Johnson By and Through Johnson v. Svidergol
| Decision Date | 31 May 1988 |
| Docket Number | No. 2,CA-CV,2 |
| Parties | Jacob Ray JOHNSON, a minor, By and Through his parents and next best friends, Bernard and Donna JOHNSON, Plaintiffs/Appellees, v. Rudolph and Deborah SVIDERGOL, Defendants/Appellants. 88-0051. |
| Court | Arizona Court of Appeals |
Defendants/appellants Rudolph and Deborah Svidergol appeal from the granting of summary judgment on liability in favor of plaintiffs/appellees Jacob Ray Johnson and his parents (Johnsons) in this dog bite case. For the reasons set forth below, we vacate the order granting summary judgment and remand for further proceedings.
For purposes of summary judgment, the facts are as follows. On July 23, 1985, Vincent Villareal stole a black labrador/doberman dog owned by Deborah Svidergol from her Cerritos, California, residence. That same day, Villareal travelled with the dog to Kingman, Arizona, where the Johnsons resided. Villareal was related by marriage to Bernard Johnson. Svidergol reported the theft of the dog to the police and, on July 24, a Los Angeles Sheriff's Department deputy completed a report detailing the theft of the dog. On July 25, while Villareal was staying with the Johnsons, the dog bit three-and-one-half-year-old Jacob Ray Johnson on the face, seriously injuring the child. The incident occurred while Jacob was playing in his parents' backyard.
The Johnsons filed a complaint against Villareal and the Svidergols. The Svidergols filed a third-party complaint against Villareal. The Johnsons moved for partial summary judgment on the issue of liability based upon A.R.S. § 24-521. Counsel for the Svidergols filed an opposition, attaching the sheriff's report regarding the theft of the dog and their answers to interrogatories. The trial court granted the Johnson's motion and this appeal followed.
The issue on appeal is whether the trial court erred in granting summary judgment on liability against the owner of a dog for injuries sustained by a dog bite victim after the dog had been stolen from the owner.
The Johnsons contend that summary judgment was appropriate based upon A.R.S. § 24-521 and Massey v. Colaric, 151 Ariz. 65, 725 P.2d 1099 (1986). A.R.S. § 24-521 provides:
The owner of a dog which bites a person when the person is in or on a public place or lawfully in or on a private place, including the property of the owner of the dog, is liable for damages suffered by the person bitten, regardless of the former viciousness of the dog or the owner's knowledge of its viciousness.
In Massey, the supreme court stated:
The owner is virtually an insurer of the dog's conduct. The only defense to this statutory action is proof that the injured party provoked the dog.
151 Ariz. at 66, 725 P.2d at 1100.
The Svidergols argue that summary judgment was inappropriate because the dog had been stolen by Villareal, Ms. Svidergol's former boyfriend, two days before the bite occurred. The Svidergols argue that Villareal is the only proper defendant and that A.R.S. § 24-378 controls. That statute provides:
Injury to any person or damage to any property by a dog while at large shall be the full responsibility of the dog owner or person or persons responsible for the dog when such damages were inflicted.
The Johnsons argue that the Svidergols failed to submit legally sufficient documentation to their opposition to the motion for partial summary judgment. Rule 56(e), Ariz.R.Civ.P., 16 A.R.S., describes the requirements for affidavits in summary judgment pleadings and provides in part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.
Rule 33(a), Ariz.R.Civ.P., 16 A.R.S., provides that each interrogatory to which the answering party does not object must be "answered separately and fully in writing under oath" and that "[t]he answers are to be signed by the person making them, and the objections signed by the attorney making them."
The Johnsons' motion for partial summary judgment included pages from the deposition of Mrs. Johnson describing Villareal's arrival in Kingman and the dog's attack. The Johnsons also attached one page of interrogatories submitted by counsel for the Svidergols. Included in the information on this page is Ms. Svidergol's admission that she was the owner of the dog.
The opposition to the motion recited that Villareal had stolen the dog from Svidergol. This statement was supported by an attached police report regarding Ms. Svidergol's report of the theft and interrogatories answered by counsel for the Svidergols, again describing the theft and the fact that the dog's whereabouts at the time of the biting were unknown. The interrogatories were not signed by Ms. Svidergol and the police report was unverified.
The Johnsons argue that summary judgment should be affirmed because the documents filed in support of the statement of facts submitted by Svidergol do not comply with Rule 56(e). Although federal decisions interpreting federal rules of civil procedure, which are identical to our state rules, are not controlling, they are persuasive. Jenney v. Arizona Express, Inc., 89 Ariz. 343, 349, 362 P.2d 664, 668 (1961). In S & S Logging Co. v. Barker, 366 F.2d 617, 624-25 n. 7 (9th Cir.1966), the Ninth Circuit stated that answers to interrogatories sworn to by an officer of plaintiff corporation were insufficient where there was a failure to show that the officer who answered the interrogatories had personal knowledge or was competent to testify thereto. In Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 n. 1 (2d Cir.1968), the Second Circuit held that interrogatories not shown to be based on personal knowledge have no probative force.
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