185 So. 3d 1076
Miss. Ct. App.2016Background
- On April 17, 2013, Daniel Hale’s Labrador broke loose from a chain, ran toward Curtis Hawkins and his wife in the street, barked aggressively, was retrieved by neighbor Daniel Blackwell, returned to Hale’s yard, then a few minutes later returned and bit Hawkins on the leg. Blackwell first notified Hale after the bite.
- Hawkins sued Hale for personal injuries from the dog bite (June 14, 2013). Hale served requests for admissions, interrogatories, and production on Hawkins’ two attorneys on October 2, 2013.
- Hawkins’ counsel failed to respond to requests for admissions within 30 days; responses were discovered and filed only after Hale moved for summary judgment. Hawkins moved to file late responses and withdraw deemed admissions; the county court denied the motion and granted summary judgment for Hale; the circuit court affirmed.
- The county court treated several admissions as conclusively established, including that Hawkins had no proof the dog ever exhibited viciousness before the bite, that Hawkins and/or his wife provoked the dog, and that Hawkins had an opportunity to remove himself after the dog was first returned to the yard.
- On appeal Hawkins argued (1) the court abused its discretion by denying leave to withdraw the deemed admissions, and (2) summary judgment was improper because genuine issues existed regarding Hale’s notice of dangerous propensity and violation of the Clarksdale leash ordinance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion denying motion to withdraw deemed admissions | Hawkins: counsel’s late filing was inadvertent and should be excused to allow merits to be heard | Hale: admissions were timely deemed admitted; no justification for withdrawal; prejudice if withdrawn | Denied — trial court did not abuse discretion; admissions stand |
| Whether summary judgment was improper under the dangerous-propensity rule | Hawkins: disputed fact that Hale had notice of dog’s viciousness; prior charging incident showed notice | Hale: Hawkins admitted no proof dog was vicious before bite; no evidence Hale knew earlier | Affirmed — admissions establish no prior vicious propensities; claim fails as a matter of law |
| Whether Clarksdale leash ordinance was violated, creating strict liability | Hawkins: dog not controlled on a leash / ordinance violations impute notice and strict liability | Hale: dog was chained in yard and broke loose; no evidence Hale knowingly violated ordinance or maintained a violent animal | Affirmed — no ordinance violation shown; arguments partly raised for first time on appeal and meritless |
| Whether comparative negligence saves Hawkins’ claim | Hawkins: provocation by Hale or lack of control may be comparative negligence issue preventing summary judgment | Hale: admissions negate dangerous-propensity elements required for recovery; comparative negligence irrelevant | Court: comparative negligence inapplicable because plaintiff cannot establish underlying dangerous-propensity claim |
Key Cases Cited
- Rainer v. Wal-Mart Assocs. Inc., 119 So. 3d 398 (Miss. Ct. App. 2013) (purpose of Rule 36 is to narrow issues by establishing undisputed facts)
- Triangle Constr. Co. v. Foshee Constr. Co., 976 So. 2d 978 (Miss. Ct. App. 2008) (trial court has broad discretion to deny withdrawal of deemed admissions)
- Olier v. Bailey, 164 So. 3d 982 (Miss. 2015) (summary judgment standard and restatement of dangerous-propensity rule)
- Poy v. Grayson, 273 So. 2d 491 (Miss. 1973) (establishing dangerous-propensity rule elements for animal-attack liability)
- DeBlanc v. Stancil, 814 So. 2d 796 (Miss. 2002) (admissions not amended or withdrawn cannot be rebutted)
- Alexander v. Daniel, 904 So. 2d 172 (Miss. 2005) (issues raised for first time on appeal will not be considered)