Jun 22, 2010
You be the judge (and jury)
The often-contentious relationship between dogs and mailmen is part of popular lore and sometimes covered in bar exams.
And with the bar exam about a month away, we’ve decided to present the following case and let you predict the outcome, which will be revealed in this space later this week.
All of the information comes from documents in a case tried earlier this month in Baltimore County Circuit Court.
Mary Jo Davis, a veteran letter carrier, had been delivering mail on her Jacksonville route to the home of Charles and Karen Cheelsman for a dozen years. The Cheelsmans own Lucky, a mixed-breed terrier Charles Cheelsman rescued from the pound eight years ago. Lucky weighs close to 100 lbs., or slightly less than Davis, and is kept on the Cheelsman property by an electric fence.
On Sept. 14, 2007, Davis had a certified letter addressed to Cheelsman. Cheelsman was using a gas-powered weed whacker in his yard, so when the horn from Davis’ vehicle failed to get his attention, the letter carrier decided to go to Cheelsam instead.
“As I was delivering the mail to Mr. Cheelsman, his dog rushed out from behind some bushes and grabbed my leg and dragged me,” Davis said in her response to interrogatories. Davis added in her deposition that she had never seen Lucky in the yard before and did not see any flags indicating the presence of an electric fence.
Davis “freed herself from the bite, only to have the dog bite into her leg again,” according to her pre-trial statement. At that point, Cheelsman heard the commotion over the hum of his weed whacker, grabbed Lucky and put him in the house, saying the dog “doesn’t usually attack anyone,” according to Davis.
Cheelsman gave a slightly different version of events in his deposition about the encounter between Davis and Lucky. He found the two separated by a few feet on his porch.
“I called him. He left the porch. I walked up to Ms. Davis. She had her hands in the air,” Cheelsman said. “I said, ‘Did he touch you?’ She said, ‘No, he just startled me a little.’”
Cheelsman, a paramedic, offered medical attention, but Davis declined. She used the bathroom of another homeowner on her route to check her leg, which was not bleeding but was “reddened, burning and beginning to swell,” according to her pre-trial statement.
An MRI later revealed Davis, 48, had suffered a torn meniscus in her knee, which required surgery and kept her out of work from November 2007 until June 2008. Four months later, she sued the Cheelsmans for $550,000, alleging Lucky “had a dangerous propensity” known to the couple.
“Defendants were negligent in failing to warn of the presence of the dog and in failing to restrain and control the dog,” the complaint states.
The defendants, in a motion for summary judgment, said Lucky had never bitten nor attacked “any person or animal that came on the property.”
“The Cheelsmans’ only past experience with Lucky was that he was not an aggressive dog and they could rely on him to act peacefully and non-aggressively toward any person who came upon the property,” the complaint states.
The motion was denied, and the case went to trial.
Which side prevailed in court?
I would say the letter carrier probably prevailed. The law is pretty clear about pet owners having to keep their animals restrained or confined. Although the dog doesn’t have a previous history of aggressiveness, the fact remains that the he was allowed to run free in the yard. On the other hand, the letter carrier, having delivered mail to that house for the entire time that the homeowners have had the animal, should have known that the dog was on the premises and been cautious about approaching the yard without knowing where he was. In my experience as a volunteer firefighter/EMT, anytime we encountered a dog of any temperment at an emergency scene, we required that the owner secure the pet in another room/location away from the emergency. It didn’t matter what the owner said about the pet being friendly, we didn’t take any chances. Had I been in the letter carrier’s place, and knowing the dog was around somewhere but not knowing exactly where, I probably would have tried harder to get the homeowner’s attention before venturing onto the property.