Court Allows Punitive Damages Claims to Proceed in Dog Bite Case

In the case of Clifford v. Dickson, No. S-1799-25 (C.P. Schuylk. Co. Feb. 12, 2026 Burke, J.), the court addressed various issues raised by way of Preliminary Objections filed against a Complaint in a dog bite case.

Of note, the court rejected the Preliminary Objection filed by the Defendant relative to the Plaintiffs’ description of the Defendant’s dog as “vicious.” The court noted that it did not see any prejudice from the use of the term “vicious” at this early stage of the proceedings.  The court did note that the use of the term “vicious” may not prove to be admissible at trial.

With regards to the Preliminary Objections filed with regards to the Plaintiff’s claims of outrageous conduct and evil motive, as well as with respect to the request for punitive damages, the court found that the facts pled in the Complaint supported the claims and allegations in this regard.

Here, the court found that the conduct of the Defendant was allegedly more than mere or ordinary negligence. In the Complaint, there were allegations that the Defendant acted in an intentional, willful, wanton, or reckless manner. More specifically, the court noted that there were allegations that the Defendant not only allowed her two pitbulls and another large dog to be unleashed, unrestrained, and uncontrolled on the day of the accident, it was also alleged that the Defendant dog owner had allowed this to happen on prior occasions as well.

The court also pointed to the allegations that the Defendant had failed to vaccinate the dogs in question.

The court additionally noted that it would be premature to dismiss the Plaintiff’s request for punitive damages at the pleadings stage. Rather, based, in part, on the Superior Court's decision in the case of Monroe v. CBH2O, LP, 286 A.3d 785, 799-800 (Pa. Super. 2022), the court felt that it would be more appropriate for the Defendant to seek to attempt to have the punitive damages claims dismissed after the close of discovery by way of a Motion for Summary Judgment.

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


I send thanks to Attorney Thomas J. Newell, a plaintiff's attorney who exclusively represents dog attack victims, for bringing this decision to my attention.

Source of image:  Photo by Pozva on www.unsplash.com.

Plaintiff Knocked Into By Dogs in Dog Park Gets Knocked Out of Court

In the case of Bushner v. Nimeh, No. 2024-C-0616 (C.P. Leh. Co. 2025 Reichley, J.), the court granted the Defendant’s Motion for Summary Judgment in a case in which the Plaintiff was run into by two dogs in a dog park and allegedly sustained injuries. One of the dogs was a Great Dane and the other dog was a Labrador Retriever.

According to the Opinion, both dogs were wearing pronged collars and were on leashes at the park. At the Plaintiffs’ suggestion, after asking the Defendant dog owners if their two dogs were “good dogs,” all of the parties’ dogs were let off of their leashes and allowed to run and play with each other in the dog park.

The court noted that, at her deposition, the Plaintiff admitted that the dog at issue did not attack her. Also, when asked if there was anything she believed that the Defendants should have done differently before the dogs ran into her, the Plaintiff responded in the negative.

After discovery was completed, the Defendants filed their Motion for Summary Judgment at issue.

In addition to alleging negligence, the Plaintiffs asserted that, even though she invited the Defendants’ dogs to go unleashed, the Defendants still had a duty to warn the Plaintiff on whether the Defendants’ dogs would be controllable while unleashed and/or whether the dogs posed a serious threat to the safety of others in their vicinity.

The Plaintiffs further alleged that the Defendants knew that the dogs allegedly had dangerous propensities and that the dogs should not be allowed to be off-leash.  The Plaintiff based this allegation  on the fact that the Defendants knew that their dogs pulled on their leashes before and given that the Defendants used pronged collars on their dogs to help mitigate the pulling.

The court found that neither of these acts, in isolation or together, showed any tendency on the part of the Defendants’ dogs to do an act that might endanger the safety of the person and property of others. The court otherwise noted that the Plaintiff failed to produce any evidence to support allegations that the dogs in question had dangerous propensities of which the Defendants were aware.

The court also rejected the Plaintiff’s attempt to prove negligence under the Dog Law. The court noted that where proof of negligence rests upon a violation of the Dog Law, liability does not attach unless causation is also established. The court noted that the record was devoid of evidence to support a finding of negligence under the Dog Law.

Accordingly, the court rendered summary judgment in favor of the Defendants dog owners.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” www.Law.com (Aug. 7, 2025).

Source of image:  Photo by Rui Alves on www.unsplash.com.

Commonwealth Court Rules That Trial Court Erred in Giving Comparative Negligence Jury Instruction in Dog Bite Case

In its decision, which was listed as “Opinion not Reported,” (Why write and Opinion if your not going to report it?) in the case of Coffin v. Carbon County Animal Shelter, No. 1516 C.D. 2023 (Pa. Cmwlth. July 22, 2025 McCullough, J., Cannon, J., and Hannah Leavitt, S.J.) (Mem. Op. by Leavitt, S.J.), the Commonwealth Court of Pennsylvania overruled a trial court Order denying a Plaintiff’s Motion for a New Trial in a dog bite case.

