                                                    Supreme Court

                                                    No. 2013-128-Appeal.
                                                    (PC 10-574)


 Gregory Coogan                  :

         v.                      :

Cheryl Nelson et al.             :




   NOTICE: This opinion is subject to formal revision before
   publication in the Rhode Island Reporter. Readers are requested to
   notify the Opinion Analyst, Supreme Court of Rhode Island,
   250 Benefit Street, Providence, Rhode Island 02903, at Telephone
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                                                                  Supreme Court

                                                                  No. 2013-128-Appeal.
                                                                  (PC 10-574)


             Gregory Coogan                   :

                     v.                       :

            Cheryl Nelson et al.              :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Indeglia, for the Court. The plaintiff Gregory Coogan (Coogan or plaintiff)

appeals from a grant of summary judgment by the Superior Court in favor of the defendants,

Cheryl Nelson and Mark Nelson, in this case arising out of a dog bite that occurred on the

defendants’ property. This case came before the Supreme Court for oral argument pursuant to an

order directing the parties to appear and show cause why this appeal should not be summarily

decided. After carefully considering the written and oral submissions of the parties, we are

satisfied that cause has not been shown, and we will proceed to decide the case at this time. For

the reasons set forth in this opinion, we vacate the judgment of the Superior Court.

                                                  I

                                        Facts and Travel

       The underlying incident which has led to the instant case occurred on June 29, 2009. The

plaintiff Coogan is employed as a driver for United Parcel Service (UPS). 1 Sometime in the

afternoon of June 29, Coogan delivered a package to 113 Bates Trail in West Greenwich, Rhode



1
  The facts in this section have been culled from the parties’ depositions, interrogatories, and
affidavits submitted to the Superior Court on the motion for summary judgment.


                                             -1-
Island, the residence of defendants, Cheryl and Mark Nelson. Although Coogan was familiar

with Bates Trail from previous deliveries, he could not recall having ever previously delivered a

package to this particular residence. On parking his vehicle, plaintiff stated, he beeped his horn

and called out “UPS” in order to alert people that he was coming onto the property. He then

made the delivery to the front door, rang the doorbell, and then walked away.

       The defendant, Cheryl Nelson (Nelson), 2 stated that, upon hearing the doorbell, she

opened the front door and saw plaintiff’s back as he stepped off the deck onto the driveway. At

the time, Nelson was accompanied by two of her dogs, a German shepherd by the name of

Sammy and a rat terrier named Gizmo.

       When he heard the door open, plaintiff turned around to see two dogs “charging [him].”

He could hear defendant yelling but could not hear what she was saying over the noise of the

dogs barking. Being nervous that he was going to be bitten, he tried to defend himself with a

plastic device, which is used to record information about deliveries. Coogan described the

device as being a “pretty hard, sturdy piece of plastic,” about the size of an average laptop

screen. Coogan stated that he was backing up while the dogs were circling him and that, at some

point when he was in the driveway, approximately thirty yards away from his truck, he was

bitten on the left forearm and the right leg. Although he was not certain which dog bit him,

Nelson identified the dog that bit Coogan as being Gizmo, after that dog was hit by Coogan’s

“clipboard.” 3

       After being bitten, plaintiff and defendant had a brief interaction, in which Coogan asked

why Nelson had let the dogs out, to which Nelson responded that the dogs would have gotten out



2
  Although Mark Nelson is also named as a defendant in this case, he was not present for the
incident.
3
  Nelson stated that to the best of her knowledge, both bites were on Coogan’s arm.


                                             -2-
anyway, through the “doggy door” that comes out from the basement into the yard. 4 Afterwards,

plaintiff drove back to the UPS office, where he filled out an incident report, and then was

referred 5 to the Kent County Memorial Hospital, where he received stitches for the bite on his

arm and treatment for what he described as “an inch laceration” on his knee. The plaintiff was

given a prescription for pain medication and did not resume full duty at work until sometime

after the stitches were removed on July 10.

