For Ressearcher_D Only

IN THE

COURT OF APPEALS OF THE STATE OF FICTION

No. 00-00001

MARCIA HANSON,

Petitioner,

v.

JOHN and RITA SMART,

Respondent.

ON APPEAL TO THE COURT OF APPEALS OF

THE STATE OF FICTION FROM

THE FICTITIOUS TRIAL COURT

BRIEF OF PETITIONER

Some Lawyer

Attorney for Petitioner

4567 Any Lane

Anytown, Fiction 37214

TABLE OF CONTENTS

Index of Authorities …………………………………………………………. X

Statement of Jurisdiction …………………………………………………….. X

Statement of Issues …………………………………………………………... X

Statement of Facts ……………………………………………………………. X

Argument …………………………………………………………………….. X

Conclusion ……………………………………………………………………. X

Relief ………………………………………………………………………….. X

INDEX OF AUTHORITIES

Cases

Party A v. Party B, _ _ XX _ _ _ (Fict. 199_)

You v. Me, _ _ _ XX.2d _ _ (Fict. 197_)

Statutes

Fiction State Statute § XX-X-XXX

STATEMENT OF JURISDICTION

This Honorable Court has jurisdiction pursuant to Fiction Code Annotated § xx-x-xxx

QUESTIONS PRESENTED

DOES Fiction State Statute§ XX-X-XXX PROVIDE FOR A DISMISSAL BASED ON A

FIRST BITE DEFFENSE?

STATEMENT OF THE FACTS

On April 23, 2008, at approximately 4:00 AM, Marcia Hanson was delivering

newspapers for The Smalltown newspaper in Anytown, Fiction. As Ms. Hanson approached the

home of John & RITA SMART, their dog, a male pit bull named Spot, ran barking from the back

of the house and approached Ms. Hanson on the sidewalk. Spot then charged Ms. Hanson, biting

her on the right leg, ankle and foot. Mrs. SMART unsuccessfully attempted to call Spot off of

Ms. Hanson. Hearing the commotion, Mr. SMART came out of the house and commanded Spot

to “hold down,” at which time the dog immediately released Ms. Hanson’s foot and ran to Mr.

SMART. Mrs. SMART called 911 and within minutes the Anytown Fire Department and

paramedics arrived at the scene. They staunched the flow of blood from Ms. Hanson’s foot and

transported her to Smalltown Hospital where she was sedated and received 140 stitches in her

right leg, ankle and foot. She was given a tetanus shot and admitted for overnight observation.

Smalltown Police Department arrived at the scene where they took a report from Mr. &

Mrs. SMART, recorded Spot’s rabies number, and informed them that Spot would have to be

impounded for 10 days as required by county ordinance. The SMART’s informed the police that

they would take Spot to their veterinarian for the period of impoundment. The police attempted

to interview Ms. Hanson at the hospital, but she was heavily sedated and could not speak at the

time.

Trial was held in Fictitious Trial Court on December 19 th

, 2008, Honorable Judge Noble

Judge presiding. Judge Judge ruled that while Ms. Hanson was in fact bitten by Spot and was

required to have 140 stitches, the Defendant’s would not be held liable under the “first bite”

doctrine. The first bite rule exempts dog owners from liability for damages incurred if the dog

has not previously bitten anyone.

ARGUMENT

A DOG OWNER WHO IGNORES THE DUTY TO KEEP THE DOG UNDER

CONTROL IS LIABLE FOR DAMAGES TO SOMEONE WHO IS NOT TRESPASSING.

Fiction State Statute§ XX-X-XXX – Injury caused by dogs; civil liability; exceptions; limitations

provides the following in part:

(1)(a) The owner of a dog has a duty to keep that dog under reasonable control at all

times, and to keep that dog from running at large. A person who breaches that duty is

subject to civil liability for any damages suffered by a person who is injured by the

dog while in a public place or lawfully in or on the private property of another.

(1)(b) The owner may be held liable regardless of whether the dog has shown any

dangerous propensities or whether the dog’s owner knew or should have known of the

dog’s dangerous propensities.

(2) Subsection (1) shall not impose liability upon the owner of the dog if:

(2) (b) The injured person was trespassing on the property of the dog’s owner.

Pursuant to the above, the owner of a dog has a duty to keep that dog under reasonable

control at all times. Neither Mr. nor Mrs. SMART had Spot under their control, as evidenced by

the fact that he was able to reach Ms. Hanson at the sidewalk before she had even crossed the

property line. If the dog was unleashed, it can be considered “at large.” Subsection (1)(b) also

clearly states that the owner will be held liable regardless of any dangerous propensities, known

or unknown, thus invalidating any first bite provisions.

Subsection 2 above relieves the owner of liability if the person was trespassing. Hanson was

delivering the paper at the request of the SMART’s as they subscribe to home delivery of the

paper. Hence, she was in no way trespassing.

The trial court, therefore, erred in dismissing Hanson’s claim and the SMART’s should be held

liable for damages.

In Party A v. Party B, _ _ XX _ _ _ (Fict. 199_) Party B lived in a rural community and allowed

his Doberman, Muffy, to run free each night between the hours of 1 and 2 am. Party A was

bitten by Muffy while walking down the road at 1:30 am after his vehicle had run out of fuel.

The Court awarded Party A damages, ruling that if the owner of a dog allowed the animal to run

at large, the dog owner was liable for damages resulting from the dog’s biting a person.

Allowing Spot out of the house without a leash constituted the dog’s “running at large” and the

SMART’s, therefore, are liable for Ms. Hanson’s damages.

In You v. Me, _ _ _ XX.2d _ _ (Fict. 197-) You was awarded damages when Me’s off-duty

police dog bit her while she was delivering a pizza to the Me household. The Court held that the

owner of a dangerous dog, kept on the owner’s property, owed guests the duty of ordinary care

while the guest was on the premises. Mr. and Mrs. SMART subscribed to The Smalltown

newspaper and knew that it was delivered early each morning, as it had been for nearly 3 years

prior to the incident. While Spot is not a trained police dog, he was known to occasionally lunge

and growl without provocation and the inherent dangerous nature of the breed should have

caused the SMART’s to be more cautious. On the morning in question, Spot did bite Ms.

Hanson causing her great bodily injury.

CONCLUSION

The trial court erred in dismissing Ms. Hanson’s claim for damages. The SMART’s are

liable for not keeping the animal under their control and allowing it to run at large which resulted

in harm to the Petitioner, Marcia Hanson.

RELIEF

WHEREFORE, Petitioner respectfully requests that this Honorable Court reverse the

decision of the Trial Court and award Ms. Marcia Hanson all medical bills, lost wages, and pain

and suffering in the amount of $150,000.00.