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Kaweske v. DeRosa

United States District Court, D. Arizona

June 24, 2016

Pamela Kaweske, et al., Plaintiffs,
v.
Thomas DeRosa, et al., Defendants.

          ORDER

          Honorable G. Murray Snow, United States District Judge

         Pending 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’ motion.

         BACKGROUND

         Plaintiff 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 serious injuries.

         DISCUSSION

         I. Legal Standard

         The 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, 323 (1986).

         The 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).

         II. Analysis

         Kaweske sues under theories of common law negligence and statutory strict liability. Both of these claims fail.

         A. Common Law Negligence

         Under 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.

         Here, 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 ...


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