Christina Jensen, on behalf of her minor child, Holly Jensen, v. Konstance McCafree No. 2015-01257

Civil Action-Law-Dog Bite-Negligence-Violations of Pennsylvania Dog Law-Preliminary Objections-Legal Sufficiency-Pleading-Punitive Damages-Outrageous Conduct-Specificity-Allegations of Other Medical Care-Allegations of Psychological Trauma

A Complaint was filed on behalf of a minor child setting forth causes of action in Negligence and for Violations of Pennsylvania Dog Law pursuant to 35 P.S. § 459-101 et seq., after the child was bitten on the hand by a German Shepard dog owned by Defendant at an American Kennel Club Agility show. Defendant filed Preliminary Objections to the Complaint asserting that the claim seeking punitive damages is legally insufficient and the allegations seeking personal injuries are insufficiently specific.

1. In ruling upon preliminary objections, the court must accept as true all well pleaded facts and all inferences reasonably deducible therefrom. However, the court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved in favor of overruling the objections.

2. A complaint not only must give a defendant notice of the plaintiff’s claim and the grounds upon which it rests, but it also must formulate the issues by summarizing those facts essential to support the claim.

3. An essential fact needed to support a claim for punitive damages is that the defendant’s conduct must have been outrageous. Outrageous conduct is an act done with a bad motive or with a reckless indifference to the interests of others. “Reckless indifference to the interests of others,” which sometimes is referred to as “wanton misconduct” means that the actor intentionally has done an act of unreasonable character in disregard of a risk known to him, or so obvious that he must have been aware of it, and so great so as to make it highly probable that harm would follow.

4. The allegations of the Complaint indicating that Defendant knew that the dog had a tendency to behave aggressively because the dog had bitten others in the past, Defendant’s warnings to the minor child and her mother that the dog bites and the communication by the child’s mother to Defendant before she removed the dog from the crate that the dog could be left inside of the crate sufficiently allege intentional and willful indifference to the rights of others so as to sustain the claim for punitive damages.

5. Allegations of the Complaint that the claimant sustained injuries “…including but not limited to…other medical care [and]… psychological trauma…” are overly broad and lack the specificity required by the rules of pleading, as the language leaves open the possibility that Plaintiff may add additional claims in the future aside from those set forth in the Complaint.

L.C.C.C.P. No. 2015-01257, Opinion by John C. Tylwalk, President Judge, December 7, 2015.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA CIVIL DIVISION NO. 2015-01257

CHRISTINA JENSEN, on behalf of her minor child, HOLLY JENSEN

v.

KONSTANCE MCCAFREE

ORDER OF COURT

AND NOW, this 7th day of December, 2015, upon consideration of Defendant’s Preliminary Objections, Defendant’s Response thereto, the Briefs submitted by the parties, and Oral Argument by Defendant, it is hereby Ordered that the Preliminary Objections are OVERRULED, in part, and SUSTAINED, in part, as follows:

1. Defendant’s Preliminary Objection with regard to Plaintiff’s claim for Punitive Damages in Count IV of the Complaint is OVERRULED; and

2. Defendant’s Preliminary Objection with regard to the allegations of damages in Paragraphs 27 (d) and 27(g) is SUSTAINED. The language “including but not limited to” and “other medical care” is stricken from Paragraph 27(d) and the language “including but not limited to” is stricken from Paragraph 27(g). Plaintiff is granted leave to amend Paragraphs 27(d) and 27(g) within twenty (20) days of this Order.

BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:

PETER DALEY, ESQUIRE FOR CHRISTINA JENSEN, on behalf of her

Minor child, Holly Jensen

ADAM LAZARO, ESQUIRE FOR KONSTANCE MCCAFREE

OPINION, TYLWALK, P.J., DECEMBER 7, 2015.

The Complaint in this matter alleges that Christina Jensen and her minor daughter, Holly, were attending an outdoor baseball tournament at In The Net in South Londonderry Township on May 3, 2014. When they went inside to get drinks, they noticed that an American Kennel Club Agility Show was in progress. Defendant invited them into the show and offered to show them her dogs. When Defendant was about to let out her German Shepherd, Teeka, she advised Christina and Holly that the dog was friendly, but warned “when I get Teeka out you will have to keep your hands to your side and don’t move because Teeka bites.” (Complaint, ¶13) In response, Christina told Defendant that she didn’t have to let Teeka out of her crate: “you can leave Teeka right there.” (Complaint, ¶¶14-15). Despite Christina’s request, Defendant let Teeka out of her crate unrestrained and the dog immediately attacked Holly, biting her on the hand for approximately four minutes. The Complaint alleges that Defendant failed to control Teeka in response to Holly’s screams during the attack. Holly was left with deep bites, soft tissue damage, elbow and shoulder injuries, and a hairline fracture of her right thumb as a result of the attack.

