# Nancy Elizabeth Bowman v. Jerry Davidson and Diana Davidson > Court of Criminal Appeals of Texas · March 19, 2015 URL: https://www.frixlaw.com/law-library/cases/4043596 ## Case - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 19, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4043596 ## How later opinions describe it (automated extraction) - holding the jury must believe an interested witness as a matter of law if their testimony is the only testimony on an issue and it is clear, direct and positive and is uncontradicted ## Opinion text ACCEPTED 06-14-00094-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 3/19/2015 10:52:36 AM DEBBIE AUTREY CLERK CASE NO. 06-14-00094-CV _____________________________________________________________ FILED IN 6th COURT OF APPEALS IN THE SIXTH COURT OF APPEALS TEXARKANA, TEXAS TEXARKANA, TEXAS 3/19/2015 11:05:00 AM DEBBIE AUTREY _____________________________________________________________ Clerk Nancy Elizabeth Bowman, Appellant, vs. Jerry Davidson and Diana Davidson, Appellees. ____________________________________________________________ On Appeal from the 71st Judicial District Harrison County, Texas Cause No. 13-0618 The Honorable Brad Morin, Presiding _____________________________________________________________ BRIEF OF APPELLANT _____________________________________________________________ JACK M. SANDERS, JR. State Bar No. 17592000 109 East Houston Street P.O. Box 1387 Marshall, Texas 75671-1387 (903) 935-7172 (903) 938-8616 (Fax) sanders.jack@sbcblobal.net ATTORNEY FOR APPELLANT ORAL ARGUMENT REQUESTED Preamble COMES NOW NANCY ELIZABETH BOWMAN, Appellant herein, who hereby respectfully makes and files this, her Appellant’s Brief. In the interest of clarity, Nancy Elizabeth Bowman will be referred to as “Bowman,” while JERRY DAVIDSON, Appellee herein, will be referred to as “Jerry”, and DIANA DAVIDSON, the other Appellee herein, will be referred to as “Diana.” Collectively, the Appellees will be referred to as “the Davidsons.” In this Brief, the Reporter’s Record will be cited by volume and page:line as “___ RR ___:___”, the Reporter’s Supplemental Indexes will be cited as R. Supp. R. Index, the Clerk’s Record will be cited by page as “CR _____,” the Clerk’s Supplemental Records will be cited as “ C. Supp. R. ” and the plaintiff’s exhibits will be cited by record volume and exhibit number as “4 RR P.Ex. ____.” The Appendix will be referred to as “Appx. .” ii Identity of Parties and Counsel Pursuant to Tex. R. App. P. 38.1(a), Bowman hereby submits a list of parties and counsel interested in this case: Appellant and her Appellate/Trial Counsel: Nancy Elizabeth Bowman c/o Jack M. Sanders, Jr. State Bar No. 17592000 109 East Houston Street P.O. Box 1387 Marshall, Texas 75671-1387 (903) 935-7172 (903) 938-8616 (Fax) sanders.jack@sbcblobal.net Appellees and their Trial Counsel: Jerry and Diana Davidson c/o Alan E. Brown State Bar No. 03090500 Boyd & Brown, P.C. 1215 Pruitt Place Tyler, Texas 75703 (903) 526-9000 (903) 526-9001 (Fax) aebrown@suddenlinkmail.com iii Table of Contents Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Standards of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. Legal Sufficiency of the Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. Factual Sufficiency of the Evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . 6 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Bubba Bit a Long Time Friend of the Davidsons Prior to Biting Bowman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 B. Bubba Had a History of Aggressive, Protective and Possessive Behavior. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 C. Due to Bubba’s Behavior, the Davidsons Warned New Guests At Their Home Not to Interact With Bubba. . . . . . . . . . . . . . . . . . . . 10 D. The Lawsuit and the Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 iv Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 First Issue.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Bowman was entitled to affirmative jury findings as a matter of law regarding the dangerous propensities of the Davidsons’ dog and the Davidsons’ knowledge of the dog’s dangerous propensities, or in the alternative, the jury’s findings was against the great weight and preponderance of the evidence. Arguments Relating to the First Issue A. Strict Liability Claims Involving a Domestic Dog.. . . . . . . . . . . . . . 13 1. The Second Element of Dangerous Propensities. . . . . . . . . . . 