# Corrina Foraker v. Jennifer Rife and Dave Rife > Delaware Court of Common Pleas · April 3, 2017 URL: https://www.frixlaw.com/law-library/cases/4159965 ## Case - **Court:** Delaware Court of Common Pleas - **Decided:** April 3, 2017 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Welch (J) J. - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4159965 ## How later opinions describe it (automated extraction) - noting that plaintiff had supported his claim of lost wages with a business record and specific testimony regarding the business on direct examination ## Opinion text IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY CORR!NA FORAKER, ) Plaintiff, § v. § C.A. No. CPU4-15-002214 JENNIFER RIFE and § DAVE RIFE, ) Defendants. § MEM()RANDUM OPINION & ORDER Submitted: March 15, 2017 Decided: April 3, 2017 Brian S. Legum, Esq. Jennifer Rife, & Kimmel, Carter, Roman, Peltz & O’Neill, P.A. Dave Rife 56 West Main Street, Plaza 273, 4th Fl. 105 Willow Tree Lane Newark, DE 19702 Newark, DE 19702 Attorneysfor Plaintiff Pro se Defendants WELCH, J. This case concerns a dog bite that resulted in personal injury to the Plaintiff. Both parties appeared for trial before the Court on March 15, 2017. The Court reserved its decision. This is the Court’s Final Memorandum Opinion and Order after consideration of the pleadings, oral and documentary evidence submitted at trial, arguments made at trial, and the applicable law. The Court notes, preliminarily, that it is sympathetic to Defendants Jennifer and Dave Rife, as strict liability prevents, except for the statutory exception, Which is not applicable there, the Court from considering Defendants’ responsible ownership and control of their dog. Nevertheless, as the Court is bound by the controlling statute, the Court enters judgment in favor of Plaintiff Corrina Foraker in the amount of $5,821.87 plus costs for the following reasons. I. M Based on the testimony and evidence presented at trial, the Court finds the relevant facts to be as follows. On May 3l, 2014, Defendants’ senior Rottweiler, Daisy, bit Plaintiff’ s left hand When Plaintiff attempted to pet Daisy after arriving at Defendants’ property to pick up her daughter.l Plaintiff and Defendants live in the same neighborhood, approximately ten minutes from each other. For several months prior to this incident, Plaintiff’ s daughter, Hailey Foraker, and Defendants’ daughter, Rebecca 1 Plaintiff is an adult female in her early forties. See Plaintiff’s Exhibit l; Defendants’ Exhibit 3. 2 Rife, were friends and spent significant time at each other’s homes.2 Hailey testified that she had been to “Becca’s” home “too many times to count.” Normally, Plaintiff would call Hailey to notify her that Plaintiff was leaving and walking to Defendants’ home to take Hailey home. When Plaintiff arrived, Plaintiff often interacted with Daisy and Defendants’ second dog, Honey, an American Pitbull Terrier puppy. Plaintiff testified that neither dog had so much as growled at her prior to this incident On May 30, 2014, Hailey spent the night at Defendants’ home.3 On May 3l, 2014, Plaintiff called Hailey and told her Plaintiff was coming over to take her home. When Plaintiff arrived at Defendants’ mobile home, she was warmly greeted by Honey who was leashed and sitting on the front of the mobile home’s porch. Since Plaintiff was aware that Daisy often slept towards the back of the porch, Plaintiff called out “Daisy” so she would not be startled when Plaintiff walked around her.4 After Plaintiff called her name, Daisy came out from under the steps and Plaintiff attempted to pet her. When Plaintiff extended her left hand 2 Both Hailey, who is thirteen years- -old, and Rebecca, who is twelve years-old, were qualified as competent mino1s piior to testifying 3 Plaintiff testified that she allowed Hailey to spend the night because the families anticipated spending part of Memoiial Day weekend together. 