Moura v. Randall

HOLLANDER, Judge. This case arises out of a tragic incident that occurred on August 15, 1994, when “Diesel,” a Rottweiler owned by Warren Randall, appellee, savagely attacked four-year old Alex Moura (“Alex”), the son of Vanderly and Irene Moura, appellants. On December 22, 1995, appellants, individually and as parents and next friends of Alex, filed a multi-count complaint 1 II.in the Circuit Court for Montgomery County against appellee, seeking compensation for the injuries Alex sustained ⁶³⁶ when he was mauled about the head by appellee’s dog. After the court entered summary judgment in favor of appellee on all claims, appellants noted their appeal.

They present the following issues for our review: I. Did the trial court err in granting appellee’s motion for summary judgment when it found no violation of the Montgomery County “Animal Control” ordinance?

II

Did the trial court err in granting appellee’s motion for summary judgment when it found there was no genuine issue as to material fact concerning the reasonableness of appellee’s control of his dog?

III

Did the trial court err in granting appellee’s motion for summary judgment when it found no genuine issues of material fact existed as to whether appellee should have known of his dog’s vicious propensities? For the reasons discussed below, we answer these questions in the affirmative. Accordingly, we shall reverse. Factual Summary At about 10 a.m. on the morning of August 15, 1994, appellee intended to take his two-year old Rottweiler for a walk, without úsing a leash.

While appellee was still on the common grounds of the townhouse development where he lived, the dog, which was standing approximately fifteen feet from appellee, suddenly bolted after another dog. Appellee unsuccessfully pursued Diesel on foot for about three blocks. When he was unable to locate the dog, appellee continued his search by car. Approximately ten minutes later, appellee discovered Diesel in a parking lot of an apartment complex.

Police officers at the scene informed appellee that his dog had just attacked Alex. Appellants subsequently filed suit, alleging appellee was liable based on negligence and strict liability. Thereafter, appellee moved for summary judgment, arguing that appellants failed to present a genuine dispute as to any material fact concerning: (1) appellee’s violation of the Montgomery County “Animal Control” ordinance; (2) appellee’s failure to ⁶³⁷ exercise reasonable care in his control of Diesel; or (3) that appellee knew or should have known of Diesel’s tendency to bolt or vicious propensities. In appellee’s affidavit in support of his motion, he stated that Diesel had attended obedience classes every Saturday and Sunday from December 1992 through March 1993 and, from April 1993 through October 1993, the dog attended classes as appellee’s work schedule permitted.

Appellee averred that Diesel was always friendly and, prior to the attack, Diesel had never been aggressive, Diesel had never bitten anyone, and Diesel had never run after another dog. In their opposition to the motion, appellants argued, inter alia, that appellee had violated § 5-26 of the Montgomery County Code (1994, Supp. No. 22) (hereinafter “MCC”), and that the violation constituted prima facie evidence of negligence. They also asserted that there were material factual disputes concerning appellee’s knowledge of Diesel’s propensity to bolt or cause harm, the dog’s failure to obey appellee’s commands, and whether appellee exercised reasonable care in controlling Diesel. In support of their position, appellants attached a copy of appellee’s testimony, given under oath before the Animal Matters Hearing Board of Montgomery County (the “Board”).

There, appellee conceded that, on one occasion when Diesel was unleashed, he had chased a cat into the wooded area behind appellee’s residence. Appellants posited that this incident charged appellee with the knowledge that Diesel might not always obey commands and that Diesel might run away if unleashed. Appellants also submitted a copy of the testimony of Mark Lipsitt, a dog trainer and kennel owner with twenty-five years of experience working with animals, who appeared before the Board on December 5, 1994. Lipsitt’s testimony concerned a report he prepared with respect to his examination of Diesel soon after the attack.

He testified that when he examined Diesel, “[t]he dog was straining at the leash. The dog was jumping up and down in an effort to get to me. He was barking. He was growling.

He was snarling. He was baring his teeth, and he was snapping.” Consequently, Lipsitt ⁶³⁸ concluded that Diesel had “previous experience with agitation.” Appellants did not submit Lipsitt’s actual report. Appellants also submitted a copy of the testimony of Robert Maida, a dog trainer specializing in animal behavior problems and aggression, who also testified before the Board on December 5, 1994. Maida opined that, based on Lipsitt’s evaluation of Diesel, he believed Diesel was dangerous.

