MOTIONS IN LIMINE

DOGS

!

JAMES GRAFTON RANDALL, ESQ. LAWATYOURFINGERTIPS

MOTION IN LIMINE #1 TO PRECLUDE QUESTIONING OF PLAINTIFF AS TO HOW SHE FELT AFTER THE INCIDENT AND ANY DAMAGES FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

1. STATEMENT OF FACTS: Plaintiffs claim injuries [emotional distress or physical injuries] when Plaintiff MARK climbed over the Defendants’ fence to retrieve a basketball and was bitten by the Defendants’ dog. Plaintiffs are further seeking punitive damages. Plaintiff ANN is further seeking damages for negligent infliction of emotional distress [“NIED”].

2. BASIS OF MOTION: Defendants contend that Plaintiff ANN may not recover damages for negligent infliction of emotional distress damages as she cannot establish the essential elements of such a claim, including suffering severe emotional distress as a result of observing the dog bite – nor is it permissible for her to testify as to how she felt after the event or how a scar her brother sustained bothers her as such matters are irrelevant and more prejudicial than probative. Evidence Code §352.

3. IT IS UNDULY PREJUDICIAL TO ALLOW COUNSEL TO ASK QUESTIONS OF FAMILY MEMBERS AS TO HOW THEY FELT AFTER THE INCIDENT OR UPON SEEING A SCAR OR BLOOD OR WHETHER THEY WERE “AFRAID”:

Plaintiff, ANN, sister of MARK,was asked at her deposition by plaintiff’s counsel – with the intention of and knowing it would make her cry – how she felt when her father and brother brought MARK over the fence and when she saw blood on MARK. ANN was asked how she felt when she sees the scar on her brother, and she testified that it made her feel “very sad” and that it made her feel bad. Finally, her attorney asked her if she was afraid the first week after the dog had bitten MARK, and she testified she felt “a little bit” afraid. Her counsel then notes on the record that she was “starting to cry” so he would not ask any more questions. [EXHIBIT “A”, 10:3-24]. Defendant objects to this line of questioning and requests the Court to preclude any questions to ANN as to how she felt when she saw her brother, whether she is or was afraid, whether or not she feels or felt “sad” on seeing her brother on the grounds that such a line of questioning is more prejudicial than probative and provides nothing relevant to this trial. Evidence Code §352. What ANN felt is not an issue in this case and her thoughts on seeing her brother’s scars or whether she was afraid or any other emotion is designed and intended to inflame the jury and cause this young lady to display her emotions in front of the jury.

Plaintiff ANN can not state a claim for damages based on what she saw after the incident or how she felt seeing her brother’s scar or whether she was afraid after the incident or whether she felt sad, mad, or anything else when she saw the blood on her brother after he was injured by the dog. In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' ( Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008–1009).

4. PLAINTIFF ANN MAY NOT RECOVER DAMAGES FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AND IT WOULD BE PREJUDICIAL TO ALLOW THE INTRODUCTION OF SUCH A CLAIM BEFORE THE JURY AS SHE CANNOT ESTABLISH THE ESSENTIAL ELEMENTS OF THE CLAIM:

While a family member may recover emotional distress damages when that family member actually observes the injury-producing event occurring to a close family member there is no authority allowing the family member or others to recover damages for how they felt after seeing injuries after the event or whether it made them “afraid” or whether a scar bothers the family member or makes him or her “sad”.

 

1 Further, in order to recover such damages, the family member must first establish that she or he suffered “severe emotional distress”. In Thing v. La Chusa (1989) 48 Cal.3d 644, 667–668, the California Supreme Court recognized that to obtain emotional distress damages, the plaintiff must “suffer[ ] serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” Put another way, “[s]erious emotional distress is such that ‘ “a reasonable [person], normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” ’ [Citations.] In Thing v. La Chusa, our Supreme Court narrowed its holding in Dillon v. Legg and limited the scope of claims for negligent infliction of emotional distress (NIED). Its avowed purpose in doing so was to “avoid limitless liability out of all proportion to the degree of a defendant's negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread....” ( Thing, supra, at p. 664). Morton v. Thousand Oaks Surgical Hosp. (2010) 187 Cal.App.4th 926, 928. The court held that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person, if he or she: “(1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result

! ANN did testify in her deposition [6:2-23] that she saw her brother MARK get bit in the 1

leg, she did not see her brother TONY get bitten or injured by the dog as she had left to go get their mother.

suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” (Thing, supra, 48 Cal.3d at pp. 667–668). Morton v. Thousand Oaks Surgical Hosp. (2010) 187 Cal.App.4th 926, 932. ANN testified that she did have trouble sleeping after the incident – but she did not relate this to the event of the dog biting her brother. Instead ANN testified that she did not have trouble sleeping that night – she only had trouble sleeping after hearing about a hole in the fence separating her yard with that of the Defendants! In fact, when asked if she had any other problems with things like “sadness” after this incident, Plaintiff ANN testified, “Not really” [9:6-21]. CONCLUSION Defendants therefore respectfully request this Court to issue an appropriate order to preclude Plaintiffs, their counsel or any other witness from offering opinions, evidence or testimony as to what ANN felt after the incident and to preclude any mention of a claim for emotional distress damages. DECLARATION OF JAMES GRAFTON RANDALL, ESQ. I, JAMES GRAFTON RANDALL, ESQ. state and declare under penalty of perjury and with my own personal knowledge, as follows:

1. That I am an attorney licensed to practice law before all of the courts of this State and before the United States Supreme Court;

2. That attached hereto is a true and accurate copy of the deposition of ARYANNA Declared this _______ day of _______________________, ____________, at Los Angeles, California, under the laws of the State of California. __________________________________________ JAMES GRAFTON RANDALL, ESQ.