4The porch was attached to the side of Detendants’ mobile home. While Defendants’ black-and- white cellphone pictures are blurry, they evidence three wooden steps with space behind the steps that are sealed off from the right by a white, plastic siding with an attached guardrail. See Defendants’ Exhibit l. to pet Daisy, who was also leashed, Daisy bit into Plaintiff s hand, and Plaintiff began screaming for help. She tried to pull away, but Daisy “would not let go,” and instead began pulling Plaintiff back toward the porch steps. Plaintiff was fearful that she had lost a finger. Because Defendants and their son were playing horseshoes and Hailey and Rebecca were swinging on a tire rope in Defendants’ backyard, no one immediately responded. When Defendants arrived in their front yard, Daisy released Plaintiff”s hand which was bleeding profusely. Defendants’ son went to retrieve ice for Plaintiff’ s hand while Defendant-Jennifer grabbed some paper towels. After wrapping the wound, Defendant-Jennifer drove Plaintiff to a nearby Medical Express in Newark. Plaintiff’ s hand was cleaned and sutured at the Medical Express on the day of the incident.5 Plaintiff had a follow-up appointment at Medical Express on June 2, 2014 when the sutures were removed and Plaintiff was informed that she would need surgery; however, after visiting a surgeon, physical therapy was instead prescribed.6 Plaintiff testified that she attended physical therapy three times a week from June 2014 to January 2015 in order to regain feeling in her hand.7 After several months of physical therapy, Plaintiff was able to curl her fingers into a fist. 5 Plaintiff provided clear pictures of the suture on the day of the incident. See Plaintiff’s Exhibit 2. 6 See Defendants’ Exhibit 2. 7 See Plaintier Exhibit 3. To this day, Plaintiff is unable to extend one of her fingers completely straight and a permanent scar remains. Because Plaintiff viewed Daisy’S attack as an isolated incident, Hailey and Rebecca continued to spend time together, but Plaintiff advised Hailey to be cautious when she stayed at Rebecca’s home. While Plaintiff picked Hailey up less frequently from Defendants’ home, Plaintiff testified that she trusted Defendants to protect Hailey from a similar incident. Likewise, Plaintiff testified that Daisy had not had any similar outbursts since the incident. Plaintiff and Defendants’ cordial relationship continued until Plaintiff began receiving medical bills for her treatment. After receiving several medical bills, Plaintiff called Defendants and asked if they would cover her medical co-payments since insurance paid her remaining medical costs. Defendants refused, challenging Plaintiff to sue them if she wanted them to pay. II. Standard of Review As trier of fact, the Court is the sole judge of the credibility of each fact witness and any other documents submitted to the Court for consideration8 lf the Court finds that the evidence presented at trial contains conflicts, it is the Court's duty to reconcile these conflicts-if reasonably possible_in order to find 8 See Nat'l Grange Mul. lns. C0. v. Nelson F. Davis, Jr., et. al., 2000 WL 33275030, at *4 (Del. Com. Pl. Feb. 9, 2000) (Welch, J.). congruity.9 lf the Court is unable to harmonize the conflicting testimony, then the Court must determine which portions of the testimony deserve more weight in its final judgment.m In ruling, the Court may consider the witnesses’ demeanor, the fairness and descriptiveness of their testimony, their ability to personally witness or know the facts about which they testify, and any biases or interests they may have concerning the nature of the case.ll ln civil actions, the burden of proof is by a preponderance of the evidence.12 “The side on which the greater weight of the evidence is found is the side on which the preponderance of the evidence exists.”13 III. Discussion A. Credibility Distinctions Defendants’ testimony was unpersuasive Defendant-Jennifer and Rebecca testified that Rebecca was not a witness to the incident because she was next door, spending the night at a childhood friend’s house. ln support of this narrative, Rebecca testified on direct-examination that Hailey and she had never spent time together. Defendants hypothesized, therefore, that Hailey was not at their house on May 31, 2014. 9 See id. 10 See id. “ see stare 11 Wes;;azi, 2003 wL 2355030, at *3 (Dei. com. Pi. Apr. 22, 2003). '2 See G)'egory v. Fr'aze)', 2010 WL 4262030, at *l (Del. Com. Pl. Oct. 8, 201 0). 13 See ;eqynozds v. aeynotds, 237 A.2d 708, 711 (D@i. 1961). 