       The plaintiff filed the instant complaint in the Providence County Superior Court on

January 27, 2010, alleging personal injuries as a result of defendants’ negligence in failing to

secure their dogs. On July 10, 2012, the Nelsons filed a motion for summary judgment, arguing

that plaintiff had failed to prove that defendants had any knowledge of a vicious propensity on

the part of the dog that bit him, while in the enclosure of defendants’ property. 6 See Montiero v.

Silver Lake I, L.P., 813 A.2d 978, 981 (R.I. 2003). In support of their motion for summary

judgment, defendants attached two affidavits, one from Cheryl Nelson and the other from Wendy

Tavares, the animal control officer for the Town of West Greenwich. The Nelson affidavit stated

that neither Sammy nor Gizmo had ever bitten anyone or showed vicious propensities prior to

June 29, 2009. The Nelson affidavit further explained that there had been one prior incident

involving Gizmo that occurred in November 2000 when defendants’ then-three-year-old son was

playing with Gizmo and was scratched. The defendant took her son to the emergency room as


4
  There appears to be some confusion in the record as to whether the basement “doggy door”
exits onto the front yard or the backyard. In her deposition, Nelson stated that the “doggy door”
exited onto the front yard but her answers to plaintiff’s interrogatories indicated that the “doggy
door” exited into the backyard. In any event, the record is clear that Coogan ventured onto
defendants’ property without seeing the “doggy door.”
5
  Coogan originally went to Concentra Medical Center with a supervisor from UPS but, because
of the depth of the wound, Concentra referred plaintiff to Kent County Memorial Hospital for
treatment.
6
  “This knowledge requirement is commonly referred to as the ‘one-bite rule.’” Montiero v.
Silver Lake I, L.P., 813 A.2d 978, 981 (R.I. 2003).


                                              -3-
the scratch was near his eye, and the incident was duly reported to the West Greenwich Police

Department. The Tavares affidavit confirmed that the West Greenwich Police Department was

notified in November 2000 of a “dog bite incident” and, upon going to the residence to see the

child and the dog, observed that the incident was not a dog bite but a scratch on the nose. The

incident report noted that the wound was a “deep scratch” on the child’s nose and that the “[d]og

was placed under strict confinement for 10 days” as a result. Thereafter, the incident was

deemed “closed.”

         The plaintiff objected to defendants’ motion for summary judgment and the matter was

heard on November 27, 2012. At the hearing, plaintiff noted that he had requested a continuance

to give him time to obtain the Kent County Memorial Hospital records of the November 2000

incident. The hearing justice questioned whether plaintiff, as a UPS driver, should “expect dogs

on a property,” stating that dogs might be characterized as “part of the hazard of the

profession[.]”   The hearing justice stated that “[t]he real issue is whether this dog had a

propensity for biting people,” and noted that “[t]here is no one-scratch rule[;] there is a one-bite

rule.”    The hearing justice found that “plaintiff was clearly within the enclosure of the

defendant’s property,” and that “there is no genuine issue of material fact * * * about whether the

defendant knew of the dog’s vicious propensity.” Accordingly, the hearing justice granted

defendants’ motion for summary judgment. Final judgment entered in defendants’ favor on

November 28, 2012. The plaintiff timely filed a notice of appeal to this Court.

         The plaintiff thereafter filed a motion with this Court to supplement the record on appeal

to include the records from Kent County Memorial Hospital relative to the November 2000

incident involving defendants’ son and Gizmo. This Court granted plaintiff’s motion in an order

entered on December 17, 2013. The plaintiff’s supplemental documents include a registration




                                              -4-
record from Kent County Memorial Hospital of defendants’ son for a “dog bite to face” and a

nursing record initial assessment, citing the chief complaint as “cuts to face” after being “bit by

dog.” The plaintiff also submitted an Emergency Physician Record, subtitled “Animal Bite,”

which indicates a bite injury to the face received while “playing with or teasing animal,” and

identifies the animal as a “rat terrier.”

