Warner, B. v. Cummings, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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:
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* Former Justice specially assigned to the Superior Court.
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[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
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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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