MOTION IN LIMINE #2 TO PRECLUDE ANY OPINIONS, TESTIMONY OR ARGUMENT THAT ONE MAY ASSUME THAT BULL TERRIERS ARE DANGEROUS DUE TO THEIR BREED

5. STATEMENT OF FACTS: Plaintiffs claim injuries [emotional distress or physical injuries] when Plaintiff MARK climbed over the Defendants’ fence to retrieve a basketball and was bitten by the Defendants’ dog. Plaintiffs are further seeking punitive damages. Plaintiff’s family members [father and sister] are further seeking damages for negligent infliction of emotional distress [“NIED”].

6. BASIS OF MOTION Defendants contend that it is not only error but prejudicial error to allow any opinions, testimony, evidence or argument that bull terriers are presumed to be dangerous solely based on their breed. Moreover, just as it is improper to take judicial notice that all German shepherds are dangerous (Lundy v. California Realty (1985) 170 Cal.App.3d 813, 822 -- judicial notice may not be taken that all German shepherds are dangerous. Nor can defendants' knowledge of any dangerous propensity of the dog be inferred simply because they knew his name was Thunder), it would be improper to take judicial notice that all adult male pit bulls are dangerous. Yuzon v. Collins (2004) 116 Cal.App.4th 149, 168. See also: Zuniga v. San Mateo Dept. of Health Services (1990) 218 Cal.App.3d 1521, 1532-1533 [American pit bull terriers]; Chee v. Amanda Goldt Property Management (2006) 143 Ca.App.4th 1360, 1369 [“Jack Russell terrier”]. CONCLUSION: It is therefore respectfully requested that this Court grant this motion in limine and issue an order precluding any argument, testimony or mention to the jury that this subject dog was dangerous simply because of its breed and to preclude any argument by counsel that a jury may assume such “dangerous” or “proclivities” simply because of the breed of the Defendant’s dog.

MOTION IN LIMINE #3 TO PRECLUDE ANY REFERENCE TO, MENTION OF OR OPINIONS OF THE ADMINISTRATIVE HEARING

1. STATEMENT OF FACTS: Plaintiffs claim injuries [emotional distress or physical injuries] when Plaintiff MARK climbed over the Defendants’ fence to retrieve a basketball and was bitten by the Defendants’ dog. Plaintiffs are further seeking punitive damages. Plaintiff ANN is further seeking damages for negligent infliction of emotional distress [“NIED”].

3. BASIS OF MOTION IN LIMINE: DEFENDANTS MOVE TO PRECLUDE ANY MENTION, REFERENCE TO, TESTIMONY OF OR FINDINGS FROM THE ADMINISTRATIVE HEARINGS

It must be kept in mind that there are 2 separate incidents involving the Defendants’ dogs – one occurring April 6, 2010, when MARK jumped over the fence separating his property from the of the Defendant to retrieve a basketball when he was subsequently bitten by Defendants’ dog, “Rambos”.

The second dog bite occurred in December of 2010, at the Defendants’ residence when the housekeeper [ANA] claimed to have been bitten by “Rambos”.

Defendants appealed a “Notice of Dangerous Dog” declaration relative to their dogs “Rambos” and “Jerry”, and an Administrative Hearing was held [See: Food and Agriculture Code §§31621, et. seq.].

Administrative hearings need not comply with the strict rules of evidence. Hearsay evidence may be admissible at administrative hearings. Romero v. Industrial Commission, 616 P.2d 992 (Colo.App.1980). Partridge v. State (Colo.App.,1995) 895 P.2d 1183, 1187.

In fact, as the hearing Officer provided at the beginning of the Administrative Hearing began on in the City of Stockton, “…Hearsay evidence is admissible in these hearings”, and “The general rules of evidence that apply in the civil courts and criminal courts of the State of California do not apply to this hearing…” [Page 7, lines 3-9, Transcript, Administrative Hearing].

Defendants object to any mention, reference to or evidence of the Administrative Hearing on three (3) specific grounds:

1. In light of the fact that the normal rules of evidence applied in civil or criminal proceedings do not apply in Administrative Hearings, findings and conclusions were made in this Administrative Hearing based on matters that would not be admitted in a civil action such as this present one. Therefore, it would be more prejudicial than probative to allow the findings, opinions, conclusions and determinations made during this Administrative Hearing to be admissible in this matter. Evidence Code §352; and,

2. That matters were addressed and evidence was admitted as to the subsequent incident in December of 2010 involving a dog not involved in this incident [although there was some confusion as to whether the second incident involved “Rambis” or “Juno”]. It is extremely prejudicial to allow such evidence to be considered in this trial as the second incident occurred months after the matter with the Plaintiffs – and in fact, may have involved a different dog. Evidence Code §352.

3. That in the Administrative Hearing, the findings, opinions and conclusions were based on opinions that would not be admissible in this civil matter, including, but not limited the opinions of Kimberly a “professional dog trainer”, who based her opinions on assumptions with a lack of foundation that certain breeds of dogs have inappropriate responses to normal stimulus, so-called “reactive dogs”. Ms. T's opinions were solely limited to whether the dogs could be “rehabilitated” – not whether they were a “potentially dangerous dog” [Administrative Hearing, 258:14-25, 259:1-10].

Ms. T concluded that this “reactive dog” or misbehavior associated with dogs can be a “universal trait” which she testified she sees more “with shepherds and Terriers” [224:9-18].

