Braese, Jr. v. Stinker Stores, Inc., an appeal from the Supreme Court of Idaho, involved a rather unique set of facts. A customer entered the convenience store at a gas station. Store manager permitted customers to bring their dogs into the store because she knew that other area businesses allowed this, and she did not want to be disliked by area dog owners.
One particular day, a customer had his dog on a leash while standing at the counter. However, customer was not holding the leash while at the counter. The dog raised up her paws and put them on the counter. Manager gave the dog a treat. The entire transaction took around two minutes and during that time the dog put her paws on the counter six more times and, on the last time, cashier gave her another treat.
While customer was putting his change in his pocket, plaintiff walked into the store. Customer was facing cashier. Plaintiff put his hand in his pocket to get cash to pay for a lottery ticket. The dog apparently though another treat was involved and jumped up, hitting plaintiff in the chest with her front paws.
Plaintiff filed a civil negligence action against defendant store owner and later against the dog’s owner. Store owner filed a motion for summary judgment, asking that the case be dismissed because she did not owe a duty of care to protect customers from other customers’ pets. Trial court granted the motion with respect to store owner and dismissed the case. The dog’s owner, however, did not show up for court, and plaintiff obtained a default judgment against him in the amount of $25,000.
As our Boston animal injury lawyers can explain, if a party does not answer a complaint or appear in court, courts can enter a default judgment against that party who is not present. Once a default judgment is issued, it must be entered by a Massachusetts clerk of court before it is enforceable against defendant. At that point, plaintiffs can seek a recovery with the judgment in hand.
Plaintiff appealed the dismissal of the cause of action against the store. Plaintiff claimed his lawsuit was not based upon premises liability, but rather on common law negligence. He asserted the four common law elements of negligence including duty, breach, causation and damages.
On appeal, the appellate court held that allowing dogs into a retail establishment did not create an unreasonable risk of harm to other customers. Additionally, the court held the store manager’s decision to allow the dog to remain in the store after she had put her paws on the counter was not unreasonable.
This argument is extension of a common law rule in animal bite cases where it is said that every dog gets one free bite. Essentially, if a dog (or other pet) has never harmed anyone, there is no reason to know that it has violent or dangerous tendencies, so the first time it bites someone, there is generally not a finding of negligence.
Here, plaintiff was trying to say that once cashier saw that the dog would jump on the counter with her front paws, she had reason to know it was dangerous and should have asked customer to remove her from the store. The court disagreed with this argument.
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Braese, Jr. v. Stinker Stores, Inc, October 29, 2014, Supreme Court of Idaho
More Blog Entries:
Wilkins v. City of Haverhill – Massachusetts Supreme Court Weighs Slip-and-Fall Claim, May 23, 2014, Boston Personal Injury Attorney Blog