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Carvalho v. Grzankowski

United States District Court, D. Vermont

August 6, 2014


For Carrie A. Carvalho, Plaintiff: William A. MacIlwaine, Esq., Dinse, Knapp & McAndrew, P.C., Burlington, VT.

For Renee Grzankowski, Scott Grzankowski, Defendants: Andrew C. Boxer, Esq., Ellis Boxer & Blake, Springfield, VT.

For ENE Evaluator, ENE Evaluator: Michael F. Hanley, Plante & Hanley, P.C., White River Junction, VT.

Page 424


Christina Reiss, Chief United States District Judge.

Pending before the court is a motion for summary judgment filed by Defendants Renee and Scott Grzankowski (collectively, " Defendants" ). (Doc. 36.) In this negligence action, Plaintiff Carrie Carvalho alleges that, over the course of a weekend at Defendants' residences, she was injured as a result of Defendants' failure to exercise reasonable control over their puppy.

Defendants contend they are entitled to judgment as a matter of law because the undisputed facts reveal that their puppy exhibited neither vicious nor dangerous propensities and that they therefore lacked notice that their puppy posed a foreseeable danger to Plaintiff. Plaintiff opposes the motion for summary judgment, arguing that whether Defendants had notice that their puppy posed a source of danger to others, whether Defendants breached their duty of care, and whether that alleged breach was the proximate cause of her injuries are factual determinations for the jury.

The court heard oral argument on the pending motion on June 16, 2014. Plaintiff is represented by William A. MacIlwaine, Esq. Defendants are represented by Andrew C. Boxer, Esq.

I. The Undisputed Facts.

A. The Incidents Giving Rise to Plaintiff's Injuries.

On the weekend of September 11, 2009, Defendants invited Plaintiff and her boyfriend, Rob Marchant, who both lived in Massachusetts, to their residences in Vermont.

Page 425

At the time, Defendants owned a camp located on Forest Lake in Woodbury, Vermont, and a primary residence in Calais, Vermont. Defendant Renee Grzankowski and Mr. Marchant are siblings.

When Defendants invited Plaintiff to visit, Defendants knew that Plaintiff's dog would accompany her, and Defendant Renee Grzankowski admits that she did not advise Plaintiff not to bring her dog. At the time, Plaintiff owned a mature Bullmastiff named " Greta," who was approximately six years old and who weighed approximately eighty to ninety pounds. Defendants owned a Labrador Retriever puppy named " Trey," who was approximately six-and-a-half months old. Prior to the weekend in question, Plaintiff had never met or spoken with Defendants, and Plaintiff and Greta had no prior contact with Trey. Plaintiff, however, knew that Defendants owned a puppy, that the puppy would be present over the weekend, and that the puppy was allowed to roam unleashed on Defendants' properties.

When Plaintiff and Mr. Marchant arrived at Defendants' camp during the evening of Friday, September 11, 2009, Plaintiff opened the back hatch of her vehicle to check on Greta. Trey " bounded" over to Plaintiff's vehicle and attempted to climb in the back with Greta, which prompted Plaintiff to attempt to push him away. (Doc. 39-1 at 5-6, ¶ 18.) Mr. Marchant assisted Plaintiff and was able to restrain Trey and prevent him from entering the vehicle. Defendant Scott Grzankowski was outside the camp as Plaintiff and Mr. Marchant arrived and saw Trey " put his paws on the bumper" of the vehicle, realized another dog was in the vehicle, and put Trey on a leash and walked him back to the camp. (Doc. 39-3 at 8.) After observing this interaction with Trey, Plaintiff was aware that Trey was an " excited" puppy; she did not, however, consider Trey's behavior " vicious" or " dangerous," and she did not think that Trey seemed " aggressive" because he was not growling or baring his teeth. (Doc. 39-1 at 4, ¶ ¶ 14-15; Doc. 39-6 at 4-5.) Later that same evening, Plaintiff asked Defendant Renee Grzankowski if she or her husband could restrain Trey while she fed and walked Greta because Trey " was really excited." (Doc. 34-3 at 38.) In response, Trey was tied to Defendants' porch.

On September 12, 2009, Plaintiff asked Mr. Marchant to ask Defendant Renee Grzankowski to keep Trey inside the house while she took Greta for a walk. Mr. Marchant relayed this request to his sister. While Mr. Marchant thought that " there was already some signs of [Trey] being out of control," (Doc. 39-5 at 10), there is no evidence that he conveyed this opinion to Defendants. Thereafter, Plaintiff took Greta on a leashed walk, during which Trey, who was unleashed, approached Plaintiff and Greta. Trey did not " bite, scratch, or maul Plaintiff" and his behavior was not " directed" at Plaintiff, (Doc. 39-1 at 8, ¶ 22); however, his " mauling behavior was directed [at] Greta." Id. Trey jumped on Greta from behind and attempted to mount her, " bit[]" at Greta's legs, and engaged in " aggressive play" with Greta. (Doc. 39-6 at 18, 21.) Plaintiff described Trey as initially " playful" but testified that he turned " more aggressive" and was " growling." (Doc. 39-6 at 21-22.) Greta, in turn, ...

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