TUAVAO NEUFELDT,
guardian ad litem
for ANNJANETTE
NEUFELDT, Plaintiff,
v.
LEE DAE DON and ROSALIA
DON,
Does I-X, Defendants.
High Court of
Trial Division
CA No. 16-98
September 18, 1998
[1] The law in
[2] The owner of an animal is under a legal
obligation to keep the animal under his control and to guard innocent parties
from harm by the animal.
[3] Where evidence
failed to demonstrate malice, a prayer for punitive damages was properly
denied.
[4] Where defendants
owned multiple, unrestrained dogs which possessed proclivity for harassing
passersby and at least one of which [2ASR3d184]
had a known disposition towards attacking and biting small children, permanent
injunctive relief was proper.
Before KRUSE, Chief
Justice, TAUANU`U, Chief Associate Judge, and ATIULAGI, Associate Judge.
Counsel: For
Plaintiff, Charles V. Ala`ilima
For Defendants, Malaetasi M. Togafau
OPINION AND ORDER
This action is grounded
on dog-bite injuries suffered by the minor plaintiff Annjanette Neufeldt (the
“minor”), a five year old child at the time.
Plaintiff Tuavao Neufeldt (“Tuavao”) is the father of the minor and, as
guardian ad litem for his daughter, has filed suit against the
defendants Lee Dae Don and Rosalia Don (the “defendants”), the owners of the
offending animal.
The parties are
neighbors and live across the street from one another. In the late afternoon of March 7, 1997,
Tuavao was out in the yard raking leaves by the roadway, with the minor nearby
attempting to help him. Petelo Tuli
(“Tuli”), another neighbor, was also in Tuavao’s yard sitting in a hammock with
a view of the road. Shortly, Mr. Lee’s
car pulled up. As it came to a stop, two
dogs ran out from the defendants’ yard across the road to Annjanette. One of the dogs, large and reddish in color,
bit Annjanette on the calf area of her right leg. This dog belongs to the defendants and the
incident was witnessed by both Tuavao and Tuli.
Tuavao then took the
minor to the hospital where she was treated and discharged with
antibiotics. A few weeks after the
incident, the minor was examined by Dr. Aloiamoa Anesi, who noted tenderness on
the wound area. Although a 1 cm scab had
formed, the wound was still sensitive to pressure. The minor was also referred to Dr. Malaefou
Elisaia of the Mental Health Clinic for evaluation of the parents’ complaints
about the minor having nightmares, a fear of dogs and showing “avoidance
behavior.” Dr. Elisaia felt that the
minor had recovered from the experience and noted no “significant
abnormalities” of a permanent nature as a result of the dog attack.
[1] The evidence shows that
the dog in question is quite clearly a “vicious animal,” as that term is defined
in A.S.C.A. § 25.161610(b).[1] [2ASR3d185] This animal had previously bitten another
young child in the neighborhood, witness Tuli’s niece. The vicious nature of this dog is known to
the defendants, who have been keeping six additional animals as a deterrent to
would-be intruders since they fell victim to a prior burglary. The defendants’ dogs are also well known in
the area for charging at passersby on the roadway, who have to arm themselves
with stones and other missiles to ward off the dogs. The law in the Territory is that “[n]o person
may . . . possess . . . a live vicious animal.”
See A.S.C.A. § 25.1610(a).
Defendants are in violation of this legal duty.
[2] Additionally, this
court in Gebauer v. Gates, CA No. 206-94, held that when a person is
bitten by a dog, a rebuttable presumption arises that the owner is at fault.[2] Slip Op. at 3. (Trial Div. 1995)
(citations omitted). “The owner of an animal is under a legal obligation to
keep the animal under his control and to guard innocent parties from harm by
the animal. Failure to do so entitles the injured party to recover from the
animal’s owner.”
Here, the defendants
made no attempt to rebut the presumption of liability save to unconvincingly
attempt to disown the offending animal that they had previously licensed with
the authorities. We conclude that the defendants
are liable to the minor plaintiff for her injuries.
[3] We find, however, that
the evidence does not rise to the level of “malice” on the part of defendants
such as would warrant a deterrent judgment in damages. See Letuli v.
Le`i, 21 A.S.R.2d 77, 86 (Land & Titles Div. 1991). Plaintiff’s prayer for punitive damages is
denied.
[4] Lastly, we recognize
that the legal remedy of damages is inadequate without a multiplicity of
suits. The harm caused by the dog is
such that the minor would be required to bring repeated suits to effectuate her
legal remedy unless the defendants are permanently enjoined from allowing their
animals to roam unrestrained outside the confines of their own yard. In light
of the animals’ notorious proclivity for harassing passersby on the roadway and
the large reddish dog’s known disposition to attack and bite small children,
injunctive relief is very appropriate.
Plaintiffs’ [2ASR3d186]
prayer for injunctive relief is, therefore, also granted.
Accordingly, considering
the nature of the minor’s injuries and awards we have given in similar
circumstances, we fix damages in the amount of $5,000.
At the same time,
defendants and each of them, their servants, agents, family members, and those
in active concert with them are hereby enjoined from allowing any dogs, either
owned by them or in their temporary possession and control, to roam
unrestrained unless within a securely fenced area.
Judgment will enter
accordingly.
It is so Ordered.
**********
[1]This
enactment provides:
.
. . a vicious animal is one which, without provocation:
(1)
has made an attack on a person whether or not the attack resulted in any
injuries to the person;
(2)
bitten any person; or
(3)
displays snarling, snapping, growling, clawing or other behavior which tends to
intimidate, frighten or subdue a person
[2] This presumption can be overcome by an
affirmative showing on the part of the defendant that the harm was caused by
the fault of the plaintiff, the fault of a third person for whom the defendant
is not responsible, or by an independent cause.
Gebauer, slip op. at 3 (citations omitted).