Kelleher v. Langille-Westhaver, 2016 NSSC 200

SUPREME COURT OF Nova Scotia Citation: Kelleher v. Langille-Westhaver , 2016 NSSC 200 Date: 20160708 Docket: Bwt No. 427181 Registry: Bridgewater Between: Peter Kelleher and Nancy Geffken Plaintiffs v. Ann Langille-Westhaver and Eddie Westhaver Defendants Judge: The Honourable Justice Margaret Stewart Heard: June 21, 2016, in Bridgewater, Nova Scotia Written Release of Decision: August 2, 2016 (Orally July 8, 2016) Counsel: Peter Kelleher and Nancy Geffken, Self-represented Shawn D’Arcy, for the Defendants By the Court: Introduction [ 1 ] The defendants seek

summary judgment on the pleadings pursuant to Civil Procedure Rule 13.03. The Rule requires the Court to set aside a pleading that “discloses no cause of action or basis for a defence or contest” or that “otherwise makes a claim, or sets up a defence or ground of contest, that is clearly unsustainable when the pleading is read on its own.” The motion must be determined on the basis of the pleadings alone, without evidence. [ 2 ] In general, a pleading must provide “notice to the other party of all claims, defences, or grounds to be raised by the party signing the pleading”: Rule 38.02(1).

A pleading must be concise, but must provide information sufficient to ensure that “the other party will know the case the party has to meet when preparing for, and participating in the trial or hearing,” and so that “the other party will not be surprised when the party signing the pleading seeks to prove a material fact”: Rule 38.02(2). A party must plead material facts, but must not plead evidence: Rule 38.02(3). [ 3 ] In order to grant a

summary judgment on the pleadings the Court must be satisfied that the claim is absolutely unsustainable, or that the pleadings disclose no reasonable cause of action. It must be “plain and obvious” that the pleadings disclose no reasonable cause of action. In other words, even if there is a small chance that the plaintiff could be successful, no

summary judgment should be

granted. [4] This case involves neighbours in dispute. The parties live on East Port Loop Road in East Port Medway, Nova Scotia. Thepleadings describe a conflict beginning in 2006 involving alleged dog attacks, trespasses, ATV racing, and various hostile words andactions between the defendants and the plaintiffs. There are also allegations involving Ms. Langille-Westhaver’s three children,particularly their now-adult son Jordan Langille, but also her allegedly adult children Matthew and Kayla Langille. Many of theallegations also involve the defendants; dogs, named Hunter and Gunner. The Pleadings [5] Negligence.

In its most basic terms, a claim in negligence requires a plaintiff to establish the existence of a duty of care, abreach of that duty, and resulting damage. There must be no factors present that negate the duty of care. The damage must be areasonably foreseeable consequence of the defendants negligence. [6] Various allegations in the Statement of Claim (and the plaintiffs’ legal submissions) assert that the defendants are“responsible” for various conduct alleged to have been committed by Ms.

Langille-Westhaver’s children (who are said to be Mr.Westhaver’s stepchildren), particularly Jordan Langille, who, according to the Amended Statement of Claim, was born in March 1997. Iconsider this to be an allegation of negligence on the part of the defendants. [7] The Amended Statement of Claim is rife with allegations against Jordan Langille. While he is not a party, the plaintiffs submitthat the defendants are responsible for his actions. They cite Jordan v. Schofield (1996), (NS SC), 148 N.S.R. (2d)104, where Gruchy, J. recognized the existence of a parental duty of control and supervision.

Parents have a duty to supervise and controltheir children. This does not go as far as making parents vicariously liable for the actions of their children. The question, rather, whetherthe parents have breached a duty of care. Justice Gruchy also referred to the standard of care, as described in Fleming’s Law of Torts: The standard exacted by law is that of reasonable care and has regard to the practices and usages prevailing in the community and thecommon understanding of what is practicable.

This requires a weighing of the risks to others which the child's conduct involves againstthe competing need, to which courts have been much alive, of giving those growing up sufficient scope to develop a sense of personalresponsibility and reasonable latitude in pursuing forms of amusement and activity not necessarily restricted to those alone that areperfectly safe and harmless.

On the other hand, when tolerating the use of dangerous objects or activities, parents must at the very leastensure that the child receives proper instruction in using them safely and carefully, that he understands and heeds such instruction and isphysically capable of following it safely. [8] The Amended Statement of Claim does not provide material facts upon which it would be possible to find that the defendantsbreached the duty of care to reasonably supervise their son.

