Sinclair v. Okata
| Decision Date | 12 October 1994 |
| Docket Number | No. A93-0272-CIV (HRH).,A93-0272-CIV (HRH). |
| Citation | 874 F. Supp. 1051 |
| Parties | Katherine SINCLAIR, individually and as Mother and next friend of her minor son Daniel Reinhard, and Michelle Levshakoff, and Terry Reinhard, Plaintiffs, v. Yoshitaka OKATA, Kazuyo Okata and Yoshihide Okata, Defendants. |
| Court | U.S. District Court — District of Alaska |
COPYRIGHT MATERIAL OMITTED
William G. Azar, William G. Azar, A.P.C., Anchorage, AK, for Katherine Sinclair, Michelle Levshakoff, Terry Reinhard.
Robert L. Richmond, Richmond & Quinn, Anchorage, AK, for Yoshitaka Okata, Kazuyo Okata, Yoshihide Okata.
Jeffrey M. Feldman, Young, Sanders & Feldman, Inc., Anchorage, AK, for Discovery Master.
(Motion for Partial Summary Judgment)
Plaintiffs have moved for partial summary judgment on certain aspects of their complaint.1 The motion is opposed. Oral argument has been requested and heard.
On June 4, 1993, Daniel Reinhard was bitten by Anchor, a two and a half year old German Shepherd dog. Daniel was two years old when he was bitten. Daniel's five year old sister, Michelle Levshakoff, witnessed the attack. It is a matter of dispute whether Daniel's mother, Katherine Sinclair, was present at the time of the attack or whether she arrived shortly afterward. Katherine Sinclair, individually and on behalf of minors, Daniel and Michelle, filed suit in the Superior Court for the Third Judicial District for the State of Alaska. The named defendants included Yoshitaka Okata, Kazuyo Okata and Yoshihide Okata. Defendants removed the case to federal district court. Jurisdiction was based on diversity. Plaintiffs are Alaska citizens. The Okatas are citizens of Japan. Plaintiffs, joined by Daniel's father, filed an amended complaint with this court.2 In their complaint, plaintiffs asserted causes of action based on negligence, strict liability, negligent infliction of emotional distress, and for loss of society and companionship. Plaintiffs seek compensatory and punitive damages.
Although some factual issues remain in dispute, there are many areas where there is no genuine dispute. It is not genuinely disputed that the Okatas owned the dog, Anchor, at the time that Daniel Reinhard sustained his injuries.3 It is also undisputed that Daniel sustained his injuries when Anchor bit Daniel's face. Both sides to the dispute agree that on June 4, 1993, Yoshihide Okata, the 17 year old son of Yoshitaka and Kazuyo Okata, arrived home without keys to enter the home he shared with his parents. With nothing else to do, Yoshihide decided to look through the owner's manuals to the new van his parents had recently purchased. While examining the manuals, Yoshihide heard the family's dog, Anchor, in the fenced backyard crying. Anchor was a two and a half year old German Shepherd. Yoshihide brought Anchor into the unfenced driveway where the van was parked and ordered the dog to "stay." The dog was not leashed, but Yoshihide stated that he believed Anchor would obey his command to stay. Yoshihide fell asleep in the van, with the dog still unleashed in the driveway. Yoshihide did not awaken until he heard Daniel Reinhard crying. He then spoke with Katherine Sinclair, Daniel's mother, who told Yoshihide that the dog bit Daniel.