According to the Opinion, the Plaintiff arrived at an animal shelter. While there, the Plaintiff was attacked by a dog. She was bitten on her leg and was also caused to fall. In addition to the suffering the dog bites, the Plaintiff broke both of her ankles in the fall and required surgery on one of her ankles.

After a trial, a jury entered a verdict in favor of the Plaintiff and awarded $40,000.00 but also assessed 50% of comparative negligence against the Plaintiff.

The Plaintiffs filed a post-trial motion asserting that the Defendant did not prove that the Plaintiff was negligent in any way.  The Plaintiff argued that, as such, the jury should not have been provided with jury instructions on comparative negligence. The trial court denied the Plaintiff’s Motion for a New Trial and the case was appealed to the Commonwealth Court.

The Commonwealth Court reversed and remanded and held that the trial court erred in instructing the jury on comparative negligence where there was no evidence that the Plaintiff had acted negligently.  The appellate court noted that the Plaintiff did not act negligently in allegedly failing to distance herself from a leashed dog that merely jumped towards the Plaintiff as it approached, only to then attack the Plaintiff unexpectedly from behind thereafter.

The court rejected the defense argument that the Plaintiff was negligent in allowing the dog to get close to her, which allowed the dog to attack. 

The appellate court noted that, while the Plaintiff may have understood the risks posed by the dog as involving the possibility that the dog would jump at her again, there was no indication for the Plaintiff that a vicious attack would possibly occur. The court noted that the Plaintiff’s previous brief encounter with the dog was not sufficient to put the Plaintiff on notice of the dog’s vicious propensities. The court noted that the previous jump was not, according to the evidence, accompanied by a growl, a snap, or any attempt by the dog to harm the Plaintiff.

Accordingly, the court found that there was no evidence of any negligence on the part of the Plaintiff relative to the dog getting close to the Plaintiff a second time. Therefore, there was no support for the trial court to have given the jury the Comparative Negligence jury instruction.

The case was remanded back for the entry of an Order awarding the Plaintiff the total damages awarded by the jury at trial.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (Aug. 19, 2025).

Source of image:  Photo by Pixabay on www.pexels.com.

Monroe County Judge Awards Dog Attack Plaintiff Over $500,000 After Entry of Default Judgment

Monroe County Court of Common Pleas

In the case of Porter v. Voelkl, No. 2341-CV-2022 (C.P. Monroe Co. April 26, 2024 Zulick, J.), the court entered an award of damages in a dog bite case in favor of the Plaintiff after the Plaintiff had secured a default judgment against the dog’s owners.

Based upon the evidence presented, the court awarded the Plaintiff $502,400.00.

According to the Opinion, the Plaintiff had been knocked to the ground and injured when a loose dog attacked the Plaintiff’s dog in the parking lot of the Plaintiff's veterinarian.  As the dog fight occurred, the leash of one of the dogs wrapped around the Plaintiff and the Plaintiff was dragged around the parking lot by the leash.  The Plaintiff suffered injuries to his knee and shoulder.

The Plaintiff sought treatment for injuries to his knee and shoulder, including physical therapy, surgery and other treatment modalities. The Plaintiff also presented claims for economic damages.

After the trial, the court entered an award in favor of the Plaintiff consisting of $200,000.00 for pain and suffering, $64,800.00 for loss of earnings or earning capacity, and $237,600.00 for loss of future earnings or earning capacity.

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


Source: “The Legal Intelligencer Common Pleas Case Alert,” Law.com (June 26, 2024).

Court Rules That But For Plaintiff Approaching and Petting Dog Uninvited, She Never Would Have Gotten Hurt

In the case of Hendrix v. Freemer, No. A.D. 53 of 2022 (C.P. Forest Co. Oct. 27, 2023 Skerda, P.J.), the court granted summary judgment in a dog bite case.

According to the Opinion, the Defendants brought their dog "Oliver," a King Charles Spaniel, to a market village and had their dog on a leash. The Plaintiff came up to pet the dog and, when the Plaintiff squatted down in front of the dog, the dog bit the Plaintiff on the face. It was noted that the Plaintiff did not ask the permission of the dog owners to pet the dog.

The court ruled that, had the Plaintiff not approached the dog uninvited and attempted to pet the dog after squatting down, the Plaintiff never would have been injured.  The court stated otherwise that the reason the Plaintiff got hurt is because she chose to approach the dog, without permission or ample notice to the dog owners, and because she chose to squat down and get close to the dog.  

The court reviewed the law of Pennsylvania that requires a Plaintiff to prove that the dog owner knew or should have known of the possible dangerous or vicious propensities of the dog, and found that the Plaintiff did not produce any evidence to meet the elements of the cause of action in this case.

As such, summary judgment was granted.

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


I send thanks to Attorney William Wagner of the Erie, PA law firm of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott, LLC for bringing this case to my attention.

