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Foraker v. Rife

Court of Common Pleas of Delaware, New Castle

April 3, 2017


          Submitted: March 15, 2017

          Brian S. Legum, Esq. Kimmel, Carter, Roman, Peltz & O'Neill, P.A. Attorneys for Plaintiff

          Jennifer Rife, & Dave Rife Pro se Defendants


          WELCH, J.

         This case concerns a dog bite that resulted in personal injury to the Plaintiff. Both parties appeared for trial before the Court on March 15, 2017. The Court reserved its decision. This is the Court's Final Memorandum Opinion and Order after consideration of the pleadings, oral and documentary evidence submitted at trial, arguments made at trial, and the applicable law.

         The Court notes, preliminarily, that it is sympathetic to Defendants Jennifer and Dave Rife, as strict liability prevents, except for the statutory exception, which is not applicable there, the Court from considering Defendants' responsible ownership and control of their dog. Nevertheless, as the Court is bound by the controlling statute, the Court enters judgment in favor of Plaintiff Corrina Foraker in the amount of $5, 821.87 plus costs for the following reasons.

         I. Facts

         Based on the testimony and evidence presented at trial, the Court finds the relevant facts to be as follows.

         On May 31, 2014, Defendants' senior Rottweiler, Daisy, bit Plaintiffs left hand when Plaintiff attempted to pet Daisy after arriving at Defendants' property to pick up her daughter.[1] Plaintiff and Defendants live in the same neighborhood, approximately ten minutes from each other. For several months prior to this incident, Plaintiffs daughter, Hailey Foraker, and Defendants' daughter, Rebecca Rife, were friends and spent significant time at each other's homes.[2] Hailey testified that she had been to "Becca's" home "too many times to count." Normally, Plaintiff would call Hailey to notify her that Plaintiff was leaving and walking to Defendants' home to take Hailey home. When Plaintiff arrived, Plaintiff often interacted with Daisy and Defendants' second dog, Honey, an American Pitbull Terrier puppy. Plaintiff testified that neither dog had so much as growled at her prior to this incident.

         On May 30, 2014, Hailey spent the night at Defendants' home.[3] On May 31, 2014, Plaintiff called Hailey and told her Plaintiff was coming over to take her home. When Plaintiff arrived at Defendants' mobile home, she was warmly greeted by Honey who was leashed and sitting on the front of the mobile home's porch.

         Since Plaintiff was aware that Daisy often slept towards the back of the porch, Plaintiff called out "Daisy" so she would not be startled when Plaintiff walked around her.[4] After Plaintiff called her name, Daisy came out from under the steps and Plaintiff attempted to pet her. When Plaintiff extended her left hand to pet Daisy, who was also leashed, Daisy bit into Plaintiffs hand, and Plaintiff began screaming for help. She tried to pull away, but Daisy "would not let go, " and instead began pulling Plaintiff back toward the porch steps. Plaintiff was fearful that she had lost a finger. Because Defendants and their son were playing horseshoes and Hailey and Rebecca were swinging on a tire rope in Defendants' backyard, no one immediately responded.

         When Defendants arrived in their front yard, Daisy released Plaintiffs hand which was bleeding profusely. Defendants' son went to retrieve ice for Plaintiffs hand while Defendant-Jennifer grabbed some paper towels. After wrapping the wound, Defendant-Jennifer drove Plaintiff to a nearby Medical Express in Newark, Plaintiffs hand was cleaned and sutured at the Medical Express on the day of the incident.[5] Plaintiff had a follow-up appointment at Medical Express on June 2, 2014 when the sutures were removed and Plaintiff was informed that she would need surgery; however, after visiting a surgeon, physical therapy was instead prescribed.[6] Plaintiff testified that she attended physical therapy three times a week from June 2014 to January 2015 in order to regain feeling in her hand.[7] After several months of physical therapy, Plaintiff was able to curl her fingers into a fist. To this day, Plaintiff is unable to extend one of her fingers completely straight and a permanent scar remains.

         Because Plaintiff viewed Daisy's attack as an isolated incident, Hailey and Rebecca continued to spend time together, but Plaintiff advised Hailey to be cautious when she stayed at Rebecca's home. While Plaintiff picked Hailey up less frequently from Defendants' home, Plaintiff testified that she trusted Defendants to protect Hailey from a similar incident. Likewise, Plaintiff testified that Daisy had not had any similar outbursts since the incident. Plaintiff and Defendants' cordial relationship continued until Plaintiff began receiving medical bills for her treatment. After receiving several medical bills, Plaintiff called Defendants and asked if they would cover her medical co-payments since insurance paid her remaining medical costs. Defendants refused, challenging Plaintiff to sue them if she wanted them to pay.