Ms. T, however, never examined neither “Rambos” nor “Jerry” and lacks any foundation as to the characteristics of these specific dogs. She conceded that it would have been very important to her opinions to be able to examine the dogs, but she did not [Administrative Hearing, 257:2-7]. In fact, Ms. T testified that her experience with English Bull Terriers is that she has had some in her training class and she has met some at some dog shows and events she has attended [Administrative Hearing, page 236, lines 6-14], and she based her opinions on “the typical size of a canine of the Bull Terrier as a breed” or “an average Bull Terrier” [Administrative Hearing, 247:21-25]. It is improper to take judicial notice that dogs are dangerous (Lundy v. California Realty (1985) 170 Cal.App.3d 813, 822; Yuzon v. Collins (2004) 116 Cal.App.4th 149, 168. See also: Zuniga v. San Mateo Dept. of Health Services (1990) 218 Cal.App.3d 1521, 1532-1533 [American pit bull terriers]; Chee v. Amanda Goldt Property Management (2006) 143 Ca.App.4th 1360, 1369 [“Jack Russell terrier”]. CONCLUSION: Defendants respectfully request this Court to grant this motion in limine and to preclude any mention, reference to, testimony regarding or findings, conclusions or opinions provided at the Administrative Hearing regarding the Defendants’ dogs “Rambos” and “Jerry” before the jury in this matter.

 

2 ! It is Defendants’ contention – a fact which Plaintiff MARK must concede – that he was 2

trespassing on the Defendants’ property when he climbed over the fence and was then bitten by “Rambos”. No determination of a “dangerous dog” may be made if the injury occurred while the Plaintiff was a trespasser on the Defendants’ property. “(a) No dog may be declared potentially dangerous or vicious if any injury or damage is sustained by a person who, at the time the injury or damage was sustained, was committing a willful trespass or other tort upon premises occupied by the owner or keeper of the dog, or was teasing, tormenting, abusing, or assaulting the dog, or was committing or attempting to commit a crime. No dog may be declared potentially dangerous or vicious if the dog was protecting or defending a person within the immediate vicinity of the dog from an unjustified attack or assault. No dog may be declared potentially dangerous or vicious if an injury or damage was sustained by a domestic animal which at the time the injury or damage was sustained was teasing, tormenting, abusing, or assaulting the dog”. California Food & Agric.Code §31626.

MOTION IN LIMINE RE #4 -- NO EVIDENCE OF PRIOR OR SUBSEQUENT “DOG BITES” IN “STRICT LIABILITY” CLAIM

1. STATEMENT OF FACTS: Plaintiffs claim injuries [emotional distress or physical injuries] when Plaintiff MARK climbed over the Defendants’ fence to retrieve a basketball and was bitten by the Defendants’ dog. Plaintiffs are further seeking punitive damages. Plaintiff ANN is further seeking damages for negligent infliction of emotional distress [“NIED”]. Plaintiffs’ claims are based on “negligence” and “strict liability” for the dog bite of MARK.

2. BASIS OF MOTION: Defendants contend that should the trial court deny Defendants’ Motion in Limine to preclude mention of “strict liability” [based on the contention that Plaintiff was a trespasser and therefore cannot state a claim for “strict liability” as a matter of law under the provision of Civil Code §3342], then evidence as to other alleged dog bites either before this incident [which Defendants deny] or after this incident are not relevant, are more prejudicial than probative and would consume too much time on matters that are not relevant to this matter. Evidence Code §352.

 

3 3. ANY EVIDENCE OF PRIOR OR SUBSEQUENT ALLEGED CONDUCT BY THIS DOG IS IRRELEVANT AND INADMISSIBLE IN A STRICT LIABILITY CLAIM: In order for plaintiff to prevail under the “dog-bite” statute, he need not prove scienter;

that is, that Defendant knew of the dog's purported dangerous propensities. See also Nicholes v. Lorenz, 396 Mich. 53, 237 N.W.2d 468, 472 (1976) (holding that one who brings action under a “dog-bite” statute is not required to establish dog's past conduct or owners knowledge thereof). Therefore, evidence of the dog bites suffered by three other persons was entirely irrelevant. Pingaro v. Rossi (N.J.Super.A.D.,1999) 322 N.J.Super. 494, 506, 731 A.2d 523, 529.

 

4 In California, the courts have held that a defendant may not offer evidence in a strict

liability action that the dogs were not vicious prior to the incident. See: Goldberg v. Rabuchin (1944) 65 Cal.App.2d 111, 114.

CONCLUSION: Defendants herein move the Court for an order to exclude any mention, testimony,

evidence or reference to any other alleged dog bites of this particular dog [“Rambis”] as such matters would be more prejudicial than probative. ! Civil Code §3342(a) provides: “The owner of any dog is liable for the damages suffered 3

by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.”

! Unlike other jurisdictions, in California the defenses of comparative negligence and 4

assumption of risk are still viable defenses in spite of “strict liability”. See: Johnson v. McMahan (1998) 68 Cal.App.4th 173, 176.