(570) 319-5899

dancummins@CumminsLaw.net

Summary Judgment Granted Where No Evidence Presented That Dog Owners Knew of Dangerous Propensities of Dog (Or That Dog Had Any)

In the case non-precedential decision by the Pennsylvania Superior Court in the case of Warner v. Cummings, No. 463 WDA 2023 (Pa. Super. Dec. 1, 2023 Bender, P.J.E., McCaffery, J., and Stevens, P.J.E.) (Mem. Op. by McCaffery, J.), the court affirmed a summary judgment entered in favor of a dog owner in a dog bite case.

At the lower court level, the court had entered summary judgment in favor of the dog owner after finding that there was no evidence that the Defendant dog owners had any knowledge that there dog allegedly had prior vicious propensities.

In so ruling, the trial court had rejected the Plaintiff’s argument, without citation to authority, that the type of dog involved in this case, that is, Akita dogs, are a dangerous, aggressive, territorially breed such that owners should have a heightened knowledge of danger.

Here, the appellate court agreed with the trial court that the record lacked any evidence that the Defendant had knowledge of the dog’s alleged vicious tendencies prior to the alleged incident. In so ruling, the appellate court also ruled that the Plaintiff did not cite to any expert or objective evidence to support her theories with respect to the dog in question.

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


I send thanks to Attorney Thomas McDonnell and Attorney Kasey Cahill from the law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

NEED HELP BRINGING YOUR DOG BITE CASE TO A CLOSE?

PLEASE CONSIDER CUMMINS MEDIATION SERVICES

 (570) 319-5899

dancummins@CumminsLaw.net

Conviction of Dog Law Violations at Summary Appeal After District Magistrate Estops Dog Owner From Denying Liability At Subsequent Personal Injury Trial

In the case of Walsh v. Toth, No. 22-CV-96 (C. P. Lacka. Co. Oct. 6, 2023 Nealon, J.), the court addressed a Plaintiff’s Motion for Partial Summary Judgment in a dog bite case.

After reviewing the case before him, Judge Nealon granted the Plaintiff’s Motion for Partial Summary Judgment against the dog owner to the extent that the Defendant, Justin Toth, was collaterally estopped from presenting evidence challenging the adjudicative findings from a previous District Magistrate hearing and/or Summary Appeal Hearing that his unconfined and unrestrained dog entered the Plaintiff’s premises and knocked her down the basement stairs. 

On this basis, the court found that the Defendant, Justin Toth, was negligent per se based upon his conviction for violating 3 P.S. §459-305(a).

The court ruled that, with respect to this particular Defendant, the jury would only be deciding the issue of damages recoverable by the Plaintiff for her injuries from the incident.

In so ruling, the court addressed whether the findings in companion criminal case collaterally estopped the Defendant dog owner from challenging liability in the civil case.

According to the Opinion, the dog’s owner was found guilty of violating §305(a) of the Dog Law, 3 P.S. §459-305(a), by a magisterial district judge. The dog owner appealed that summary offense conviction to the Court of Common Pleas for a de novo trial.

Based upon the specific defenses raised by the owner during that trial, another judge of the court of Common Pleas of Lackawanna County held that the owner’s unconfined and unsecured dog entered the Plaintiff’s home and knocked her down the steps, and that the dog owner was, therefore, found to be guilty beyond a reasonable doubt of violating the above-referenced section of the dog law.

In this companion civil action against the dog’s owner, the Plaintiff filed a Motion for Partial Summary Judgment seeking a determination that the dog’s owner was collaterally estopped from presenting evidence contrary to the Common Pleas judge’s findings. The Plaintiff also sought a ruling that the dog owner should be considered to be negligent per se based upon his conviction for a violation of the dog law.

Judge Terrence R. Nealon
Lackawanna County

According to Judge Nealon’s review of Pennsylvania law, a summary offense conviction collaterally estops a defendant from denying his adjudicated acts in a later civil suit if the defendant appeals his conviction by a magisterial district judge, participates in a de novo trial hearing before a Common Pleas judge, is afforded a full and fair opportunity to litigate his issues, and is found guilty beyond a reasonable doubt.

As such, based upon these circumstances in this case, the court found that the dog owner in this case was estopped from denying that his unrestrained dog entered the Plaintiff’s home and knocked down a staircase or that he was guilty of violating the dog law. 

The court additionally noted that, since an established violation of this portion of the Dog Law constitutes negligence per se, the only issues to be addressed by a jury in the personal injury trial with regards to that dog owner were the damages be recovered by the Plaintiff for her alleged injuries. 

Accordingly, the Plaintiff’s Motion for Partial Summary Judgment was granted to the extent that the dog’s owner was found to be estopped from presenting any evidence that his unrestricted and unleashed dog entered the Plaintiff’s premises and knocked her down a flight of stairs.

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

Leash That Puppy: Violation of Dog Law Amounts To Negligence Per Se, But Plaintiff Must Still Prove Causation

In the case of Goodell v. Stroble, No. 22-00906 (C.P. Lyc. Co. July 26, 2023 Carlucci, J.), the court granted in part and denied in part a Plaintiff’s Motion for Summary Judgment in a dog bite case.

