2008 WL 5688722 (Pa.Com.Pl.) 
Copyright 2009 Incisive Media US Properties, LLC. All Rights Reserved Court of Common Pleas of Pennsylvania, Forty-third Judicial District, Monroe County. Robert T. Fenlon v. Mary Kay James No. 2800-C-2006 DATE OF VERDICT/SETTLEMENT: December 15, 2008
TOPIC: ANIMALS - DOG BITE - PREMISES LIABILITY - INVITEES - REAL ESTATE TRANSACTIONS Realtor Attacked by Dogs While Showing Home to Clients SUMMARY: RESULT: Verdict-Plaintiff The jury found James was 80 percent liable for Fenlon's injuries and awarded Fenlon $341,418 in damages. After a reduction for comparitive liability, Fenlon's award was reduced to $273,135. EXPERT WITNESSES: Plaintiff: Barbara Samet; Real Estate; Stroudsburg, PA David S. Zelouf, M.D.; Hand Surgery; Philadelphia, PA Mark Lukas, Ed.D.; Vocational Rehabilitation; Media, PA ATTORNEYS: Plaintiff: Angel Mae T. Webby; Drums, PA (Robert T. Fenlon); Stephen A. Seach; Drums, PA (Robert T. Fenlon) Defendant: Richard Polachek; Polachek & Associates; Wilkes-Barre, PA (Mary Kay James); Thomas P. Clark; Polachek & Associates; Wilkes-Barre, PA (Mary Kay James) JUDGE: Jonathan Mark RANGE AMOUNT: $200,000-499,999 STATE: Pennsylvania COUNTY: Monroe INJURIES: Fenlon was taken to the emergency room in an ambulance where he was diagnosed with a fracture of his left (non-dominant) distal radius. The fracture required external fixation surgery. Plaintiff's counsel asserted that Fenlon was unable to drive or perform everyday tasks for 40 days he was in the fixator. Counsel also asserted that when the fixator was removed Fenlon had to undergo arthroscopic surgery and an ulnar shortening osteotomy. Counsel presented $38,998 in past medical damages and $2,420 in incidental expenses. Facts: At about 5:00 p.m. on June 1, 2005, plaintiff, Robert T. Fenlon, a 50-year-old real estate agent and part-time HVAC mechanic, arrived at Mary Kay James' house at 1 Cherry Hill Lane in Brodheadsville, to show it to prospective homebuyers. Fenlon knocked on a bay window to see if anyone was home. After Fenlon knocked on the window, James' three dogs rushed out of the home and attacked Fenlon, who was knocked down to the ground by the animals. Fenlon sued James for negligence, claiming personal injuries. Plaintiff's counsel alleged that James took no action to try to ward of her dogs when they rushed toward Fenlon, who was a business invitee with a scheduled appointment to show James' property to prospective buyers. In fact, counsel asserted that James never left her house until the State Police arrived, even as the ambulance crew treated Fenlon's injuries. Plaintiff's counsel also asserted that James' dogs displayed a history of aggression, which behavior prevented James' neighbors from leaving their houses. Counsel noted that the State Police had observed the dogs' aggressive nature when they responded to previous reports at James' home and that James had received three citations for allowing the dogs to escape from her property. According to counsel, James paid fines for two of those three citations. Counsel also pointed out that despite the fact that James' had already witnessed one of her dogs bite a small boy on another occasion, she took no action to restrain them when Fenlon entered her property. Counsel argued that all of the reports of indifference to the behavior of her dogs and the repeated citations she received indicated that James' was knowledgeable about her dogs' vicious tendencies and the need to restrain them. Counsel asserted that James' indifference, ignorance and negligence caused the attack that injured Fenlon. Counsel for the defendant suggested that Fenlon's behavior incited the dogs to attack him. According to counsel, Fenlon had driven into the wrong driveway prior to entering James' driveway and he knocked on the bay window instead of the door, and that this behavior was likely to agitate the three dogs he knew to be on the premises. Counsel also contended that prior to being forced to the ground by the dogs, Fenlon kicked one of them twice. According to defense counsel, the fact that the three buyers weren't attacked by the dogs proved that Fenlon's erratic behavior brought on the attack. Counsel for the defendant presented testimony from James' friend who testified that the dogs were kind and gentle. That witness asserted that she routinely allowed her small children to play with the animals. Plaintiff's counsel contended that Fenlon was rendered permanently disabled by the attack and as a result would no longer be able to work as an HVAC mechanic. Counsel asserted that Fenlon subsidized his real estate business with HVAC work for which he received $32 per hour. Plaintiff's counsel presented the testimony of one of Fenlon's colleagues from his HVAC job who testified in support of Fenlon's marketability before the incident and how the wrist injury adversely affected Fenlon's ability to gain part-time HVAC work. Based on those assertions, counsel sought to recover between $256,500 and $512,000 in past and future wage loss damages as well as unspecified past and future pain and suffering damages. Counsel for the defendant disputed plaintiff counsel's wage loss damage plan, asserting that Fenlon was unlikely to have returned to work as an HVAC mechanic because he had been working full-time in real estate for at least one year before the incident. Counsel noted that Fenlon still worked as a full-time real estate agent at the time of trial. Plaintiff's counsel countered by presenting the testimony of its real estate expert, who testified that beginning real estate agents are encouraged to keep their day jobs so that they can support the costs of a real estate business and subsidize their income. Insurer: Erie Insurance Co. Mary Kay James ALM Properties, Inc. Monroe County Court of Common Pleas PUBLISHED IN: VerdictSearch weekly, VandS 02-24-09 2008 WL 5688722 (Pa.Com.Pl.)
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