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While plaintiff was visiting the home of defendants, defendants’ dog suddenly lunged

While plaintiff was visiting the home of defendants, defendants’ dog suddenly lunged at her and bit her on the nose. Plaintiff claims that the dog’s lower jaw entered her mouth and that the dog bit her palate; that, as a result of the attack, she sustained a deviated septum, she developed breathing problems, and she developed temporomandibular joint (hereinafter TMJ) syndrome.

Thereafter, plaintiff filed an action to recover damages for her personal injuries as a result of the dog bite incident.

A jury verdict in favor of the plaintiff and against defendants in the principal sum of $195,000 was awarded and a new trial was ordered, unless, the plaintiff consented to a reduced verdict of $60,000. Defendants moved to set aside the order which was granted by the Supreme Court; thus, the instant appeal.

The Ruling:

Upon a review of the records of the case, the court finds that the trial court correctly concluded that there was no evidence adduced at trial from which it could fairly be concluded that the lower jaw of the dog entered the plaintiff’s mouth.

Here, the dentist (hereinafter “the TMJ expert”) who was treating the plaintiff’s TMJ problem testified that the plaintiff had told him, when she initially visited him some nine months after the incident, that the dog’s jaw had entered her mouth. Based on that information, the dentist concluded that the plaintiff’s TMJ problem was caused by the dog bite. The dentist testified that the plaintiff must have suffered a trauma to her jaw as a result of the abrupt, forceful opening of her mouth by the dog, which caused the muscles to spasm and dislocated the disc and joint of her lower jaw. However, it must be noted that, although the dentist based his conclusion upon the abrupt, forceful opening of the plaintiff’s mouth by the dog in the attack, the plaintiff never testified to any such abrupt, forceful opening. In fact, the plaintiff testified that, just as the dog jumped towards her, she leaned back and opened her mouth. Thus, the plaintiff’s own testimony establishes that her mouth was already open when the dog bit her and that there was no abrupt, forceful opening of her mouth. Indeed, the dentist’s records fail to indicate that there was any abrupt, forceful opening of the plaintiff’s mouth. The dentist’s conclusion is merely speculative and not based upon any of the numerous medical reports or other facts appearing in the record.

Moreover, it is not clear from the plaintiff’s testimony how much the dog’s lower jaw actually entered her mouth. According to plaintiff’s testimony, the dog’s bottom teeth hit her top teeth and that they went inside her mouth into the upper palate. However, the plaintiff did not testify whether just a few of the dog’s bottom front teeth or whether more of the dog’s lower jaw entered her mouth; neither did she testify regarding the angle at which the dog was biting. Thus, the jury was left to speculate with regard to how much, if any, of the dog’s lower jaw entered her mouth.

Notably, immediately after the attack, the defendants’ daughter treated the wound to the plaintiff’s nose, and the plaintiff sat with her in the defendants’ kitchen, for about 45 minutes to one hour, drinking coffee and talking. At the time, the plaintiff only complained about the injury to her nose, and she did not complain about injuries to her teeth or upper palate. Significantly, none of the medical records, particularly those of a doctor who first saw the plaintiff after the incident; those of a Memorial Hospital, where the plaintiff went to get a tetanus shot; and those of another doctor, an ear, nose, and throat specialist whom the plaintiff visited shortly thereafter, indicate any injuries to the plaintiff’s upper palate; neither do they indicate any complaints by the plaintiff of injury to her upper palate. Indeed, plaintiff admitted that the only complaints she had made concerned her nose and that she had never mentioned anything to them about her teeth or upper palate.

Furthermore, in a letter dated 20 May 1991, plaintiff’s TMJ expert indicated to the plaintiff that certain skeletal abnormalities are most certainly responsible for her complaints of temporomandibular joint pain and clicking and pain in the muscles of mastication; that such skeletal abnormalities were congenital, i.e., they had been present in the plaintiff since birth; that her lower jaw had failed to grow in a forward direction; that it had grown in an exaggerated downward direction, that her lower jaw was wider than her upper jaw; and that her inability to eat and the abnormal speech and swallowing difficulties that she had experienced were related to those skeletal defects.

Obviously, the evidence adduced at trial simply establishes that the only injury sustained by the plaintiff as a result of the dog attack or animal attack was the injury to her nose. Contrary to plaintiff’s contentions, the evidence fails to establish that the dog bite caused her TMJ problems. Hence, the trial court did not improvidently exercise its discretion in setting aside the verdict.

As a general rule, a jury verdict should not be set aside as being contrary to the weight of the evidence unless it can be said that the jury could not have reached its verdict based on any fair interpretation of the evidence. A motion to set aside a verdict as being against the weight of the evidence is addressed to the sound discretion of the trial court, which had the benefit of hearing and assessing the evidence. The trial court’s exercise of its discretion to set aside the verdict and order a new trial will be accorded great respect upon appellate review. That discretion is at its broadest when it appears that the unsuccessful litigant’s evidentiary position was particularly strong compared to that of the victor and the mere fact that some testimony in the record has created a factual issue does not deprive the Trial Judge of the power to intervene in an appropriate case. Applying these principles to the case at bar, the court finds that the trial court acted appropriately in setting aside the verdict and ordering a new trial unless the plaintiff stipulated to a reduction of damages.

When one has been attacked by a dog or any other animal owned by another, liability may arise if negligence in control and supervision by the owner is proven. For more inquiries on legal matters related to this, contact Stephen Bilkis & Associates. Be advised by the best Queens County Animal Attack Attorneys. A Queens County Dog Bite Lawyer from our firm may help you with your legal problems.

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