Mazur v. Scavone

• Decision Date: 09 November 1977
• Docket Number: No. 1167,1167
• Citation: 378 A.2d 1355,37 Md.App. 695
• Parties: Diane MAZUR et al. v. Michael SCAVONE et ux.
• Court: Court of Special Appeals of Maryland

Page 695

37 Md.App. 695

378 A.2d 1355

Diane MAZUR et al. v. Michael SCAVONE et ux.

No. 1167.

Court of Special Appeals of Maryland.

Nov. 9, 1977.

Jay M. Caplan, Baltimore, with whom was Erwin B. Frenkil, Baltimore, on the brief, for appellants.

James K. Carmody, Annapolis, with whom were Serio, Carmody & Nichols, Annapolis, on the brief, for appellees.

Argued before MOYLAN, POWERS ^* and MOORE, JJ.

MOYLAN, Judge.

The appellant, Diane Mazur, infant, through her parents and next friends, sued the appellees, Michael and Roberta Scavone, for personal injuries sustained when Diane was attacked and bitten on the face by a German Shepherd dog owned by the appellees. After extensive discovery by both sides, the appellees filed a Motion In Limine and a Motion for Summary Judgment to which the appellants filed timely answers. Following a hearing on the motions, Judge Morris Turk, in the Circuit Court for Anne Arundel County, granted the appellees' Motion for Summary Judgment. Although the judgment appealed from was the granting of the motion, the ultimate issue involves not the law as to summary judgments but the law of evidence and the propriety of granting the Motion In Limine.

The gross facts, as set out in the pleadings, are not in dispute. On January 25, 1971, Diane Mazur, then ten years of age, was selling Girl Scout cookies in her neighborhood. She went to the home of the Scavones. After ringing the doorbell, she was invited inside by the Scavones' adult daughter, Deborah. Deborah agreed to order cookies from Diane. As Deborah was signing the order form, the German Shepherd came running down the steps and jumped on Diane. Standing on his hind legs, with his paws on her shoulders, he bit Diane on her face. Diane ran screaming from the house. Deborah followed her. After seeing the bite on her face, Deborah ran back into the Scavones' house to get her car keys. Deborah then drove Diane to the Mazur home, located about two blocks away. She subsequently drove Diane and Diane's mother, Helen Mazur, to the hospital where Diane was treated. Diane sustained a severe cut on her face.

The law as to summary judgments is not in dispute. Maryland Rule 610 d provides, in pertinent part:

"The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Neither is the tort law in dispute. Both parties agree, as indeed they must, that to hold liable the owner of a domestic animal that has caused injury, the claimant must show that the owner knew, or by the exercise of ordinary and reasonable care should have known, of the inclination or propensity of the animal to do the particular mischief that caused harm. Twigg v. Ryland, 62 Md. 380; Finneran v. Wood, 249 Md. 643, 648, 241 A.2d 579, 581. The pivotal issue in this case is that of whether the appellees knew, or should have known, of an inclination on the part of their German Shepherd to bite people. If the pleadings and supporting documents gave no promise of establishing this element, the Motion for Summary Judgment was properly granted; if the pleadings and supporting documents did show the possibility of establishing this element, the motion was improperly granted.

The question boiled down to one of whether there was any evidence being proffered by the appellants to show such knowledge. In their Answers to Interrogatories, the appellees denied any vicious propensities on the part of their German Shepherd and any knowledge thereof. This denial was repeated in the deposition of appellee Michael Scavone and in that of his daughter, Deborah, who was not a party defendant. The question became that of whether the appellants could show evidence of such knowledge on the part of the appellees. The first indication of ostensible evidence in this regard came in an Answer filed by the appellants to Supplemental Interrogatories. One of those answers contained the following statement:

"The Defendant's daughter stated in the Plaintiff's car on the way to the hospital that the dog got excited and nervous around strangers and that they would have to get rid of the dog now because he had previously jumped others."

