Russo v. Zeigler

67 A.3d 536

Anthony RUSSO, Plaintiff,

v.Ellen ZEIGLER, Michael Zeigler, and Stephanie Zeigler Defendants.

Superior Court of Delaware, New Castle County.

C.A. N11C–08–120 PRW.

Submitted: May 14, 2013.

Decided: May 15, 2013.

Opinion Issued: May 30, 2013.

Upon Plaintiff's Application for an Instruction UnderDel.Code Ann.tit. 9, § 913.GRANTED in PART.

Upon Defendant's Application for an Instruction on Assumption of Risk or Comparative Negligence.DENIED.

Frederick S. Freibott, Esquire, Freibott Law Firm, P.A., Wilmington, Delaware, Attorney for Plaintiff.

Stephen P. Casarino, Esquire, Casarino, Christman, Shalk, Ransom & Doss, P.A., Wilmington, Delaware, Attorney for Defendants.

OPINION

WALLACE, J.

I. INTRODUCTION

Plaintiff Anthony Russo (“Russo”) filed a complaint which alleged, in pertinent part, that Ellen Zeigler (“Ellen”) and Michael Zeigler (“Michael”) were strictly liable for injuries and damages caused when their dog, an Akita named Drift (“Drift”), bit him.¹ Russo also alleged in the same complaint that Ellen, Michael, and their adult daughter Stephanie Zeigler (“Stephanie”) (collectively the “Defendants”) negligently caused Russo's injuries and damages by, among other things, failing to secure or keep reasonable control of Drift and for allegedly failing to warn Russo of Drift's “dangerous propensity to attack.” ² Russo's claims stemmed from an incident on September 3, 2009 when, at approximately 2:00 am, he entered Ellen and Michael's home with Stephanie and, during the early morning visit, was bitten on the face by Drift.³

In their answer, Defendants raised two affirmative defenses: (1) Russo assumed the risk of injury by placing his face near Drift's face without knowing Drift, and (2) Russo teased and/or tormented Drift.⁴ The Court scheduled trial to begin on May 13, 2013.⁵

At the pretrial conference, Defendants objected to Russo's request for a “strict liability” instruction to describe Ellen and Michael's liability under 9 Del. C. § 913.⁶ Rather, Defendants argued that 9 Del. C. § 913 does not impose strict liability, and that Ellen and Michael were entitled to raise common law defenses.⁷ Defense Counsel also requested an assumption-of-risk instruction.⁸ For the following reasons, Plaintiff's request for a strict liability instruction is GRANTED in PART, while Defendant's request for an instruction on assumption of the risk or comparative negligence ⁹ is DENIED.¹⁰

II. THE DELAWARE DOGBITE STATUTE

In 1998, the General Assembly enacted 7 Del. C. § 1711, which imposes “strict liability” on dog owners in certain circumstances.¹¹ The new statute was enacted in response to “well-publicized and shocking problems caused by people who were irresponsibly keeping vicious dogs as pets.” ¹² Under the new law, a dog owner was liable for any injury or damages resulting from a dog bite unless the plaintiff was, when bitten, (1) trespassing or committing a crime on the owner's property; (2) committing a crime against any person; or (3) teasing, tormenting, or abusing the dog. ¹³ This Court first recognized the statute as imposing strict liability in Bemiller v. Rodriguez.¹⁴ Later, in another dog-bite case, McCormick v. Hoddinott, this Court resolved the question of whether the former common law defense of assumption of the risk had been subsumed within Delaware's comparative negligence statute by finding it was.¹⁵ The Court in McCormick did not resolve and, in fact, never needed to address the next question posed here: whether the comparative negligence statute was applicable to a tort brought under a strict liability statute.¹⁶

Soon after, this Court applied the so-called “veterinarian's rule,” a doctrine that is best understood as an application of the primary assumption of the risk defense to a dog-bite statute.¹⁷ There, the Court, in granting summary judgment in favor of a defendant dog owner whose injured pet had nipped a treating veterinarian, held that the veterinarian knew the dog's propensities and assumed the risk of injury when treating her patients. ¹⁸

As the authorities generally state, liability under dog-bite statutes arises solely from the legal relationship between the owner and the dog. ¹⁹ This Court has found that Delaware's dog-bite statute imposes strict liability for damages on the dog owners regardless of the owners' knowledge of any dangerous propensities.²⁰Under such statutes, the dog owner acts as insurer of the dog.²¹ And this strict liability relieves a plaintiff from “proving specific acts of negligence” and “protects him from certain defenses” like that embodied in Delaware's comparative negligence statute.²²

III. DISCUSSION

A. Russo must prove his behavior did not fall into an “exception” to the strict liability rule.

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.²³ The dog owner is not liable, however, if the Plaintiff was, among other things, teasing or tormenting the dog.²⁴ It is a matter of first impression in Delaware whether the Plaintiff or the Defendant bears the burden of proving the applicability or inapplicability of the “exceptions” enumerated in the statute.