According to the Opinion, the Defendant dog owner attended an estate sale. The subject incident occurred when the Defendant was putting her purchases in her vehicle and her dog jumped out of the vehicle and allegedly attacked the nearby Plaintiff.

The Plaintiff filed a Motion for Summary Judgment arguing that the Defendant’s failure to restrain her dog on a leash or within the vehicle violated the Dog Law, making the Defendant negligent as a matter of law on a negligence per se basis.

While the court agreed that Pennsylvania law requires owners to control their dogs and that a deliberate violation of the Dog Law does constitute negligence per se, claims of absolute liability as a result can still be defended if a Defendant provides an appropriate defense.

In this regard, the court noted that there still remained the crucial question as to whether or not the dog owner’s negligence was the proximate cause of the Plaintiff’s injuries. The court explained that proximate cause refers to a direct link between a Defendant’s actions and a Plaintiff’s harm.

The court emphasized that the question of proximate cause generally remains a question to be decided by a jury.

As such, the court granted the Plaintiff’s Motion for Summary Judgment in part and denied it in part. More specifically, the court ruled that the Defendant’s conduct in this case was negligent per se under the Dog Law violation. However, the motion was denied in part on the question of proximate causation.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 15, 2023).

Source of image:  Photo by Blue Bird on www.pexels.com.

Plaintiff Granted Leave to Amend To Try To Plead Punitive Damages in a Dog Bite Case

In the case of Jennings v. Lycoming County SPCA, No. CV23-00512 (C.P. Lyc. Co. July 20, 2023 Carlucci, J.), the court struck a Plaintiff’s claim for punitive damages in a dog bite but allowed the Plaintiff the right to amend.

According to the Opinion, the Plaintiff was in the lobby of a local SPCA when she was allegedly attacked by a Terrier named “Peanut.” 

The Plaintiff alleged that the dog had been previously adopted by a family, but returned to the SPCA, after biting a child in that family. The Plaintiff also alleged that the dog previously bit a SPCA employee and that, therefore, the SPCA had actual knowledge that the dog was dangerous.

In his Opinion, Judge Carlucci noted that he was not satisfied that the facts alleged in the Plaintiff's Amended Complaint were sufficient to show that the Defendant's conduct demonstrated a reckless indifference to the interests of others.  However, as noted, the Court granted the Plaintiff leave to try again in another Amended Complaint.    

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 15, 2023).

Photo by Victor Grabarczyk on www.unsplash.com.

ARTICLE: A Primer on the Law of Liability of Homeowners' and Condominium Associations

Here is a LINK to an article of mine that was recently published in the July/August 2023 edition of the Pennsylvania Lawyer Magazine.  The article is entitled "A Primer on the Law of Liability of Homeowners' and Condominium Associations."

Given the dearth of case law and commentary on this area of the law, it is hoped that this article may provide background on how to approach liability matters involving homeowners and condominium associations and/or provide a jumpstart for any research you may have to complete on issues presented in this particular area of civil liability law.

I send thanks to the Pennsylvania Bar Association and to Patricia Graybill, the editor of the Pennsylvania Bar Association, for selecting this article for publication.

Summary Judgment Motion by Out-of-Possession Landlord Defendants Denied in Dog Bite Case

In the case of Eggleston v. Richards, No. 10753 of 2019, C.A. (C.P. Lawr. Co. Sept. 29, 2022 Motto, P.J.), the court granted in part and denied in part a Motion for Summary Judgment in a dog bite case. As part of its decision, the court struck the Plaintiff’s claim for punitive damages.

According to the Opinion, the Defendants were out-of-possession landlords who asserted that they could not be held liable for the injuries sustained by the minor Plaintiff because the Defendants did not have actual knowledge of the dog’s alleged dangerous propensities. They also moved for summary judgment on the Plaintiff’s claims for punitive damages as there was, according to the defense, no evidence of any evil motive or outrageous conduct.

The dog involved was a pit bull named “Smoke” who was owned by a tenant of the Defendants. According to the Opinion, the landlord Defendants were aware that the dog was on the premises.

With regard to the subject incident, the minor Plaintiff was walking in an alley near the property when the pit bull chased the minor in to the woods while biting the minor’s arm and leg, requiring stitches and other medical care for the Plaintiff thereafter.

The court reviewed the law of Pennsylvania regarding the liability of landlords out-of-possession in dog bite cases.

The court found that there were issues of material fact that existed as to whether the landlord out-of-possession had knowledge of the dog’s alleged aggressiveness or propensity to viciousness.  As such, the summary judgment motion was denied in this regard.

According to the record before the court, the landlord visited the premises on numerous occasions and was able to view the dog’s behavior. 

It was noted that, during one incident, when the landlord approached the residence, the dog ran towards the door and was barking, which caused the landlord to step backwards. It was also noted that the tenant would keep the dog away from the landlord for the landlord’s safety whenever the landlord visited the premises. 

