Internal Memo 2
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American Military University *
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205
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Law
Date
Jan 9, 2024
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docx
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INTERNAL MEMO
TO: Mr. James Barney, Supervising Attorney
FROM: NAME
RE: Dog Bite Lawsuit – Motion for Summary Judgement
DATE: August 22, 2023
ISSUE PRESENTED
Should our client file a motion for summary judgment in respect of the dog bite lawsuit based on
the facts already known?
SHORT ANSWER
No. Our client should not file a motion for summary judgment in the dog bite suit against them.
FACTS
In May 2021, our clients, an elderly couple, were staying at a hotel in New York. Our clients own
a Boston Terrier dog which they use for their recognized disabilities, for which they purchased a
red “service vest” online, but never arranged for official service dog training. Our clients made
their way down to the hotel pool and were approached by a five-year-old girl. The girl bent down
to pet him, but before they could finish warning her that the dog was vicious, our clients’ dog bit
the girl in the face. She required plastic surgery and was left with a lasting, intense fear of dogs.
Further details about our clients’ dog’s history are necessary to determine the extent of their
“prior knowledge” of his viciousness.
Additional facts to research: Since the parents of the girl filed suit in New York based on
diversity of citizenship, do the damages that the plaintiffs are seeking exceed $75,000?
DISCUSSION
Under
28 U.S.C. § 1332,
in order for a case to be tried under diversity of citizenship jurisdiction,
the conflict must arise between parties that are citizens of different states and a controversy of an
amount $75,000 or more.
1
With our clients being (presumably) from New York and the plaintiffs
being from Alabama, as long as the claim for damages exceed $75,000, the case will proceed in
Federal Court. If not, the plaintiffs must sue in our clients’ home state in order for the courts to
possess jurisdiction over them.
According to Fed. R. Civ. P. #56, a party of a lawsuit may file a motion for summary judgment if
the movant can show that there is no genuine dispute of material fact.
2
The judge must rule on
the facts already presented in evidence, as well as any other documents or items relevant to the
case. The movant must also cite materials relevant to the case to further show that there is no
dispute of facts.
The one fact that may
be under dispute is the dog’s vicious propensities.
However, since our clients did, at the time of the bite, tell the little girl that their dog was vicious,
that fact would likely no longer be under dispute.
New York’s guidance for summary judgment lay in N.Y. C.P.L.R. § 3212.
They state that a filing
for summary judgment must be supported by an affidavit, copies, or any other available proof.
3
The affidavit will lay out all the facts of the case and (if applicable) a defense for the cause of
action. Our client’s defense for their cause of action may be that they weren’t aware of their
dog’s viciousness. Again, though, our clients clearly did know of it, or else they would not have
warned the little girl. In
Palumbo v. Nikirk
and other prior dog bite cases, summary judgment has
been issued for those defendants that have presented evidence that they had no prior knowledge
of the dog having bitten, jumped on, or growled at anyone prior to the event of the bite.
4
Additionally,
Gannon v. Conti
established that if the owner of the dog knew of its vicious
propensities, they will be held liable for the harm the animal caused as a result.
5
CONCLUSION
We should not file a motion for summary judgment on behalf of our clients because there is clear
evidence of their knowledge of their dog’s history. Taking this case to trial will allow for cross
examination of the plaintiffs to ascertain additional details of the night of the bite from their
point of view. Based on the facts presented, the court will likely deny the motion since they had
prior knowledge of their dog’s viciousness and admitted it at the time of the bite.
1.
28 U.S.C. § 1332.
2.
Fed. R. Civ. P. 56.
3.
N.Y. C.P.L.R. § 3212.
4.
Palumbo v. Nikirk
, 59 A.D.3d 691, 874 N.Y.S.2d 222 (N.Y. App. Div. 2009)
5.
Cora-Ann Gannon v. Joseph Conti
, 86 A.D.3d 704, 2011 N.Y. Slip Op. 5849, 926
N.Y.S.2d 739 (N.Y. App. Div. 2011)
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