Carvalho v. Grzankowski
| Citation | 36 F.Supp.3d 423 |
| Decision Date | 06 August 2014 |
| Docket Number | Case No. 5:12–cv–194. |
| Court | U.S. District Court — District of Vermont |
| Parties | Carrie A. CARVALHO, Plaintiff, v. Renee GRZANKOWSKI, and Scott Grzankowski, Defendants. |
Carrie A. CARVALHO, Plaintiff
v.
Renee GRZANKOWSKI, and Scott Grzankowski, Defendants.
Case No. 5:12–cv–194.
United States District Court, D. Vermont.
Signed Aug. 6, 2014.
William A. MacIlwaine, Esq., Dinse, Knapp & McAndrew, P.C., Burlington, VT, for Plaintiff.
Andrew C. Boxer, Esq., Ellis Boxer & Blake, Springfield, VT, for Defendants.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
CHRISTINA REISS, Chief Judge.
Pending before the court is a motion for summary judgment filed by Defendants Renee and Scott Grzankowski (collectively, “Defendants”). (Doc. 36.) In this negligence action, Plaintiff Carrie Carvalho alleges that, over the course of a weekend at Defendants' residences, she was injured as a result of Defendants' failure to exercise reasonable control over their puppy.
Defendants contend they are entitled to judgment as a matter of law because the undisputed facts reveal that their puppy exhibited neither vicious nor dangerous propensities and that they therefore lacked notice that their puppy posed a foreseeable danger to Plaintiff. Plaintiff opposes the motion for summary judgment, arguing that whether Defendants had notice that their puppy posed a source of danger to others, whether Defendants breached their duty of care, and whether that alleged breach was the proximate cause of her injuries are factual determinations for the jury.
The court heard oral argument on the pending motion on June 16, 2014. Plaintiff is represented by William A. MacIlwaine, Esq. Defendants are represented by Andrew C. Boxer, Esq.
I. The Undisputed Facts.
A. The Incidents Giving Rise to Plaintiff's Injuries.
On the weekend of September 11, 2009, Defendants invited Plaintiff and her boyfriend, Rob Marchant, who both lived in Massachusetts, to their residences in Vermont.
At the time, Defendants owned a camp located on Forest Lake in Woodbury, Vermont, and a primary residence in Calais, Vermont. Defendant Renee Grzankowski and Mr. Marchant are siblings.
When Defendants invited Plaintiff to visit, Defendants knew that Plaintiff's dog would accompany her, and Defendant Renee Grzankowski admits that she did not advise Plaintiff not to bring her dog. At the time, Plaintiff owned a mature Bullmastiff named “Greta,” who was approximately six years old and who weighed approximately eighty to ninety pounds. Defendants owned a Labrador Retriever puppy named “Trey,” who was approximately six-and-a-half months old. Prior to the weekend in question, Plaintiff had never met or spoken with Defendants, and Plaintiff and Greta had no prior contact with Trey. Plaintiff, however, knew that Defendants owned a puppy, that the puppy would be present over the weekend, and that the puppy was allowed to roam unleashed on Defendants' properties.
When Plaintiff and Mr. Marchant arrived at Defendants' camp during the evening of Friday, September 11, 2009, Plaintiff opened the back hatch of her vehicle to check on Greta. Trey “bounded” over to Plaintiff's vehicle and attempted to climb in the back with Greta, which prompted Plaintiff to attempt to push him away. (Doc. 39–1 at 5–6, ¶ 18.) Mr. Marchant assisted Plaintiff and was able to restrain Trey and prevent him from entering the vehicle. Defendant Scott Grzankowski was outside the camp as Plaintiff and Mr. Marchant arrived and saw Trey “put his paws on the bumper” of the vehicle, realized another dog was in the vehicle, and put Trey on a leash and walked him back to the camp. (Doc. 39–3 at 8.) After observing this interaction with Trey, Plaintiff was aware that Trey was an “excited” puppy; she did not, however, consider Trey's behavior “vicious” or “dangerous,” and she did not think that Trey seemed “aggressive” because he was not growling or baring his teeth. (Doc. 39–1 at 4, ¶¶ 14–15; Doc. 39–6 at 4–5.) Later that same evening, Plaintiff asked Defendant Renee Grzankowski if she or her husband could restrain Trey while she fed and walked Greta because Trey “was really excited.” (Doc. 34–3 at 38.) In response, Trey was tied to Defendants' porch.
