Van Daam v. Friedman

ORDER This matter came before the Supreme Court on May 15,1995, pursuant to an order directing the parties to appear and show cause why the issues raised in the appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has not been shown and that this matter should be summarily decided. The plaintiffs, Jessica and Peter Van Daam, appeal from a Superior Court judgment in favor of defendants Robert and Linda Friedman. Following a Superior Court trial, the trial justice directed a verdict in favor of defendants after he determined that that there was no evidence that would impose a duty upon defendants to foresee what occurred in this case. At the outset, we note that following oral argument in this matter, we received motions for leave to file post-argument memoranda by both parties. After reviewing the motions and considering the arguments raised by the parties, this court denies both motions. We decline to address plaintiffs’ argument that the law of strict liability applies to the instant case. The plaintiffs failed to raise this argument below. It is well settled that arguments not made below may not be brought before this court on appeal. 632 Metacom Associates v. Pub Dennis of Warren, 591 A.2d 379 (R.I.1991). The plaintiffs next assert that under the common law of Massachusetts which is applicable in this case, there was sufficient evidence to show that the dog has a propensity to bark and startle horses. Under Massachusetts common law, a dog owner is not liable for injuries caused by the dog unless they resulted from some extraordinary, dangerous propensity which was known, or should have been known by the owner. Canavan v. George, 292 Mass. 245, 248, 198 N.E. 270 (1935). After conducting a thorough review of the record in this case, we conclude that the trial justice’s ruling was correct because there was no evidence to demonstrate that the dog had a propensity to startle horses. We decline to address the plaintiffs’ remaining argument which we find to be without merit. For the foregoing reasons, the plaintiffs’ appeal is denied and dismissed and the judgment appealed from is affirmed. BOURCIER, J., did not participate.