A man visited his friend at his house to hang out. The man brought his son with him and they were eating tacos as they watched TV. His friend had a Labrador retriever. His friend put the Labrador retriever in a cage in the kitchen whenever there were visitors because the dog barked a lot.
The first time that the man went to his friend’s house, the man put his hand next to the dog’s nose while the dog was in the cage and the dog stopped barking, The next time he went to the house, the dog was also in the cage.
On October 5, 2005, the man visited his friend for the third time and when he came in through the door, the dog was not in the cage. The dog barked at the man; the dog sniffed the man; and then the dog wagged its tail.
As the man, his kid and his friend were watching a movie on the DVD, the dog came in and stretched out on the floor at their feet. The man was eating a taco when the dog suddenly jumped on him and bit him in the face. The man suffered a dog bite in the nose and in the upper lip.
The friend’s son brought the man to the hospital in his car. The man said that while they were driving to the hospital, his friend’s son said that he couldn’t believe that their dog had bitten another person again.
The man sued for damages for the injury he sustained consequent to the dog attack and the dog bite on his nose and upper lip. The friend moved for summary judgment on the ground that the complaint failed to state a material issue of fact that needs to be tried.
The only question here is whether or not the complaint should be dismissed. The Court held that there are material issues of fact that had, in fact, been raised. For instance, the dog owner claims that his dog had never bitten anyone before while the man claims that the dog owner’s son told him that the dog had bitten another person before. The question of whether or not the dog had bitten someone before, or if it had growled, snapped or bared its teeth at anyone before is a material issue of fact.
The man who suffered the dog bite claims that he was sitting and watching a DVD when the dog suddenly bit him. The defendant countered this assertion by the man and said that the dog yelped before it bit the man because the man had stepped on the dog’s tail. This is another material issue of fact that must be determined: was the dog attack or dog bite unprovoked or was it caused when the man stepped on the dog’s tail?
The man who got bitten named a person, a relative of his friend who got bitten by the same dog once before. The dog owner presented that relative who testified on deposition that he had never been bitten by the dog before. This is another material issue of fact which needs to be determined.
The man claims that the dog was always barking at strangers, the dog was hyperactive and easily became threatened. The defendant asserted that the dog was playful and affectionate. The dog’s disposition and temper is a material issue of fact that must also be determined.
All these factual considerations all lead to a need to determine if the dog had vicious tendencies; and if the dog owner knew of the vicious tendencies of the dog. These are all material issues of fact present in this case which have to be determined at trial. The Court denied the motion for summary judgment.
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