                                                    II

                                            Standard of Review

        “[T]his Court reviews a trial justice’s grant of summary judgment de novo.” Swain v.

Estate of Tyre, 57 A.3d 283, 288 (R.I. 2012). We apply the same standards and rules used by the

trial justice. See Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013). In addition, this Court has

stated that “[s]ummary judgment is a drastic remedy, and a motion for summary judgment

should be dealt with cautiously.” NV One, LLC v. Potomac Realty Capital, LLC, 84 A.3d 800,

805 (R.I. 2014) (quoting Carreiro v. Tobin, 66 A.3d 820, 822 (R.I. 2013)). Accordingly, in

deciding a motion for summary judgment, the Court views the evidence in the light most

favorable to the nonmoving party. See Beauregard v. Gouin, 66 A.3d 489, 493 (R.I. 2013).

“Summary judgment is appropriate when no genuine issue of material fact is evident from the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits if any, and the motion justice finds that the moving party is entitled to prevail as a

matter of law.” Swain, 57 A.3d at 288 (quoting Beacon Mutual Insurance Co. v. Spino Brothers,

Inc., 11 A.3d 645, 648 (R.I. 2011)).




                                                 -5-
                                                III

                                           Discussion

                                                A

            Whether the Incident Occurred Within the Dog Owner’s Enclosure

       In this case, we once again visit the well-traveled legal terrain of dog bite cases. These

past cases have established our well-settled law regarding liability for acts of animal aggression,

most commonly involving dogs. See Carreiro, 66 A.3d at 822 (“Liability for acts of canine

aggression is well settled in Rhode Island.”). General Laws 1956 § 4-13-16 imposes strict

liability on dog owners if a dog “assaults, bites, or otherwise injures any person while traveling

the highway or out of the enclosure of the owner or keeper of that dog * * *.” (Emphasis added.)

Strict liability does not apply, however, if the act occurred within the dog owner’s enclosure.

See Carreiro, 66 A.3d at 822-23. Accordingly, as this Court has acknowledged, “[p]recisely

where the dog bite took place * * * can be outcome-determinative.” Id. at 823.

       On appeal, plaintiff argues that the hearing justice was clearly wrong in finding that the

incident occurred within the dog owner’s enclosure because the record indicates that defendants’

residence had no fence, wall, or other tangible boundary. The defendants contend that Coogan’s

actions in beeping his horn and yelling out “UPS” in order to alert residents that he had entered

onto the property indicate that he knew he was entering onto property where there might be a

dog.

       We begin with a brief discussion of what constitutes an enclosure under § 4-13-16. In

answering this question, “there is a dog-eared decision from 1936 that gives us clear guidance.”

Carreiro, 66 A.3d at 823. In that decision, Wilbur v. Gross, 55 R.I. 473, 182 A. 597 (1936), this

Court conducted an exhaustive analysis of the term “enclosure” for purposes of determining




                                             -6-
liability for dog bites. This Court concluded that the central factor in the definition of an

enclosure was “that there be something to give a man reasonable notice that he is entering upon

occupied premises, where there may be a dog.” Id. at 477, 182 A. at 599. More recently, we

have defined an enclosure under § 4-13-16 as “a fence, physical obstruction or any other

condition that gives reasonable notice to third parties that the area is private.” Montiero, 813

A.2d at 981. On the other hand, “an individual who seeks canine companionship but at the same

time fears litigation need not live in a residence which is completely encircled with such

medieval trimmings as a moat or fortress-like walls.” Bernhart v. Nine, 120 R.I. 692, 698, 391

A.2d 75, 78 (1978).

