donnell of the Kingston, PA law firm of O’Donnell Law Offices for bringing this case to my attention.

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