IN THE COURT OF COMMON PLEAS
FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CORR!NA FORAKER, )
Plaintiff, §
v. § C.A. No. CPU4-15-002214
JENNIFER RIFE and §
DAVE RIFE, )
Defendants. §
MEM()RANDUM OPINION & ORDER
Submitted: March 15, 2017
Decided: April 3, 2017
Brian S. Legum, Esq. Jennifer Rife, &
Kimmel, Carter, Roman, Peltz & O’Neill, P.A. Dave Rife
56 West Main Street, Plaza 273, 4th Fl. 105 Willow Tree Lane
Newark, DE 19702 Newark, DE 19702
Attorneysfor Plaintiff Pro se Defendants
WELCH, J.
This case concerns a dog bite that resulted in personal injury to the Plaintiff.
Both parties appeared for trial before the Court on March 15, 2017. The Court
reserved its decision. This is the Court’s Final Memorandum Opinion and Order
after consideration of the pleadings, oral and documentary evidence submitted at
trial, arguments made at trial, and the applicable law.
The Court notes, preliminarily, that it is sympathetic to Defendants Jennifer
and Dave Rife, as strict liability prevents, except for the statutory exception, Which
is not applicable there, the Court from considering Defendants’ responsible
ownership and control of their dog. Nevertheless, as the Court is bound by the
controlling statute, the Court enters judgment in favor of Plaintiff Corrina Foraker
in the amount of $5,821.87 plus costs for the following reasons.
I. M
Based on the testimony and evidence presented at trial, the Court finds the
relevant facts to be as follows.
On May 3l, 2014, Defendants’ senior Rottweiler, Daisy, bit Plaintiff’ s left
hand When Plaintiff attempted to pet Daisy after arriving at Defendants’ property
to pick up her daughter.l Plaintiff and Defendants live in the same neighborhood,
approximately ten minutes from each other. For several months prior to this
incident, Plaintiff’ s daughter, Hailey Foraker, and Defendants’ daughter, Rebecca
1 Plaintiff is an adult female in her early forties. See Plaintiff’s Exhibit l; Defendants’ Exhibit 3.
2
Rife, were friends and spent significant time at each other’s homes.2 Hailey
testified that she had been to “Becca’s” home “too many times to count.”
Normally, Plaintiff would call Hailey to notify her that Plaintiff was leaving and
walking to Defendants’ home to take Hailey home. When Plaintiff arrived,
Plaintiff often interacted with Daisy and Defendants’ second dog, Honey, an
American Pitbull Terrier puppy. Plaintiff testified that neither dog had so much as
growled at her prior to this incident
On May 30, 2014, Hailey spent the night at Defendants’ home.3 On May 3l,
2014, Plaintiff called Hailey and told her Plaintiff was coming over to take her
home. When Plaintiff arrived at Defendants’ mobile home, she was warmly
greeted by Honey who was leashed and sitting on the front of the mobile home’s
porch.
Since Plaintiff was aware that Daisy often slept towards the back of the
porch, Plaintiff called out “Daisy” so she would not be startled when Plaintiff
walked around her.4 After Plaintiff called her name, Daisy came out from under
the steps and Plaintiff attempted to pet her. When Plaintiff extended her left hand
2 Both Hailey, who is thirteen years- -old, and Rebecca, who is twelve years-old, were qualified as
competent mino1s piior to testifying
3 Plaintiff testified that she allowed Hailey to spend the night because the families anticipated
spending part of Memoiial Day weekend together.
4The porch was attached to the side of Detendants’ mobile home. While Defendants’ black-and-
white cellphone pictures are blurry, they evidence three wooden steps with space behind the
steps that are sealed off from the right by a white, plastic siding with an attached guardrail. See
Defendants’ Exhibit l.
to pet Daisy, who was also leashed, Daisy bit into Plaintiff s hand, and Plaintiff
began screaming for help. She tried to pull away, but Daisy “would not let go,”
and instead began pulling Plaintiff back toward the porch steps. Plaintiff was
fearful that she had lost a finger. Because Defendants and their son were playing
horseshoes and Hailey and Rebecca were swinging on a tire rope in Defendants’
backyard, no one immediately responded.