Massachusetts and Connecticut both have substantially similar dog-bite statutes.²⁵ In both states, courts have held that under a strict liability dog-bite statute, “[a] plaintiff bears the burden of showing that he was not committing a trespass or other tort, and was not teasing, tormenting or abusing the dog.” ²⁶ Given the consequence for a dog owner to whom the statute applies, placing the burden of proving this element on the one who seeks such application is appropriate. This Court simply can find neither statutory support nor any justification for placing that burden on defendant dog owners. Thus Russo must demonstrate that none of the statutory “exceptions” are applicable to his activity when bitten. In turn, Plaintiff's Application for an Instruction on Strict Liability is GRANTED in PART. The jury in this case will be instructed under § 913, but that instruction will make it clear that Russo must prove by a preponderance of the evidence that he was not a provocateur of Drift.²⁷

B. Comparative Negligence or Assumption of the Risk Defenses Are Generally Not Available in Dog–Bite Actions Brought Under Liability Statutes Like 9 Del. C. § 913.

Allocation-of-fault statutes are not applicable in dog-bite actions under liability statutes like 9 Del. C. § 913 unless expressly stated. ²⁸ Even when comparative negligence may be a defense, the bar is high. ²⁹ Delaware's comparative negligence statute is narrowly constructed, and its application is limited to actions based in negligence:

In all actions brought to recover damages for negligence which results in death or injury to person or property, the fact that the plaintiff may have been contributorily negligent shall not bar a recovery by the plaintiff or the plaintiff's legal representative where such negligence was not greater than the negligence of the defendant or the combined negligence of all defendants against whom recovery is sought, but any damages awarded shall be diminished in proportion to the amount of negligence attributed to the plaintiff.³⁰

When Delaware's dog-bite statute is read together with the Delaware's comparative negligence statute, it is clear the latter cannot be used in defense of an action under the former.³¹ The clear and unambiguous language of Delaware's dog-bite statute expressly makes the owner “liable in damages for any injury.” ³²Such language leaves no room for diminution by finding of comparative fault. Instead there appears to be only two defenses, external to § 913, that may apply.³³ First is primary, or express, assumption of the risk, as this Court applied in Brady v. White to relieve dog owners of liability for injuries to a veterinarian-victim who was treating the dog.³⁴ The second might be for the Court to determine whether public policy would be violated by the application of the strict liability statute in certain circumstances.³⁵

Defendants have not pled or demonstrated primary assumption of the risk, however; nor have they argued for consideration of a public policy exception. Defendants have not demonstrated that secondary assumption of the risk, or comparative negligence, can be applied within the framework of Delaware's strict liability dog-bite statute. Consequently, the Court cannot find that as to the strict liability claim brought under § 913, Defendants are permitted an instruction on assumption of the risk, i.e., comparative negligence, ³⁶ as a defense. For that reason, the Zeiglers' Application for an Instruction on Assumption of Risk or Comparative Negligence is DENIED.

IT IS SO ORDERED.

1. Complaint, dated Aug. 16, 2011, at ¶ 5 [hereinafter “Complaint”]; seeDel.Code Ann. tit. 9, § 913 (2013).

2. Complaint at ¶ 4. Prior to trial, Plaintiff's Counsel informed the Court that Russo sought to recover from Ellen and Michael only under 9 Del. C. § 913, and sought to recover from Stephanie only under a theory of negligence. Trial Transcript, May 13, 2013 [hereinafter Tr. Trans.].

3. Complaint at ¶ 3.

4. Answer to Complaint, dated Oct. 21, 2011, at ¶ 7–8; seeDel.Code Ann. tit. 9, § 913 (2013) (“The owner of a dog is liable ... unless the injury, death or loss was caused to the body or property of a person who, at the time, ... was teasing, tormenting or abusing the dog.”).

5. Trial Scheduling Order, dated Oct. 28, 2011, at ¶ 12.

6. Transcript of Pretrial Conference at 4:7–15 [hereinafter “PC Tr.”].

7. PC Tr. at 4:18–22. Prior to trial, Defense Counsel argued that the several clauses excepting dog owners from liability distinguishes 9 Del. C. § 913 from traditional strict liability statutes.

8. PC Tr. at 10:16–18; see, e.g., Brady v. White, 2006 WL 2790914, at *4 (Del.Super.Ct. Sept. 27, 2006) (“Plaintiff has not established that by enacting the current dog bite statute, the legislature meant to...