6 Defendants’ rendition strikes the Court as problematic First, the First State Animal Center & SPCA lncident Report, which Plaintiff and Defendants both 6 submitted into evidence, states that Plaintiff was bitten when she ‘was at the ”14 Prior to trial, owners [Jennifer Rife’s] residence to pick up her daughter. Defendants never disputed this line in the report. At trial, Defendant-Jennifer stated that she had tried to correct the report when the SPCA officer visited her property to check vaccine records; however, she could not provide an explanation as to why the report was not corrected. Second, Defendants provide no alternative explanation for why Plaintiff was visiting their mobile home on May 31, 2014. Defendant-Jennifer simply reiterated that she did not know why Plaintiff was on her property that day. Defendants’ position is particularly difficult to accept when Hailey and Rebecca had been friends for approximately four months prior to this incident, and had spent a significant amount of time together. Moreover, Rebecca contradicted her own testimony when she admitted on cross-examination that Hailey and she had “hung out” on more than five occasions. Plus, Defendant-Jennifer contradicted Rebecca’s testimony by noting that Plaintiff previously picked up Hailey from Defendants’ home. '4 See Plaintiff’s Exhibit l; Defendants’ Exhibit 3. 7 Not only did Defendants’ cursory questioning of Rebecca fail to offer credible support for their position, but Defendants’ testimony also lacked the detail and lucidity of the testimony provided during Plaintiff’s case-in-chief. Hailey’s testimony was more believable because it was consistent Plaintiff’ s testimony was more credible because it was detailed and imputed an air of sincerity. Plaintiff had multiple opportunities to engage in hyperbole and place Defendants in a negative light, yet, she insisted that the bite was a one-time incident. She also testified that Defendants’ family aided her and transported her to the hospital after the incident. Further, she did not omit the fact that she stayed at Defendants’ home after arriving home from Medical Express, and remained friendly with them until she requested assistance from Defendants in paying her co-payments. When juxtaposed with Defendants’ testimony during their case-in-chief, Plaintiff’ s candid exposition is particularly credible. B. LegalAnalysis Enacted in the late 1990s, the “Dog Bite Statute” supplanted the general protections of the premises guest statute and was intended to curb the rising level 5 of dog attacks by “vicious” dogs.l The 139th Delaware General Assembly was understandably concerned with protecting “innocent people” from dog attacks.16 Delaware law 9 Del. C. § 913, which was the applicable version during this incident,]7 states: The owner of a dog is liable in damages for any injury, death or loss to person or property that is caused by such dog, unless the injury, death or loss was caused to the body or property of a person who, at the time, was committing or attempting to commit a trespass or other criminal offense on the property of the owner, or was committing or attempting to commit a criminal offense against any person, or was teasing, torrnenting or abusing the dog.]8 As indicated, Delaware imposes strict liability for dog bites. Phrased differently, “Delaware's dog-bite statute imposes liability regardless of whether the owner knew or had reason to know that her dog was inclined toward dangerous ))l9 behavior. However, common law recognizes assumption of the risk as a valid defense.ZO Also, a defendant may argue that the statute’s application contravenes 15 See Tilghmcm v. Delaware State Univ., 2012 WL 3860825, at *10 (Del. Super. Aug. 15, 2012) (citing Brady v. White, 2006 WL 2790914, at *3-4 (Del. Super. Sept. 27, 2006))', McCormick v. I'loddiiic)£z, 865 A.2d 523, 526 (Del. Super. 2004) (quoting 25 De!. C. § 1501). m See Br'ady v. White, 2006 WL 2790914, at *4 (Del. Super. Sept. 27, 2006). 17 9 Del. C. § 913; see also December Corp. v. Wi`ld Meadows Home Owners Ass 'n, 2016 WL 3866272, at *2 & n.4 (Del. Super. July 12, 2016) (statute applicable on date of incident). While the wording remains unchanged, 16 Del C. § 3053F is the current version as of May 25, 2016. ’8 9 De/. C. §913. '9 Russo \». zeigler, 67 A.3d 536, 540 (Dcl. 2013). 20 see zd. ar 541-42 (citing B.-aa{v, 2006 WL 2790914, at *4). 