Saturday, September 26, 2009


We are in the pre-suit phase of an upstairs-downstairs dispute between neighbors that was touched off by a cat in the upstairs unit raising the lever-action faucet in the kitchen sink when no one was home. Water damage to the unit below was the result.

Getting to yes on a settlement has been a challenge because our opposing counsel and the occupants he represents appear to have an agenda. So when the facts and the law collide with his assumptions, he ignores the facts and the law and clings to assumptions.

His "proofs" of damage appear to have been "manufactured" to serve an agenda that preceded the proofs, and his assumption that the upstairs neighbor was negligent is contrary to law.

His error is obvious. He has forgotten the basic rule on this subject that is drilled into first-year law students: Every dog gets one bite. True, there is no dog in this fight, and no bite, for that matter. But there is a question of notice.

Under the common law, the owner or keeper of a dog was liable if the dog bit someone only if he was on notice that the dog was prone to bite people. So the first bite was "free," if you will. The first bite put the owner on notice of the dog's viciousness. A statute that has since been enacted imposes strict liability: If an unprovoked dog bites someone, the owner is liable, without regard to notice or carefulness.

Common law negligence governs the case at hand. Our opponents seem to know this but to have forgotten the notice element of the negligence case. They must plead and prove that the owner or keeper of the cat was on notice that the cat was capable of turning on the faucet.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.