14 2. The Third Element Requiring the Owner’s Knowledge. . . . . 16 B. The Record Contains Only Affirmative Evidence of Bubba’s Dangerous Propensities and the Davidsons’ Knowledge of the Dangerous Propensities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 1. There is No or Little Evidence to Support Bubba Did Not Have Dangerous Propensities and Affirmative Evidence to Support He Did.. . . . . . . . . . . . . . . . . . . . . . . . . . 18 2. No or Little Evidence to Support the Davidsons Did Not Know or Did Not Have Reason to Know Bubba Had Dangerous Propensities and Affirmative Evidence to Support They Did Have Knowledge. . . . . . . . . . . . . . . . . . . . 25 C. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 v Second Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Bowman was entitled to an affirmative answer as a matter of law that the dog’s dangerous propensities were the producing cause of Bowman’s injuries, or in the alternative, a negative finding would have been against the great weight and preponderance of the evidence. Arguments Relating to the Second Issue A. Strict Liability Requires Bowman to Prove the Dangerous Propensities Were the Producing Cause of Bowman’s Injuries.. . . . 31 B. The Record Contains Only Affirmative Evidence in Support of Bubba’s Dangerous Propensities As the Producing Cause of the Bite.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 C. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 vi Index of Authorities Cases Texas Supreme Court Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Collora v. Navarro, 574 S.W.2d 65 (Tex. 1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Holley v. Watts, 629 S.W.2d 694 (Tex. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974).. . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 16, 31 Traylor v. Goulding, 497 S.W.2d 944 (Tex. 1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Washington v. Reliable Life Ins. Co., 581 S.W.2d 153 (Tex. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Texas Courts of Appeal Allen ex rel. B.A. v. Albin, 97 S.W.3d 655 (Tex. App. — Waco 2002, no pet.). . . . . . . . . . . . . . . . . . 13 Beard v. Beard, 49 S.W.3d 40 (Tex. App. — Waco 2001, pet. denied).. . . . . . . . . . . . . . . . . 6 vii Belger v. Sweeney, 836 S.W.2d 752 (Tex. App. — Houston [1st Dist.] 1992, writ denied).. . . 16 Carrasco v. Stewart, 224 S.W.3d 363 (Tex. App. — El Paso 2006, no pet.).. . . . . . . . . . . . . . . . . 5 Dunnings v. Castro, 881 S.W.2d 559 (Tex. App. — Houston [1st Dist.] 1994, writ denied).. . . 15 Farley v. M.M. Cattle Co., 549 S.W.2d 453 (Tex. Civ. App. — Waco 1977, writ ref’d n.r.e.). . . . . . . 15 Machala v. Weems, 56 S.W.3d 748 (Tex. App. — Texarkana 2001, no pet.). . . . . . . . . . . . . . . . 6 Owens v. Coury, 614 S.W.2d 926 (Tex. App. — Amarillo 1981, no writ). . . . . . . . . . . . 13, 15 Plummer v. Estate of Plummer, 51 S.W.3d 840 (Tex. App. — Texarkana 2001, pet. denied). . . . . . . . . . . . . 6 Raw Hide Oil & Gas Co., Inc. v. Maxus Exploration Co., 766 S.W.2d 264 (Tex. App. — Amarillo 1988, writ denied).. . . . . . . . . . 5, 6 Thompson v. Curtis, 127 S.W.3d 446 (Tex. App. — Dallas 2004, no pet.). . . . . . . . . . . . . . 13, 31 Villareal v. Elizondo, 831 S.W.2d 474 (Tex. App. — Corpus Christi 1992, no writ). . . . . . . . . . 15 Wells v. Burns, 480 S.W.2d 31 (Tex. Civ. App. —El Paso 1972, no writ). . . . . . . . . . . 13, 15 viii Out of State Cases Supreme Court Poznanski ex rel Poznanski v. Horvath, 788 N.E.2d 1255 (Ind. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15 Deardoff v. Burger, 606 A.2d 489 (Pa. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Robinson v. Marino, 3 Wash. 434, 28 P. 752 (1892). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Texas Rules of Appellate Procedure Tex. R. App. Pro. 9.4(i)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Tex. R. App. Pro. 9.5(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Tex. R. App. Pro. 38.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Other Authorities Restatement (Second) of Torts § 509. . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16, 19, 20 ix Statement of the Case Nature of the Underlying Case: Suit for personal injuries due to the Davidsons’ dog attacking Bowman. CR 11-16. Trial Court: The 71st Judicial District Court, Harrison County, Texas, the Honorable Brad Morin, Presiding. Disposition: The Court entered Judgment for the Davidsons based on the Jury’s findings. Appx. 1; 3A C. Supp. R. 4-5. Statement Regarding Oral Argument Bowman believes oral argument is called for in this case. There are not many cases in Texas where strict liability has been found with regard to domestic animals. But this case is unique and fits squarely within the common law requirements for strict liability set out by the Texas Supreme Court years ago. Thus, this is an important case with regard to future dog bite cases and to the jurisprudence of this State. Further, it is impossible to include all of the evidence presented during the three day trial which supports strict liability into this Brief. Thus, Bowman requests the opportunity to argue to the Court the main points of evidence which leave no question that the jury made incorrect findings as to strict liability in this case. 1 Issues Presented First Issue Bowman was entitled to affirmative jury findings as a matter of law regarding the dangerous propensities of the Davidsons’ dog and the Davidsons’ knowledge of the dog’s dangerous propensities, or in the alternative, the jury’s findings was against the great weight and preponderance of the evidence. Second Issue Bowman was entitled to an affirmative answer as a matter of law that the dog’s dangerous propensities were the producing cause of Bowman’s injuries, or in the alternative, a negative finding would have been against the great weight and preponderance of the evidence. 2 Summary of the Argument Strict liability with regard to domestic animals is not a new concept in Texas. The law has long been if a dog has dangerous propensities, the owners knew or had reason to know about the dangerous propensities and the dog bites someone, as a result of the dangerous propensities, then the owners are liable, period. That is the law in Texas. The jury is charged with applying the facts of the specific case to the law. If the preponderance of the evidence support the elements, then the jury must enter the finding. Here, the jury failed to follow the law, and thus, failed to enter the correct findings. There was overwhelming evidence presented at trial in support of the Davidsons’ dog having dangerous propensities in the form of the protectiveness and aggression toward strangers. There was also overwhelming evidence at trial that the Davidsons knew from early on that Bubba exhibited such behaviors. The Davidsons even warned for safety of new guests to prevent a bite like what happened to Bowman. The law does not require an actual prior bite to show dangerous propensities. Yet, there is one in this case. Finally, there was overwhelming evidence at trial that Bubba’s protectiveness and aggression toward strangers caused Bubba to bite Bowman. Despite all of the overwhelming evidence, the jury chose not to enter the correct finding. It may have been because they jury sympathized with the 3 Davidsons or disliked Bowman. The reason for the jury’s failure to follow the law is irrelevant. Bowman is now entitled to seek this evidentiary review to correct the wrong based on the record. Accordingly, Bowman asks this Court to review the record in its entirety and reverse the jury’s finding to Question No. 1 as to either Diana or Jerry and enter an affirmative finding as to Question No. 2.1 Then, remand the cause back to the trial court for a determination as to damages alone. 1 The Court of Appeals can reverse the jury finding as to Diana or Jerry alone and send the cause back to the trial court because either answer will lead to liability of a defendant. 4 Standards of Review When a party having the burden of proof appeals from an adverse fact-finding in the trial court, the point of error should be the matter was established as a matter of law or that the jury’s finding was against the great weight and preponderance of the evidence. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). The specific standards as they relate to legal and factual sufficiency of the evidence are set forth below. A. Legal Sufficiency of the Evidence Legal sufficiency points of error assert a complete lack of evidence on an issue. Raw Hide Oil & Gas Co., Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex. App. — Amarillo 1988, writ denied). Legal sufficiency points are designated as “no evidence points” or “matter of law points,” depending upon whether the complaining party had the burden of proof. Id. The appropriate legal sufficiency challenge here, as Bowman had the burden of proof for her strict liability claim, is a matter of law point. Carrasco v. Stewart, 224 S.W.3d 363, 367 (Tex. App. — El Paso 2006, no pet.). In reviewing a matter of law point, the Court of Appeals must examine the entire record for evidence that supports the jury’s finding, ignoring any evidence to the contrary. Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982). If no evidence to 5 support the finding is found, the Court of Appeals must then examine the entire record again to determine if a contrary position is established as a matter of law. Id.; Plummer v. Estate of Plummer, 51 S.W.3d 840, 841 (Tex. App. — Texarkana 2001, pet. denied). B. Factual Sufficiency of the Evidence Factual sufficiency points of error concede conflicting evidence on an issue, yet maintain that the evidence against the jury’s finding is so great as to make the finding erroneous. Raw Hide Oil & Gas Co., Inc., 766 S.W.2d at 275. Factual sufficiency points of error are designated as “insufficient evidence points” or “great weight and preponderance points,” depending upon whether the complaining party had the burden of proof. Id. The appropriate factual sufficiency challenge here as Bowman had the burden of proof for her strict liability claim is a great weight and preponderance point. Beard v. Beard, 49 S.W.3d 40, 55 (Tex. App. — Waco 2001, pet. denied); Machala v. Weems, 56 S.W.3d 748, 754 (Tex. App. — Texarkana 2001, no pet.). In reviewing a great weight and preponderance point, the Court of Appeals must examine the entire record to determine if there is some evidence to support the jury’s finding, and then determine whether, in light of the entire record, the finding is manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973). 6 Statement of Facts This suit arises from the injuries Bowman suffered on the evening of June 24, 2012 as a result of Davidsons’ dog biting her in the face. The Davidsons own two Australian Blue Heelers. 4 RR 87:19-24. Diana acquired the dogs, brother and sister, when they were six weeks old. 4 RR 88:6-9. The dog that bit Bowman was her 11 year old male Blue Heeler named Bubba. A. Bubba Bit a Long Time Friend of the Davidsons Prior to Biting Bowman About a year before Bubba bit Bowman, he bit Billy Strong (“Strong”), a long time family friend. Appx. 3; 1 R. Supp. R Index, Video Deposition of Billy Strong;2 8 RR P. Ex. 20. The incident occurred when a repairman left his bag of tools inside the Davidsons’ home. Appx. 3; 1 R. Supp. R Index, Video Deposition of Billy Strong. Diana asked Strong to take the bag of tools outside to the repairman before he had a chance to leave. Id. After Strong grabbed the tool bag, he took off at a trot towards the front door, and Bubba bit him on the back of the leg. Id. Bubba had a hold of Strong’s leg and Diana had to holler at Bubba to turn Strong loose. 4 RR 99:24-100:3. Diana witnessed the entire event. 4 RR 99:16-19. She knew that Bubba laid his teeth on Strong and that Bubba had left a red mark and bruise on the 2 For the Court of Appeals’ convenience, in addition to citing to the video deposition included in the Reporter’s Record in the Supplemental Exhibit Index, Bowman has also attached the line and page excerpt from Billy Strong’s deposition that Bowman is relying on and that was included in the video shown the jury in the Appellant’s Appendix, Tab 3. 7 back of Strong’s leg. 4 RR 100:4-10; Appx. 3; 1 R. Supp. R. Index, Video Deposition of Billy Strong. Although the Davidsons do not always describe the prior incident with Strong as a “bite,” Strong certainly does. Appx. 3; 1 R. Supp. RR Video Deposition of Billy Strong. He also thought the dog should have been put up after the incident whenever anyone came over to the Davidsons so it would not happen again. Appx. 3, 1 R. Supp. R. Index, Video Deposition of Billy Strong. B. Bubba Had a History of Aggressive, Protective and Possessive Behavior Bubba generally does not have a problem with people he knows. 4 RR 100:17- 20. However, he shows aggression toward strangers. 4 RR 100:21-22. Diana has known this all of Bubba’s life. 4 RR 100:23-24. Both of the Davidsons admit Bubba is aggressive, protective and possessive. 4 RR 94:17-19; 4 RR 138:20-22, 146:19-23. Bubba is just not like other dogs. 4 RR 147:23-148:1. Diana frequently uses both aggressive and protective when describing Bubba. 4 RR 93:22-94:16. Diana knows Bubba is aggressive because he barks and jumps at the fence when people come to their house. 4 RR 94:20-22. She has signs up saying beware of the dogs because she wants people to beware of them and does not want to take the chance that Bubba will hurt someone by biting them. 4 RR 94:23-95:5, 95:9-11. Bubba acts protectively when anyone, including Jerry, gets between him and Diana. 