There is also no dispute as to the fact that Anchor was involved in at least four previous biting incidents. On the first occasion, a young boy, Shane Perrins, was bitten after he approached Anchor in the Okata's yard.4 Perrins did not require medical attention, as he received only minor scratches and a small cut on his head.5 On another occasion, Mina Iinuma was bitten on the arm.6 Ms. Iinuma's injuries consisted of one or two small holes in her elbow, which did not require medical attention.7 The third biting incident involved Mizutaka Azuma. According to Azuma's declaration, he was bitten as he entered the Okatas' car after eating dinner with the Okatas.8 Azuma went to a doctor and received three stitches to his ear.9 A fourth incident involved Yumiko Seifert, who was bitten on her buttocks while she was a guest at the Okatas' residence.10 Kazuyo Okata drove Seifert to receive medical treatment.11 The physician's examination revealed "multiple bite marks", but there was no bleeding.12 Finally, there is evidence of a fifth incident involving another child, Miwa Inoue, who sustained an injury to her face requiring one stitch.13
Beyond the bare facts of the four or perhaps five biting incidents, there is a marked dispute over the manner in which the incidents are characterized. Plaintiffs point to what they claim are five biting incidents to establish that Anchor had "dangerous propensities" and to establish that the Okatas had actual knowledge of Anchor's dangerousness. Defendants counter with evidence that each of the four admitted biting incidents were the result of natural instincts, not of any dangerous tendencies. They refer to the testimony of an expert who declared that each of the four biting incidents admitted to by defendants were the result of overstimulation, protective instincts and chase instincts.14 In Shane Perrins' case, defendants point to the fact that many children were playing near Anchor and were possibly shooting toy arrows at him when Perrins approached the dog.15 Defendants claim that the dog was merely excited by all the activity, and that he jumped on the boy because of the excitement, not because of any dangerous propensity.16 The declaration of Perrins' mother includes an opinion corroborating this characterization.17 Defendants next claim that the incidents involving Mina Iinuma and Mizutaka Azuma were caused by the people suddenly touching the dog. Both Iinuma and Azuma declared that they believed they were bitten because they surprised or frightened the dog.18 Finally, defendants claim that the incident involving Yumiko Seifert was caused by Seifert getting too close to the dog's food, then running from the dog when he barked at her.19 Seifert herself disputes this description of the event. She claims that she was bitten as she stood up from a table and crossed the room to examine some skins.20
Further dispute exists concerning the whereabouts of plaintiff Katherine Sinclair at the time her son, Daniel Reinhard, was bitten by Anchor. In their memorandum in support of the motion for partial summary judgment, plaintiffs claim that Katherine Sinclair was in her frontyard watching and supervising her children as the children were playing outside her yard.21 Plaintiffs say that Ms. Sinclair was standing 10-15 feet away from her children when she saw Anchor running at Michelle and Daniel from the backside of the Okatas' van.22 Sinclair apparently saw the dog stop within a foot of the children, then the dog turned and began to walk away.23 The children disappeared behind the van.24 Sinclair stated that she ran towards the children yelling, "that is an unfriendly dog".25 While the children were behind the van, Anchor allegedly came at the children, and Michelle kicked at the dog.26 Sinclair then came around the backside of the van and saw Daniel on the ground.27 Sinclair picked up her son and began running between houses knocking on doors to get help.28
Defendants deny that Sinclair was outside watching her children before the incident occurred. They point to reports of the physician and emergency room nurse who treated Daniel. The emergency report included a notation to the effect that Ms. Sinclair had stated that she was "sleeping on the couch" when the incident occurred.29 Dr. Hall, the attending physician, stated in deposition testimony that he clearly recalled Sinclair saying that she was sleeping on the couch when the incident occurred.30 Dr. Hall's memory of Sinclair's statements was corroborated by Barbara McIntire, the emergency room nurse who treated Daniel. McIntire stated that Sinclair said that she had been lying down on the couch when Daniel was bitten.31 Defendants also cite the deposition testimony of Tiffany (Tina) Weatherton. Weatherton lived across the street from the Okatas.32 She was watching the children off and on for about an hour before Daniel was bitten, and said that she did not recall seeing Sinclair outside with her children.33
There is also a dispute as to the events leading up to Anchor biting Daniel. As discussed above, Katherine Sinclair has stated that the dog Anchor began running at Daniel and Michelle, but turned away. Then, as the children disappeared behind the van, Anchor is believed to have followed the children as they disappeared behind the van. This time, Michelle supposedly kicked at the dog in a defensive maneuver, and Anchor then attacked Daniel. In contrast, defendants believe that Anchor was provoked either by Michelle kicking at him or by Daniel playing with him. They believe that the children approached Anchor, not that Anchor chased after the children. They cite Weatherton's deposition testimony that she saw Daniel approach Anchor and pet him twenty minutes before Daniel was bitten.34 From this testimony, they infer that the children were attempting to pet the dog when Daniel was bitten.
Plaintiffs have moved for partial summary judgment on the issue of "liability".35 The motion does not address the plaintiffs' claims for negligent infliction of emotional distress (Counts III and IV of their complaint) nor their claims for punitive damages or compensation for loss of society (Counts V, VI and VII of their complaint).
Summary Judgment may be ordered on the issue of liability alone even though there is a genuine issue as to the amount of damages. Fed.R.Civ.Proc. 56(c). In support of the motion, plaintiffs have made three arguments: (1) that defendants are liable on a theory of strict liability; (2) that defendants are liable under a negligence theory; and (3) that defendants are liable under a theory of negligence per se.
A court will grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and...
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