Further, appellants attached their own answers to appellee’s interrogatories, in which they proffered the opinions of Maida and Carlos Mejias as expert witnesses, stating that Diesel should have been leashed because he was dangerous. Appellants failed to include affidavits from these witnesses, however. 2 Thereafter, the circuit court granted summary judgment in favor of appellee, stating: In this instance I have nothing to contradict the affidavit statements of the owner that he never experienced this particular animal to exhibit vicious propensities; that he had only had the dog bolt once, and that was when the dog was only a month or two or so into obedience training. It was some lengthy period before this tragic incident. That he would walk this dog several times a day substantially without a leash, relying on the benefit of the training program the dog had been through.

That there has been no previous example of the dog bolting. So, there is not any real evidence here that would show— the Court believes an issue — a dispute that should be presented to the jury with regard to the owner’s subjective knowledge of any propensities for this particular animal. ⁶³⁹ Plaintiff goes on to say that there is a violation of the Montgomery County — we called it the leash law at first — in that this animal was not on a leash and permitted to be at large. The Court finds that given the affidavit of the defendant, that this dog had undergone an extensive obedience training program; that the dog consistent with that program had been unleashed on several occasions a day for several years, and had never exhibited a bolt. That he was neither permitted, nor was he at large, due to the conduct of the owner.

The owner believed — had the right to believe, based on experience, that the dog was under control, and that he need not be leashed if he was in fact under control. And that is what the Court finds occurred here. The dog was under control, not permitted to run at large, and escaped. To me it was really no different in concept than if a dog was on a leash and broke the leash and ran away.

He was not permitted to be at large; it was an escape. It gives the Court no pleasure whatsoever to grant the summary judgment. It is a very tragic occurrence. On the other hand, I am compelled to rule according to the law as I understand it to be in Maryland, so I have no choice.

Standard of Review Maryland Rule 2-501 governs summary judgment. It provides that in order to grant a motion for summary judgment, the trial court must determine that no genuine dispute exists as to any material fact, and that one party is entitled to judgment as matter of law. Bagwell v. Peninsula Regional Medical Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. ⁶⁴⁰ denied, 341 Md. 172 , 669 A.2d 1360 (1996); see also Southland Corp. v. Griffith, 332 Md. 704, 712 , 633 A.2d 84 (1993); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737-38 , 625 A.2d 1005 (1993); Bits “N” Bytes Computer Supplies, Inc. v. Chesapeake & Potomac Tel. Co., 97 Md.App. 557, 580-81 , 631 A.2d 485 (1993), cert. denied, 333 Md. 385 , 635 A.2d 425 (1994); Seaboard Sur.

Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242-45 , 603 A.2d 1357 (1992). In reviewing the motion, the court must consider the facts in the light most favorable to the non-moving party, Dobbins v. Washington Suburban Sanitary Comm’n, 338 Md. 341, 345 , 658 A.2d 675 (1995); King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985), construing all inferences reasonably drawn from those facts in the nonmovant’s favor. Tennant v. Shoppers Food Warehouse, 115 Md.App. 381, 387 , 693 A.2d 370 (1997); Bagwell, 106 Md.App. at 488 , 665 A.2d 297 . In order to defeat a motion for summary judgment, the non-moving party must establish that the parties have a genuine dispute as to a material fact.

A material fact is one that will somehow affect the outcome of the case. King, 303 Md. at 111 , 492 A.2d 608 . If a dispute exists as to a fact that is not material to the controversy, the entry of summary judgment is not foreclosed. Scroggins v. Dahne, 335 Md. 688, 691 , 645 A.2d 1160 (1994).

Moreover, mere formal denials or general allegations that fail to show facts in detail and with precision are not sufficient to prevent the entry of summary judgment. Shaffer v. Lohr, 264 Md. 397, 404 , 287 A.2d 42 (1972); Frush v. Brooks, 204 Md. 315, 320-21 , 104 A.2d 624 (1954). In the absence of a genuine dispute as to material fact, we must determine whether the trial court reached the correct legal result. Beatty, 330 Md. at 737 , 625 A.2d 1005 ; see also Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990); King, 303 Md. at 111 , 492 A.2d 608 .