The plaintiffs seem to argue that it is sufficient that there is a minor involved,and that this leads to automatic liability on the part of the defendants. This is incorrect as a matter of law. I note the comment of Gillese,J. in Dalton (Litigation guardian of) v. Emerson Estate (1999), 103 O.T.C. 53, [1999] O.J. No. 3508 (Ont. Sup. Ct. J.), that “a parent isnot liable, by virtue merely of the relationship, for a negligent act or tort committed by the child if the child is engaged in his or her ownaffairs.

Minors are liable for their own torts” (para. 25). [9] The plaintiffs also allege negligence on the basis that the defendants have allegedly allowed their dogs to run loose, enter theplaintiffs’ property, and ‘attack” them. [10] The plaintiffs also allege (for instance, at paragraphs 92 and 93 of the Amended Statement of Claim) that the defendants havefailed to meet an alleged standard of care by allowing Jordan Langille to “race” his ATV on public roads, by allowing their property (i.e.the defendants’ property) to be used as a “base for illegal activities”, and by allegedly violating various public statutes and bylaws.

I amunable to discern material facts in most of these allegations that could support a cause of action. The plaintiffs assert, without furtherdetail, that they have suffered “damage”, but there are virtually no specifics provided. [11] An exception to this general conclusion is the allegation that the defendants have negligently allowed their two dogs to roam onthe plaintiffs’ land.

The plaintiffs allege that this has happened on a regular basis and that it has involved multiple “attacks” on them bythe dogs, as well as leading to confrontations with the defendants, to the point of a recognizance allegedly being obtained requiring thedefendants to keep their dogs at a distance.

Although the Amended Statement of Claim is sparse with material facts respecting the natureof the dog attacks, and the alleged damage, the plaintiffs do plead that they have “changed their walking routes and habits” in order toavoid dog attacks. [12] I am not satisfied that it is plain and obvious that there is no sustainable negligence claim in respect of the alleged wandering ofthe defendants dogs onto the plaintiffs’ property. [13] Assault.

An assault is an intentional act that causes a reasonable apprehension of an imminent harmful or offensive contact.Paragraph 77 of the Amended Statement of Claim states: 77. By threatening to beat Peter [Mr. Kelleher] and/or his dog and by allowing an unleashed Hunter with a known history of attacks toattack Peter, Mr. Westhaver committed an assault. [14] “Imminent” means that the harm was about to happen at that moment or directly after the threat of beating was made. Thepleadings do not specifically address immediacy.

That being said, a generous reading of the allegation would suggest that the allegationis that there was a threat that caused a reasonable apprehension of imminent, harmful or offensive contact. [15] In any event, the threat by Mr. Westhaver is alleged to have been made in the “Fall of 2008.” The former Limitation of ActionsAct, R.S.N.S. 1989, c. 258, contained a one-year limitation period for assault: s. 2(1)(a). The Act did permit the Court to set aside alimitation period, but only for a period of four years after the expiry of the limitation period: s. 3(6). The plaintiffs filed their Statement

of Claim on May 12, 2014. Even if the limitation period started running on the last day of 2008, the limitation period would have expired on the last day of 2009, and the four-year extension would have taken them no further than the end of 2013. As such, it is plain and obvious that the pleading of assault alleged against Mr. Westhaver is unsustainable. [ 16 ] At paragraph 78, the plaintiffs assert: 78. By his actions and threatening to beat Peter, Jordan Langille, minor son of the Defendants, committed assault and the Defendants are responsible. [ 17 ] Jordan Langille is not a party to this proceeding.

Minors are liable for their own torts. The bare assertion that “the Defendants are responsible” does not provide any basis for attributing negligence to the defendants. [ 18 ] It is plain and obvious that the pleading of assault committed by Jordan Langille is bound to fail. [ 19 ] Battery. Battery is intentional, harmful or offensive contact. Offensive means non-trivial. Any non-trivial contact without consent is offensive in itself. No injury is required. The Statement of Claim states, at paragraph 80: 80.