When Defendants arrived in their front yard, Daisy released Plaintiff”s hand
which was bleeding profusely. Defendants’ son went to retrieve ice for Plaintiff’ s
hand while Defendant-Jennifer grabbed some paper towels. After wrapping the
wound, Defendant-Jennifer drove Plaintiff to a nearby Medical Express in Newark.
Plaintiff’ s hand was cleaned and sutured at the Medical Express on the day of the
incident.5 Plaintiff had a follow-up appointment at Medical Express on June 2,
2014 when the sutures were removed and Plaintiff was informed that she would
need surgery; however, after visiting a surgeon, physical therapy was instead
prescribed.6 Plaintiff testified that she attended physical therapy three times a
week from June 2014 to January 2015 in order to regain feeling in her hand.7 After
several months of physical therapy, Plaintiff was able to curl her fingers into a fist.
5 Plaintiff provided clear pictures of the suture on the day of the incident. See Plaintiff’s Exhibit
2.
6 See Defendants’ Exhibit 2.
7 See Plaintier Exhibit 3.
To this day, Plaintiff is unable to extend one of her fingers completely straight and
a permanent scar remains.
Because Plaintiff viewed Daisy’S attack as an isolated incident, Hailey and
Rebecca continued to spend time together, but Plaintiff advised Hailey to be
cautious when she stayed at Rebecca’s home. While Plaintiff picked Hailey up
less frequently from Defendants’ home, Plaintiff testified that she trusted
Defendants to protect Hailey from a similar incident. Likewise, Plaintiff testified
that Daisy had not had any similar outbursts since the incident. Plaintiff and
Defendants’ cordial relationship continued until Plaintiff began receiving medical
bills for her treatment. After receiving several medical bills, Plaintiff called
Defendants and asked if they would cover her medical co-payments since
insurance paid her remaining medical costs. Defendants refused, challenging
Plaintiff to sue them if she wanted them to pay.
II. Standard of Review
As trier of fact, the Court is the sole judge of the credibility of each fact
witness and any other documents submitted to the Court for consideration8 lf the
Court finds that the evidence presented at trial contains conflicts, it is the Court's
duty to reconcile these conflicts-if reasonably possible_in order to find
8 See Nat'l Grange Mul. lns. C0. v. Nelson F. Davis, Jr., et. al., 2000 WL 33275030, at *4 (Del.
Com. Pl. Feb. 9, 2000) (Welch, J.).
congruity.9 lf the Court is unable to harmonize the conflicting testimony, then the
Court must determine which portions of the testimony deserve more weight in its
final judgment.m In ruling, the Court may consider the witnesses’ demeanor, the
fairness and descriptiveness of their testimony, their ability to personally witness
or know the facts about which they testify, and any biases or interests they may
have concerning the nature of the case.ll
ln civil actions, the burden of proof is by a preponderance of the evidence.12
“The side on which the greater weight of the evidence is found is the side on which
the preponderance of the evidence exists.”13
III. Discussion
A. Credibility Distinctions
Defendants’ testimony was unpersuasive Defendant-Jennifer and Rebecca
testified that Rebecca was not a witness to the incident because she was next door,
spending the night at a childhood friend’s house. ln support of this narrative,
Rebecca testified on direct-examination that Hailey and she had never spent time
together. Defendants hypothesized, therefore, that Hailey was not at their house on
May 31, 2014.
9 See id.
10 See id.
“ see stare 11 Wes;;azi, 2003 wL 2355030, at *3 (Dei. com. Pi. Apr. 22, 2003).
'2 See G)'egory v. Fr'aze)', 2010 WL 4262030, at *l (Del. Com. Pl. Oct. 8, 201 0).
13 See ;eqynozds v. aeynotds, 237 A.2d 708, 711 (D@i. 1961).
6
Defendants’ rendition strikes the Court as problematic First, the First State
Animal Center & SPCA lncident Report, which Plaintiff and Defendants both
6
submitted into evidence, states that Plaintiff was bitten when she ‘was at the
”14 Prior to trial,
owners [Jennifer Rife’s] residence to pick up her daughter.