Appellate courts generally review the grant of summary judgment “only on the grounds relied upon by the trial court.” Blades v. Woods, 338 Md. 475, 478 , 659 A.2d 872 (1995); see Hoffman v. United Iron and Metal Co., Inc., 108 Md.App. 117, 132-33 , 671 A.2d 55 (1996). ⁶⁴¹ Discussion I. Preliminarily, we address appellee’s contention that the testimony of Lipsitt and Maida before the Board, and the proffer of expert testimony from Maida and Mejias, could not be considered by the trial court in resolving the summary judgment motion, because such testimony would not be admissible at trial. 3 Maryland Rule 2 — 501(b) provides: The response to a motion for summary judgment shall identify with particularity the material facts that are disputed. When a motion for summary judgment is supported by an affidavit or other statement under oath, an opposing party who desires to controvert any fact contained in it may not rest solely upon allegations contained in the pleadings, but shall support the response by an affidavit or other written statement under oath. (Emphasis added). Rule 2-501(c) further provides: “An affidavit supporting or opposing a motion for summary judgment shall be made upon personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit.” (Emphasis added).

It is immediately apparent that the express language of the rule does not require the use of affidavits in order to controvert successfully a motion for summary judgment. In their treatise, Niemeyer and Schuett explain: Although the rule refers to the need for an “affidavit,” the term includes any type of evidence that is admissible at trial. Accordingly, admissions made by a party in a pleading or in response to a request for admissions may be used. Responses to discovery made under oath, such as answers to interrogatories or answers to questions posed in deposition, may be used in support of the motion if the responses ⁶⁴² would be admissible at trial.

A document can be made part of the motion only through affidavit, deposition, or answers to interrogatories that adequately lay the proper foundation for the document’s admission into evidence. Authenticity and relevancy of the document must be shown. Attaching documents to a motion for summary judgment without the necessary affidavit is no more acceptable than standing up in open court and attempting to offer the same documents into evidence without a witness or a stipulation. Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary 332 (2d ed.1992).

See also Hartford Accident and Indem. Co. v. Scarlett Harbor Assocs. Ltd., 109 Md.App. 217, 263 , 674 A.2d 106 (1996) (recognizing that a response to a motion for summary judgment may be supported by “any type of evidence that is admissible at trial”), aff'd, 346 Md. 122 , 695 A.2d 153 (1997); Lombardi v. Montgomery County, 108 Md. App. 695, 713 , 673 A.2d 762 (1996) (concluding that appellant’s sworn testimony before the Workers’ Compensation Commission, which appellant had attached as an exhibit, generated a dispute as to when appellant knew that his hypertension was related to his work as a firefighter); Vanhook v. Merchants Mutual Ins. Co., 22 Md.App. 22, 26-27 , 321 A.2d 540 (1974) (explaining that a party may attach affidavits, depositions, answers to interrogatories, pleadings, and stipulations in support of summary judgment motion).

Lipsitt testified before the Board regarding his evaluation of Diesel on August 20, 1994, conducted at the request of the Director of the Montgomery County Department of Animal Control. Mindy Pittell-Hurwitz, the Chairperson of the Board, questioned Lipsitt about his ability to evaluate Diesel. The following exchange is relevant: [Pittell-Hurwitz]: Mr. Lipsitt, just so that we get a little bit of background on you and your capacity maybe to evaluate this dog, give me just a brief history of how long you’ve been training dogs, how long you’ve been evaluating dogs, under what circumstances and how often you’ve performed tests like this and do evaluations like this. ⁶⁴³ [Lipsitt]: In answer to the first question, I’ve been working with animals for about 25 years. I’ve been training dogs for about 18 years, and I’ve owned my own business for about 12 years.