By allowing an unleashed Hunter with a known history of attacks to attack Peter and initiate unwanted contact and by threatening Peter, Mr. Westhaver committed battery. [ 20 ] To make out battery the physical contact must be direct. An interference is direct if it is the immediate consequence of a force set in motion by

an act of the defendant. On the facts as alleged in the pleading, Mr. Westhaver did not initiate direct contact with Mr. Kelleher. A dog is not able to commit the intentional tort of battery. The pleadings do not allege that Mr. Westhaver commanded his dog to attack Mr. Kelleher. There is nothing in the pleadings to suggest that Mr. Westhaver initiated the dog attack, except for allowing his dog to be off leash. Therefore, the pleadings themselves do not make out the cause of action of battery. [ 21 ] I conclude that it is plain and obvious that the pleading in battery is bound to fail. [ 22 ] Defamation.

Defamation is a strict liability tort. Intent to cause harm is not a necessary element and damage is presumed. Defamation may take the form of libel, when the defamatory communication is in written or otherwise permanent form. The elements required to be established on a balance of probabilities in order to prove defamation were set out in Grant v Torstar Corp :

(1) The impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person;

(2) The words in fact referred to the plaintiff; and

(3) The words were published, meaning that they were communicated to at least one person other than the plaintiff. [ 23 ] At paragraph 82 of the Amended Statement of Claim, the plaintiffs state: 82. Defendant Langille-Westhaver has harmed Peter through her private Facebook account.

Defendant Langille-Westhaver’s malicious, intentional conduct and her reckless disregard for the harm she caused Peter has resulted in the Plaintiff suffering emotional distress, anxiety, humiliation and damage to his reputation. [ 24 ] At paragraphs 30 and 31 the plaintiffs give the approximate time that the offending words were allegedly published to the private Facebook page, and describe the alleged content: 30.

On or about October 26, 2013, Defendant Ann Langille-Westahaver published on her private Facebook account one or more written false statements which were intended to impeach Peter’s honesty, integrity, virtue or reputation. 31. One statement published was that Peter had beaten the Defendant’s dog, Hunter, with a two by four. [ 25 ] If the statement was in fact published on Ann Langille-Westhaver’s Facebook page and in fact refers to Peter Kelleher it could meet the test of defamation because the statement that a person beats a dog would tend to lower that person’s reputation.

The plaintiffs plead that one or more written false statements were made, indicating that they do not know how many statements were made. They do not indicate how they know what defamatory words were published or how the statements made on a private Facebook account to which they admittedly have no access, came into their purview. [ 26 ] Pleadings in defamation must be specific. The particulars of the pleadings must show the actual words, the time and place of when they were allegedly published and to whom the words were published. Paragraph 31 may support a reasonable cause of action in defamation.

It does not quote the allegedly defamatory words verbatim, but indicates their alleged content with some specificity; that Peter had beaten the defendants’ dog with a two by four. The audience to whom the defamatory words were published is implicit to the forum of the alleged publication, Facebook. [ 27 ] It is not plain and obvious that the defamation pleading is bound to fail. [ 28 ] Cyber-bullying. The plaintiffs state at paragraphs 52, 84 and 85 of the amended statement of claim: 52.

On October 2, 2014, a Protection Order under the Cyber-safety Act subjected Jordan Langille and Ann Langille-Westhaver to certain conditions. On October 7, 2015, this order was confirmed. No appeal was taken. 84. Defendant Langille-Westhaver has used her private Facebook account to deliberately or recklessly cause harm to Plaintiff Kelleher who has suffered emotional distress, anxiety, humiliation and damage to his reputation. 85. Jordan Langille and Ann Langille-Westhaver have been named by the Supreme Court for cyberbullying.

[ 29 ] There is no tort of cyberbullying. The plaintiffs rely on the Cyber-safety Act , which did in fact create tort of cyber-bullying, but which has been struck down. Jordan Langille is not a party to the proceedings. [ 30 ] I am satisfied that it is plain and obvious that a pleading purporting to be made under the Cyber-safety Act is bound to fail. [ 31 ] Intimidation. The plaintiffs plead at paragraphs 89 and 90: 89. By threatening to beat Peter if anything bad happened to Hunter, Mr. Westhaver engaged in intimidation. 90.

Due to this threat, Peter did not contact authorities since they might have taken the dog away from Mr. Westhaver or taken other action harmful to the dog. [ 32 ] The alleged threats are referred to in paragraphs 12 and 14 of the Amended Statement of Claim: 12. In the Fall of 2008, an unleashed Hunter attacked Peter on a public road with Mr. Westhaver present. 14. Mr. Westhaver then told Peter he would beat him up if anything bad happened to Hunter. [ 33 ] Intimidation is essentially a business tort. The authors of Remedies in Tort describe it as “a business or economic tort” (L.