There was also evidence that there was a prior incident involving the same dog. Whether or not the landlord Defendant was aware of that prior incident, the court noted that it was otherwise admitted that the landlord and the tenant had numerous conversations in general about the dog.

With regards to the court’s granting of summary judgment relative to the punitive damages claim given the absence of any evidence of evil motive or outrageous conduct, the court noted that the Plaintiff had acknowledged that there was insufficient evidence to allow for an award of punitive damages. As such, the Plaintiff had stipulated that the claim for punitive damages should be stricken.

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


I send thanks to Attorney Dale Larrimore of the Philadelphia law firm of Larrymore and Farnish, LLP, for bringing this case to my attention.

Allegations of Recklessness and Claims of Punitive Damages Allowed to Proceed in a Dog Bite Case

In the case of Walsh v. Toth, No. 22-CV-96 (C.P. Lacka. Co. June 28, 2022 Nealon, J.), the court addressed Preliminary Objections in the form of a demurrer asserted by dog owners in a case in which the Plaintiff alleged that she was attacked and injured by her neighbors’ dog when she [the Plaintiff] opened the side door of her home.

The Plaintiff filed a Complaint seeking compensatory damages along with punitive damages as a result of the Defendant’s alleged negligence and recklessness.

More specifically, the Plaintiff asserted that the dog owners knew of the “dangerous, aggressive, and fearsome” dog’s “dangerous propensities” prior to the incident. 

The Plaintiff also alleged that the dog owners were aware of other neighbors’ concerns regarding the dog. 

The Plaintiff additionally asserted that the owners of the dog negligently and recklessness permitted the dog to run unattended and unleashed throughout the neighborhood with reckless disregard for others. 

The Plaintiff also alleged that the Defendants violated certain provisions of the Dog Law, in part, by failing to keep the dog confined or firmly secured within the dog owner’s premises and/or by harboring a dangerous dog with a propensity to attack people without provocation. 

In this decision, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled that the Plaintiff’s claims under the Dog Law were permissible. The court additionally noted that, viewing the Complaint as a whole, the Plaintiff had provided the dog owners with adequate notice of the claims against which the Defendants must defend.

Furthermore, Judge Nealon ruled, as he has on numerous previous occasions, that, since the allegations of recklessness may be averred generally under Pa. R.C.P. 1019(b), and given that the related request for punitive damages is not a “cause of action” subject to the factual specificity requirements in Pa.R.C.P. 1019(a), the Defendant dog owners were not entitled to have the recklessness allegations and the demand for punitive damages stricken.

As such, the court overruled the Defendant’s Preliminary Objections.


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

Dog Bite Case Allowed To Go Beyond Summary Judgment Stage

In the case of Wentz v. Blakeslee, No. 2646-CV-2020 (C.P. Monroe Co. Feb. 7, 2022 Williamson, J.), the court denied a Motion for Summary Judgment in an alleged dog bite case given the presence of material issues of fact.

According to the Opinion, the Plaintiffs and their minor son were guests at the home of a friend. While playing outside, the minor and other children went over to a neighboring residence to say goodbye to a dog that they knew. Apparently, the dog was ill and was set to be put down the next day.

The Plaintiff alleged that, when the minor went into the room where the dog was resting, the dog allegedly attacked and bit the child after he touched the dog.

In response to the Defendant’s Motion for Summary Judgment, the court found that there were material issues of fact regarding whether the Defendant had prior knowledge of his dog’s alleged dangerous propensities, whether the minor Plaintiff provoked the dog, and whether the Defendant could have done anything to prevent the child from having contact with the dog.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 15, 2022).

Photo by Andrew Neel on www.pexels.com.

Defendant Given Another Chance to Allege More Factually Specific New Matter Defenses

In the case of J.C.F., a minor v. Brenneman, No. 2021-SU-001714 (C.P. York Co. March 4, 2022 Strong, J.), a court addressed Preliminary Objections filed by a Plaintiff against a Defendant’s Amended Answer and New Matter. According to the Opinion, this matter involved an alleged dog bite incident.

In the Plaintiff’s Preliminary Objections to the Defendant’s New Matter, the Plaintiff alleged a lack of factual specificity in violation of the Rules of Civil Procedure as well as a lack of legal sufficiency.

The Plaintiff attacked the allegations in the Defendant’s New Matter in which the Defendants had asserted that the Plaintiff’s injuries and/or damages may have been caused in whole or in part by the Plaintiff’s own conduct when the Plaintiff had interacted with the dog.  The Plaintiff also attacked allegations by the Defendant that the Plaintiff may have assumed the risk of injuries and/or that the Plaintiff failed to mitigate any alleged injuries by not following medical advice.

After reviewing the pleadings, the court found that the Defendants failed to provide sufficient factual specificity in support of the defenses raised in the Defendant's New Matter. The court noted that the conclusory paragraphs asserted by the Defendant did not enable the Plaintiff to prepare their case in opposition to the defenses raised.

