Hughes v. Badaracco-Apolito

ALBERT HUGHES, III, Plaintiff, v. MARIE BADARACCO-APOLITO andHENDRICK BARNER, Defendants.

CIVIL ACTION NO. 3:14-CV-1839

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

February 29, 2016

(JUDGE CAPUTO)

MEMORANDUM

Presently before me are two motions: Plaintiff Albert Hughes Ill's ("Hughes") Motion for Summary Judgment (Doc. 51) and Defendant Marie Badaracco-Apolito's ("Badaracco-Apolito") Motion for Summary Judgment (Doc. 56). Because Hughes has failed to demonstrate that he is entitled to judgment as a matter of law on his claims, I will deny his motion. I will also deny Badaracco-Apolito's motion because reasonable minds could differ as to whether her actions as the owner of the dogs were reasonable.

I. Background

Hughes commenced this action against Badaracco-Apolito and Hendrick Barner ("Barner") (collectively "Defendants") by filing a complaint on September 22, 2014. (Doc. 1) In the initial complaint, Hughes asserted a strict liability claim against Badaracco-Apolitio, as well as claims for negligence and punitive damages against both Defendants for injuries he allegedly sustained after he was attacked by two dogs they owned and/or controlled. The next day, Hughes filed an Amended Complaint as a matter of course. (Doc. 14) The Amended Complaint again asserted claims against Defendants for negligence and punitive damages, and, in addition, Hughes set forth a negligence per se claim against Badaracco-Apolito in place of the strict liability claim raised in the initial complaint.

I previously decided that the claims for punitive damages against both Defendants were to be dismissed with prejudice. (Docs. 32-33) Following my ruling, on March 16, 2015, Barner filed an answer to the Amended Complaint and a cross-claim against Badaracco-Apolito. (Doc. 34) On March 27, 2015, Badaracco-Apolito also filed an answer to the Amended Complaint and a cross-claim against Barner. (Doc. 35) On March 27, 2015, Badaracco-Apolito filed an answer to Barner's cross-claim against her. (Doc. 36) On May 5, 2015, Barner filed an answer to Badaracco-Apolito's cross-claim against him. (Doc. 43) Hughes now moves for summary judgment on Counts I and II of the Amended Complaint asserting that he is entitled to judgment as a matter of law with regard to negligence and factual causation. (Doc. 51, 8.) He asserts that the determination of damages should be left to a jury. (Id. at 5.)

Badaracco-Apolito also requests that summary judgment be granted in her favor because she argues that Hughes has failed to prove she is liable for Hughes's injuries based on either negligence or negligence per se. (Doc. 56, ¶ 10.)

The facts underlying this action are largely uncontested.¹

On February 17, 2013, the Hughes family was out for a walk near Badaracco-Apolito's home. (Hughes's Statement of Material Facts "Hughes's Statement", Doc. 51, ¶ 3.) The Hughes family dog was also present and on a leash. (Hughes's Statement at ¶ 4.) Hughes was coming down his driveway approximately 100 yards away from his family when he saw two German Shepherds jumping around his family. (Id. at ¶ 5.) The two unleashed German Shepherds, owned by Badaracco-Apolito, had been let out of her house by Barner, who was a house guest of Bardacco-Apolito. (Id. at ¶¶ 1, 2.) Hughes then ran down the street. (Id.) The German shepherds attacked and bit Hughes's dog. (Id. at ¶ 4.) As Hughes approached, his dog was under a pine tree but ran out to him. (Id. at ¶ 5.) Hughes reached down to pick up his dog when Hughes was bitten by one German shepherd on his wrist, dragging him to the ground, then was bitten on the left ankle by the other German Shepherd. (Id. at ¶ 5.) The parties dispute what Hughes was doing prior to when the German Shepherds bit him. (Badaracco-Apolito's Counterstatement "Badaracco-Apolito's Counter", Doc. 62, ¶ 5; Barner's Counterstatement of Facts ("Barner's Counter"), Doc. 60, ¶¶ 28-29.) Sophia Xargay, a friend accompanying the Hughes family, testified that Hughes may have "yelled at [the German Shepherds] and waived his arms in an attention-grabbing manner, but not in an aggressive way," successfully gaining "the attention of the dogs" and "they chased after him, away from [the family]." (Doc. 63, 3-4; Doc. 64, 6.) The male German Shepherd bit Hughes's arm/wrist and the female German Shepherd bit Hughes's ankle. (Hughes's Statement at ¶ 7.)