Klar et al, Remedies in Tort , vol. 1 (Thomson Carswell looseleaf) at §13:1.) It is concerned with situations where a loss is suffered due to a threat of an illegal act that compels the other party to do or refrain from doing something. The plaintiff must show that the defendant communicated some form of unlawful threat, that the plaintiff complied with the threat, the defendant intended to injure the plaintiff and that the plaintiff suffered actual damage as a result of compliance with the threat. There is no mention in the pleadings that the intimidation occurred in a business context.

The threat and loss allegedly suffered due to the threat are referred to at paragraphs 14, 16, 89 and 90: 14. Mr. Westhaver then told Peter he would beat him up if anything bad happened to Hunter. 16. Peter and Nancy changed their walking routes and habits to try to avoid further attacks and meetings with any Langilles, Langille- Westhavers or Eddie Westhaver. 89. By threatening to beat Peter if anything bad happened to Hunter, Mr. Westhaver engaged in intimidation. 90. Due to this threat, Peter did not contact authorities since they might have taken the dog away from Mr.

Westhaver or taken other action harmful to the dog. [ 34 ] The alleged threat of an unlawful act was Mr. Westhaver’s alleged threat to beat Mr. Kelleher if anything bad happened to the dog. There is no mention of the denial of a right in order to comply with the threat. There is no mention of actual economic loss. The threat referred to by the plaintiffs is taking place in a private, non-commercial context. [ 35 ] I conclude that it is plain and obvious that the pleading of intimidation cannot succeed. [ 36 ] I note, in addition, that the alleged intimidation relates to an incident occurring in the Fall of 2008.

The defendants submit that the limitations defence raised against the allegation of assault would also apply to the intimidation claim. I am not convinced that this is plain and obvious. There is no limitation period specified for intimidation in the former Act , and the defendants have not raised any argument to explain why it would fall under s 2(1)(a), which governed “actions for assault, menace, battery, wounding, imprisonment or slander.” As such, I would not have struck this pleading on the basis of the limitation period. [ 37 ] Intentional Infliction of Mental Suffering.

The plaintiffs plead at paragraph 87 of the Amended Statement of Claim: 87. By their extreme and outrageous conduct, Ann Langille-Westhaver and Eddie Westhaver have intentionally or recklessly caused severe emotional distress and humiliation to Nancy and Peter. [ 38 ] The tort of intentional infliction of mental suffering (or infliction of nervous shock) occurs when an individual acts without legal basis, so as to intentionally cause mental suffering to another person.

This tort requires the plaintiff to prove that the defendant calculated to intentionally cause harm to the plaintiff by communicating a knowingly false statement that would give rise to a presumption of harm or through extremely flagrant and outrageous conduct. [ 39 ] The pleadings do not specifically indicate which of the defendants actions the plaintiffs are alleged to constitute extreme and outrageous conduct.

The pleadings do allege that the defendants’ actions resulted in “severe emotional distress and humiliation.” However, the Amended Statement of Claim does not identify material facts to support this general allegation. Certainly, on a generous reading of the claim, there is a good deal of behavior alleged against the defendants (as well as their non-party children) that could be characterized as harassment, threats, or abuse. Allegations against the defendants themselves include, for instance, the claim that Ms. Langille-Westhaver “stopped her car and shouted at Nancy” (paragraph 59).

However, the majority of the allegations of racing vehicles and harassment relate to the children, particularly Jordan Langille, who are not parties. [ 40 ] The Supreme Court of Canada has said, while discussing psychological injury in the context of negligence, that “[t]he law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.

I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept…” ( Mustapha v. Culligan of Canada Ltd. , 2008 SCC 27 , at para 9 .) [ 41 ] I conclude that the Amended Statement of Claim does not plead material facts that can support a claim of intentional infliction of mental suffering. It is plain and obvious that this pleading is bound to fail.

[42] Nuisance. Nuisance is concerned with a substantial, unreasonable interference with a person’s use and enjoyment of land.Unreasonable means that the interference must be of the sort that would not be tolerated by the ordinary occupier. Actionable nuisancerequires interference that “materially interfere with ordinary comfort as defined according to the standards held by those of plain andsober tastes. In effect, the law would only intervene to shield persons from interferences to their enjoyment of property that wereunreasonable in the light of all the circumstances” (Tock v. St.