The Complaint sets forth causes of action in Negligence (Count I), Negligence Per Se for Violations of the Pennsylvania Dog law (Count II), Violations of the Pennsylvania Dog Law – Medical Bills – Strict Liability (Count III), and Damages (Count IV). Defendant has filed Preliminary Objections to the claim for Punitive Damages in Count IV and to Plaintiffs’ statement of the personal injuries sustained by Holly in Paragraphs 27(d) and 27(g) of the Complaint.

Punitive Damages

In Count IV, Plaintiffs allege Defendant’s violation of various sections of the Pennsylvania Dog Law, 3 P.S. §459-101 et seq and the following in their claim for Punitive Damages:

Defendant asserts that Count IV is legally insufficient and should be stricken in accord with Pa.R.C.P. No. 1019 as these averments are merely conclusions of law.

Pennsylvania is a fact pleading state. Pa.R.C.P. 1019(a). A complaint must not only give the defendant notice of what the plaintiff’s claim is and the grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential to support the claim. Baker et al. v. Rangos et al., 324 A.2d 498 (Pa. Super. 1974). In ruling on preliminary objections, this Court must accept as true all well–pleaded facts and all inferences reasonably deducible therefrom. Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 616 A.2d 1060 (Pa. Commw. 1992). However, we need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion. Myers v. Ridge, 712 A.2d 791, 794 (Pa.Cmwlth.1998) , petition for allowance of appeal denied, 742 A.2d 173 (Pa. 1999). In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them.

Envirotest Partners v. Department of Transportation, 664 A.2d 208 (Pa.Cmwlth.1995).

The Restatement’s section on punitive damages reads:

Restatement (Second) of Torts Sec. 908.

An essential fact needed to support a claim for punitive damages is that the defendant’s conduct must have been outrageous. Outrageous conduct is an “act done with a bad motive or with a reckless indifference to the interests of others.” Focht v. Rabada, 268 A.2d 157 (Pa. Super. 1970), citing comment (b) to section 908 of the Restatement of Torts. “Reckless indifference to the interests of others”, or as it is sometimes referred to, “wanton misconduct”, means that “the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” Evans v. Philadelphia Transportation Company, 212 A.2d 440, 443 (Pa. 1965). We believe that the allegations of fact pled in the Complaint in support of the Plaintiffs’ claim for punitive damages sufficiently alleges Defendant’s intentional and willful “indifference to the rights of others” and that this claim should be permitted to stand at this juncture.

The allegations of the Complaint indicate that Defendant knew that Teeka had a tendancy to behave aggressively as she had bitten others in the past. Her warnings to Christine and Holly indicated that Defendant appreciated the danger that Teeka posed to Holly and other individuals. When Christine stated that Teeka should be left inside her crate in response to Defendant’s warnings, Defendant ignored the request. In disregard of the danger posed by Teeka, Defendant allowed the dog out of her crate unrestrained. Defendant took no measures to ensure the safety of Holly and other bystanders and failed to control Teeka or help Holly during the four-minute attack. These allegations, if proven, indicate that Defendant’s behavior constituted violations of the Pennsylvania Dog Law and the type of outrageous conduct which would justify an award of punitive damages. These allegations are also sufficient to enable Defendant to prepare her defense to this claim.

For these reasons, we will overrule this Preliminary Objection. If the facts established during discovery do not support this claim, Defendant is free to move for summary judgment on this issue.

Allegations of Personal Injuries

Paragraph 27 of the Complaint sets forth a list of ten subparagraphs describing Holly’s injuries, which include the following:

(Complaint, ¶27(d), (g)). Defendant argues that the language “including but not limited to” and “other medical care” are insufficiently specific in contravention of Pa.R.C.P. No. 1019(a). Defendant also objects to this language in light of the holding of Connor v. Allegheny General Hospital, 461 A.2d 600 (Pa. 1983) as its inclusion leaves open the possibility of Plaintiffs proving bodily and psychological injuries in addition to those specified in the Complaint and adding additional claims in the future. We agree that this language is overly broad and lacks the specificity required by rules of pleading. Therefore, we will sustain this Preliminary Objection and afford Plaintiffs twenty days in which to amend these allegations.