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The Rogak Report: 18 June 2007 ** Dog Bites - Legal Malpractice **

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  • Lawrence Rogak
    LEGAL MALPRACTICE SUIT FAILS: PLAINTIFF CANNOT SHOW THAT HER UNDERLYING DOG BITE CASE COULD HAVE BEEN WON Kim v. Goldstein, 04 Civ. 3755 (USDC-SDNY) (District
    Message 1 of 1 , Jun 18, 2007
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      LEGAL MALPRACTICE SUIT FAILS: PLAINTIFF CANNOT SHOW THAT HER UNDERLYING DOG BITE CASE COULD HAVE BEEN WON

      Kim v. Goldstein, 04 Civ. 3755 (USDC-SDNY) (District Judge Kimba M. Wood)

      This case involves allegations of legal malpractice following a dog bite. Plaintiff Young Sook Kim was severely injured when she was bitten by a dog on January 1, 1999. Kim retained Defendant David Goldstein to file a personal injury action on her behalf. No action was ever filed, and the statute of limitations elapsed. Kim and her husband then brought suit against Goldstein in Federao Court. Goldstein moved for summary judgment on the sole remaining count of the Complaint,1 which alleged that Goldstein engaged in legal malpractice.  The Court granted summary judgment to attorney Goldstein.

      On January 1, 1999, Kim visited Young Ja Kim Lee at Lee's house in South Salem, New York. Lee owned a one-year-old Jindo dog named Jin.  Kim alleged that she was afraid of the dog, because it was large and because it sat in front of a window barking and "moaning."  Kim says she told Lee she was afraid and asked her to tie up the dog, but Lee refused.  Some minutes later, the dog approached Kim, who was seated on a sofa, and then, without warning, bit her on the face and arm.

      Kim retained Goldstein to bring a personal injury action against Lee.  No action was ever filed.

      In this legal malpractice action, Defendant served a Request to Admit on Plaintiffs dated September 13, 2005, which asked Plaintiffs to admit that prior to January 1, 1999, Jin had not bitten anyone or acted aggressively toward anyone; was not restrained in the presence of visitors; had not attacked other dogs; and did not display any vicious propensities.  Plaintiffs never answered or objected to the Request to Admit. 

      "Because Plaintiffs did not respond to Defendant's Request to Admit," held the Court, "Plaintiffs have admitted the Facts stated in the Request."

      "Federal Rule of Civil Procedure 36 permits a party to serve on another party a written request to admit any relevant fact. Fed. R. Civ. P. 36(a). The fact is deemed admitted unless, within thirty days of service of the request, the party to whom the request is directed serves a written answer or objection. Any matter thus admitted is conclusively established, unless the court on motion permits withdrawal or amendment of the admission.  Plaintiffs never answered or objected to Defendant's Request to Admit, and they never moved to withdraw or amend their admission."

      "Plaintiffs' attorney gave two reasons for the failure to respond: (1) a malfunctioning e-mail system and (2) a paralegal's mistaken belief that the response to Defendant's Local Rule 56.1 Statement was the response to the Request to Admit. Neither explanation is persuasive. The condition of counsel's e-mail system is not relevant, because the Request to Admit was served by overnight mail.  Regardless of any confusion on the part of Plaintiffs' counsel's staff, Defendant's counsel directly reminded Plaintiffs' counsel about the Request to Admit by letter, and also did so in passing during a telephone conference with the chambers of Magistrate Judge Maas.2"

      "Because Plaintiffs neither answered the Request to Admit nor moved to withdraw or amend their admissions, the Court may treat the Facts in the Request to Admit as conclusively established and, if the Facts are dispositive, enter summary judgment.  Although the failure to respond can effectively deprive a party of the opportunity to contest the merits of a case, this result is necessary to insure the orderly disposition of cases; parties to a lawsuit must comply with the rules of procedure. Furthermore, any potential harshness is tempered by the availability of a motion to withdraw admissions, a procedure that Plaintiffs did not employ." 

      "To the extent that Plaintiffs' admissions conflict with deposition testimony, the former are controlling. Rule 36 provides that any matter admitted pursuant to a request to admit is conclusively established.  The advisory committee's note emphasizes that admissions have a conclusively binding effect, akin to a stipulation, so that parties may safely avoid the expense of preparing to prove matters already admitted.  Plaintiffs therefore may not use deposition testimony to create a genuine issue of material fact as to any fact admitted pursuant to Rule 36."

      "To prevail on their claim of legal malpractice under New York law, Plaintiffs must prove that (1) Defendant was negligent, (2) the negligence proximately caused Plaintiffs' loss, and (3) Plaintiffs incurred actual damages.  The second element requires Plaintiffs to show that but for Defendant's negligence, Plaintiffs would have prevailed in the underlying action." 

