Mitchell v. Abney, 2002-CA-001304-MR.
| Decision Date | 24 October 2003 |
| Docket Number | NO. 2002-CA-001304-MR.,2002-CA-001304-MR. |
| Parties | BENJAMIN L. MITCHELL, INFANT, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, CARLA McCUDDY APPELLANT, v. VIRGINIA LEE ABNEY APPELLEE. |
| Court | Kentucky Court of Appeals |
William K. Moore Versailles, Kentucky, for Appellant.
Don A. Pisacano Lexington, Kentucky, for Appellee.
BEFORE EMBERTON, CHIEF JUDGE; KNOPF AND SCHRODER, JUDGES.
AFFIRMING
This appeal involves an action by a minor child who was seriously, physically injured when he was attacked by the appellee's two dogs. After a jury trial, a verdict was returned in favor of the appellee/dog-owner. We believe that a directed verdict was not warranted in this case, and that partial summary judgment as to the issue of liability was properly denied. Thus, we affirm.
The controlling facts in this case are not disputed. Benjamin Mitchell, then a three-year-old child, was riding his bicycle on the sidewalk in front of the appellee, Virginia Abney's, home. Ms. Abney's house is situated at the end of the street, and her driveway is often used as a place to turn around by neighborhood children on their bicycles. At the end of Ms. Abney's driveway, which slopes downhill, is a gate to her fenced backyard. Although Ms. Abney was not home at the time of this incident, she testified that before she left, she put her two dogs in the backyard and closed the gate. As Benjamin Mitchell approached Ms. Abney's driveway on his bicycle, his uncle and aunt, Justin and Marci Newhart, stood on the porch of their home a few doors down and watched the toddler. Benjamin turned into the Abney driveway, but because of a line of shrubs, they were unable to see what occurred next. Moments later, Benjamin began screaming and the Newharts rushed to the Abney driveway. They found Benjamin about 30 yards inside the Abney's fenced backyard, and the gate to the backyard appeared to have been forced open. Ms. Abney's two dogs were attacking Benjamin as he lay on the ground. The young child suffered multiple lacerations to his face, arms and legs. Although no one eye witnessed the event, the reasonable conclusion is that Benjamin was unable to stop his bike in Ms. Abney's driveway and crashed through the closed gate to the backyard, where he encountered the two dogs.
Benjamin's mother, Carla McCuddy, filed suit against Ms. Abney on behalf of her son (hereinafter, the "Mitchells"), seeking damages. Before trial, the Mitchells entered a motion for partial summary judgment as to Ms. Abney's liability, which was denied. The case was submitted to a jury with the threshold issue included in the following instruction as to liability:
Even though you may believe that Benjamin L. Mitchell was on the defendant's property without her permission or knowledge, if you believe from the evidence that Virginia Abney should reasonably have anticipated or expected that someone like the plaintiff would come into contact with her dogs, then the defendant, Virginia Abney, is responsible for any injuries inflicted on Benjamin Mitchell by her dogs.
The jury returned a verdict in Ms. Abney's favor. The Mitchells entered a motion for a judgment notwithstanding the verdict, which was denied. The Mitchells now enter this appeal, asserting two errors.
The Mitchells first assert that the jury verdict was against the weight of the evidence and therefore, clearly erroneous. "In reviewing the evidence supporting a judgment entered upon a jury verdict, our role is limited to determining whether the trial court erred in failing to grant the motion for a directed verdict." Inn-Group Management Services, Inc. v. Greer, Ky. App., 71 S.W.3d 125, 127 (2002). All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions of the trier of fact. Kentucky & Indiana Terminal R. Co. v. Cantrell, 298 Ky. 743, 184 S.W.2d 111 (1944). The prevailing party is entitled to all reasonable inferences that may be drawn from the evidence. Upon appellate review, the pertinent question is whether the verdict rendered is "palpably or flagrantly" against the evidence so as to "indicate that it was reached as a result of passion or prejudice." NCAA v. Hornung, Ky., 754 S.W.2d 855, 860 (1988). If such is not the case, then the judgment must be affirmed.
In the present case, the jury was presented with evidence that Ms. Abney should not have reasonably anticipated a three-year-old child would come into contact with her dogs. It was uncontroverted that Ms. Abney had locked the gate to her backyard, where the two dogs remained, prior to leaving the house. Ms. Abney also testified that a three-year-old child had never before come into her backyard when it was locked. To support a finding that Ms. Abney should have anticipated a child like Benjamin coming into contact with her dogs, the Mitchells relied on Ms. Abney's own admission that neighborhood children often used her backyard without permission as a shortcut to some empty fields beyond her property. The Mitchells also presented evidence that the latch to Ms. Abney's backyard gate was faulty.
Simply put, the jury in this case was more persuaded by Ms. Abney's presentation of evidence, despite her admission that neighborhood children had, in the past, used her property as a shortcut without her permission. It cannot be concluded, though, that the jury's finding is "palpably or flagrantly" against the evidence. Our review reveals that the jury's verdict was, in fact, based upon substantial evidence presented by Ms. Abney, and was not reached as a result of passion or prejudice. The denial of the Mitchells's motion for a directed verdict was, therefore, proper.
The Mitchells next contend that the trial court erred in denying their pretrial motion for partial summary judgment establishing Ms. Abney's liability. Kentucky Rule of Civil Procedure 56.03 allows the trial court to grant a motion for partial summary...
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