United States District Court, D. Arizona
Honorable G. Murray Snow, United States District Judge
before the Court are the Motion for Summary Judgment by
Defendants Thomas and Beatrice DeRosa (Doc. 19) and the
Cross-Motion for Summary Judgment by Plaintiffs Pamela and
John Kaweske (Doc. 21). For the following reasons, the Court
grants Defendants’ motion and denies Plaintiffs’
Pamela Kaweske and Defendant Beatrice DeRosa were conversing
in a fenced-in dog park at Canyon Vistas RV Resort while
their dogs played in the dog park without wearing leashes.
DeRosa’s golden retriever, Jack, bumped into Kaweske
from behind, causing her to lose her balance. Although
Kaweske managed to grab DeRosa’s shoulders and prevent
herself from falling, Kaweske alleges that she sustained
Court grants summary judgment when the movant “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In making this determination, the Court
views the evidence “in a light most favorable to the
non-moving party.” Warren v. City of Carlsbad,
58 F.3d 439, 441 (9th Cir.1995). Where the parties have filed
cross-motions for summary judgment, the Court
“evaluate[s] each motion independently, ‘giving
the nonmoving party in each instance the benefit of all
reasonable inferences.’” Lenz v. Universal
Music Corp., 2015 WL 5315388, at *2 (9th Cir. Sept. 14,
2015) (quoting ACLU v. City of Las Vegas, 333 F.3d
1092, 1097 (9th Cir.2003)). “[A] party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
party opposing summary judgment “may not rest upon the
mere allegations or denials of [the party’s] pleadings,
but . . . must set forth specific facts showing that there is
a genuine issue for trial.” Fed.R.Civ.P. 56(e); see
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986); Brinson v. Linda Rose
Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).
Substantive law determines which facts are material, and
“[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“A fact issue is genuine ‘if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.’” Villiarimo v. Aloha Island
Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting
Anderson, 477 U.S. at 248). Thus, the nonmoving
party must show that the genuine factual issues “can be
resolved only by a finder of fact because they may reasonably
be resolved in favor of either party.” Cal.
Architectural Bldg. Prods., Inc. v. Franciscan Ceramics,
Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (quoting
Anderson, 477 U.S. at 250).
sues under theories of common law negligence and statutory
strict liability. Both of these claims fail.
Common Law Negligence
Arizona common law, liability for injury by animals “is
imposed only if the owner knew or had reason to know the
dangerous propensities of the animal.” James v.
Cox, 130 Ariz. 152, 153 n.1, 634 P.2d 964, 965 n.1 (App.
1981). Thus, the “common law theory” is
“one of negligence.” Id.
Plaintiffs have failed to make any showing that Defendants
knew or had reason to know that Jack, their golden retriever,
had any dangerous propensities. Plaintiffs assert that
Defendants knew that Jack “would occasionally run, jump
around and bump into people without their consent at [the dog