4 RR 138:12-16, 138:24- 25. Bubba is showing his protectiveness and possessiveness when he barks and pushes people away from Diana. 4 RR 139:5-7. Further, when Bubba gets between 8 Jerry and Diana, he is exhibiting a low level of aggression towards Jerry. 4 RR 138:12-15, 138:21-25; 5 RR 28:7-11. To have Bubba exhibiting such behavior towards Jerry, someone Bubba has also bonded with, is a red flag for dangerous behavior. 5 RR 28:12-18. The Davidsons put Bubba up when children come over because the children might get bit, 4 RR 102:9:17, and they put Bubba up also when there are a large number of people at their home that the dog does not know. 4 RR 103:18-24, 4 RR 140:18-24. There was a propensity for Bubba to be dangerous. 4 RR 147:6-22. The Davidsons’ friends would even warn new guests about interacting with Bubba. 5 RR 24:24-25:7. Jerry testified that you never know what Bubba is going to do at any time or when he is going to blow up. 4 RR 149:13-14, 150:3-5. Bowman also hired an expert to testify at trial in this case, Dr. Lore Haug (“Dr. Haug”), who is Board Certified Veterinarian Behavior. 5 RR 8:21. She also received additional training specifically in animal behavior. 5 RR 8:24-25. She works with animals with various levels and styles of behavior disorders, 5 RR 9:7-8, including dogs with aggressive tendencies. 5 RR 9:13-15. All of her opinions at trial were offered based on her training, education and experience. 5 RR 9:24-10:1. Dr. Haug testified that “protective” and ‘territorial” are words that owners use to describe types of aggressive behavior. 5 RR 25:13-15. In the vast majority of cases, dogs only get worse when the owners do not do anything to stop aggressive tendencies. 5 RR 25:16-22. A dog that is possessive and protective can be a danger, 5 RR 25:23-25, 9 especially if the owners do nothing to train the dog. 5 RR 27:18-21. The Davidsons did nothing to properly train Bubba. 4 RR 89:14-15; 4 RR 130:17-18; 5 RR 27:18- 21. Further, this protective and aggressive behavior does not fall within the range of a typical or normal companion dog. 5 RR 23:14-16. Moreover, Bubba biting Strong was not appropriate even for cattle herding dogs. 5 RR 29:13-15. Well socialized and trained dogs know the difference between a human being and cattle. 5 RR 38:10- 17. With Bubba’s past possessive and protective behaviors and the concern that prompted the Davidsons warnings, it was only a matter of time before someone got hurt. 5 RR 37:13-16. Dr. Haug is positive that the Davidsons recognized the risk Bubba posed to new guests. 5 RR 39:13-21. C. Due to Bubba’s Behavior, the Davidsons Warned New Guests At Their Home Not to Interact With Bubba Due to Bubba’s aggressive nature, the Davidsons would warn guests who were strangers to the dog not to touch or look at the dog. 4 RR 93:19-25, 95:21-23, 4 RR 131:7-10. The warnings were given to protect people from a bite. 4 RR 95:24-96:4, 114:2-4, 4 RR 131:20-23. Jerry admitted they give the warnings about Bubba because they knew there was a propensity there for Bubba to bite. 4 RR 140:10-13. The Davidsons have been giving their warning about Bubba for a long period of time prior to Bubba biting Bowman. 4 RR 101:10-15. Diana just did not know if and when Bubba might act on his aggressive behavior. 4 RR 101:16-23. If in Bubba’s 10 mind Diana was in danger, Bubba would become aggressive. 4 RR139:20-140:5. Diana had reason to know that Bubba may be dangerous because she had reason to know Bubba may bite someone. 4 RR 101:24-102:2. The Davidsons warned people that came to their home about Bubba because they were concerned that something bad might happen. 5 RR 14:22-24. Every client Dr. Haug has ever had that have given warnings to people about their dogs have done so because the owners have some knowledge about the dog’s previous behavior that makes them concerned that something bad is going to happen. 5 RR 17:3-7, 24:1-4. There is no other reason to give warnings unless something similar has happened in the past. 5 RR 17:7-8, 23:18-24:4, 24:20-22. People that have normal dogs, without aggressive tendencies, do not give warnings. 5 RR 17:9-12. On the night of the occurrence, the Davidsons and their guests all sat down to eat dinner at a table. Diana led Bowman to sit down at the table right next to her. 4 RR 29:14-21. There is no dispute as to where Diana and Bowman were sitting before the attack. 4 RR 106:17-18. Bubba sat on the floor in between Diana and Bowman during the dinner. 