On September 12, 2009, Plaintiff asked Mr. Marchant to ask Defendant Renee Grzankowski to keep Trey inside the house while she took Greta for a walk. Mr. Marchant relayed this request to his sister. While Mr. Marchant thought that “there was already some signs of [Trey] being out of control,” (Doc. 39–5 at 10), there is no evidence that he conveyed this opinion to Defendants. Thereafter, Plaintiff took Greta on a leashed walk, during which Trey, who was unleashed, approached Plaintiff and Greta. Trey did not “bite, scratch, or maul Plaintiff” and his behavior was not “directed” at Plaintiff, (Doc. 39–1 at 8, ¶ 22); however, his “mauling behavior was directed [at] Greta.” Id. Trey jumped on Greta from behind and attempted to mount her, “bit [ ]” at Greta's legs, and engaged in “aggressive play” with Greta. (Doc. 39–6 at 18, 21.) Plaintiff described Trey as initially “playful” but testified that he turned “more aggressive” and was “growling.” (Doc. 39–6 at 21–22.) Greta, in turn, pulled on her leash as she attempted to avoid Trey, which pulled Plaintiff's right arm across her body. Plaintiff contends this incident caused her initial injury.
As Plaintiff yelled for help, she observed Defendant Scott Grzankowski standing outside with a beer in his hand. Plaintiff does not recall which way he was facing at the time and concedes that she has “no
way of knowing what [he] saw.” (Doc. 39–6 at 25.) After hearing Plaintiff call for help, Mr. Marchant ran from inside the house to Plaintiff's aid and separated Trey from Greta. Plaintiff's right shoulder became sore immediately following the incident. Over the remainder of the weekend, Plaintiff did not discuss this incident with Defendants, although she asserts that Defendant Scott Grzankowski had the “opportunity” to witness the incident because he was outside as well when it occurred. (Doc. 39–1 at 8, ¶ 25.)
On September 13, 2009, Defendants were entertaining several guests at their primary residence in Calais, Vermont. Plaintiff brought Greta with her to this residence. When she first arrived, Plaintiff states that Trey “came at Greta” and was “getting in her face and trying to play with her again and just was overly excited again.” (Doc. 34–3 at 52.) A cousin of Mr. Marchant and Defendant Renee Grzankowski separated Trey, and Plaintiff briefly walked Greta and put her back in the vehicle.
Later that day, Plaintiff asked Defendant Renee Grzankowski to keep Trey inside while she took Greta for a leashed walk on a nearby road. After the two had walked approximately a quarter of a mile down Balentine Road, Trey approached at a “[f]ull run” and “darted straight for Greta.” (Doc. 39–6 at 33–34.) During this second incident, Trey did not “bite, scratch, or maul” Plaintiff, (Doc. 39–1 at 10, ¶ 36,) but, according to Plaintiff, Trey was “harassing” and “hounding” Greta and “jumping” on her. (Doc. 39–6 at 34.) As Greta attempted to avoid Trey, Greta again pulled on her leash, which pulled on Plaintiff's right arm. Plaintiff seized Trey's collar with her left hand and walked with the two dogs back to Defendants' primary residence. As Plaintiff escorted the dogs, Greta continued to pull on her leash and Trey continued to jump towards Greta. When Plaintiff and the dogs neared Defendants' residence, Mr. Marchant came to Plaintiff's assistance and restrained Trey. Neither Defendant witnessed the second incident, which Plaintiff claims exacerbated her injuries from the previous day.
Over the course of the weekend, Plaintiff never spoke directly to Defendant Scott Grzankowski about controlling or restraining Trey. Plaintiff had two conversations with Defendant Renee Grzankowski about Trey: the first on Friday night and the second on Sunday afternoon. In each of these conversations, she asked Defendant Renee Grzankowski if Defendants would restrain Trey while she either walked or fed Greta because he was “really excited,” (Doc. 39–6 at 12), but she did not otherwise complain about his conduct.
B. Plaintiff's Additional Evidence of Notice.
Plaintiff points to additional and undisputed evidence which she contends establishes that Defendants had notice of Trey's dangerous propensities. She notes that Defendant Scott Grzankowski testified in deposition that Trey was “energetic” and “playful,” (Doc. 39–3 at 3–4, 10), and that Trey often played with other dogs in their neighborhood, which included chasing, growling, mouthing, nipping, and “put[ting] his paws” on the other dogs. Id. at 4. While Defendant Scott Grzankowski testified that his friends and neighbors had discussed “Trey's energetic or playful behavior” with him, he received no “complaints” about Trey. Id. at 10.
Plaintiff also cites an affidavit submitted by Janice Marchant, the mother of Mr. Marchant and Defendant Renee Grzankowski, wherein Ms. Marchant avers that, at the time of the incident, Trey was “a rambunctious puppy” who did not listen to
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