Moura v. Randall

CourtCourt of Special Appeals of Maryland
Citation119 Md.App. 632,705 A.2d 334
Docket NumberNo. 240,240
PartiesVanderly MOURA, Individually, etc., et al. v. Warren RANDALL. ,
Decision Date01 September 1997

Ronald A. Karp (Jack A. Gold and Karp, Frosh, Lapidus & Wigodsky, P.A., on the brief), Bethesda, for appellants.

Barbara A. Graham, Rockville (Martha L. Handman, Gaithersburg, on the brief), for appellee.

Before DAVIS, HOLLANDER and KENNEY, JJ.

HOLLANDER, Judge.

This case arises out of a tragic incident that occurred on August 15, 1994, when "Diesel," a Rottweiler owned by Warren Randall, appellee, savagely attacked four-year old Alex Moura ("Alex"), the son of Vanderly and Irene Moura, appellants. On December 22, 1995, appellants, individually and as parents and next friends of Alex, filed a multi-count complaint 1 in the Circuit Court for Montgomery County against appellee, seeking compensation for the injuries Alex sustained when he was mauled about the head by appellee's dog. After the court entered summary judgment in favor of appellee on all claims, appellants noted their appeal. They present the following issues for our review:

I. Did the trial court err in granting appellee's motion for summary judgment when it found no violation of the Montgomery County "Animal Control" ordinance?

II. Did the trial court err in granting appellee's motion for summary judgment when it found there was no genuine issue as to material fact concerning the reasonableness of appellee's control of his dog?

III. Did the trial court err in granting appellee's motion for summary judgment when it found no genuine issues of material fact existed as to whether appellee should have known of his dog's vicious propensities?

For the reasons discussed below, we answer these questions in the affirmative. Accordingly, we shall reverse.

Factual Summary

At about 10 a.m. on the morning of August 15, 1994, appellee intended to take his two-year old Rottweiler for a walk, without using a leash. While appellee was still on the common grounds of the townhouse development where he lived, the dog, which was standing approximately fifteen feet from appellee, suddenly bolted after another dog. Appellee unsuccessfully pursued Diesel on foot for about three blocks. When he was unable to locate the dog, appellee continued his search by car. Approximately ten minutes later, appellee discovered Diesel in a parking lot of an apartment complex. Police officers at the scene informed appellee that his dog had just attacked Alex.

Appellants subsequently filed suit, alleging appellee was liable based on negligence and strict liability. Thereafter, appellee moved for summary judgment, arguing that appellants failed to present a genuine dispute as to any material fact concerning: (1) appellee's violation of the Montgomery County "Animal Control" ordinance; (2) appellee's failure to exercise reasonable care in his control of Diesel; or (3) that appellee knew or should have known of Diesel's tendency to bolt or vicious propensities. In appellee's affidavit in support of his motion, he stated that Diesel had attended obedience classes every Saturday and Sunday from December 1992 through March 1993 and, from April 1993 through October 1993, the dog attended classes as appellee's work schedule permitted. Appellee averred that Diesel was always friendly and, prior to the attack, Diesel had never been aggressive, Diesel had never bitten anyone, and Diesel had never run after another dog.

In their opposition to the motion, appellants argued, inter alia, that appellee had violated § 5-26 of the Montgomery County Code (1994, Supp. No. 22) (hereinafter "MCC"), and that the violation constituted prima facie evidence of negligence. They also asserted that there were material factual disputes concerning appellee's knowledge of Diesel's propensity to bolt or cause harm, the dog's failure to obey appellee's commands, and whether appellee exercised reasonable care in controlling Diesel.

In support of their position, appellants attached a copy of appellee's testimony, given under oath before the Animal Matters Hearing Board of Montgomery County (the "Board"). There, appellee conceded that, on one occasion when Diesel was unleashed, he had chased a cat into the wooded area behind appellee's residence. Appellants posited that this incident charged appellee with the knowledge that Diesel might not always obey commands and that Diesel might run away if unleashed. Appellants also submitted a copy of the testimony of Mark Lipsitt, a dog trainer and kennel owner with twenty-five years of experience working with animals, who appeared before the Board on December 5, 1994. Lipsitt's testimony concerned a report he prepared with respect to his examination of Diesel soon after the attack. He testified that when he examined Diesel, "[t]he dog was straining at the leash. The dog was jumping up and down in an effort to get to me. He was barking. He was growling. He was snarling. He was baring his teeth, and he was snapping." Consequently, Lipsitt concluded that Diesel had "previous experience with agitation." Appellants did not submit Lipsitt's actual report.