4 RR 30:11-13. Bubba always sat at the table next to Diana. 4 RR 106:19-22. The seating arrangement was cramped due to the number of guests and everyone was sitting close together. 4 RR 30:25-31:14; 5 RR 34:9-18. It was noisy in the room and Bowman leaned over towards Diana to tell her something. 4 RR 11 32:15-18; 4 RR 108:6-7, 110:13-16. At that point, Bubba jumped up and bit Bowman in the face. 4 RR 33:6-9; 4 RR 108:4-7. D. The Lawsuit and the Appeal On August 5, 2013, Bowman filed suit against the Davidsons for strict liability and negligence in order to recover for her significant injuries caused by Bubba’s bite. CR 11-16. On September 30, 2013, the Davidsons filed an Original Answer. CR 59- 63. On August 19, 2014 the parties went to trial, 4 RR 6, and three days later the trial concluded with the submission of the charge to the jury. 6 RR 42; CR 1198-1209. On August 21, 2014, the jury returned their verdict answering “no” to the first question regarding strict liability for both Jerry and Diana. Appx. 2; CR 1198-1209. On August 28, 2014, a Judgment was entered by the Court. Appx. 1; 3A C. Supp. R. 4-5. On September 24, 2014, Bowman filed a Motion for New Trial or In the Alternative, Motion for Judgment Non Obstante Verdicto. 2A C. Supp. R. 4-7. The Trial Court held a hearing and denied Bowman’s Motion. CR 1430. On November 24, 2014, Bowman filed her Notice of Appeal. CR 1433-1434. Now, Bowman seeks review with this Court of the jury’s findings regarding dangerous propensities and producing cause. 12 Arguments and Authorities First Issue (Restated) Bowman was entitled to affirmative jury findings as a matter of law regarding the dangerous propensities of the Davidsons’ dog and the Davidsons’ knowledge of the dog’s dangerous propensities, or in the alternative, the jury’s findings were against the great weight and preponderance of the evidence. A. Strict Liability Claims Involving a Domestic Dog In Texas, as in many states, it has long been established that actions for damages caused by vicious domestic animals are governed by principles of strict liability. Marshall v. Ranne, 511 S.W.2d 255, 258 (Tex. 1974). The elements of a strict liability claim involving a dog are: (1) the defendant owned or possessed the dog; (2) the dog had dangerous propensities abnormal to its class; (3) the owner knew or had reason to know the dog had dangerous propensities; and (4) the dog’s dangerous propensities were the producing cause of the plaintiff’s injuries. Id.; Thompson v. Curtis, 127 S.W.3d 446, 451 (Tex. App. — Dallas 2004, no pet.); Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 660 (Tex. App. — Waco 2002, no pet.); Owens v. Coury, 614 S.W.2d 926, 928 (Tex. App. — Amarillo 1981, no writ); Wells v. Burns, 480 S.W.2d 31, 33 (Tex. Civ. App. —El Paso 1972, no writ). The first element of a strict liability claim was not at issue in this case in that the Davidsons 13 readily admit they own Bubba, the dog that bit Bowman. 4 RR 87:19-22; 4 RR 130:11-14. 1. The Second Element of Dangerous Propensities With regard to the second element, the plaintiff must prove dangerous propensities abnormal to other dogs. Despite the Texas Supreme Court’s long ago recognition of strict liability as set forth in the Restatement, there are not many Texas cases where the elements of strict liability are discussed. Thus, it is helpful to look to other states Supreme Courts that adopted the Restatement elements for their explanation as to the elements as well as the Texas cases that have discussed the elements. Generally, all dogs, regardless of breed and size, are presumed to be harmless domestic animals. Poznanski ex rel Poznanski v. Horvath, 788 N.E.2d 1255, 1258 (Ind. 2003); Appx. 5.3 The great majority of dogs are regarded as friends and companions of man. Restatement (Second) of Torts § 509 cmt. f. (adopted by the Texas Supreme Court in Marshall, 511 S.W.2d at 258); Appx. 8. They are harmless and if a dog is in the possession of characteristics dangerous to mankind, it should be regarded as abnormal. Id. Although the majority of dogs are harmless, an owner has a right to keep a vicious dog for the necessary protection of life and property, provided that the owner 3 The out of state cases are included in the Appellant’s Appendix for the Court of Appeal’s convenience. 