         II. Standard of Review

         As trier of fact, the Court is the sole judge of the credibility of each fact witness and any other documents submitted to the Court for consideration.[8] If the Court finds that the evidence presented at trial contains conflicts, it is the Court's duty to reconcile these conflicts-if reasonably possible-in order to find congruity.[9] If the Court is unable to harmonize the conflicting testimony, then the Court must determine which portions of the testimony deserve more weight in its final judgment.[10] In ruling, the Court may consider the witnesses' demeanor, the fairness and descriptiveness of their testimony, their ability to personally witness or know the facts about which they testify, and any biases or interests they may have concerning the nature of the case.[11]

          In civil actions, the burden of proof is by a preponderance of the evidence.[12] "The side on which the greater weight of the evidence is found is the side on which the preponderance of the evidence exists."[13]

         III. Discussion

         A. Credibility Distinctions

         Defendants' testimony was unpersuasive. Defendant-Jennifer and Rebecca testified that Rebecca was not a witness to the incident because she was next door, spending the night at a childhood friend's house. In support of this narrative, Rebecca testified on direct-examination that Hailey and she had never spent time together. Defendants hypothesized, therefore, that Hailey was not at their house on May 31, 2014.

         Defendants' rendition strikes the Court as problematic. First, the First State Animal Center & SPCA Incident Report, which Plaintiff and Defendants both submitted into evidence, states that Plaintiff was bitten when she "was at the owners [Jennifer Rife's] residence to pick up her daughter."[14] Prior to trial, Defendants never disputed this line in the report. At trial, Defendant-Jennifer stated that she had tried to correct the report when the SPCA officer visited her property to check vaccine records; however, she could not provide an explanation as to why the report was not corrected. Second, Defendants provide no alternative explanation for why Plaintiff was visiting their mobile home on May 31, 2014. Defendant-Jennifer simply reiterated that she did not know why Plaintiff was on her property that day.

         Defendants' position is particularly difficult to accept when Hailey and Rebecca had been friends for approximately four months prior to this incident, and had spent a significant amount of time together. Moreover, Rebecca contradicted her own testimony when she admitted on cross-examination that Hailey and she had "hung out" on more than five occasions. Plus, Defendant-Jennifer contradicted Rebecca's testimony by noting that Plaintiff previously picked up Hailey from Defendants' home.

         Not only did Defendants' cursory questioning of Rebecca fail to offer credible support for their position, but Defendants' testimony also lacked the detail and lucidity of the testimony provided during Plaintiffs case-in-chief. Hailey's testimony was more believable because it was consistent. Plaintiffs testimony was more credible because it was detailed and imputed an air of sincerity. Plaintiff had multiple opportunities to engage in hyperbole and place Defendants in a negative light, yet, she insisted that the bite was a one-time incident. She also testified that Defendants' family aided her and transported her to the hospital after the incident. Further, she did not omit the fact that she stayed at Defendants' home after arriving home from Medical Express, and remained friendly with them until she requested assistance from Defendants in paying her co-payments. When juxtaposed with Defendants' testimony during their case-in-chief, Plaintiffs candid exposition is particularly credible.

         B. Legal Analysis

         Enacted in the late 1990s, the "Dog Bite Statute" supplanted the general protections of the premises guest statute and was intended to curb the rising level of dog attacks by "vicious" dogs.[15] The 139th Delaware General Assembly was understandably concerned with protecting "innocent people" from dog attacks.[16]

         Delaware law 9 Del. C. § 913, which was the applicable version during this incident, [17] states:

The owner of a dog is liable in damages for any injury, death or loss to person or property that is caused by such dog, unless the injury, death or loss was caused to the body or property of a person who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property of the owner, or was committing or attempting to commit a criminal offense against any person, or was teasing, tormenting or abusing the dog.[18]

         As indicated, Delaware imposes strict liability for dog bites. Phrased differently, "Delaware's dog-bite statute imposes liability regardless of whether the owner knew or had reason to know that her dog was inclined toward dangerous behavior."[19] However, common law recognizes assumption of the risk as a valid defense.[20] Also, a defendant may argue that the statute's application contravenes public policy.[21] If a defendant raises ...

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