In striking the new matter allegations regarding contributory negligence and assumption of the risk, the court noted that, under Pa. R.C.P. 1030(b), it is provided that the affirmative defenses of assumption of the risk and contributory negligence need not be pled.  As such, the court noted that the Defendant did not need to restate these claims in any amended pleading but that, if they chose to do so, the Defendants were required to fully conform to the requirement under Pa. R.C.P. 1019(a) of providing sufficient factual specificity in support of such pleadings.

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


I send thanks to Attorney Thomas J. Newell of Newell Law in Perkasie, PA for bringing this case to my attention.

Preliminary Objections by Out-of-Possession Landlord Sustained in Part and Overruled in Part in Dog Bite Case

In the case of Rodgers v. Guerrieri, No. 1526 of 2020 G.D. (C.P. Fayette Co. April 1, 2021 Vernon, J.), the court granted an out-of-possession landlord’s Preliminary Objections to a Plaintiff’s dog bite Complaint. However, the right to amend was granted to the Plaintiff.

According to the Opinion, a minor Plaintiff was attacked by a dog on the premises. In addition to suing the owners of the dog, the Plaintiffs also sued the out-of-possession landlord Defendant.

The out-of-possession landlord Defendant filed Preliminary Objections on various grounds.

The court sustained the landlord Defendant’s Preliminary Objections with respect to the claims of negligence given that the Plaintiff only utilized conclusory allegations.

However, the court denied the Motion of the out-of-possession landlord Defendant to strike the claim for punitive damages. While the court found that the allegations of punitive damages set forth under a separate count was procedurally improper, the court noted that, if the Plaintiff included allegations of outrageous conduct or reckless indifference, a punitive damages claim would be pursued under the facts presented.

The court noted that, where an out-of-possession landlord had knowledge of the presence of a dangerous animal on the premises and had the right to control or remove the animal by retaking possession of the premises, the landlord could be held liable for injuries caused by the animal.

As noted above, the Preliminary Objections of the landlord Defendant sustained but the Plaintiff was allowed to file an Amended Complaint.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 27, 2021).

Source of Image: Photo by Julissa Helmuth from Pexels.com.

Summary Judgment Granted in Dog Bite Case Due To Lack of Proof of Prior Vicious Propensities

In the case of MR v. Bunting, No. 6856-CV-2019 (C.P. Monroe Co. June 8, 2021 Williamson, J.), the court granted summary judgment in favor of the Defendants on the Plaintiff’s negligence per se and negligence claims arising out of a dog bite incident. The court also granted summary judgment on the claim for punitive damages.

According to the Opinion that the minor Plaintiff was allegedly bitten by a dog at a birthday party. There was an allegation that, following the incident, the dog owner allegedly told the guardian of the minor that the dog had bitten someone before.

After the case proceeded through discovery, the dog owner filed a Motion for Summary Judgment. 

With regards to the allegations that the dog owner had violated the Pennsylvania Dangerous Dog Law and was, therefore, negligent per se, the court found no evidence in the record that the law had been violated under the facts presented. 

The court noted that the fact that the dog owner allegedly mentioned that the dog had bitten someone in the past was not sufficient in and of itself. Rather, Judge Williamson noted that the evidence had to show that the dog had previously caused severe injury without provocation and that there was no evidence of this in the record.

The court also noted that liability only existed under theory of negligence per se if the owner knew or had reason to know of the animal’s dangerous propensities. Judge Williamson stated that there was no evidence in the record regarding the nature and circumstances of any alleged prior bite.

Although there was evidence that the dog would growl in the past, the record revealed that this behavior was more consistent with play growling, rather than aggressive growling. The court found that the Plaintiff did not provide any evidence that the dog had vicious tendencies.

As such, summary judgment was granted.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 27, 2021).

Source of image (not of the dog in question):  Photo by Karsten Winegeart on unsplash.com.

Negligence Per Se and Punitive Damages Claims Allowed to Proceed in Dog Bite Case Based on Violation of The Rabies Act

In the case of Philips v. Horvath, No. 536-CV-2021 (C.P. Monroe Co. May 14, 2021 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas address Preliminary Objections filed by a Defendant against a Plaintiff dog bite Complaint on the issues of punitive damages.

The Plaintiff alleged that he was attacked by the Defendant’s dog, as a result of which the Plaintiff had to seek out treatment, including receiving six (6) rabies injections.

The Defendants filed Preliminary Objections, in part, against the Plaintiff’s claims of negligence per se based upon an allegation that the facts confirmed a violation of the Pennsylvania Rabies Control Act. The Defendant filed a Preliminary Objection stating that this claims should be dismissed on the basis that the Plaintiffs failed to allege an injury that was proximately related to that alleged violation of that Act.

The Defendants claimed that the Plaintiff has failed to show that the failure on the part of the Plaintiff to vaccinate their dog from rabies resulted in injuries to the Plaintiff. The Plaintiff countered with the argument that part of the alleged injuries sustained involving the Plaintiff having received rabies shots as a result of the bite, which resulted in thousands of dollars’ worth of medical records as well as emotional distress related to the fear of contracting rabies.

