DuBOIS v. QUILITZSCH

ROBINSON, J.,

dissenting.

Although I readily acknowledge that this is a close case, in the end I have concluded that I must respectfully dissent. In my *382opinion, the plaintiffs have succeeded in pointing to enough of a material factual dispute with respect to the premises liability and negligence counts so as to make disposition pursuant to Rule 56 of the Superior Court Rules of Civil Procedure inappropriate. I am convinced that a fact-finder could infer that the owner of the dog in question, an animal that was almost three feet tall at the time of the incident in question, was “aware of the dog’s dangerous propensities.” See Ferrara v. Marra, 823 A.2d 1134, 1137 (R.I.2003).1

I have read the Court’s well written opinion over and over again, but each time I become more convinced that this ease cries out for resolution by a finder of fact. Summary judgment is, metaphorically speaking, a “terrible swift sword;” and I do not believe that that sword should have been wielded to bring so swift an end to the litigation of this case.

This Court has indicated repeatedly that “[s]ummary judgment is an extreme remedy that must be cautiously applied.” Canavan v. Lovett, Schefrin and Harnett, 862 A.2d 778, 783 (R.I.2004); see also Sharkey v. Prescott, 19 A.3d 62, 66 (R.I.2011); Plainfield Pike Gas & Convenience, LLC v. 1889 Plainfield Pike Realty Corp., 994 A.2d 54, 57 (R.I.2010); Johnston v. Poulin, 844 A.2d 707, 710 (R.I.2004); Sjogren v. Metropolitan Property and Casualty Insurance Co., 703 A.2d 608, 610 (R.I.1997). As a corollary to that principle, we have emphasized that, in the summary judgment context, courts are required to “draw all reasonable inferences in the light most favorable to the nonmoving party.” Hill v. National Grid, 11 A.3d 110, 113 (R.I.2011) (emphasis added) (internal quotation marks omitted).

Turning to the factual narrative contained in the majority opinion, I note that Mr. DuBois (an environmental officer employed by the City of Pawtucket, who was on the premises in question pursuant to a request by one of the defendants that he conduct an inspection of the pigeon coop located on the property) testified at a deposition about what transpired shortly after he was attacked by the dog. The Court’s opinion summarizes as follows the testimony of Mr. DuBois:

“Mr. Quilitzsch, Sr. arrived at the scene shortly thereafter. Mr. DuBois testified that, upon arriving, Mr. Quilitzsch, Sr. said that he did not anticipate that an inspector would be there so soon, and he explained that ‘[t]he dog[ ] [is] not usually tied there[;] [t]he reason the dog[ ] [is] tied there is because [Mr. Quilitzsch, Jr.] had a refrigerator being delivered today.’ ”2

By contrast, the deposition testimony of Mr. Quilitzsch, Jr. gave a different reason for the dog being tethered outside. The Court has summarized that testimony as follows:

*383“Mr. Quilitzsch, Jr. provided a sworn statement explaining that the dog was tethered outside on the day of the incident because it was a nice day and not because of this expected delivery.”3

The statement attributed to the father by Mr. DuBois and the statement sworn to by the son as to why the dog in question was tethered outside on September 7, 2007 simply cannot be reconciled with each other.

It is undisputed that plaintiff was invited to the premises for the purpose of inspecting a pigeon coop. It is further undisputed that the dog was tethered outdoors in a location that allowed the animal to attack plaintiff. What remained in dispute as the Superior Court considered the motion for summary judgment was why the dog had been tethered and what a finder of fact could infer from same.

In my opinion, a fact-finder would be entitled to accord credibility to the statement of Mr. Quilitzsch, Sr. (as recalled by Mr. DuBois) to the effect that the dog was tethered because the son “had a refrigerator being delivered” on that day. It is further my opinion that the fact-finder could then infer that the dog’s owner (the son) was knowledgeable of the dog’s dangerousness or viciousness.

I certainly do not know who would prevail if this case were to go to trial. But that is not the point. See Mitchell v. Mitchell 756 A.2d 179, 185 (R.I.2000) (stating that the purpose of summary judgment “is not to cull out the weak cases from the herd of lawsuits waiting to be tried” and further stating that “only if the case is legally dead on arrival should the court take the drastic step of * * * granting summary judgment”); see also Estate of Giuliano v. Giuliano, 949 A.2d 386, 394 n. 9 (R.I.2008) (“The weight of the evidence should not be evaluated at the summary judgment stage.”) (emphasis in original); Rodrigues v. DePasquale Building and Realty Co., 926 A.2d 616, 622 (R.I.2007). In deciding whether or not summary judgment should be granted, it must at all times be borne in mind that “[t]he purpose of the summary-judgment procedure is to identify disputed issues of fact necessitating trial, not to resolve such issues.” Rotelli v. Catanzaro, 686 A.2d 91, 93 (R.I.1996); see also Estate of Giuliano, 949 A.2d at 391; Steinberg v. State, 427 A.2d 338, 340 (R.I.1981).

Finally, it should be remembered that, in the summary judgment context, courts are required to “draw all reasonable inferences in the light most favorable to the nonmoving party.” Hill, 11 A.3d at 113 (internal quotation marks omitted); see also DeLaire v. Kaskel, 842 A.2d 1052, 1054 (R.I.2004). In my opinion, this is not a case “where the facts suggest only one reasonable inference” — and, for that reason, I do not believe that the defendants’ motion for summary judgment should have been granted. See Kennedy v. Providence Hockey Club, Inc., 119 R.I. 70, 77, 376 A.2d 329, 333 (1977).

For these reasons, I respectfully dissent.

. This Court's previous opinions are not entirely consistent as to precisely what propensity the owner of a dog must be aware of before he or she can be exposed to possible liability. For example, in Ferrara v. Marra, 823 A.2d 1134, 1137 (R.I.2003), this Court spoke of an awareness of "the dog’s dangerous propensities.” (Emphasis added.) On the other hand, an earlier opinion in the same term speaks of knowledge of "the dog’s vicious propensities.” Montiero v. Silver Lake I, LP., 813 A.2d 978, 981 (R.I.2003) (emphasis added).

. I am aware that the deposition testimony of Mr. Quilitzsch, Sr. as to why the dog was outside is inconsistent with what Mr. DuBois testified had been the statement of Mr. Quil-itzsch, Sr. upon arriving at the scene shortly after the dog had bitten Mr. DuBois. In my opinion, when a case involves such inconsistencies, a finder of fact should make the requisite determinations as to credibility. See, e.g., Arnstein v. Porter, 154 F.2d 464, 469 (2d Cir.1946) (”[A]s credibility is unavoidably involved, a genuine issue of material fact presents itself”).

. Mr. Quilitzsch, Jr. admitted at his deposition that he had been expecting a delivery from Sears on the day in question, but he said that it was "a leaf picker upper” that was to be delivered. For present purposes, however, it is immaterial whether the expected item was a refrigerator or "a leaf picker upper.”