Appellants also submitted a copy of the testimony of Robert Maida, a dog trainer specializing in animal behavior problems and aggression, who also testified before the Board on December 5, 1994. Maida opined that, based on Lipsitt's evaluation of Diesel, he believed Diesel was dangerous.

Further, appellants attached their own answers to appellee's interrogatories, in which they proffered the opinions of Maida and Carlos Mejias as expert witnesses, stating that Diesel should have been leashed because he was dangerous. Appellants failed to include affidavits from these witnesses, however. 2

Thereafter, the circuit court granted summary judgment in favor of appellee, stating:

In this instance I have nothing to contradict the affidavit statements of the owner that he never experienced this particular animal to exhibit vicious propensities; that he had only had the dog bolt once, and that was when the dog was only a month or two or so into obedience training. It was some lengthy period before this tragic incident.

....

That he would walk this dog several times a day substantially without a leash, relying on the benefit of the training program the dog had been through. That there has been no previous example of the dog bolting.

So, there is not any real evidence here that would show--the Court believes an issue--a dispute that should be presented to the jury with regard to the owner's subjective knowledge of any propensities for this particular animal.

Plaintiff goes on to say that there is a violation of the Montgomery County--we called it the leash law at first--in that this animal was not on a leash and permitted to be at large.

The Court finds that given the affidavit of the defendant, that this dog had undergone an extensive obedience training program; that the dog consistent with that program had been unleashed on several occasions a day for several years, and had never exhibited a bolt. That he was neither permitted, nor was he at large, due to the conduct of the owner.

The owner believed--had the right to believe, based on experience, that the dog was under control, and that he need not be leashed if he was in fact under control.

And that is what the Court finds occurred here. The dog was under control, not permitted to run at large, and escaped.

To me it was really no different in concept than if a dog was on a leash and broke the leash and ran away. He was not permitted to be at large; it was an escape.

....

It gives the Court no pleasure whatsoever to grant the summary judgment. It is a very tragic occurrence.

On the other hand, I am compelled to rule according to the law as I understand it to be in Maryland, so I have no choice.

Standard of Review

Maryland Rule 2-501 governs summary judgment. It provides that in order to grant a motion for summary judgment, the trial court must determine that no genuine dispute exists as to any material fact, and that one party is entitled to judgment as matter of law. Bagwell v. Peninsula Regional Medical Ctr., 106 Md.App. 470, 488, 665 A.2d 297 (1995), cert denied, 341 Md. 172, 669 A.2d 1360 (1996); see also Southland Corp. v. Griffith, 332 Md. 704, 712, 633 A.2d 84 (1993); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737-38, 625 A.2d 1005 (1993); Bits "N" Bytes Computer Supplies, Inc. v. Chesapeake & Potomac Tel. Co., 97 Md.App. 557, 580-81, 631 A.2d 485 (1993), cert. denied, 333 Md. 385, 635 A.2d 425 (1994); Seaboard Sur. Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242-45, 603 A.2d 1357 (1992). In reviewing the motion, the court must consider the facts in the light most favorable to the non-moving party, Dobbins v. Washington Suburban Sanitary Comm'n, 338 Md. 341, 345, 658 A.2d 675 (1995); King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985), construing all inferences reasonably drawn from those facts in the non-movant's favor. Tennant v. Shoppers Food Warehouse, 115 Md.App. 381, 387, 693 A.2d 370 (1997); Bagwell, 106 Md.App. at 488, 665 A.2d 297.

In order to defeat a motion for summary judgment, the non-moving party must establish that the parties have a genuine dispute as to a material fact. A material fact is one that will somehow affect the outcome of the case. King, 303 Md. at 111, 492 A.2d 608. If a dispute exists as to a fact that is not material to the controversy, the entry of summary judgment is not foreclosed. Scroggins v. Dahne, 335 Md. 688, 691, 645 A.2d 1160 (1994). Moreover, mere formal denials or general allegations that fail to show facts in detail and with precision are not sufficient to prevent the entry of summary judgment. Shaffer v. Lohr, 264 Md. 397, 404, 287 A.2d 42 (1972); Frush v. Brooks, 204 Md. 315, 320-21, 104 A.2d 624 (1954).

In the absence of a genuine dispute as to material fact, we must determine whether the trial court reached the...

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