Federal Express Delivery Driver Backs Away from Dog and Falls; He Dies from Other Causes Before He Can Give Sworn Testimony; Defense Granted Summary Judgment Due to Lack of Evidence

Court: Supreme Court, Orange County, New York

Case: Dalli v. McGreen

Date: Aug. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

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Facts: Defendants ask the court for summary judgment dismissing plaintiff's complaint.

Accident victim was making a delivery for Federal Express. The homeowner's dog went for him and he backed off, slipping and falling and breaking his ankle.

After the lawsuit started, he died from causes not related to his accident, before he could give a deposition or other sworn testimony for his case.

The defense claims that the only evidence is a telephone call that the dead plaintiff had made to his wife telling her what had happened, which is not admissible.

The accident victim's Estate seeks to rely on an exception to the rules of evidence to permit the case to proceed. The Estate argues that the telephone call constituted an "excited utterance," which is an exception to the rule that hearsay evidence is not admissible.

Court's holding: The delivery driver's discussion with his wife qualifies as an "excited utterance" that would be admissible into evidence.

Homeowner liability for the behavior of a dog depends on whether or not the dog has "vicious propensities." Courts decide this by examining the dog's pre-accident behavior, such as aggression, growling, biting and snapping. The anima's breed is not considered a factor.

However, defendants win because they can't provide enough detail about how the accident occurred.

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