MOTION IN LIMINE #5 TO BIFURCATE PUNITIVE DAMAGES 1. STATEMENT OF FACTS: Plaintiffs claim injuries [emotional distress or physical injuries] when Plaintiff MARK climbed over the Defendants’ fence to retrieve a basketball and was bitten by the Defendants’ dog. Plaintiffs are further seeking punitive damages. 2. BASIS OF MOTION: Plaintiff MARK seeks damages based on theories of negligence and strict liability. Plaintiffs are further seeking punitive damages. Defendants contend Plaintiff cannot seek damages based on strict liability as Plaintiff was a trespasser and climbed over the fence to retrieve his ball without the permission or consent of the Defendants. Defendants assert that there is no admissible evidence to establish the proper basis for a claim of punitive damages or of any “despicable conduct” of these Defendants. There is no competent evidence to establish any prior history of dog bites of the dog involved in this incident and no evidence to establish sufficient “despicable conduct” of these Defendants to present this issue to the jury. Defendants further request this Court to bifurcate the claim of punitive damages and to preclude the Plaintiff and all witnesses form mentioning punitive damages or presenting any evidence or argument as to Defendants’ financial condition until further order of the Court and until such time as there has been a finding of “despicable conduct” as against these defendants. To recover punitive damages, a plaintiff must prove by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ.Code, § 3294, subd. (a).) A trial court deciding whether to allow a plaintiff to proceed with a claim for punitive damages must assess the plaintiff's evidence with reference to the clear-and-convincing evidentiary burden. Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1119. Since the 1987 amendments to Civil Code section 3294 not only must oppression, fraud, or malice must be proven by “clear and convincing” evidence, but the plaintiff must establish that the Defendant’s conduct was “despicable”. These amendments indicate that the Legislature intended the evidentiary standard to provide a statutory limitation on the award of punitive damages. ( Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331). American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1049. The question is whether defendants' conduct may be characterized as “despicable.” “Despicable conduct” has been described as conduct which is “ ‘... so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’ ” ( Mock v. Michigan Millers Mutual Ins. Co., supra, 4 Cal.App.4th 306, 331, quoting BAJI No. 14.72.1 (1989 rev.).) “Such conduct has been described as ‘[having] the character of outrage frequently associated with crime.’ ( Taylor v. Superior Court (1979) 24 Cal.3d 890, 894....). As well stated in Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1154 ...: ‘[A] breach of a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive damages. [Citation.] ... Punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or

in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.... Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate.’ ” ( Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287). American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050-1051. 3. PURPOSE OF MOTIONS IN LIMINE: The purpose of a motion in limine is to prevent the “unringing” of the bell and to exclude prejudicial or inadmissible evidence. Hyatt v. Sierra Boat Co. (1978) 79 C.A.3d 325, 337. The exclusion of evidence is the purpose of motions in limine--motions in limine seeking to exclude evidence are granted all the time. See, e.g., Edwards v. Centex Real Estate Corp. (1997) 53 Cal. App. 4th 15, 26 (“A motion in limine is made to exclude evidence before the evidence is offered at trial”); 3 Witkin California Evidence, Presentation at Trial, § 368 (4th ed. 2000) (“A motion in limine is made to exclude evidence before the evidence is offered at trial, on grounds that would be sufficient to object to the evidence. Although not expressly authorized by statute, the motion is recognized as a proper request that the trial court has inherent power to entertain and grant.”). Kelly v. New West Fed. Sav. (1996) 49 Cal. App. 4th 659, 669 (1996) (“The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial.”). 4. THE COURT SHALL ISSUE AN ORDER UPON APPLICATION TO BAR MENTION OF FINANCIAL CONDITION AND BIFURCATE PUNITIVE DAMAGES AND PRECLUDE MENTION OF DEFENDANT’S FINANCIAL CONDITION: The purpose behind Civil Code section 3295, which allows bifurcation and preclusion of evidence of a defendant's wealth and profits during the liability phase of trial, is to minimize prejudice prior to the jury's determination of a prima facie case of liability for punitive damages. ( Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777–778). Civil Code §3295 was enacted in 1979 to protect against the premature disclosure of a defendant's financial condition when punitive damages are sought. ( Medo v. Superior Court (1988) 205 Cal.App.3d 64, 67; Stats.1979, ch. 778, § 1, p. 2662.) Since its enactment, the statute has permitted courts to grant a protective order requiring a plaintiff to produce evidence of a prima facie case of liability for damages under section 3294 before permitting the introduction of evidence of a defendant's profits and financial condition. (§ 3295, subd. (a), added by Stats.1979, ch. 778, § 1, p. 2662.) In 1980, the statute was amended to limit the circumstances under which evidence of a defendant's profits and financial condition may be discovered. (§ 3295, subd. (c), added by Stats.1980, ch. 1242, § 2, p. 4218.) And since 1987, section 3295 has established rules for bifurcating the punitive damages portion of a trial and has barred complaints from disclosing the amount of punitive damages sought in an action. (§ 3295, subds.(d), (e), added by Stats.1987, ch. 1498, § 6, pp. 5781–5782.)

These restrictions safeguard defendants in two ways: “[t]he pretrial discovery limits ensure that defendants are not coerced into settling suits solely to avoid unwarranted intrusions into their private financial affairs, while the evidentiary restrictions minimize potential prejudice to the defense in front of a jury.” ( College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 712.)

As an evidentiary restriction, section 3295(d) requires a court, upon application of any defendant, to bifurcate a trial so that the trier of fact is not presented with evidence of the defendant's wealth and profits until after the issues of liability, compensatory damages, and malice, oppression, or fraud have been resolved against the defendant. Bifurcation minimizes potential prejudice by preventing jurors from learning of a defendant's “deep pockets” before they determine these threshold issues. Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777.

CONCLUSION: It is therefore respectfully requested that this Court issue an order bifurcating the issue

of punitive damages and precluding any mention, evidence or argument of such damages and of the Defendants’ financial condition until this Court makes any necessary further rulings on the propriety of a punitive damages claim in this matter.

MOTION IN LIMINE #6 TO PRECLUDE ANY “GOLDEN RULE” ARGUMENT 1. STATEMENT OF FACTS: Plaintiffs claim injuries [emotional distress or

physical injuries] when Plaintiff MARK climbed over the Defendants’ fence to retrieve a basketball and was bitten by the Defendants’ dog. Plaintiffs are further seeking punitive damages and emotional distress damages.

2. BASIS OF MOTION: Defendants seek to preclude any mention, argument or reference to the jury to put themselves in the place of the Plaintiff or his parents or siblings in determining the extent of damages to award.