       In any event, we do not need to definitively answer the question of whether the dog bite

in the instant case occurred within the enclosure. As this Court has stated, “the ‘purpose of the

summary judgment procedure is issue finding, not issue determination.’” DeMaio v. Ciccone, 59

A.3d 125, 130 (R.I. 2013) (quoting Estate of Giuliano v. Giuliano, 949 A.2d 386, 391 (R.I.

2008)). We must only determine whether the evidence in the record showed that a genuine issue

of material fact remained as to whether defendants’ driveway constitutes an enclosure for

purposes of the statute.

       The evidence in the record indicated that the premises were not marked by any fence,

wall, or other tangible boundary. We are of the opinion that this is sufficient to establish a

genuine issue of material fact as to whether plaintiff was within an enclosure at the time he was

bitten. We emphasize that the existence of an enclosure for purposes of § 4-13-16 will usually

be a fact-intensive inquiry. This Court was recently asked to consider whether one apartment

within a multi-family apartment house was a “separate enclosure” from another apartment in the

house. See Carreiro, 66 A.3d at 824. We concluded that, “[a]bsent an inquiry into whether the




                                            -7-
second-floor apartment was kept locked and whether [the] defendant was excluded from the

premises, it [wa]s impossible to determine whether the second-floor apartment was a separate

enclosure” and that it was a “disputed question of material fact * * *.” Id. Similarly, we are of

the opinion that whether the driveway of defendants’ unfenced yard should be considered to be

within defendants’ enclosure was a question of material fact that should be determined by a

factfinder.

                                                 B

              Whether Defendants Knew of the Dog’s Dangerous Propensities

       Even assuming, arguendo, that the hearing justice correctly determined that plaintiff was

within the enclosure of defendants’ property for purposes of § 4-13-16, we conclude that

summary judgment in this case was improvidently granted.

       Under our common law, a dog owner may be held liable for a dog bite occurring within

the dog owner’s enclosure if the plaintiff can “prove that the defendant knew about the dog’s

vicious propensities.” Carreiro, 66 A.3d at 822-23 (quoting DuBois v. Quilitzsch, 21 A.3d 375,

380 (R.I. 2011)). This knowledge, or scienter, requirement is commonly called the “one-bite

rule.” See DuBois, 21 A.3d at 380. 7

       The plaintiff contends that there is a genuine issue of material fact as to whether

defendants knew of any dangerous propensities of the rat terrier, Gizmo, based on the November

2000 incident when defendants’ young son was scratched on the nose. The defendants argue that


7
  At oral argument, plaintiff also appeared to be arguing that the dog should not be given the
benefit of the “one-bite rule” in this case because plaintiff was bitten in the course of his duties
as a UPS delivery man. To the extent that plaintiff bases his argument on some special exception
to be applied to him because of his profession, we note that this Court has previously addressed
the question of making an exception to the “one-bite rule” to impose liability on dog owners
when the injured person is an invitee and stated that “the common-law one-bite rule applies
notwithstanding the injured person’s status as an invitee.” DuBois v. Quilitzsch, 21 A.3d 375,
381 (R.I. 2011).


                                             -8-
the November 2000 incident involved only “an inadvertent scratch” which does not rise to the

level of the one-bite requirement. Moreover, defendants emphasize that plaintiff was unable to

identify which dog bit him and, consequently, could not establish that the same dog was involved

in the November 2000 incident.

       Although it would have been helpful for the hearing justice to have had the Kent County

Memorial Hospital records that were ultimately filed with us, we believe that the evidence before

the hearing justice at the time was sufficient to support a finding that a genuine issue of material

fact existed as to defendants’ knowledge of whether Gizmo had dangerous tendencies.

Consequently, we do not believe it necessary to consider those records and will limit our analysis

to the evidence the trial justice had at the time, i.e., the affidavits from Nelson and from the

animal control officer for the Town of West Greenwich.