Judge Williamson sided with the Plaintiff. The court found that the Plaintiff was not arguing that the dog bite itself was negligence per se but rather the failure to the Defendants to vaccinate the dog and with respect to the separate injuries that resulted to the Plaintiff in addition to the dog bite itself. 

More specifically, the Plaintiff not only alleged that he sustained a laceration from the bite by the Defendants’ dog, but also had to receive a total of six (6) injections in order to be sure that he would not contract rabies. The Plaintiff additionally claims a monetary loss due to the medical bills required to be paid for those injections. The court also reiterated the Plaintiff alleged emotional damages due to the fear that he might contract rabies.

Judge Williamson noted that the Plaintiff was not arguing that ‘but for the Defendants’ failure to follow the act he would not have been bitten,’ but rather, the Plaintiff was arguing that 'but for the Act not be followed by the Defendants, the Plaintiff would not have had to receive six (6) injections to prevent a possible rabies exposure, sustain a monetary loss associated with those injections, and would not have sustained emotional distress from having to worry about contracting rabies.'

As such, the court denied Defendants’ Preliminary Objections.

Notably, the court also found that the facts alleged were sufficient to support the Plaintiff’s claims for punitive damages. The court found facts in the Complaint that supported claims of an outrageous act and/or recklessness.

In particular, the court noted that the Plaintiff alleged that the incident occurred due to the Defendants’ failure to restrain their pit bull or to close him in another room in order to guarantee the safety of the Plaintiff. The court also noted that the Defendants had failed throughout the dog’s entire life to get it vaccinated for rabies. Judge Williamson additionally noted that the record revealed that the Defendants had direct knowledge that the dog was not vaccinated as they had secured the dog as a puppy and was informed at that time that the dog needed to be vaccinated but the Defendants failed to do so.

The court found that the nature of these alleged acts or omissions could be construed as a reckless disregard for the safety of others and could be considered outrageous in the context of a claim for punitive damages.

As such, the Defendants’ demurrer asserted against the punitive damages claim was overruled.

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

I send thanks to Attorney Thomas J. Newell of Newell Law for bringing this case to my attention.

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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.

Judge Nealon Addresses Potential Liability of Out-of-Possession Landlord in a Dog Bite Case

In the case of Vicki v. Altuner, No. 17-CV-3602 (C.P. Lacka. Co. March 12, 2020 Nealon, J.), the court addressed issues of liability with respect to a dog’s owner and an out-of-possession landlord in a case where a jogger was allegedly attacked and bitten by unrestrained pitbulls.

According to the Opinion, there was evidence in the case that the landlord had prior knowledge that the dog had bitten and attacked the landlord’s handyman twenty (20) days since the incident.

The out-of-possession landlord Defendant filed a Motion for Summary Judgment asserting that she did not owe any duty of care to the jogger since she did not have any prior knowledge as to the pitbulls’ dangerous propensities. In the alternative, the out-of-possession landlord asserted that she cannot be found to be breached any duty given that she had already initiated an eviction proceeding against the owner for non-payment of rent at the time the tenant’s dog attacked the jogger. 

The Motion for Summary Judgment was denied as the court found that there were issues of fact on the liability questions presented.

Judge Nealon noted that, even though the landlord had already begun eviction proceedings, the landlord also had other avenues available to remove the dogs from the premises after the prior attack upon the handyman, such as seeking immediate injunctive relief or the intervention of a local animal control authority in order to have the dogs removed. Given this issue, and other issues noted in the Opinion, the summary judgment was denied. 

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

ARTICLE: PREMISES LIABILITY UPDATE

Here is a copy of an article of mine that was published in the January, 2020 edition of Counterpoint, the official publication of the Pennsylvania Defense Institute. 

A copy of any of the opinions noted can be secured by typing the case name into the Search Box in the upper right hand corner of the Tort Talk Blog at www.TortTalk.com.  This will take you to the Tort Talk post(s) that review the case searched in which you will find a Link to the Opinion.

PREMISES LIABILITY UPDATE

By

Daniel E. Cummins

Daniel E. Cummins is the managing partner of the Clarks Summit, PA law firm of Cummins Law. He is also the writer of the Tort Talk Blog and provides mediation services through Cummins Mediation.

Dog Bite

In the case of Roegner v. Steezar, No. 2019-CV-929 (C.P. Lacka. Co. Sept. 6, 2019 Nealon, J.), the court addressed Preliminary Objections filed by a dog owner in a dog bite case in which the Defendant filed a demurrer seeking to dismiss the action on the grounds that the allegations of the Complaint were legally insufficient to state a claim of negligence against the dog owner. 

According to the Opinion, the Plaintiffs were the guests at the property of the Defendants, Joseph Steezar and Maryellen Steezar, when the Plaintiff was suddenly attacked by a pit bull that was owned by Defendant, Ryan Steezar.

