1 14-3508-cv Carvalho v. Grzankowski UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 16 th day of October, two thousand fifteen.

PRESENT: JOHN M. WALKER, JR., ROBERT D. SACK, REENA RAGGI, Circuit Judges.

---------------------------- ---------------------------- -------------- CARRIE A. CARVALHO, Plaintiff-Appellant , v. No. 14-3508-cv RENEE GRZANKOWSKI, SCOTT GRZANKOWSKI, Defendants-Appellees

.

-------------------------------------- -------------------------------- APPEARING FOR APPELLANT: CHRISTOP HER J. McVEIGH, McVeigh Skiff, Burlington, Vermont.

APPEARING FOR APPELLE ES: ANDREW CAREY BO XER, Ellis Boxer & Blake, PLLC, Springfield, Vermont. Appeal from a judgment of the United States District Court for the District of Vermont (Christina Reiss, Chief Judge ).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entere d on August 8, 2 014, is AFFIRMED. Plaintiff Carrie Carvalho, the owner of a full-grown bullmas tiff named Greta, appeals from an award of summary judgment in favor of defendants Renee and Scott Grzankowski, owners of a Labrador retrieve r puppy named Trey, on Carvalho’s claim of negligence arising from an enco unter between the two dogs th at resulted in Greta pulling on her leash with such force as to cause inju ry to Carvalho’s shoulder. Carvalho argues that the district court erred in concluding, as a matter of law, th at defendants were not negligent in failing to protect her from thei r dog. We review an award of summary judgment de novo, and we will affirm only if the record, viewed in the light most favorable to the nonmoving party, reveals no genuine issue of ma terial fact. See Fed. R. Civ. P. 56(a); Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 8 42–43 (2d Cir. 2013). We assume the parties’ familiarity with the facts and record of pr ior proceedings, which we reference only as necessary to explain our decision to affirm. To establish negligence un der Vermont law, a plaintiff must show “that the defendant owed her a legal duty, that the defe ndant breached that duty, that the breach was the proximate cause of the plaintiff’s in jury, and that she suffe red actual loss or damage.” Lenoci v. Leonard, 2011 VT 47 , ¶ 9, 189 Vt. 641, 6 42, 21 A.3d 694, 697 (2011). “Duty, the first elemen t, is central to a negligence claim, and its existence is primarily a question of law.” Endres v. E ndres, 2008 VT 124, ¶ 11, 185 Vt. 63, 68, 968 A.2d 336, 340 (2008); see Bu xton v. Springfield Lodge No. 679, Loyal Order of Moose,3 Inc., 2014 VT 52, ¶ 7, 196 Vt. 486, 490, 99 A.3d 171, 174 (2014) (stating that court determines “whether a duty is owed, as well as the scope of any duty that is owed”).

The district court here concluded that “D efendants had no duty to protect Plaintiff from Trey’s behavior because they had no notice that Trey’s behavior posed a probable source of danger to Plaintiff, rather than to her dog.” Carvalho v. Grzankowski, 36 F. Supp. 3d 423, 431 (D. Vt. 20 14) (emphasis in original). Carvalho submits that this

conclusion takes “too narrow” a view of defendants’ duty of care. She argues that defendants could—and should—have prevented her injury by restra ining Trey and that reasonable care requires the exercise of such re straint, given defendants’ notice of Trey’s energetic and playful demeanor. We are not persuaded. A landowner owes a guest a duty of “reasona ble care in all the circumstances.” Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 26, 197 Vt. 17 6, 102 A.3d 1101, 1110 (2014). But the circumstances here we re insufficient to pu t defendants on notice that their Labrador retriever puppy was a “pr obable source of danger,” either to Greta—a mature bullmastiff weighing approximately 80 to 90 pounds—or to Greta’s owner. Davis v. Bedell, 123 Vt. 441, 44 3, 194 A.2d 67, 68 (1963) (s tating that “question in each case is whether the dog’s past behavior has been such as to require a person of reasonable prudence to foresee harm to th e person or property of others ”); accord Hillier v. Noble, 142 Vt. 552, 556–57, 458 A. 2d 1101, 1104 (1983). Much less could defendants have

foreseen an indirect and “unreasonable risk of injury” to Carvalho from Trey’s behavior toward Greta. Demag v. Better Power Equi p., Inc., 2014 VT 78, ¶ 27, 197 Vt. 176, 1024 A.3d at 1110 (stating that, under common law, degree of care th at reasonably prudent person would exercise and, t hus, scope of legal duty are dete rmined by foreseeability of consequences of individual’s acts or omissions ). Indeed, Carvalho’s injury stems from her own inability to control her leashed dog. We therefore conclude, viewing the record in the light most favorable to Carvalho, that she has not established a claim for negligence against defendants.

Insofar as Carvalho seeks certification to the Vermont Supreme Court, we deny that application. See gene rally 10 Ellicott Square Cour t Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 125–26 (2d Cir. 2 011) (recognizing discre tionary authority to certify questions of state law).

We have considered Carvalho’s remaini ng arguments, and we co nclude that they

are without merit. We therefore AFFIRM the judgment of the district court.

FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court