       The affidavits included a copy of the incident report filed at the West Greenwich police

station, identifying the incident as a “dog bite.” The incident report clarified that “the wound

was not a bite but a deep scratch on childs [sic] nose.” We are of the opinion that this evidence

was sufficient to create a genuine issue of material fact as to whether this prior act indicated a

vicious or dangerous propensity on the part of Gizmo and whether defendants knew or should

have known of this vicious propensity. See Ferrara ex rel. Commonwealth of Massachusetts

Department of Social Services v. Marra, 823 A.2d 1134, 1138 (R.I. 2003) (“[T]he existence of

the police report was enough evidence to raise a question of material fact about [the defendant’s]

knowledge of the vicious propensities of at least one of the dogs. Consequently, the question of

[the] defendant’s knowledge should have been resolved by a finder of fact after a trial on the

merits * * *.”). We emphasize that, in a motion for summary judgment, a trial justice is required

to view the evidence and draw all reasonable inferences therefrom in the light most favorable to




                                             -9-
the nonmoving party. See Derderian v. Essex Insurance Co., 44 A.3d 122, 126-27 (R.I. 2012).

Moreover, we note that, as a general matter, summary judgment is rarely appropriate when the

issue revolves around the existence of any particular state of mind, such as a defendant’s

subjective knowledge of a dog’s vicious propensities. Cf. 27A Federal Procedure, § 62:671 at

422 (Lawyers Ed. 1996) (“[W]hether as a matter of fact any particular state of mind exists can

seldom be considered to be beyond reasonable dispute because this depends entirely upon the

conflicting inferences to be drawn from evidence so likely to be circumstantial or, if direct, self-

serving.”). In viewing the evidence of this case in the light most favorable to plaintiff, we

conclude that the prior incident involving Gizmo could permit a factfinder to conclude that

Gizmo did have a vicious propensity and that defendants knew of it.

       Furthermore, we note that the hearing justice appears to have misunderstood the

requirements of the “one-bite rule” in stating that “[t]here is no one-scratch rule[;] there is a one-

bite rule.” The so-called “one-bite rule” is only a convenient shorthand expression which courts

have adopted to describe the knowledge requirement of a prior incident involving a dog to

indicate a vicious propensity. This Court has never stated that the only type of prior incident

which would suffice to indicate a dog’s vicious propensity is restricted to a bite. Indeed, we

emphasize that the pertinent language of § 4-13-16 imposes liability when a dog “assaults, bites,

or otherwise injures any person.” (Emphases added.) We are of the opinion that other kinds of

canine behavior that might cause injury to persons may clearly indicate a dog’s vicious

propensities. In this case, the evidence indicated that Gizmo had been involved in a prior

incident that resulted in a “deep scratch” on a child’s nose. A determination of whether the

incident rose to the level of a vicious propensity was one that should properly have been made by

a finder of fact after a trial. We emphasize that, in coming to this conclusion, we make no final




                                              - 10 -
determination that Gizmo did, in fact, have vicious propensities or as to the defendants’ ultimate

liability for the plaintiff’s injuries. That ultimate determination is not before us nor was it

properly before the hearing justice on a motion for summary judgment. See Mitchell v. Mitchell,

756 A.2d 179, 185 (R.I. 2000) (“The function of the motion justice considering a proposed

summary-judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to

be tried. Rather, only if the case is legally dead on arrival should the court take the drastic step

of administering last rites by granting summary judgment.”).

                                                IV

                                            Conclusion

       For the foregoing reasons, the judgment of the Superior Court is vacated. The record in

this case is remanded to that tribunal for further proceedings consistent with this opinion.




                                             - 11 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Gregory Coogan v. Cheryl Nelson et al.

CASE NO:              No. 2013-128-Appeal.
                      (PC 10-574)

COURT:                Supreme Court

DATE OPINION FILED: June 16, 2014

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Luis Matos

ATTORNEYS ON APPEAL:

                      For Plaintiff: Adam J.Resmini, Esq.

                      For Defendants: Kathleen Wyllie, Esq.
