Its presence at the time of the action could serve to defeat the Plaintiff's claim but this is clearly a question of fact and subject to the proofs at trial. Quite simply, the facts do not support the Defendant's Motion for Summary Judgment and it should, therefore, be denied.
As indicated, the Plaintiff's injuries are severe. There is no doubt that the dog's actions caused her to suffer permanent and debilitating injuries to her ankle. Presently she suffers from a profound loss of mobility. She may also have suffered an injury to her back but this would be more in the form of an aggravation of a pre-existing injury as she had apparently suffered an earlier injury to this area. Unfortunately, she failed to advise us of this fact earlier but presenting this as an aggravation as opposed to a new injury should serve to obviate the Plaintiff's lack of disclosure.
This possibility can be strengthened by emphasizing the fact that the Defendant expressed concerns about his dog's strange behavior prior to the date of the incident.
Conclusion
The discovery phase of this case has served to solidify this case. Facts have been disclosed that make the Defendant strictly liable and which exclude the application of the statutorily recognized exceptions. As there is no support for the Defendant's Motion for Summary Judgment, this case should proceed toward trial where the Plaintiff should prevail where a substantial judgment should be warranted.