3. PURPOSE OF MOTIONS IN LIMINE: The main purpose of the motion is to avoid the obviously futile attempt to "unring the bell" in the event a motion to strike is granted in the proceedings before the jury. [Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325,); see also Clemens v. American Warranty Corp. (1987) 193 Cal. App. 3d 444. It is also proper to move to exclude not only entry of the disputed evidence itself, but also any reference to or commentary on the evidence. [Charbonneau v. Superior Court (1974) 42 Cal. App. 3d 505]. A pretrial motion in limine is a protective device for the opponent of the evidence, to prevent the proponent from even mentioning potentially prejudicial evidence to the jury. ( Abbett Electric Corp. v. Sullwold (1987) 193 Cal.App.3d 708, 715); Rufo v. Simpson (2001) 86 Cal.App.4th 573, 608.

4. IT IS IMPROPER FOR AN ATTORNEY TO ASK JURORS HOW MUCH “THEY WOULD ‘CHARGE’ TO UNDERGO EQUIVALENT PAIN AND SUFFERING” OR TO PUT THEMSELVES IN THE PLAINTIFF’S SHOES. “THIS SO-CALLED ‘GOLDEN RULE’ ARGUMENT IS IMPERMISSIBLE

The jury must impartially determine pain and suffering damages based upon evidence specific to the plaintiff, as opposed to statistical data concerning the public at large. The only person whose pain and suffering is relevant in calculating a general damage award is the plaintiff. How others would feel if placed in the plaintiff's position is irrelevant. It is improper, for example, for an attorney to ask jurors how much “they would ‘charge’ to undergo equivalent pain and suffering” or to put themselves in the Plaintiff’s shoes (Beagle v. Vasold (1966) 65 Cal.2d 166 at p. 182, fn. 11.) “This so-called ‘golden rule’ argument [citation] is impermissible. [Citations.]” ( Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 860.) Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 764-765.)

The court in Beagle explained that while the “per diem” argument is permissible, the “golden rule” argument is not: “In holding that counsel may properly suggest to the jury that plaintiff's pain and suffering may be measured on a ‘per diem’ basis, we do not imply that we also approve the so-called ‘golden rule’ argument, by which counsel asks the jurors to place themselves in the plaintiff's shoes and to award such damages as they would ‘charge’ to undergo equivalent pain and suffering.” ( Id. at p. 182, fn. 11.)

“The appeal to a juror to exercise his subjective judgment rather than an impartial judgment predicated on the evidence cannot be condoned. It tends to denigrate the jurors' oath to well and truly try the issue and render a true verdict according to the evidence. (Code Civ. Proc., § 604.) Moreover, it in effect asks each juror to become a personal partisan advocate for the injured party, rather than an unbiased and unprejudiced weigher of the evidence. Finally, it may tend to induce each juror to consider a higher figure than he otherwise might to avoid being considered self-abasing.” ( Neumann v. Bishop (1976) 59 Cal.App.3d 451, 484-485; see also Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 319-320; Zibbell v. Southern Pacific Co. (1911) 160 Cal. 237, 255.) Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 765

“The jury must impartially determine pain and suffering damages based upon evidence specific to the plaintiff, as opposed to statistical data concerning the public at large. The only person whose pain and suffering is relevant in calculating a general damage award is the plaintiff. How others would feel if placed in the plaintiff's position is irrelevant. It is improper, for example, for an attorney to ask jurors how much ‘they would “charge” to undergo equivalent pain and suffering.’ [Citation.] ‘This so-called “golden rule” argument [citation] is impermissible.’ ” ( Loth v. Truck-A-Way Corp., supra, 60 Cal.App.4th at pp. 764-765.)

The appeal to a juror to exercise his subjective judgment rather than an impartial judgment predicated on the evidence cannot be condoned. It tends to denigrate the jurors' oath to well and truly try the issue and render a true verdict according to the evidence. (Code Civ.Proc., §604.) Moreover, it in effect asks each juror to become a personal partisan advocate for the injured party, rather than an unbiased and unprejudiced weigher of the evidence. Finally, it may tend to induce each juror to consider a higher figure than he otherwise might to avoid being considered self-abasing. Neumann v. Bishop (1976) 59 Cal.App.3d 451, 484-485. CONCLUSION:

Defendant therefore respectfully requests this Court to issue an appropriate order to preclude the Plaintiffs or Plaintiffs’ experts or counsel from making any argument to the jury requesting the jury to place themselves in Plaintiff’s shoes or any argument violating the “golden rule” argument or seeking to make the jurors personal partisan advocates for the Plaintiff.

MOTION IN LIMINE #7 TO PRECLUDE UNIDENTIFIED MENTION OF PRIOR DOG BITE IN VETERINARIAN’S RECORDS LACKING FOUNDATION AND AUTHENTICATION 1. STATEMENT OF FACTS: Plaintiffs claim injuries [emotional distress or physical injuries] when Plaintiff MARK climbed over the Defendants’ fence to retrieve a basketball and was bitten by the Defendants’ dog. Plaintiffs are further seeking punitive damages. 2. BASIS OF MOTION Plaintiffs are expected to make a claim that there was a prior dog bite by one of the Defendants’ dogs based on an unidentified mention in one of the veterinarian’s records [EXHIBIT “A”]. The statement provides: “* Pred Rxn –p bit someone while on it”. Defendants object. The evidence has disclosed that no one can identify who wrote this entry into the records, what it is referring to, what it is based on, whether someone was told this by the Defendants or someone else, etc. In short, there is no foundation for this hearsay statement contained in the record and it is more prejudicial than probative to allow the Plaintiffs to introduce this unattributable statement to the jury. Evidence Code §352. 3. PURPOSE OF MOTIONS IN LIMINE: The purpose of a motion in limine is to prevent the “unringing” of the bell and to exclude prejudicial or inadmissible evidence. Hyatt v. Sierra Boat Co. (1978) 79 C.A.3d 325, 337. The exclusion of evidence is the purpose of motions in limine--motions in limine seeking to exclude evidence are granted all the time. See, e.g., Edwards v. Centex Real Estate Corp. (1997) 53 Cal. App. 4th 15, 26 (“A motion in limine is made to exclude evidence before the evidence is offered at trial”); 3 Witkin California Evidence, Presentation at Trial, § 368 (4th ed. 2000) (“A motion in limine is made to exclude evidence before the evidence is offered at trial, on grounds that would be sufficient to object to the evidence. Although not expressly authorized by statute, the motion is recognized as a proper request that the trial court has inherent power to entertain and grant.”). Kelly v. New West Fed. Sav. (1996) 49 Cal. App. 4th 659, 669 (1996) (“The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial.”). 4. PRIOR TO ITS ADMISSION AS EVIDENCE BEFORE THE JURY THE PLAINTIFFS MUST ESTABLISH AN EXCEPTION TO THE HEARSAY RULE FOR THIS STATEMENT AND THE AUTHENTICATION AND FOUNDATION OF THE STATEMENT AND REPORT:

Plaintiff not only can not establish the foundation and authentication for the reports attached hereto but they can’t establish the requisite elements to establish exceptions to the hearsay rule. M employed by the Veterinary Hospital, testified that he did not write the entry into the records ““* Pred Rxn –p bit someone while on it”. [EXHIBIT “B”, 1:5-18]. He could not identify the handwriting [EXHIBIT “B”, 17:7-12]. In fact, Mr. M testified that someone at Animal Hospital called and they wanted records faxed over and an unidentified person said the dog “Rambos” had bit someone. He did not know who it was [EXHIBIT “B”, 15:6-25]. As to the notation for 8/19/09: “Medication Rx – p acts ‘crazy while on pred.” Mr. Meek could only provide that it looked like Dr. handwriting [EXHIBIT “B”, 16-6-11]. Mr. M further testified that while he saw the notation in the records “Crazy while on Pred” he does not remember anything about this matter and he did not write it [EXHIBIT “B”, 13:17-25, 14:1-4]. Dr. DVM [the veterinarian for Defendants’ dogs] testified, and she provided that the notation “Pred RXN – patient bit someone while on it” was not her handwriting [EXHIBIT “C”, 9:15-21]. In fact, Dr. testified that as to the notation: “Patient [“dog”] acts crazy while on Pred” she does not know where that came from, if she had talked to the dog owners or if it came from one of the receptionists [EXHIBIT “C”, 10:23-25, 11:1-5]. In speculating where the notation came from, all Dr. could provide was that if it didn’t come from one of the employees, Jessica by “process of elimination” it “most likely” came from one of the dog’s owners or “owner’s representative” [EXHIBIT “C”, 13:1-20]. As to the notation on the front sheet, “Patient bit someone while on it” is not in the handwriting of Dr. [EXHIBIT “C”, 16:4-9]. As to the notation in reference to August 28, 2009, on the bottom of the page where it states: “Patient bit someone while on it” – while that was in the handwriting of Dr. she has no idea what the source of that notation was [EXHIBIT “C”, 17:1-8]. A “writing,” includes handwriting, pictures, and photographs. (Evid.Code §250.) All writings must be authenticated before they may be received in evidence. (Evidence Code §1401, subd. (a).) The records lack proper authentication, a requirement of admissibility. (Evid.Code §§ 1401 [writings require authentication]; 1530 [certification of public documents]; 1 Witkin, Cal. Evidence (4th ed. 2000) Documentary Evidence §§ Hearsay, §§ 3, 41, 43.) Even though a writing is relevant and not subject to an exclusionary rule (see supra, §2), a foundation must be laid by authentication before it can be introduced into evidence. (Ev.C. 1401(a); see Ten Winkel v. Anglo Calif. Sec. Co. (1938) 11 C.2d 707, 720; Magee v. Wyeth Laboratories (1963) 214 C.A.2d 340, 355. As the Court held in Continental Baking Co. v. Katz (1968) 68 C.2d 512, 526 [“We understand that in some legal systems it is assumed that documents are what they purport to be, unless shown to be otherwise. With us it is the other way around. Generally

speaking, documents must be authenticated in some fashion before they are admissible in evidence.”]

Evidence Code section 1400 states, “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.”

Evidence Code section 1421 states, “A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.” Further, authentication alone does not overcome other rules of evidence, such as the hearsay rule. Authentication of a writing is independent of the question of whether the content of the writing is inadmissible as hearsay. (See Kramer v. Barnes (1963) 212 Cal.App.2d 440, 446–448). Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027. Evidence containing hearsay is not admissible evidence. Evid.Code, § 1200. Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027. Finally, Plaintiffs can not establish an exception to the hearsay rule, that these records are “business records” as Plaintiffs can not meet the requisite elements required to establish that these records are a “business record” as set forth in Evidence Code 1271. Section 1271 permits admission of business records to establish the truth of the matters contained therein if: “(a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” CONCLUSION: In short, Plaintiffs can not establish the source of the notations as to whether or not one of Defendant’s dogs bit someone before or whether the dog was “crazy” while on Prednisone or whether it came form the Defendants or the dog’s “representatives”.

It is respectfully requested that the Court issue an order precluding the mention, admissibility or reference to these notations in the records of Dr. and the Veterinary Hospital.

MOTION IN LIMINE #8 TO PRECLUDE ANY TESTIMONY OR OPINIONS AS TO HOW DAVID FEELS OR FELT AND PRECLUDE ANY RECOVERY OF EMOTIONAL DISTRESS DAMAGES:

1. STATEMENT OF FACTS: Plaintiffs claim injuries [emotional distress or physical injuries] when Plaintiff MARK climbed over the Defendants’ fence to retrieve a basketball and was bitten by the Defendants’ dog. Plaintiffs are further seeking punitive damages. Plaintiff DAN [MARK's father] is further seeking damages for negligent infliction of emotional distress [“NIED”].