Defendants never disputed this line in the report. At trial, Defendant-Jennifer
stated that she had tried to correct the report when the SPCA officer visited her
property to check vaccine records; however, she could not provide an explanation
as to why the report was not corrected. Second, Defendants provide no alternative
explanation for why Plaintiff was visiting their mobile home on May 31, 2014.
Defendant-Jennifer simply reiterated that she did not know why Plaintiff was on
her property that day.
Defendants’ position is particularly difficult to accept when Hailey and
Rebecca had been friends for approximately four months prior to this incident, and
had spent a significant amount of time together. Moreover, Rebecca contradicted
her own testimony when she admitted on cross-examination that Hailey and she
had “hung out” on more than five occasions. Plus, Defendant-Jennifer
contradicted Rebecca’s testimony by noting that Plaintiff previously picked up
Hailey from Defendants’ home.
'4 See Plaintiff’s Exhibit l; Defendants’ Exhibit 3.
7
Not only did Defendants’ cursory questioning of Rebecca fail to offer
credible support for their position, but Defendants’ testimony also lacked the detail
and lucidity of the testimony provided during Plaintiff’s case-in-chief. Hailey’s
testimony was more believable because it was consistent Plaintiff’ s testimony
was more credible because it was detailed and imputed an air of sincerity. Plaintiff
had multiple opportunities to engage in hyperbole and place Defendants in a
negative light, yet, she insisted that the bite was a one-time incident. She also
testified that Defendants’ family aided her and transported her to the hospital after
the incident. Further, she did not omit the fact that she stayed at Defendants’ home
after arriving home from Medical Express, and remained friendly with them until
she requested assistance from Defendants in paying her co-payments. When
juxtaposed with Defendants’ testimony during their case-in-chief, Plaintiff’ s
candid exposition is particularly credible.
B. LegalAnalysis
Enacted in the late 1990s, the “Dog Bite Statute” supplanted the general
protections of the premises guest statute and was intended to curb the rising level
5
of dog attacks by “vicious” dogs.l The 139th Delaware General Assembly was
understandably concerned with protecting “innocent people” from dog attacks.16
Delaware law 9 Del. C. § 913, which was the applicable version during this
incident,]7 states:
The owner of a dog is liable in damages for any injury, death or loss
to person or property that is caused by such dog, unless the injury,
death or loss was caused to the body or property of a person who, at
the time, was committing or attempting to commit a trespass or other
criminal offense on the property of the owner, or was committing or
attempting to commit a criminal offense against any person, or was
teasing, torrnenting or abusing the dog.]8
As indicated, Delaware imposes strict liability for dog bites. Phrased differently,
“Delaware's dog-bite statute imposes liability regardless of whether the owner
knew or had reason to know that her dog was inclined toward dangerous
))l9
behavior. However, common law recognizes assumption of the risk as a valid
defense.ZO Also, a defendant may argue that the statute’s application contravenes
15 See Tilghmcm v. Delaware State Univ., 2012 WL 3860825, at *10 (Del. Super. Aug. 15, 2012)
(citing Brady v. White, 2006 WL 2790914, at *3-4 (Del. Super. Sept. 27, 2006))', McCormick v.
I'loddiiic)£z, 865 A.2d 523, 526 (Del. Super. 2004) (quoting 25 De!. C. § 1501).
m See Br'ady v. White, 2006 WL 2790914, at *4 (Del. Super. Sept. 27, 2006).
17 9 Del. C. § 913; see also December Corp. v. Wi`ld Meadows Home Owners Ass 'n, 2016 WL
3866272, at *2 & n.4 (Del. Super. July 12, 2016) (statute applicable on date of incident). While
the wording remains unchanged, 16 Del C. § 3053F is the current version as of May 25, 2016.
’8 9 De/. C. §913.
'9 Russo \». zeigler, 67 A.3d 536, 540 (Dcl. 2013).
20 see zd. ar 541-42 (citing B.-aa{v, 2006 WL 2790914, at *4).