9 public policy.21 If a defendant raises one of these statutory or common law defenses, then the burden to disprove the defense rests on the plaintiff22 Defendants’ own testimony clearly satisfies the strict liability language of the statute; Defendants have testified that they are the owners of Daisy and that Daisy bit Plaintiff while Plaintiff was on their property. Nonetheless, Defendants have raised the statutory defense of criminal trespass under 9 Del. C. § 913. The lowest form of criminal trespass is Criminal Trespass in the Third Degree which is a violation that occurs “when the person knowingly enters or remains unlawfully upon real property.”23 ln the case sub judice, there is no evidence that Plaintiff entered or remained unlawfully on Defendants’ property. This Court has held that allowing an alleged trespasser to remain on the property, or failing to request that the alleged trespasser leave the premises, support an inference that the person was lawfully present.24 Conversely, evidence that the alleged trespasser was previously banned from the property could support a finding that a trespass occurred. 25 Even if the Court believed Defendants’ version of events, no evidence was presented that Plaintiff 21 See id. at 542 (noting the Wisconsin Supreme Court’s approach). 22 See id. at 540. 23111)€1.€.§821. 24 see State v. Henderson, 2005 wL 2249086, at *i, 3 (Dei. Com. Pi. sept 13, 2005) (weich, J.) (finding no criminal trespass when Regal Cinemas’ manager failed to ask defendant to leave and allowed him to stay to watch a second movie). 25 see Pumell v. sza¢e, 2016 wL 2982639, at *2 (Dei. super. Apr. 29, 2016) affirming conviction of trespass in the third degree when trespasser was previously banned from the property). 1 0 was told to leave the premises, and Defendant-Jennifer testified that she did not file a criminal complaint against Plaintiff for trespassing. Furthermore, since Plaintiff had walked onto Defendants property countless times prior to the May 31, 2014 incident to pick up Hailey, Plaintiff was certainly not banned from Defendants’ property.26 Thus, ll Del. C. § 821 is inapplicable as Plaintiff was lawfully present to pick up her daughter who had stayed the night at Defendants’ home. Since Defendants’ trespass defense does not apply, Defendants are strictly liable for Daisy’s actions.27 C. Damages ln Delaware, Defendants are liable for all damages caused by their tortious injury to Plaintiff.28 Hence, Defendants are liable to Plaintiff for general compensatory damages based on bodily harm and emotional distress that resulted from Defendants’ dog biting Plaintiff.29 Compensatory damages also include medical expenses arising from the tortious conduct plaintiff suffered under “special 26 Notably, the fact that Defendants allowed Plaintiff and Hailey to visit after the incident also discredits Defendants’ position that they viewed Plaintiff as trespassing when Daisy bit her. 27 The Court will not address the remaining four defenses applicable to 9 Del. C. § 913-both statutory and at common law-as Defendants did not raise theni. 28 See F. Giovt'uinozzi' & Sons i-'. Lucz`am`, 18 A.2d 435, 436 (Del. Super. 1941). 29 See Jagger v. Schiavello, 93 A.3d 656, 667 (Del. Super. 2014) (“General compensatory damages may be awarded without regard to out of pocket losses and are those Such that the law presumes to be the natural and probable consequences of the defendants’ wrongful conduct.”); RESTATEMENT (SECOND) oF ToRTS § 905 (1979); see Re Bangs v. Follin, 2016 WL 6875959, at *2 (Del. Super. Nov. 21, 2016) (“Both mental and physical pain and suffering may be recovered in a personal injury action where there is physical injury related to the tort, without the need for further expert testimony regarding mental anguish.”). 11 damages,” if the medical expenses are shown to be reasonable and proximately caused by the tortfeasor.30 Plaintiff failed to provide a sum certain request for damages in her Complaint. In closing, Plaintiff requested that the Court award her $1,560.00 for co-payments she made during her physical therapy treatment, $1,921 .87 in medical payments that her insurance company, Highmark Blue-Cross Blue-Shield of Delaware (“Blue-Cross”), made on her behalf, and an unspecified amount for the pain and suffering that Plaintiff experienced as a result of the dog bite.31 There is no argument, and no facts suggest, that Plaintiff’ s damage request for medical expenses is unreasonable and, certainly, no argument that the medical expenses were not directly caused by Defendants’ dog. Regardless, Plaintiff failed 30 see S.