2. BASIS OF MOTION: Defendants contend that Plaintiff DAN may not recover damages for negligent infliction of emotional distress damages as he cannot establish the essential elements of such a claim, including suffering severe emotional distress as a result of observing the dog bite and actually observing the injury-producing event – nor is it permissible for him to testify as to how she felt after the event or whether he has to “live with this everyday” or whether he gets angry or upset, and he “visualizes his face” everyday, etc. as such matters are irrelevant and more prejudicial than probative. Evidence Code §352.

3. IT IS UNDULY PREJUDICIAL TO ALLOW COUNSEL TO ASK QUESTIONS OF FAMILY MEMBERS AS TO HOW THEY FELT AFTER THE INCIDENT OR WHETHER THEY HAVE TO “LIVE WITH IT EVERY DAY”, ETC.

During his deposition Plaintiff DAN testified as follows: 1. That he feels worse today then he felt the day it happened; 2. That as MARK's father he lives with this everyday; 3. That he sees it in the pictures and he sees it when he is with his son; 4. That he gets angry and upset; 5. That he’s thankful everyday that his son is alive; 6. That they are fortunate it wasn’t worse; 7. That he visualizes his face in his hands, just staring at him; 8. His statement: “This 11-year-old child. And I live with it. I’ll live with it for the rest of my life…” [Deposition, 61:1-25, 62:1]. When asked if he had seen any “professionals” about these feelings, DAN testified that he talks to his priest about it [62:1-21]. In addition, DANdid not observe the injury-producing event as it occurred. While he heard his son scream and heard a dog bark he could not see over the fence as it was taller than him [Depo., 16:13-18].

While he suspected something bad may have occurred involving his dog and his son, he did not actually observe the incident occur [Deposition, pages 20-23]. Defendant objects to this line of questioning and responses and to any claim or mention of emotional distress on the part of DANand requests the Court to preclude any questions to DAN as to how he felt or how he now feels, whether or not he “visualizes” it every day or whether he lives with it everyday or whether he is upset, angry or mad or whatever his personal feelings are about this incident on the grounds that such a line of questioning is more prejudicial than probative and provides nothing relevant to this trial. Of course a father cares about injuries to his child – but such feelings are not compensable simply because there is a father-child relationship. Such questioning is intended to elicit and without a doubt will elicit strong empathy and emotions from a jury and they should be excluded. Evidence Code §352. In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' ( Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008–1009).

4. PLAINTIFF DAVID MAY NOT RECOVER DAMAGES FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AND IT WOULD BE PREJUDICIAL TO ALLOW THE INTRODUCTION OF SUCH A CLAIM BEFORE THE JURY AS HE CANNOT ESTABLISH THE ESSENTIAL ELEMENTS OF THE CLAIM:

While a family member may recover emotional distress damages when that family member actually observes the injury-producing event occurring to a close family member there is no authority allowing the family member or others to recover damages for how they felt after seeing injuries after the event or whether it made them “afraid” or whether a scar bothers the family member or makes him or her “sad” or whether he “visualizes” it everyday, or whether he talks about it with his priest. Further, in order to recover such damages, the family member must first establish that she or he suffered “severe emotional distress”. In Thing v. La Chusa (1989) 48 Cal.3d 644, 667–668, the California Supreme Court recognized that to obtain emotional distress damages, the plaintiff must “suffer[ ] serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” Put another way, “[s]erious emotional distress is such that ‘ “a reasonable [person], normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” ’ [Citations.] In Thing v. La Chusa, our Supreme Court narrowed its holding in Dillon v. Legg and limited the scope of claims for negligent infliction of emotional distress (NIED). Its avowed purpose in doing so was to “avoid limitless liability out of all proportion to the degree of a defendant's negligence, and against which it is impossible to insure without

imposing unacceptable costs on those among whom the risk is spread....” ( Thing, supra, at p. 664). Morton v. Thousand Oaks Surgical Hosp. (2010) 187 Cal.App.4th 926, 928. The court held that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person, if he or she: “(1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.” (Thing, supra, 48 Cal.3d at pp. 667–668). Morton v. Thousand Oaks Surgical Hosp. (2010) 187 Cal.App.4th 926, 932. CONCLUSION Defendants therefore respectfully request this Court to issue an appropriate order to preclude Plaintiffs, their counsel or any other witness from offering opinions, evidence or testimony as to what DAN felt after the incident and to preclude any mention of a claim for emotional distress damages. DECLARATION OF JAMES GRAFTON RANDALL, ESQ. I, JAMES GRAFTON RANDALL, ESQ. state and declare under penalty of perjury and with my own personal knowledge, as follows:

4. That I am an attorney licensed to practice law before all of the courts of this State and before the United States Supreme Court;

5. That attached hereto is a true and accurate copy of the following pages of the deposition of DAN : 16, 17, 20-23, 61-62.

Declared this _______ day of _______________________, ____________, at Los Angeles, California, under the laws of the State of California. __________________________________________ JAMES GRAFTON RANDALL, ESQ.