The Plaintiffs filed a premises liability claim against the Steezars and further asserted that Ryan Steezar engaged in negligent conduct, careless conduct, gross, wanton, and reckless conduct for failing to adequately control the pit bull when he knew or should have known that the dog had a tendency to attack and had dangerous propensities. The Plaintiff additionally alleged that Ryan Steezar had violated the dog law by failing to properly confine, secure or control his dog and/or by harboring a dangerous animal. 

The Defendant dog owner filed a demurrer asserting that Pennsylvania law establishes that no absolute liability may be imposed upon a dog owner for injuries caused by dogs. Rather, proof of the owner’s negligence is required, such as showing that the owner had prior knowledge of the dog’s vicious propensities. 

The Defendant asserted a demurrer indicating that the Plaintiff’s Complaint contained no allegations which would allow for the imposition of liability under Pennsylvania law for the Plaintiff’s alleged injuries. 

The court agreed with the Defendant that the mere ownership of a dog does not subject a dog owner to absolute liability for injuries caused by the dog. 

Judge Nealon referred to the settled law that provides that, for a victim of a dog bit to establish negligence on the part of the dog’s owner, the victim must prove that (1) the dog had dangerous propensities; (2) the owner knew, or had reason to know, that the dog had those dangerous propensities; and (3) the owner failed to exercise reasonable care to secure or control the dog so as to prevent it from injuring another person. 

The court additionally stated that a dog’s dangerous propensity is determined by the dog’s behavior rather than its breed. It was also noted that a large overly-friendly dog that jumps on to people may be considered to be judged as dangerous as a vicious dog. 

Under Pennsylvania law, there is no distinction between an animal that is dangerous and viciousness and one that this merely dangerous from playfulness. 

Accepting the Plaintiff’s allegations in the Complaint as true as required by the standard of review for a demurrer, the court found that Plaintiff had stated a cognizable cause of action in negligence against the dog owner. 

As such, the demurrer was denied and the court suggested that the Defendant could revisit the issue once discovery is completed.

Trivial Defect Doctrine

In the case of McKenzie v. Wal-Mart, No. 1540-CV-2018 (C.P. Monroe Co. Oct. 18, 2019 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted a Defendant store’s Motion for Summary Judgment in a trip and fall case.

According to the Opinion, during the afternoon hours of October 3, 2017, the Plaintiff was walking from his vehicle to the store when he tripped and fell in the parking lot due to an alleged defect in the seam between the sidewalk and a raised curb. The alleged defect was a gap that was estimated to be somewhere between one and a quarter inches wide, one and a half inches deep, and running the length of the sidewalk.

The defense filed a Motion for Summary Judgment arguing that the Plaintiff was unable to show that there was any defeat to the walking surface or that any alleged defect that was allegedly present was a trivial defect.

In response, the Plaintiff asserted that the triviality of a defect is a question of fact that should be put to the jury.

Judge Williamson pointed to Pennsylvania cases that reviewed the trivial defect doctrine and in which it had been held that an elevation, depression, or irregularity in a sidewalk may be so trivial that the court, as a matter of law, is bound to hold that there is no negligence in permitting it to exist. He also noted that the courts have held that there is no definite or mathematical rule that can be laid down as to the depth or size off a sidewalk depression necessary to give rise to liability on a landowner.

After reviewing prior decisions out of Monroe County involving similar facts, Judge Williamson noted in this McKenzie case that, reviewing the evidence in a light most favorable to the Plaintiff, summary judgment was appropriate as the circumstances surrounding the alleged defect did not rise to support any finding of negligence. The court noted that the gap at issue was clearly visible, not overly large, and appeared to be a part of the design of the sidewalk.

Slip and Fall

In the case of Elliot v. Cinemark USA, Inc., 5550-CV-2017 (C.P. Monroe Co. Oct. 4, 2019 Williamson, J.), the court entered summary judgment in favor of a movie theater in a slip and fall matter after finding that the Plaintiff did not establish that the Defendant had actual or constructive notice of the existence of a dangerous condition.

According to the Opinion, the Plaintiff went to the Defendant’s theater in the early afternoon hours to see a movie. While walking near a self-serve condiment station in the lobby, the Plaintiff slipped and fell. The Plaintiff alleged that she slipped and fell on a spill of popcorn butter.

According to the evidence in the case, the Defendant admitted that the self-serve condiment area was known to become messy quickly such that it was the theater’s policy to clean the area every thirty (30) minutes. The Plaintiff alleged that this policy was inadequate.

The Plaintiff had testified that the floor was wet and greasy when she fell. Another witness testified to the existence of a couple of drops of some substance, about the size of a quarter, approximately three (3) feet from the counter.

The Defendant’s employees testified that they performed the required half-hour checks at the condiment station. The Defendant also provided documentation to show that the various cleaning tasks had been completed that afternoon.

Based upon the record before the court, the judge ruled that the Plaintiff did not establish that the Defendant had any actual or constructive notice of any dangerous condition. As such, summary judgment was entered in favor of the theater.