14 takes proper precautions to preclude that viciousness from exhibiting itself. Deardoff v. Burger, 606 A.2d 489, 492 (Pa. 1992); Appx. 6. Texas courts have previously held “dangerous propensities” means the dog must have had vicious, dangerous or mischievous propensities. Villareal v. Elizondo, 831 S.W.2d 474, 477 (Tex. App. — Corpus Christi 1992, no writ); Owens, 614 S.W.2d at 928; Wells, 480 S.W.2d at 33. This element addresses dogs that are vicious as well as animals that are not vicious, but have a dangerous tendency that is unusual and not necessary for the purposes for which such animals are usually kept. Restatement (Second) of Torts § 509 cmt. c.; see also Farley v. M.M. Cattle Co., 549 S.W.2d 453, 456 (Tex. Civ. App. — Waco 1977, writ ref’d n.r.e.). Further, the animal’s “class” is not limited to a specific breed of that animal. Dunnings v. Castro, 881 S.W.2d 559, 561 (Tex. App. — Houston [1st Dist.] 1994, writ denied) (no evidence suggesting Weimaraner had dangerous propensities that were abnormal compared to other dogs). Thus, behaviors that are not usual to dogs in general and that cause a concern for the safety of others is a dangerous propensity. Other states have given a little more guidance as to “dangerous tendencies.” A dangerous tendency has been defined by the Indiana Supreme Court as “a tendency of the animal to do any act that might endanger the safety of persons or property in a given situation.” Poznanski, 788 N.E.2d at 1258; Appx. 5. A dog can even be found to have dangerous propensities based on the bite that is the basis of the suit. 15 Id. An unprovoked, intentional bite that is not classified as a playful nibble, even if it is the first bite, shows a dangerous propensity. Id. Barking and jumping at strangers as well as a prior bite has been found sufficient in other states to show a dog has vicious tendencies and to hold the defendant strictly liable. Robinson v. Marino, 3 Wash. 434, 28 P. 752, 753 (1892); Appx. 7. 2. The Third Element Requiring the Owner’s Knowledge The third element requires the plaintiff to prove the owner knew or had reason to know the dog had dangerous propensities. It is not necessary to the application of strict liability for the owner of the dog to know of its abnormally dangerous propensities. Restatement (Second) of Torts § 509 cmt. g; Appx. 8. It is enough that he have reason to know thereof. Id. Thus, it is not even necessary for the owner to know of a prior attack on humans. Id. A dog is no longer regarded as entitled to one bite. Id. It is enough that the owner knows that the dog on other occasions exhibited such a tendency to attack humans or other animals or otherwise do harm as should apprise him of its dangerous character. Id. The knowledge element may be fulfilled with evidence of either actual or constructive knowledge. See Belger v. Sweeney, 836 S.W.2d 752, 754 (Tex. App. — Houston [1st Dist.] 1992, writ denied). The term “reason to know” means information from which a reasonably intelligent person would infer that the animal has dangerous propensities. Marshall, 511 S.W.2d at 258-59. 16 B. The Record Contains Only Affirmative Evidence of Bubba’s Dangerous Propensities and the Davidsons’ Knowledge of the Dangerous Propensities A review of the record demonstrates that there is no evidence to support Bubba did not have dangerous propensities nor is there evidence that the Davidsons did not know or have reason to know of Bubba’s dangerous propensities. Further, the converse is true, Bowman presented a great deal of evidence in support of Bubba’s dangerous propensities and the Davidsons’ knowledge. The parties submitted the second and third strict liability elements together in the following question and instruction to the jury in the Court’s Charge: Question No. 1 On the occasion in question, did the Davidsons know or have reason to know that their dog had dangerous propensities not normal for a dog. “Reason to know” means the actor has information from which a person of reasonable intelligence would infer that the fact in question exists, or that such person would govern his conduct under the assumption that such fact exists. It is enough that the possessor of the animal knows that it had on other occasions exhibited such a tendency to attack human beings or other animals or otherwise do harm as should apprise him of its dangerous character. Thus, the fact that a dog has to his knowledge unsuccessfully attempted to attack human beings or animals is sufficient to bring its possessor within knowledge requirement. Sufficient also is any form of ill temper displayed in the presence of man or beast which would apprise a reasonable man that animal if