I mean— [Pittell-Hurwitz]: By owned your own business, you mean the kennels, the training? [Lipsitt]: That is correct. I— [Pittell-Hurwitz]: Approximately how often and under what circumstances do you perform tests such as the one you did in this instance? [Lipsitt]: I perform this test virtually any day with any dog that I — that comes to me for training. At the summary judgment juncture, we believe the motion judge was entitled to consider Lipsitt’s testimony. First, the court was not required to disregard Lipsitt’s testimony merely because appellants failed to name him as an expert in their answers to interrogatories.

See Braxton v. Faber, 91 Md.App. 391, 396 , 604 A.2d 543 (1992) (concluding that, even at trial, defendant’s failure to list expert witness in her answers to interrogatories did not disqualify expert or unfairly prejudice plaintiff, because plaintiffs attorney “participated fully” in deposition of the expert). Moreover, given a trial judge’s discretion in permitting a witness to testify as an expert, we cannot say, as a matter of law, that Lipsitt would not so qualify. We are also unpersuaded by appellee’s argument that Lipsitt’s testimony was irrelevant, merely because his evaluation occurred five days after the attack. Lipsitt’s testimony was intended to demonstrate “previous experience with agitation” indicating that Diesel was dangerous at the time of the incident.

Given the close proximity between the attack and the evaluation, a fact finder could consider the evaluation and infer that the dog had the same traits prior to the incident that he exhibited only days after the attack, and that appellee was aware of them. In the context of negligence claims, other jurisdictions have had occasion to consider the relevance of evaluations of an animal conducted after an attack. In Giles v. Russell, 255 ⁶⁴⁴ S.C. 513, 180 S.E.2d 201 (1971), the Supreme Court of South Carolina determined that evidence of two attacks by a dog after the initial attack was sufficient to generate the inference that the animal was vicious, despite the lack of evidence concerning the dog’s propensities prior to the incident. The Court reasoned that evidence of a subsequent attack “is relevant because it is not likely that the traits of an animal will change rapidly.

It is on this theory that evidence of viciousness by an animal subsequent to an accident is admitted to prove vicious tendencies on an earlier date.” Id. 180 S.E.2d at 203 . See also Sandoval v. Birx, 767 P.2d 759 (Colo.Ct.App. 1988) (concluding that an animal control officer who observed the dog on a daily basis for almost one month after the attack was competent to give lay testimony concerning the dog’s vicious and dangerous disposition); Finley v. Smith, 240 Ark. 323 , 399 S.W.2d 271, 272 (1966) (stating that “Subsequent conduct is admissible ... to prove the particular animal’s dangerous nature,” despite the argument that such events would not tend to prove the owner’s prior notice). Cf. Hayden v. Sieni 196 A.D.2d 573 , 601 N.Y.S.2d 327 (1993) (concluding that a defense expert’s testimony that a dog was not vicious was both relevant and admissible when the expert personally evaluated the animal five years after the attack), appeal dismissed, 82 N.Y.2d 835 , 606 N.Y.S.2d 589 , 627 N.E.2d 510 (1993).

Therefore, we conclude that, in the light most favorable to appellants, Lipsitt’s testimony was relevant with respect to the dog’s behavior and appellee’s knowledge of the dog’s tendencies. In view of our resolution of the contention as to Lipsitt’s testimony, we need not address whether the court was entitled to consider Maida’s testimony.

II

An owner of an animal may be negligent if the owner fails (1) to exercise reasonable care in controlling the animal or (2) to prevent the harm caused by the animal. Pahanish v. Western Trails, Inc., 69 Md.App. 342, 357 , 517 A.2d 1122 (1986); Slack v. Villari, 59 Md.App. 462, 470 , 476 A.2d 227 , ⁶⁴⁵ cert. denied, 301 Md. 177 , 482 A.2d 502 (1984); see also Restatement (Second) of Torts § 518 (1977); Gunpowder Horse Stables, Inc. v. State Farm Auto. Ins. Co., 108 Md.App. 612, 633 , 673 A.2d 721 (1996) (affirming the principle that “[t]he common law of Maryland recognizes only two causes of action against an owner of a domestic animal: negligence and strict liability”).

Stated otherwise, to establish liability based on negligence, the claimant must show that the owner exercised “ ‘ineffective control of an animal in a situation where it would