The Story of Bear
Property - Contracts - Business
Criminal & Traffic
WHEN READING THE DESCRIPTIONS OF THESE PAST CASES, PLEASE KEEP THIS IN MIND:
1) THE OUTCOME OF A PARTICULAR MATTER DEPENDS ON A VARIETY OF FACTORS UNIQUE TO THAT CASE.; AND
2) CASE DESCRIPTIONS ARE NOT INTENDED TO GUARANTEE OR PREDICT ANY SIMILAR OR PARTICULAR RESULT IN THE FUTURE AND YOU SHOULD NOT ASSUME THAT A SIMILAR RESULT CAN BE OBTAINED IN A LEGAL MATTER OF INTEREST TO YOU.
Bear, age 5, a German Shepherd, had been raised by this family of five (father, mother and three teenage children) since he was a pup and had grown into a sociable and passive pet that had never bitten or attacked any person or animal.
On a late August afternoon, the family was loading their vehicle to take the oldest daughter back to college. The father and daughter were making trips between the house and the car using the front door and Bear was inside and unleashed. Arlington County Code § 2-6 does not require that a domestic dog be chained or on a leash while on the owner’s property. The front door was open and the storm door unlatched.
At one point, the daughter was standing near the doorway and the house mailbox. The mailman, who had just delivered mail next door, approached the house walking across the front lawn and towards the daughter. The father was loading the vehicle with his back turned toward the house. Suddenly, Bear pushed through the storm door, barking loudly at the mailman and stood his ground between the mailman and the daughter.
This barking caused the father to turn around and see that Bear was upset and perceiving the mailman’s approach towards daughter as a threat. At this crucial moment, the father shouted very loudly “Stop!”. Bear complied and stood his ground. The mailman only stopped momentarily, then without explanation, proceeded to advance towards Bear and the daughter causing Bear to snap at the mailman’s front shin. It was readily apparent that the mailman’s “injury” consisted of one single shallow skin puncture which simply required a wipe with a cotton pad of alcohol and a band aid. The mailman immediately continued on foot on his route delivering the mail.
A few weeks later, the mailman sued the family for $25,000.00 alleging that the homeowners were liable for his “injury” which he described as “a chunk of flesh” ripped from his leg and resulting in “severe and deep lacerations”. The family’s homeowner insurance company would only settle or defend the case and keep insuring them upon the condition that they relinquish ownership of Bear or euthanize him. Understandably, the family chose to defend the case and engaged attorney Buscemi to represent them in the Arlington General District Court litigation.
The case was defended on both the facts and law. Under common law, all dogs, regardless of breed or size, are presumed to be harmless domestic animals. An owner of a dog is not liable for bodily injuries inflicted by it unless he or she knew of its dangerous propensities. The family defended contending that the mailman willfully ignored the father’s warning to stop, ignored the barking of an obviously agitated dog, and failed to follow United States Postal Service policies and procedures.
Per USPS’s Postal Employee’s Guide to Safety Handbook, EL-814, Section IX (D)(1), a mail carrier is required to not advance on an antagonized dog, and if the dog rushes at the letter carrier, the carrier is instructed to place mail satchel between himself and the dog and retreat slowly. Further, a mail carrier is “not required to deliver mail when an animal threatens you.”
Mailman’s suit falsely alleged that Bear had previously been deemed by the authorities to be a “dangerous animal” under Virginia Code § 3.2 – 6540 and that the owners were “fully aware of their dog’s vicious nature”, thus strictly liable for the mailman’s “injury”. The evidence proved otherwise. The Arlington County Animal Control Officer, who visited the house and examined Bear, found that he was not a dangerous dog. The mailman presented no evidence that Bear had ever been reported as a dangerous dog or listed in Virginia Dangerous Dog Registry.
The mailman’s allegations of injury were equally baseless. The “chunk of flesh” the mailman alleged was ripped from his leg and “severe and deep lacerations” he described were fully repudiated by the actual evidence presented at trial. The damages claim consisted of one medical bill for $829.30 for an emergency room visit on the day of the occurrence. The mailman testified in his direct examination conducted by his attorney that he bled for several months from his injury. This testimony was impeached by the emergency room physician’s note which stated there was no evidence of bleeding that day and that the mailman had only a single skin puncture to the shin that required no stitches.
At the close of the mailman’s case, Mr. Buscemi made a motion to strike the evidence (equivalent to a motion to dismiss the case) which was granted by the court without any need to present a defense since the court found that the plaintiff had not made out a prima facie case of negligence.
Bear lived many more happy years with his family before going to dog heaven. His story is one from which Mr. Buscemi derives great professional satisfaction, having been able to use his craft to help good and appreciative folks obtain justice.