John's (City) Metropolitan Area Board, (SCC), [1989] 2S.C.R. 1181, at para 63).

As the authors of Remedies in Tort put it, nuisance may arise from acts “causing material injury to property” orfrom acts “causing personal inconvenience or discomfort in the use and enjoyment of property” (Remedies in Tort, vol.3, at §17: 26.2.).Nuisance is “typically actionable because it produces material damage to property, personal discomfort, annoyance or inconvenience orinterference with the enjoyment of some right connected with land…” (Remedies in Tort, vol.3, at §17: 27.) Among the potential sourcesof nuisance are noise (Remedies in Tort, vol.3, at §17: 28.) [43] At paragraphs 70, 95, and 100 of the Amended Statement of Claim, the Plaintiffs state: 70.

The Defendants live in proximity to the Plaintiffs and have interfered with the Plaintiff’s peaceful enjoyment of the property. 95. By allowing Hunter and Gunner to roam East Port Medway, Jordan, their minor son, to race his ATV illegally and other illegal actsto be committed from their property, Ann Langille-Westhaver and Eddie Westhaver have denied Nancy and Peter the right of quietenjoyment of 41 East Port Loop Road. 100. The activities originating from the Defendants’ property have grievously interfered with the purpose for which the Plaintiffspurchased their property.

These activities have had a negative impact on the value of the Plaintiffs’ property. The damage caused by theDefendants poses a serious risk of actual harm to the health and well-being of the claimants. These detrimental effects are material,actual and readily ascertainable. [44] At paragraph 21, the plaintiffs allege that the dogs have been on their property approximately 120 times between 2006 and2014. At paragraphs 23 and 24 they allege that between 2006 and 2013 they have been attacked by the dogs a total of 20 times while ontheir own property. At paragraph 35 they state that the defendant, Mr.

Westhaver, signed a recognizance on November 1, 2013, requiringhim not to permit his dog within 50 metres of either plaintiff. At paragraphs 37 and 38 they allege that this recognizance was breached inJanuary 2014. The plaintiffs also plead that the defendants have breached municipal bylaws by allowing their dogs to roam at large in thecommunity and enter their property. [45] As noted earlier, the plaintiffs do not describe the nature of the alleged attacks or the specific damage that they suffered fromthe attacks, although they do allege that they have been forced to change their own behavior.

The plaintiffs state that they have had toforego recreational activities such as changing their walking routes in order to avoid being attacked by the dogs. They plead that theyhave suffered emotional distress, humiliation and anguish over the actions of the defendants. At paragraph 39 they plead that they haveincurred costs in attempting to gain protection and redress from the actions of the defendants. They do not specify what costs they haveallegedly incurred. At paragraph 100 the plaintiffs plead that the nuisance has caused a negative impact on the value of their property.

Inthe same paragraph they plead that the nuisance poses a serious risk to their health and well-being. A risk of future damage is not thesame as damage already suffered. [46] As noted earlier, the plaintiffs also plead that the defendants’ property has been used as a base for excessive noise, allegedly“illegal” ATV racing and other “illegal” acts, causing a substantial and unreasonable interference with the plaintiffs’ enjoyment of theirproperty, and consequent damages.

At paragraph 100, the plaintiffs state that the activities have had a negative impact of the value oftheir property and that the activities pose serious risk to the plaintiffs’ health and well-being. The plaintiffs do not specify actual damagesto their property as a result of the ATV racing. They allege that that fear has stopped them from going away on vacations and goingoutside as a result of the relationship with their neighbours and the illegal ATV racing.

Many of the allegations relate specifically toconduct of the children, who are not parties. [47] All that being said, I am not satisfied that it is plain and obvious that the pleading in nuisance is bound to fail. It is not my roleat this stage to assess the strength of the claim, only to determine whether it is bound to fail. I conclude that it is not plain and obviousthat the allegations of noise from the defendants’ property, and of dogs being allowed to wander freely, both allegedly interfering withthe plaintiffs’ enjoyment of their property, would be bound to fail. [48] Strict Liability.

