Molina-Guardiola v. Maxson
| Decision Date | 23 July 2019 |
| Docket Number | No. A-18-460.,A-18-460. |
| Parties | ISABELLA EMMA MOLINA-GUARDIOLA, A MINOR, BY AND THROUGH LACY MOLINA, HER MOTHER AND NATURAL GUARDIAN, APPELLANT, v. GEORGE MAXSON ET AL., APPELLEES. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Lancaster County: LORI A. MARET, Judge. Affirmed.
Siegfried H. Brauer for appellant.
Robert S. Lannin and Phoebe L. Gydesen, of Baylor Evnen, L.L.P., for appellees.
This case involves claims made by Isabella Emma Molina-Guardiola (Molina), by and through her mother Lacy Molina (Lacy), against George Maxson (Maxson), Chad Pieschke (Chad), Francine Pieschke (Francine) individually, and Francine in her capacity as the mother of Trever Pieschke (Trever), Samantha Pieschke (Samantha), and Maggie Pieschke (Maggie) (collectively Pieschke children). Molina alleged that Maxson and each of the Pieschkes or some combination thereof, as owners of a dog that bit her on March 8, 2012, were liable for her injuries and that Maxson was also liable to her as owner of the property where the incident occurred. The district court for Lancaster County granted summary judgment in favor of Maxson, and the case proceeded to a jury trial against the remaining defendants. The jury determined that Chad and Francine in her individual capacity were the owners of the dog and awarded Molina damages of $35,000. On appeal, Molina challenges Maxson's dismissal as a defendant, the court's failure to dismiss a venireperson from the jury for cause, the jury's determination that the Pieschke children were not owners of the dog, and the amount of damages awarded. For the reasons set forth herein, we affirm.
On October 18, 2013, Molina filed a complaint against Maxson and Francine in the district court. She alleged that on March 8, 2012, she was bitten by a dog on premises owned or lawfully possessed by Maxson and Francine, that she was present on the premises at their invitation, and that the dog was owned by them and on the premises with their consent. She alleged that while she was on the premises, the dog, unprovoked, attacked her, causing serious bite and tear wounds to her legs and ankles, that she sustained past and future temporary and permanent injuries including substantial scarring, and that she had incurred medical expenses of at least $1,138.64 and would incur future scar revision surgery costs of at least $7,045.40. She also alleged that she had incurred damages for past and future mental and physical pain and suffering. Molina sought damages against the defendants, jointly and severally, in an amount of not less than $8,184.04, as well as general damages, costs, and interest. In subsequent amended complaints, Molina added as defendants Chad and Francine in her capacity as mother of the Pieschke children. In the operative complaint, Molina alleged that all of the defendants were the owners or lawful possessors of the premises and that the dog was owned by, in the possession of, subject to control by, and on the premises with the consent of all of the defendants.
The transcript on appeal includes answers filed by Maxson, Chad, and Francine in her capacity as the Pieschke children's mother. In their answers, they denied liability and Maxson and Francine specifically raised the affirmative defense of provocation by Molina. We note that Chad and Francine in her individual capacity have appeared pro se through this case.
On March 8, 2017, Molina filed a motion for partial summary judgment. She sought an order granting summary judgment against all defendants on the issue of liability under Neb. Rev. Stat. § 54-601 et seq. (Reissue 2010 & Cum. Supp. 2018), alleging that each of the defendants was an owner of the dog responsible for her injuries. Subsequently, Maxson also filed a motion for summary judgment, alleging that there was no genuine issue of material fact with regard either to his "non-ownership of the dog" or his liability as a property owner.
A summary judgment hearing was held on May 15, 2017. The district court received a memorandum from Molina's attorney with attachments (including various discovery responses, depositions of Maxson and Francine, and an Animal Control report) offered by Molina and a deposition of Lacy and an affidavit from Maxson's attorney with attachments (various discovery responses and excerpts from Maxson's and Francine's depositions) offered by Maxson.