As a result of the attack, Hughes suffered permanent injury as evidenced by reports of his doctors Dr. Bozentka² and Dr. Osterman, yet Badaracco-Apolito contests the injuries and their permanency. (Hughes's Statement at ¶ 6; Badaracco-Apolito's Counter at ¶ 6.)

Badaracco-Apolito was charged with two (2) counts of violating Pennsylvania's Dog Law 3 P.S. §§ 459-101, et. seq. ("Dog Law"): one (1) count Failure to Confine Dogs, 3 P.S. § 459-305³, and one (1) count Harboring Dangerous Dogs, 3 P.S. § 450-502-A⁴. (Hughes's Statement at ¶ 7.) Badaracco-Apolito proceeded to trial on the charges and was found guilty of violating sections 305 and 502-A of the Dog Law by a magisterial district judge. (Id. at ¶ 15.) The time frame for Badaracco-Apolito to appeal has run. (Id.)

Badaracco-Apolito described her male dog as "kind of feisty" and, at times, she would use a collar with prongs because the dog was very strong and very intense, or, statedanother way, very muscular and very powerful. (Hughes's Statement at ¶ 9; Badaracco-Apolito's Counter at ¶ 9.) The male dog would get excited at the sight of other dogs when being walked and "would tend to bark and sometimes pull." (Id.) Bardacco-Apolito walked her dogs separately because one of her prior dogs pulled its leash out of her hands while on a walk in order to greet an approaching neighbor's dog, resulting in a fracture to her hand. (Id.)

Badaracco-Apolito emphatically told Barner not to let her dogs out of the house without a leash. (Hughes's Statement at ¶ 17.) Barner, despite acknowledging he was told not to let the dogs out without leashes, let the dogs out on the night of February 16, 2013 and on February 17, 2013, the day of the attack, without leashes. (Hughes's Statement at ¶¶ 18-19; Badaracco-Apolito's Counter at ¶¶ 18-19.) On February 17, 2013, Barner took the dogs into the garage without leashes, opened the garage door and the dogs ran off while Badaracco-Apolito was getting ready for church and may have been in the shower. (Hughes's Statement at ¶¶ 20, 22.) Barner stated he used poor judgment in letting the dogs out. (Hughes's Statement at ¶ 21.)

On December 7, 2014, Hughes filed a statement of material facts, a motion for summary judgment and a brief in support. (Doc. 51) Hughes requests that summary judgment be granted in his favor as to liability and causation, with the question of damages being left to a jury. (Doc. 51, 5 ¶ 1.) On December 31, 2015, Badaracco-Apolito also filed a motion for summary judgment (Doc. 56) and a statement of material facts (Doc. 57). She filed a brief in support on January 4, 2016. (Doc. 58) On January 7, 2016, Barner filed a brief in opposition to Hughes's motion for summary judgment. (Doc. 60) Badaracco-Apolito filed a brief in opposition to Hughes's motion for summary judgment on January 7, 2016. (Doc. 61) Badaracco-Apolito also filed a response to Hughes's statement of material facts on January 7, 2016. (Doc. 62) On January 19, 2016, Barner filed a brief in opposition to Badaracco-Apolito's motion for summary judgment (Doc. 60) and Hughes filed a counter statement of facts and a brief in opposition to Badaracco-Apolito's motion for summaryjudgment (Doc. 60). On February 2, 2016, Badaracco-Apolito filed responses to the briefs filed in opposition to her motion for summary judgment.⁵ (Docs. 67-68) The parties' motions are now ripe for disposition.

II. Discussion

A. Summary Judgment Standard

Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Summary judgment is appropriate when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Wright v. Corning, 679 F.3d 101, 103 (3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. See Edelman v. Comm'r of Soc. Sec., 83 F.3d 68, 70 (3d Cir. 1996). Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248, 106 S. Ct. 2505. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See Howard Hess Denal Labs., Inc. v. Dentsply Int'l, Inc., 602 F.3d 237, 251 (3d Cir. 2010). The moving party may present its own evidence or, where the non-moving party has the burden of proof, simply point out to the court that "the non-moving party has failed to make a sufficientshowing on an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

"When considering whether there exist genuine issues of material fact, the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all...