RACQUEL UNDERWOOD, A Minor by and Through Her Mother and Natural Guardian CATHERINE UNDERWOOD, SHAUNA McINNES, and ANDREW DASH v. DANA WIND, An Individual and SHERRY KASPRZYK, An Individual APPEAL OF: DANA WIND APPEAL OF: SHERRY KASPRZYKNo. 1502 & 1701 WDA 2007 2008 PA Super 158 Atlantic: n/a Filed: 7/18/2008
Appeal from the Judgment entered in the Court of Common Pleas of Allegheny County, Civil Division, No(s): GD 04-007373
Before: BENDER, BOWES and TAMILIA, JJ.
Opinion by: TAMILIA, J.
On November 23, 2003, two pit bull dogs owned by appellant Dana Wind, escaped from the home she rented from her aunt, appellant Sherry Kasprzyk, and attacked the minor child, appellee Racquel Underwood, as well as the good Samaritans, appellees Shauna McInnes and Andrew Dash, who attempted to rescue the child. A jury entered awards of $65,000, $85,000, and $80,000, respectively, in favor of the appellees. On August 8, 2007, appellants’ post-trial motions were denied, and appellees’ request for delay damages was granted: Underwood was awarded an additional $8,724.25; McInnes was awarded $11,408.62; and Dash was awarded $10,737.53. On August 17, 2007, an aggregate judgment of $260,870.40 was entered in favor of appellees, that amount representing the total of the appellees’ awards and delay damages.
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The dangerous propensities of an animal may be established by a single incident of an attack on a human being. You may determine prior knowledge of the possible dangerous propensities of an animal by direct and/or circumstantial evidence.
In order to prove the vicious propensities of an animal, actual notice is not necessary. It is sufficient if one knew or should have known that the animal was a probable cause of harm.
Now, I told you that the law is a violation -- an unexcused violation of the dog law is negligence per se. And the dog law talks about dogs getting out. It used to be referred to as dogs running at large. Now it’s a different thing, but it’s the same concept. They need to be confined or on a leash or a chain. And it also defines what dangers dogs are and the negligence of keeping a dangerous dog. Pennsylvania’s dog law, which is a state law in effect at the time this harm occurred, provided in
part that it is unlawful for the owner or keeper of any dog to fail to keep at all times such dog confined within the premises of the owner. This state law dictates the duty of care required of someone in the same situation as Defendants. If you find that there was a violation of this state law, you must find Defendant negligent as a matter of law.
However, before you answer that, you need to determine whether the negligence was a factual cause of the injuries. Now, that’s with respect to the dog getting out. The Pennsylvania dog law, which is a state law in effect at the time this harm occurred, provided in part that when a dog owner’s dog has inflicted severe injury on a human being without provocation, the dangerous propensities of the animal are established by a single incident of attacking the human being. This state law dictates the duty of care required of someone in the same situation as the Defendants.
Pennsylvania’s dog law, a state law in effect at the time, provides in part that the owner or keeper of any dog that aggressively attacks and causes severe injury or death of any human through the intentional, reckless or negligent conduct of the dog’s owner has violated the Pennsylvania dog law.
This state law dictates the duty of care required of someone in the same situation as the Defendants. And again, in all three of those instances you need to find that the fact -- that that violation was a factual cause of the injury.
Now, I talked to you about -- in the law remember I told you it says an unexcused violation? An excuse means a reasonable explanation for why the act occurred acceptable to a reasonable person under all the facts and circumstances in the case. And it’s the burden of the person offering that excuse to prove it by a preponderance of the evidence.