The summary judgment evidence generally showed that Molina, then age 7, was visiting a residence in Lincoln, Nebraska, on March 8, 2012, when a large dog bit her on her legs and ankles. The residential property is owned by Maxson and rented by Francine who lives there with the Pieschke children, although Maxson has not collected rental payments from Francine for "a long time." Chad lived with them on the property prior to his divorce from Francine. Maxson, a familyfriend, lives on the property intermittently when not caring for his mother. In late 2011, Chad began bringing the dog, a bullmastiff mixed-breed, over to stay at the house for 3-day periods about once a month while he traveled out of town for work. While outdoors on the property, the dog was kept in an enclosed fence kennel.
In their depositions, both Francine and Maxson testified that Francine did not make Maxson aware of the dog's visits as dogs are not permitted under the terms of the lease. In Francine's discovery responses, she alluded to it being "ok [for her] to watch" a dog on the premises; however, in her deposition, she testified that that had not been a "true answer." Maxson did not recall ever seeing the dog on the property and testified that he did not learn of the incident until 2-3 days after the dog bite occurred. He also testified that he had told Francine several times that he did not want animals on the property. A discovery request for admission directed to Maxson asked him to admit "That prior to the date of the Incident you had instructed Chad Pieschke to remove the Dog from the Premises." Maxson responded, "Denies; this Defendant told Francine that the dog was not to be on the Premises." When asked about this response during his deposition, Maxson stated that he told Francine "all along I don't want no animals" and again testified that he was not aware of the dog's presence on the property until a couple of days after the incident.
With respect to the dog bite incident, the summary judgment evidence shows that on March 8, 2011, the Pieschke children (at least, Samantha and Trever) and Molina were playing outside on the property. Francine was inside the house and heard the children scream. She ran outside and observed Molina on the ground bleeding from the legs. Trever was holding the dog by the collar. Conflicting evidence was presented as to how the dog got out of the kennel. We further detail the evidence relevant to the issues on appeal in the analysis section below.
On September 21, 2017, the district court entered an order denying Molina's motion for partial summary judgment and granting Maxson's motion for summary judgment. In denying Molina's motion for partial summary judgment, the court found genuine issues of material fact regarding ownership of the dog (at least with respect to the defendants other than Maxson). The court determined the record showed that it was possible the dog was owned by "numerous individuals" and that because Molina had offered conflicting evidence suggesting that each defendant or some combination of the defendants owned the dog, a summary judgment finding of liability was inappropriate. The court also determined that the jury would consider the affirmative defense of provocation. The court, however, granted Maxson's motion for summary judgment. It noted Molina's concession in a particular exhibit that there was no evidence proving that Maxson had actual knowledge of the dog's dangerous propensities. The court determined that even when considering the evidence in the light most favorable to Molina, she had failed to show that "the first element of the standard for landlord liability can be satisfied." The court rejected Molina's argument that Maxson should remain in the case and be considered an owner of the dog by operation of § 54-606. The court stated that Molina had failed to show a genuine triable issue against Maxson.
A jury trial was held on November 6 and 7, 2017. Because Chad and Francine individually had not participated in the pretrial conference and did not submit pretrial conference memoranda, the district court precluded them from "offering testimony [themselves]," although the court allowed them the opportunity to cross-examine witnesses, voir dire the jury, and present openingstatements and closing arguments. During voir dire, Francine individually and Chad made motions for continuances to obtain attorneys, which motions were denied by the court. Molina offered testimony from Lacy, herself, and Chad. During Molina's testimony, she was allowed to display the current condition of her scars to the jury. She offered exhibit 10, medical bills for some of the treatment she received at the hospital and a health center following the dog bite, which the court received with a limiting instruction as indicated below. The court also received photographs of Molina's wounds and scars at various stages, pictures of the backyard where the dog bite occurred, letters from a doctor about the difficulty and potential cost of future scar revision surgery, and a mortality table. At the request of Molina's attorney, the court deemed certain requests for admissions directed to Francine and Chad "to the extent that those are offered" as admitted, although the record does not clearly show whether these were read to the jury as...
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