Powers Miller Successful in Motions for Summary Judgment on Issue of Duty

James Miller headshotJim Miller recently obtained a summary judgment for the defense in a case in which the plaintiff was alleging that her homeowners’ association was negligent for not protecting her from another association member’s allegedly aggressive dogs.

In the motion for summary judgment, Powers Miller successfully argued that the defendant homeowners’ association did not breach its duty to plaintiff as it also had a simultaneous duty to the co-defendant dog owner, who was also a member of the homeowners association. The association had a duty to the dog owner to afford him due process, under its Covenant Conditions & Restrictions, and was, in fact, in the process of doing so when the unfortunate dog attack occurred.

The court agreed that the defendant homeowner’ association did not breach its duty to plaintiff.

In another matter, Powers Miller recently obtained a summary judgment for the defense in an interesting case in which the plaintiff was alleging that her friend had a duty to warn her of the danger of a ram owned by a couple with whom the friend had had prior business dealings.

It was alleged by the plaintiff that her friend, the defendant, had been warned by the ram’s owner that he was dangerous and that no one was to be allowed into his pasture. The friend had previously been the property manager, but was in the process of turning over the property to the plaintiff. The plaintiff freely entered the pasture to pet the ram. Unfortunately, the plaintiff was butted by the ram.

In the motion for summary judgment, Powers & Miller successfully argued that the defendant had no duty to warn the plaintiff in that no special relationship existed between the parties as required by law to create a duty to warn, and even if the special relationship existed, the defendant had no knowledge of the danger of the ram as it was conclusively proven that the ram owner never warned her of the danger of the ram. Further, it was argued that it is common sense and open and obvious that a ram could be dangerous, and based on the openness of the danger, defendant had no duty to warn. The court agreed. Plaintiff is appealing this ruling.

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