The appellees, with a supporting affidavit by Deborah Scavone, denied that such a statement had ever been made but further pointed out, which point was not contested, that a period of some twenty-five minutes had elapsed between the biting incident and the final automobile trip to the hospital, in the course of which the disputed declaration was allegedly made. In their Motion In Limine, the appellees urged the court to rule that the alleged declaration, even if assumed to have been made, was inadmissible on the grounds that it was hearsay and did not fall within any recognized exception to the hearsay rule. Judge Turk did so rule that the alleged declaration was inadmissible in evidence under the hearsay rule. On the basis of that ruling, he granted the appellees' Motion for Summary Judgment.

Our starting point of analysis is a consideration of what is required of a party to forestall a summary judgment against him. The analysis of Judge Powers in Knisley v. Keller, 11 Md.App. 269, 272-273, 273 A.2d 624, 625, is highly instructive:

"We point out that the summary judgment procedure is not a substitute for a trial but merely a hearing to decide whether a trial is necessary, Strickler Engineering Corp. v. Seminar, Inc., 210 Md. 93, page 100, 122 A.2d 563 (1956); Lipscomb v. Hess, 255 Md. 109, page 118, 257 A.2d 178 (1969). The party opposing the motion must show by facts, which would be admissible in evidence, that there is real dispute between the parties. The dispute must be material to the outcome. . . . The function of the judge is much the same as that he performs at the close of all the evidence in a jury trial when motions for directed verdict or requests for peremptory instructions require him to determine whether an issue requires resolution by a jury, or is to be decided by the court as a matter of law."

The appellants urge upon us that there was a genuine dispute a genuine controversy over a material fact, that fact being whether Deborah Scavone ever made the out-of-court declaration attributed to her or not. In her affidavit, Deborah Scavone swore:

"After the incident, I followed Diane outside and noticed her injury. I then went back into the house, got my shoes and drove her to her home. After a discussion with her mother and a waiting interval of about twenty minutes, I drove Diane and her mother to the hospital.

At no time on that date, or at any other time, did I say that my parents' dog got excited around strangers or that he had previously jumped on anyone. The fact is that the dog was gentle and had never attacked, bothered or threatened anyone prior to January 25, 1971."

In stark contrast to that, the appellee Helen Mazur, in her answering affidavit, swore:

"After Diane was bitten by the dog, she was brought to my house by Deborah Scavone. Deborah knocked on the door and told me what had happened to Diane. I ran out to the car to look at her and then went back in the house to get a washcloth. I yelled to my son to call my husband and went out to Deborah's car. It is only a few minutes to my house from the Scavone's. Deborah Scavone did not come in my house at all.

After we were in the car a few minutes, Deborah said that they would have to get rid of the dog now because he had previously jumped someone else."

There can be no doubt but that this is a genuine dispute as to a fact. The pivotal question, however, is that of whether this genuine dispute of fact is or is not a dispute as to a material fact. This depends upon the correctness and the propriety of the judge's evidentiary ruling which he made in granting the appellees' Motion In Limine. If the alleged out-of-court declaration is admissible, the dispute as to whether it was made is highly material. The resolution of the disputed question of whether Deborah Scavone did or did not make such a statement is tantamount to the resolution of whether the appellees were or were not aware of dangerous propensities in their dog. If, on the other hand, the alleged declaration is inadmissible in evidence, even assuming it to have been made, the dispute takes on a hollow ring and is bereft of all materiality. Benedetto v. Balto. Gas & Elec. Co., 30 Md.App. 171, 175, 350 A.2d 712. An inadmissible statement is the quantitative equivalent of no statement at all. The appellants will have failed to offer evidence which could establish a necessary element of their case and will be properly vulnerable to a motion for summary judgment. If properly excludible, even if made, it makes no difference to the outcome whether such declaration was or was not made. As Judge Powers carefully pointed out in Knisley v. Keller, supra, at 11 Md.App. 272, 273 A.2d 625:

"The party opposing the motion must show by facts, which would be admissible in evidence, that there is real dispute...