This memorandum addresses defendants’ motion for summary judgment. In upholding such a motion, this court acknowledges that there must be not only an absence of genuine factual issues, but also that the moving party must be entitled to judgment as a matter of law. Rybas v. Wopner, 311 Pa. Super. 50, 457 A.2d 108 (1983). Additionally, summary judgment is entered in only the clearest of cases when no doubt exists as to the absence of a triable issue of fact. Williams v. Pilgrim Life Insurance Co., 306 Pa. Super. 170, 452 A.2d 269 (1982). For the reasons listed below, the motion for summary judgment is granted.
A summary of the facts, as agreed to by both parties, is as follows: While on the defendants’ property, plaintiff walked over to the defendants’ dog and started petting it. The dog was secured by a chain and collar. The plaintiff and his son had been warned previously not to approach the dog because they were strangers and the defendant husband did not know how the dog would
A review of Pennsylvania’s present “dog bite” law reveals two separate approaches that must be used to answer this question. One approach involves the Commonwealth’s Dog Law. See 3 P.S. §§459-305. If a dog has injured a person, and the dog’s owner was violating the Dog Law when the incident occurred, the owner is negligent per se regardless of any prior knowledge of a vicious propensity. See Miller v. Hurst, 302 Pa. Super. 235, 448 A.2d 614 (1982) (overruling Freeman v. Terzya, 229 Pa. Super. 254, 323 A.2d 186 (1974)). This approach is not applicable in the present case because the defendants’ dog was properly secured on their property; therefore, the defendants were not violating the Dog Law.
The second approach, grounded in common law, is that a dog owner who knows or has reason to know of a dog’s vicious propensities must exercise reasonable care in securing the dog. See Andrews v. Smith, 324 Pa. 455, 188 A.2d 146 (1936). This approach contains two prongs: (1) the dog’s owner must have known or have had reason to know of the dog’s vicious propensities; and (2) the dog owner must exercise rea
Both parties have cited to Groner v. Hedrick, 403 Pa. 148, 169 A.2d 302 (1961), which states: “that the law makes no distinction between an animal dangerous from viciousness and one merely mischievous or dangerous from playfulness, but puts on the owner of both the duty of restraint when he knows of the animal’s propensities. ” Id. at 151. Applying this rule to the present case, this would mean that the tendency of the defendants’ dog to jump up on people, regardless of why the dog did so, put the defendants on notice of this vicious propensity. However Groner is distinguishable from the present case because in Groner the injuries were caused by the dog jumping up on the plaintiff.
Plaintiff argues that Groner should not be read so narrowly and that the knowledge of any vicious pro
Because of the above mentioned reasoning, there are no issues of material fact present as both parties agree that the defendants had no prior knowledge of the dog ever biting someone. Plaintiff is entitled to judgment as a matter of law, therefore, motion for summary judgment is granted.
ORDER
And now, December 29, 1994, in accordance with the within memorandum, defendants’ motion for summary judgment is granted and plaintiff’s complaint dismissed.