At paragraph 102 of the pleadings the plaintiffs state: 102. Strict liability is imposed on Ann Langille-Westhaver and Eddie Westhaver who knew that Hunter attacked people yet let Hunterroam freely and engage in attacks on Peter and Nancy. It is also imposed because they knew of other illegal activities emanating fromtheir property. [49] The common-law doctrine of scienter recognizes that some animals that are kept as pets are dangerous. The owner of an animalcan be found liable if the animal had a propensity to cause damage of the kind complained of by the plaintiff and the owner knew ofsuch propensity.

An owner of a dog with a propensity to injure people or property is strictly liable for injuries that result from the knownpropensity. This requirement has been modified by statute.

Section 179 of the Municipal Government Act, S.N.S. 1998, c. 18, providesthat “[u]pon the trial of an action brought against the owner or harbourer of a dog for any injury caused, or damage occasioned by, suchdog, it is not necessary to prove knowledge by, or notice to, the owner or harbourer of any mischievous propensity of the dog.” [50] The plaintiffs allege repeated attacks on their property by the defendants’ two dogs. There have been two occasions referencedin the pleadings at paragraphs 10 and 17 where one of the dogs allegedly attacked Mr. Kelleher with Mr. Westhaver present. On thesecond occasion, Mr.

Kelleher repelled the dog with pepper spray. As noted earlier, the plaintiffs plead that they have been forced tomodify their own behavior due in part to fear of the dogs wandering. [51] It is not plain and obvious that the pleading is bound to fail on the claim of strict liability. [52] Trespass. Any intrusion upon the land of another without permission constitutes trespass if the intrusion is not justified by law.

Damage is not a requisite element. The trespasser may be excused if they did not intend to trespass and did not act negligently, however, mistake of fact is not a valid defence for a trespass. Trespass is an intentional tort. [ 53 ] At paragraph 104 of the pleadings, the plaintiffs state: 104. By allowing Hunter and Gunner and Matthew and Jordan, at the time minor sons of the Defendants, to enter Nancy’s and Peter’s property, Ann Langille-Westhaver and Eddie Westhaver have committed trespass.

By entering the property himself, Eddie Westhaver has committed trespass. [ 54 ] Paragraphs 21 and 22 of the pleadings state that ongoing trespasses by Ms. Langille-Westhaver’s sons resulted in the destruction of property, namely tearing up the garden, leaving trash and destroying brush fences. At paragraph 27, the plaintiffs state that the sons frequently trespass in order to retrieve the defendants’ dogs. The sons are not parties to this proceedings. However, paragraph 104 states that Mr.

Westhaver entered the property himself. [ 55 ] I am unable to conclude that it is plain and obvious that the pleading that Mr. Westhaver entered the plaintiffs’ property is bound to fail. Conclusion [ 56 ] In conclusion, the claims of assault (paras. 76-78), battery (paras. 79-81), intentional infliction of mental distress (paras. 59, 86-87), intimidation (paras. 88-90), and cyber-bullying (paras. 34, 52, 83-85) are struck out. [ 57 ] The plaintiffs indicate in submissions that “incitement” is not a claim they are advancing. As such, para. 33 should be struck.

Paragraph 42 contains no facts and should be struck. [ 58 ] Various paragraphs make allegations about the non-party children and should be struck: paras. 22, 27 (in part), 28, 36, 39, 49 (in part), 50 (in part), 53, 55, 57, 58, 60, 61, 63, 64, 68, 74 (in part), 93 (in part), 94 (in part), and 104 (in part). [ 59 ] Other paragraphs describe various activities such as vehicles “operating from” the defendants’ property, or various allegedly “illegal” activities, but do not bear on valid claims, and should be struck: paras. 39 (in part), 40, 41, 44, 45, 46, 49, 56, 65, 69, 70, 71, 75 (in part), 92 (in part), 93 (in part), 95 (in part), 99, 102 (in part) [ 60 ] The claim of negligence is preserved as it relates to the defendants’ dogs wandering onto the plaintiffs’ property.

Also not struck out are the claims of defamation, nuisance, strict liability (scienter), and trespass. [ 61 ] For clarity, I provide to the parties copies of the plaintiff’s amended pleading filed January 13, 2016 with the noted provisions as ordered struck out. [ 62 ] An Order and amended pleadings must be filed. [ 63 ] I reserve the right to supplement these reasons in a written decision. [ 64 ] I award costs in the cause in the amount of $1,000.00 Stewart, J.