      "Plaintiffs have presented two theories they would have advanced in the underlying personal injury action, strict liability and negligence. Summary judgment is warranted because Plaintiffs have offered no evidence that would have allowed them to prevail on either theory."

      "New York law holds the owner of a domestic animal strictly liable for injuries caused by the animal if the owner knew or should have known of the animal's vicious propensities. Collier v. Zambito, 807 N.E.2d 254, 257 (N.Y. 2004). An animal has vicious propensities if it is disposed to endanger the safety of people or property.  Knowledge of a dog's vicious propensities can be established by proof that the owner knew the dog had bitten someone in the past or that the dog had been known to growl, snap, or bare its teeth.  By contrast, barking and running around are not evidence of vicious propensities, because these activities are consistent with normal canine behavior. Barking and running around are what dogs do."

      "Plaintiffs have presented no evidence that would have allowed them to prevail on a strict liability theory in the underlying action but for Defendant's negligence. Plaintiffs admitted that, prior to January 1, 1999, Jin had never bitten anyone or acted aggressively toward anyone, and that Lee considered Jin to be friendly.3  Plaintiffs' evidence of Jin's conduct on January 1 itself would also have been insufficient to permit a reasonable jury to decide in their favor. Kim stated that Jin did not growl or snap at her before the attack, and although she testified that Jin barked out the window, barking is not a sign of vicious propensities. Kim's own subjective fear of the dog, unsupported by any objective Facts but these, has no bearing on Jin's propensities or on Lee's knowledge of them."

      "Although Plaintiffs could have resorted to a negligence theory in the underlying action,4 they have provided no evidence that would have allowed them to prevail on that theory. Under negligence law, Plaintiffs would have been required to prove that Jin's conduct, although not vicious, resulted in a reasonably foreseeable injury. See Colarusso v. Dunne, 732 N.Y.S.2d 424, 426 (App. Div. 2001). As explained above, New York courts regard barking as normal canine behavior, and barking therefore is not evidence that an attack was reasonably foreseeable. Plaintiffs have not produced any other evidence suggesting that Lee could have reasonably foreseen Jin's attack on Kim, such as notice of similar prior incidents. See Goldberg v. LoRusso, 733 N.Y.S.2d 117, 118 (App. Div. 2001) (stating that dog owner is generally not subject to negligence liability for failing to restrain dog unless owner had prior notice of particular behavior); Althoff v. Lefebvre, 658 N.Y.S.2d 695, 696 (App. Div. 1997) (holding that defendant's lack of knowledge of dog's propensity to jump on people defeats negligence claim for injury caused by jumping dog)."

      "For the reasons stated above, Defendant's motion for summary judgment... is GRANTED."

      1. By Order dated February 17, 2005, the Court dismissed Counts Two (negligent hiring and supervision), Three (misrepresentation of malpractice), and Four (loss of consortium). The Order also held that Kim could not recover damages for mental anguish and emotional distress arising from any malpractice.

      2. In addition, Plaintiffs' counsel does not explain how a paralegal could have confused the Request to Admit with the Local Rule 56.1 Statement, given that the answer to the Request to Admit was due October 13, 2005, but Defendant's initial Local Rule 56.1 Statement was not filed until November 15, 2005.

      3. As explained above, because of these admissions, the Court may not take account of Kim's allegation in her deposition that Lee's daughter told Kim that Lee knew of a prior incident involving Jin and a child. (Pls.' Rule 56.1 Response ¶6.)

      4. Prior to 2006, courts in the Second Department (which includes Westchester County, the site of the incident) allowed plaintiffs injured by domestic animals to bring common-law negligence claims. E.g., Colarusso v. Dunne, 732 N.Y.S.2d 424, 426 (App. Div. 2001); St. Germain v. Dutchess County Agric. Soc'y, 712 N.Y.S.2d 146, 149 (App. Div. 2000). Although the Court of Appeals concluded in 2006 that owners of domestic animals are not liable for injuries caused by their animals that resulted from negligence, see Bard v. Jahnke, 848 N.E.2d 463, 468 (N.Y. 2006), the Court should analyze the theories Plaintiffs would have presented in the underlying action according to the law in effect when the statute of limitations ran on Plaintiffs' personal injury claims, N.Y. C.P.L.R. §214 (McKinney 2007).

      Comment: This plaintiff is probably going to have a sour outlook on lawyers. Her first lawyer screws up her personal injury case, then her second lawyer screws up her legal malpractice case!  Now she can hire yet a third lawyer to sue the second lawyer for failing to respond to the Notice to Admit.  And then she'll have to prove not only that Lawyer #2 could have won the malpractice case against Lawyer #1, but also that Lawyer #1 could have won the dog bite case.  And since this court has already ruled that she could not win the dog bite case, any further action on her part would most likely be an exercise in futility.

      Larry Rogak

       

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