9
public policy.21 If a defendant raises one of these statutory or common law
defenses, then the burden to disprove the defense rests on the plaintiff22
Defendants’ own testimony clearly satisfies the strict liability language of
the statute; Defendants have testified that they are the owners of Daisy and that
Daisy bit Plaintiff while Plaintiff was on their property. Nonetheless, Defendants
have raised the statutory defense of criminal trespass under 9 Del. C. § 913. The
lowest form of criminal trespass is Criminal Trespass in the Third Degree which is
a violation that occurs “when the person knowingly enters or remains unlawfully
upon real property.”23
ln the case sub judice, there is no evidence that Plaintiff entered or remained
unlawfully on Defendants’ property. This Court has held that allowing an alleged
trespasser to remain on the property, or failing to request that the alleged trespasser
leave the premises, support an inference that the person was lawfully present.24
Conversely, evidence that the alleged trespasser was previously banned from the
property could support a finding that a trespass occurred. 25 Even if the Court
believed Defendants’ version of events, no evidence was presented that Plaintiff
21 See id. at 542 (noting the Wisconsin Supreme Court’s approach).
22 See id. at 540.
23111)€1.€.§821.
24 see State v. Henderson, 2005 wL 2249086, at *i, 3 (Dei. Com. Pi. sept 13, 2005) (weich, J.)
(finding no criminal trespass when Regal Cinemas’ manager failed to ask defendant to leave and
allowed him to stay to watch a second movie).
25 see Pumell v. sza¢e, 2016 wL 2982639, at *2 (Dei. super. Apr. 29, 2016) affirming
conviction of trespass in the third degree when trespasser was previously banned from the
property).
1 0
was told to leave the premises, and Defendant-Jennifer testified that she did not file
a criminal complaint against Plaintiff for trespassing. Furthermore, since Plaintiff
had walked onto Defendants property countless times prior to the May 31, 2014
incident to pick up Hailey, Plaintiff was certainly not banned from Defendants’
property.26 Thus, ll Del. C. § 821 is inapplicable as Plaintiff was lawfully present
to pick up her daughter who had stayed the night at Defendants’ home.
Since Defendants’ trespass defense does not apply, Defendants are strictly
liable for Daisy’s actions.27
C. Damages
ln Delaware, Defendants are liable for all damages caused by their tortious
injury to Plaintiff.28 Hence, Defendants are liable to Plaintiff for general
compensatory damages based on bodily harm and emotional distress that resulted
from Defendants’ dog biting Plaintiff.29 Compensatory damages also include
medical expenses arising from the tortious conduct plaintiff suffered under “special
26 Notably, the fact that Defendants allowed Plaintiff and Hailey to visit after the incident also
discredits Defendants’ position that they viewed Plaintiff as trespassing when Daisy bit her.
27 The Court will not address the remaining four defenses applicable to 9 Del. C. § 913-both
statutory and at common law-as Defendants did not raise theni.
28 See F. Giovt'uinozzi' & Sons i-'. Lucz`am`, 18 A.2d 435, 436 (Del. Super. 1941).
29 See Jagger v. Schiavello, 93 A.3d 656, 667 (Del. Super. 2014) (“General compensatory
damages may be awarded without regard to out of pocket losses and are those Such that the law
presumes to be the natural and probable consequences of the defendants’ wrongful conduct.”);
RESTATEMENT (SECOND) oF ToRTS § 905 (1979); see Re Bangs v. Follin, 2016 WL 6875959, at
*2 (Del. Super. Nov. 21, 2016) (“Both mental and physical pain and suffering may be recovered
in a personal injury action where there is physical injury related to the tort, without the need for
further expert testimony regarding mental anguish.”).
11
damages,” if the medical expenses are shown to be reasonable and proximately
caused by the tortfeasor.30
Plaintiff failed to provide a sum certain request for damages in her
Complaint. In closing, Plaintiff requested that the Court award her $1,560.00 for
co-payments she made during her physical therapy treatment, $1,921 .87 in medical
payments that her insurance company, Highmark Blue-Cross Blue-Shield of
Delaware (“Blue-Cross”), made on her behalf, and an unspecified amount for the
pain and suffering that Plaintiff experienced as a result of the dog bite.31
There is no argument, and no facts suggest, that Plaintiff’ s damage request
for medical expenses is unreasonable and, certainly, no argument that the medical
expenses were not directly caused by Defendants’ dog. Regardless, Plaintiff failed
30 see S.