The Rogak Report: 25 July 2006 ** Premises Liability - Dogs **
- OWNERS OF DOG WHICH RAN INTO STREET, CAUSING BICYCLIST TO FALL, ARE
NOT ENTITLED TO SUMMARY JUDGMENT
Ernesto Arbanil v. Charles E. Flannery, et al., (2d Dept 2006)(Index
The plaintiff allegedly sustained injuries when a dog owned by the
defendants ran out into the street from their property, causing the
plaintiff, who was riding a mountain bike, to make a sudden stop and
fall to the ground.
At the time of the accident, the local ordinance stated that it was
unlawful for owners of dogs to allow their dogs to be "at large" or
to "chase or otherwise harass any person in such a manner as to cause
reasonable intimidation or to put such person in reasonable
apprehension of bodily harm or injury" (Code of the Town of East
Hampton §§ 86-5[B] and 86-5[B]). The Court found that "It was
not uncommon for the defendants' dog to roam around within two blocks
of their residence. The plaintiff alleged that the defendants were
negligent in the manner in which they kept their dog in that they
violated the local ordinance."
Plaintiff appealed from an order of the Supreme Court, Nassau County
which granted the motion of the defendants for summary judgment
dismissing the complaint against them. The Appellate Division
reversed, and reinstated the Complaint.
"Where, as here, a plaintiff alleges a cause of action sounding in
ordinary negligence, the salient issue is not whether the defendant
had prior notice of the dog's vicious propensities. Rather, the issue
is whether the defendant breached a duty of care owed to the
plaintiff by negligently failing to prevent a foreseeable injury.
Under the facts of this case, the defendants failed to establish
their prima facie entitlement to judgment as a matter of law."
Comment: There are two types of dog liability: that based on a
dog's "vicious propensities," and that based on negligent "keeping"
or "harboring" of a dog. The former type of liability is based on an
attack or bite by a dog; the latter is based on accidents caused by a
dog's non-vicious actions, such as running into traffic or knocking
Why wouldn't his patients be part of the scam, too?
Chiropractor caught coaching his clients in scams
McKinnon got a 7-year sentence.
Jennifer Brevorka, Staff Writer
The back doctor taught patients about the "swoop and squat" plot, discussed the best car accidents to fake and conjured up phony visitors so he could make a quick buck off nonexistent injuries.
For about three years, Mark McKinnon, a chiropractor, operated a series of schemes from his Accident and Injury Center of Rocky Mount where, according to court records, he bilked insurance companies out of hundreds of thousands of dollars.
The payoffs came to an abrupt end in 2003 after federal and state investigators posed as patients to learn about McKinnon's unorthodox methods.
McKinnon pleaded guilty to a charge of health care fraud in January, and last week, U.S. District Judge Louise Flanagan sentenced him to seven years in prison, according to court records and attorneys involved in the case. He is expected to pay $350,000 in restitution to several insurance companies.
Still, prosecutors said, their investigation continues. Two of McKinnon's former employees, a receptionist and a limousine driver, were charged last month in the scam, according to court records.
Yvonne Watford-McKinney, the lead prosecutor, said federal attorneys would never know the actual number of people involved because phony names were used.
"It was not a small gathering of people," Watford-McKinney said of McKinnon's client list.
Because of the conviction, officials with N.C. Board of Chiropractic Examiners said they have a pending discipline complaint against McKinnon, a Canadian citizen who opened his Rocky Mount clinic in 1997.
It was unclear whether he faces deportation as a result of his plea.
McKinnon declined to comment Thursday, other than to say he was helping prosecutors.
A patient who filed fake insurance claims for a visit to McKinnon's office spurred the N.C. Department of Insurance, the National Insurance Crime Bureau and, eventually, the U.S. Secret Service to investigate McKinnon, according to court documents.
The patient, who became an informant, told investigators how in July 2003, she signed in herself and her three children for visits to Mc-Kinnon's clin-ic that lasted less than a minute and at which none of the children were present, according to court papers.
While at the Accident and Injury Center , McKinnon instructed the woman how to perform the "swoop and squat," an accident scam, court documents said.
The swoop and squat works like this: Two drivers cooperate to cause an accident. The first vehicle slows, causing a second car behind it to brake. This forces a third car -- driven by the victim -- to rear-end the second. The first car, the one that slowed down, flees before police arrive.
Lessons in fraud
During a September 2003 phone call with the patient-turned-informant, McKinnon explained how to make a car look accident-damaged and said he was going hold a class for patients so he could "explain how you guys do these things," according to court documents.
McKinnon also offered tutorials to patients on the best accidents to fake. "McKinnon told [Special Agent] Jones it was better to have a two-car collision than a hit-and-run because then you can file claims against both insurance companies," court documents stated.
McKinnon also paid patients, or had them pay others, to stage accidents, court papers said.
He gave a receptionist a bonus of $250 for each client she brought to his office. Employees, like patients, staged auto accidents so they, or others in the car, could file claims through the clinic, according to court records.
McKinnon led patients through forms inquiring about their supposed injuries and instructed them about the importance of signing a sheet at his office for nonexistent appointments, according to court documents.
Exactly how much McKinnon netted from insurance companies was the subject of debate. Eventually, McKinnon and the government agreed the loss was more than $200,000 but less than $400,000, according to documents filed in May.
The government seized two of his bank accounts in December 2003, and in April 2004, McKinnon gave prosecutors details about his schemes and other cases the government was unaware of, according to court documents.
Less than a year later, McKinnon filed for bankruptcy. According to court documents and bankruptcy filings, he has "lost everything"
including his Porsche, Lincoln Navigator, home in Sunset Beach and all of his "ill-gotten gain."
Since August 2004, McKinnon has worked as a science teacher at a Halifax County high school, according to school officials.
His wife divorced him, and according to court papers, he rarely sees his three young children.
When asked Thursday what prompted him to commit the fraud, McKinnon paused and then responded: "I don't know."
(News researcher Paulette Stiles contributed to this report.) Staff writer Jennifer Brevorka can be reached at 836-4906 or jbrevork@....
News researcher Paulette Stiles contributed to this report.