MOTION IN LIMINE #9 TO PRECLUDE ANY MENTION OF STRICT LIABILITY 1. STATEMENT OF FACTS: Plaintiffs claim injuries [emotional distress or physical injuries] when Plaintiff MARK climbed over the Defendants’ fence to retrieve a basketball and was bitten by the Defendants’ dog. Plaintiffs are further seeking punitive damages. 2. BASIS OF MOTION IN LIMINE: Defendants seek damages based on allegations of negligence and strict liability under Civil Code §3342 , the so-called “dog bite statute”. Defendants, however, contend that Plaintiffs may not state a claim for “strict liability” as they were trespassing on the Defendants’ property at the time they were bitten by one of the Defendants’ dogs and did not have the permission or consent to climb over the fence on their side of the property into the Defendants’ back yard to retrieve the basketball. 3. PURPOSE OF MOTIONS IN LIMINE: The purpose of a motion in limine is to prevent the “unringing” of the bell and to exclude prejudicial or inadmissible evidence. Hyatt v. Sierra Boat Co. (1978) 79 C.A.3d 325, 337. The exclusion of evidence is the purpose of motions in limine--motions in limine seeking to exclude evidence are granted all the time. See, e.g., Edwards v. Centex Real Estate Corp. (1997) 53 Cal. App. 4th 15, 26 (“A motion in limine is made to exclude evidence before the evidence is offered at trial”); 3 Witkin California Evidence, Presentation at Trial, § 368 (4th ed. 2000) (“A motion in limine is made to exclude evidence before the evidence is offered at trial, on grounds that would be sufficient to object to the evidence. Although not expressly authorized by statute, the motion is recognized as a proper request that the trial court has inherent power to entertain and grant.”). Kelly v. New West Fed. Sav. (1996) 49 Cal. App. 4th 659, 669 (1996) (“The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial.”). 4. THERE CAN BE NO STRICT LIABILITY WHEN A PERSON TRESPASSES ONTO THE PROPERTY OF ANOTHER AND IS THEREAFTER BITTEN BY THE NEIGHBOR’S DOG:

An uninvited trespasser may not recover under Civ. Code, § 3342. [Bauman v. Beaujean (1966) 244 Cal App 2d 384 for “strict liability”. Further, while Civil Code §3342 imposes strict liability on the dog's owner. Johnson v. McMahan (1998) 68 Cal.App.4th 173, 175–176, nonetheless, the owner is not an insurer of others' safety, and the statutory liability is not absolute. ( Fullerton v. Conan (1948) 87 Cal.App.2d 354,

358; Smythe v. Schacht (1949) 93 Cal.App.2d 315, 321.) The defenses of assumption of the risk and contributory negligence may still be asserted. ( Johnson, supra, at p. 176; accord Burden v. Globerson (1967) 252 Cal.App.2d 468, 470–471.) As Civil Code §3342 provides, in pertinent part:

“(a) The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner…..”. Civil Code §3342.

In a Michigan case with an identical fact pattern, the court affirmed the summary disposition of a claim under the Michigan dog bite statute. The Michigan dog bite statute holds a dog owner strictly liable for injuries from a dog bite if the victim is on public property or “lawfully on private property.” Mich. Comp. Laws Section 287.351(1). In Alvin v. Simpson, 195 Mich. App. 418, 491 N.W.2d 604, leave to appeal denied 502 N.W.2d 39 (1992), ten year old Bradley Alvin was playing ball with friends in the defendants' next door neighbor's yard. The defendants' yard was enclosed by a fence. At the request of his playmates, Bradley climbed the fence and entered defendants' back yard to retrieve a ball. As Bradley was climbing back into the neighbor's yard, the defendants' dog bit him on the leg. Under these facts, the Michigan court held that the defendants were entitled to summary disposition in their favor since Bradley was not lawfully on their property. In Fullerton v. Conan, 87 Cal. App. 2d 354, 197 P.2d 59 (1948), plaintiff, a five year old minor child, was taken by her mother to visit a family friend. The friend's home had a fenced-in yard. The child opened the gate in the fence, entered the backyard, and was bitten by the dog. The California statute allowed recovery only when the plaintiff was “lawfully upon the private property of such owner.” The California court stated: “It should be noted at the outset that gates and doors have been the generally accepted means of indicating privacy for centuries; their use for such a purpose is traditional and is still sanctioned by universal custom. A gate is a barrier just as a door to a home. Both in effect are notifications that what is beyond them is private. And it must be assumed that when gates and doors are a part of the property involved, they represent such a purpose.” The California court held that plaintiff was not lawfully upon the defendant's property because she entered a closed fence. In Matson v. Kivimaki, 294 Minn. 140, 200 N.W.2d 164 (1982), the Minnesota Supreme Court reviewed a case under the Minnesota dog bite statute. The Minnesota statute subjects a dog owner to liability for damages done by a dog to any person who is “peacefully conducting himself in any place where he may lawfully be.” The plaintiff was 2 1/2 years old at the time of the incident. The defendant's property was enclosed by a four foot high wooden fence. The boy leaned through the lower boards of defendant's

wooden fence, waved his hand at the defendant's dog, and it jumped and bit him. The trial court awarded general damages to the child. The Minnesota Supreme Court reversed the trial court, holding that it was error to permit the jury, by instruction, to consider one of the elements necessary for liability under the statute, i.e., that the plaintiff was in a place where he may lawfully be. The court held it was improper to submit the statutory question to the jury for consideration since there was no evidence that would justify finding that the boy was lawfully in a place he was entitled to be at the time of the incident. The court wrote:

“In making this determination as a matter of law, we have carefully reviewed the entire record in this case and find no evidence whatsoever which would allow an inference of any implied invitation for [plaintiff] to project his body through defendant's fence onto defendant's property. In constructing a substantial fence, defendant clearly manifested an intent to circumscribe his property with a barricade to increase both his right of privacy and his right to use his own property without interference from others. The fence not only served to keep others out, but permitted defendant to give his dog a limited amount of freedom while still containing the dog on his property....”. Id. at 146, 200 N.W.2d at 167-88.

CONCLUSION: It is therefore clear that Plaintiffs may not prevail under the so-called “dog bite” statute for strict liability when they climbed over the Defendants’ fence without knowledge, permission or consent and trespassed upon the defendant’s property looking for a ball. Defendants therefore seek an order of this Court to prohibit any party or counsel from mentioning, arguing or presenting any claim to the jury for “strict liability”.