Ostler v. Sego et al
Filing
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ORDER - Defendants Keith and Rita Sego's Motion for Summary Judgment (Doc. 35 ) is granted and that Plaintiff's Cross-Motion for Summary Judgment (Doc. 41 ) is denied. The Clerk of the Court shall enter judgment for the defendants accordingly. Signed by Senior Judge Paul G Rosenblatt on 8/8/16.(EJA)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Brenda Ostler,
Plaintiff,
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vs.
Keith Sego, et al.,
Defendants.
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No. CV-15-08026-PCT-PGR
ORDER
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Pending before the Court is Defendants Keith and Rita Sego’s Motion for
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Summary Judgment (Doc.35), wherein they seek judgment as to the entirety of the
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plaintiff’s complaint, and Plaintiff’s Cross-Motion for Summary Judgment (Doc. 41),
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wherein she seeks judgment as to Court IV of her complaint. Having considered the
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parties’ memoranda, the Court finds that the plaintiff’s cross-motion should be
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denied, and that the defendants’ motion should be granted pursuant to Fed.R.Civ.P.
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56 because there is no genuine dispute as to any material fact and the defendants
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are entitled to entry of judgment as a matter of law.1
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Although the parties have requested oral argument, the Court concludes
that oral argument would not aid the decisional process.
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Background2
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This diversity-based removed action arises from an accident inside a fenced-in
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dog run in a RV park in which the defendants’ dog ran into the plaintiff causing her
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to fall and be injured.
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authenticate their summary judgment-related exhibits, the Court considers the
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following facts to be either undisputed or at least not controverted for purposes of the
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summary judgment motions: the plaintiff and defendant Rita Sego and their
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respective dogs were inside the “big dog” run at the RV park at the time the
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defendants’ dog injured the plaintiff; the defendants’ dog was playing off-leash at the
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time of the accident; the dog run is enclosed by a chain link fence and is between
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75 and 100 feet long and is much longer than it is wide; the dog run has a dual gate
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system in which entry is made into the fenced area through an initial gate and then
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into the dog run itself through a second gate; and dogs cannot enter or leave the dog
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run by themselves.
Notwithstanding the parties’ inexplicable failure to
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Although the plaintiff’s state court complaint contained four claims under
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Arizona law, and the defendants have moved for summary judgment on all of them,
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the plaintiff, in her response/cross-motion (Doc. 41, at 3), withdrew all but her fourth
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claim, wherein she alleges a claim for strict liability pursuant to A.R.S. § 11-1020.3
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Section 11-1020 provides that “[i]njury to any person or damage to any property by
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a dog while at large shall be the full responsibility of the dog owner or person or
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Because the parties are familiar with the facts of the case, the Court
references only those facts necessary to explain its decision.
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The withdrawn claims are for negligence (Count I), strict liability
pursuant to A.R.S. § 11-1014(A)(2) [sic - § 11-1014.01(A)(2)] (Count II), and strict
liability pursuant to A.R.S. § 11-1012(D) (Count III).
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persons responsible for the dog when such damages are inflicted.” A.R.S. § 11-
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1001(2) defines “at large” for purposes of § 11-1020 as meaning “being neither
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confined by an enclosure nor physically restrained by a leash.”
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Discussion
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The parties agree that the only issue that the Court needs to decide in order
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to resolve the summary judgment motions is whether the defendants’ dog was
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“confined by an enclosure” at the time it injured the plaintiff. The Court concludes
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as a matter of law that it was so confined.
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The parties disagree as to what the phrase “confined by an enclosure” means.
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Under Arizona law, the interpretation of a statute is a matter of law. Barry v. Alberty,
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843 P.2d 1279, 1281 (Ariz.App.1992). The Court’s goal in construing a statute is to
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give effect to the intent of the state’s legislature, which requires that the Court apply
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the usual or commonly understood meaning to each word or phrase in the statute
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unless the legislature clearly intended a different meaning. Spirlong v. Browne, 336
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P.3d 779, 782 (Ariz.App.2014); Canon School Dist. No. 50 v. W.E.S. Construction
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Co., 869 P.2d 500, 503 (Ariz.1994) (“[W]here the language [of a statute] is plain and
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unambiguous, courts generally must follow the text as written. ... Accordingly, absent
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a clear indication of legislative intent to the contrary, we are reluctant to construe the
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words of a statute to mean something other than what they plainly state.”) To
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determine the plain meaning of a term, courts refer to established and widely used
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dictionaries. Western Corrections Group, Inc. v. Tierney, 96 P.3d 1070, 1074
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(Ariz.App.2004). The defendants argue, and the Court agrees, that they cannot be
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liable to the plaintiff pursuant to § 11-1020 because their dog was not “at large”
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because it was “confined by an enclosure” at the time of the accident. The dog run
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in which the defendants’ dog was playing at the time of the accident, being fully
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fenced-in with a dual gate opening, constitutes an enclosure under the ordinary
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dictionary meaning of the word and the defendants’ dog, being unable to leave that
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enclosure on its own, was confined within that enclosure at the time of the accident.
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Such an interpretation does not, as the plaintiff argues, violate the intent of
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§11-1020 by ending responsible dog ownership at the gates off a dog park. The
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plaintiff’s contention that the exceptions to § 11-1020 liability set forth by § 11-
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1001(2) “require that the dog be limited, confined, and under the physical control of
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the owner” is not supported by the plain language of § 11-1001(2). Being “confined
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by an enclosure” and being “restrained by a leash” are two separate exceptions to
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the “at large” requirement of § 11-1020. See Kaweske v. DeRosa, 2016 WL
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3457898, at *3 (D.Ariz. June 24, 2016) (In an action by a plaintiff who was injured
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by the defendants’ unleashed dog inside a fenced-in dog park, the court noted that
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the sole issue on summary judgment regarding the plaintiff’s claim for strict liability
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pursuant to § 11-1020 was “the legal question of whether a dog without a leash in
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a fenced-in dog park is ‘at large’ under the statute.” In granting summary judgment
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to the defendants, the court concluded for purposes of § 11-1020 liability that “[a]
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fenced-in area is an ‘enclosure’ in the ordinary sense of the word[,]” and that “the
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dog park is entirely fenced-in such that the dogs are restrained from leaving the dog
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park on their own accord, and therefore the dogs that play in the dog park are
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‘confined by an enclosure.’ A.R.S. § 11-1001. As such, dogs are not ‘at large’ when
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they are in the dog park, regardless of whether they are leashed.”) Therefore,
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IT IS ORDERED that Defendants Keith and Rita Sego’s Motion for Summary
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Judgment (Doc. 35) is granted and that Plaintiff’s Cross-Motion for Summary
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Judgment (Doc. 41) is denied. The Clerk of the Court shall enter judgment for the
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defendants accordingly.
DATED this 8th day of August, 2016.
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