uncontrolled would make such an attack. “Dangerous propensities” means vicious or aggressive tendencies that are not normal for a dog. 17 Answer “Yes” or “No”. Answer: Jerry Davidson Answer: Diana Davidson Appx. 2; CR 1201. The jury answered “No” to both Jerry and Diana. Id. 1. There is No or Little Evidence to Support Bubba Did Not Have Dangerous Propensities and Affirmative Evidence to Support He Did A review of the entire record demonstrates that there was no evidence to support the jury’s findings. The Davidsons offered no evidence to prove Bubba’s protectiveness was normal to all dogs, that Bubba was not unusual with regard to his behavior around strangers or Diana, or that when Bubba attacked Bowman it was not an aggressive or dangerous behavior. Further, a second review of the record reveals significant evidence to show Bubba had dangerous propensities. There are no Texas cases that hold the bite at issue can not be considered to determine whether the animal has dangerous propensities. Bubba exhibited a dangerous propensity by viciously attacking Bowman without any provocation causing her severe injuries to her face. 4 RR 32:11-22. Bubba made no noise or warning before he jumped up and attacked Bowman. 4 RR 32:24-33:6. The Davidsons do not deny the attack nor do they deny the bite caused Bowman severe injuries. Diana witnessed the attack. 4 RR 33:13-24. 18 Further, the Davidsons did not try to explain the bite as playful or something other than a vicious attack meant to injure Bowman. Additionally, both Diana and Jerry described dangerous propensities in Bubba at trial. A “dangerous propensity” would include a prior bite of a human being. See Restatement (Second) of Torts § 509 cmt. c. Billy Strong described the prior incident to the jury through his deposition testimony as a bite. Billy Strong: Q: Had Bubba bitten people, anybody before [Bowman] that you were aware of? A: Yes. Q: Who? A: Me. Appx. 3; 1 Sup. RR Video Deposition of Billy Strong. Further, Diana and Jerry admitted that they knew Bubba bit Strong a year before the attack on Bowman. Diana Davidson: Q: And I believe when Billy Strong got bit that you saw the bite. When Billy Strong got bit did you see the incident? A: I did. 4 RR 99:16-19. Q: So he had a hold of him at the pants leg? A: Yes. Q: And you know that it left a bruises? A: Yes. Q:So you agree that the dog laid teeth on Mr. Strong, a human being? A: I do know this, yes. 19 Q: And you saw it? A: I did. 4 RR 100:2-10. Jerry also admitted knowing that Bubba caused a red mark on Strong’s leg. 4 RR 146:19-23. Even with cattle dog instincts, Blue Heelers should know the difference between a cow and a human being. 5 RR 38:10-17. There are no Texas cases affirming a finding of no strict liability when there was an admission of a prior bite. If Bubba’s bite that is at issue in this case or his prior bite were not enough, then Diana and Jerry’s testimony regarding his protectiveness of Diana and aggressiveness towards strangers demonstrated dangerous propensities. “Dangerous propensities” also mean dangerous tendencies that are unusual and not necessary for the purposes for which dogs are usually kept. See Restatement (Second) of Torts, § 509 cmt. c; Appx. 8. The Davidsons admit Bubba had a dangerous tendency to be aggressive, protective and possessive that was not like other dogs. 4 RR 94:17-19, 146:11-18. He was protective of Diana, 4 RR 93:22-25, and Bubba had a problem with strangers all of his life. 4 RR 100:21-24. Diana Davidson: Q: And did you also tell her [Bowman] that the dog was aggressive? A: I think, I don’t know whether I said aggressive or protective. He is very protective of me. 4 RR 93:22-25 20 Q: I asked you a question right here on Line 20. My question was, okay, what do you mean by aware of dogs. What was your answer? A: The dog is aggressive, you know, if he doesn’t know someone. 4 RR 94:7-11 Q: You said was protective also? A: He is. Q: So we have aggressive, protective, and possessive; is that correct? A: Yes. 4 RR 94:15-19. When Bowman’s counsel asked Diana why she described Bubba as aggressive, she said: A: He is very verbal when strangers come up. He barks, jumps at the fence, he gives us the indication that, you know, he tells us that someone is there and all. So I have signs out saying beware of the dogs, because I want them to be aware of them. He has never bitten anybody, but I just didn’t want to take the chance, because he does bark and jump at the fence when some stranger comes up. Q: What chance don’t you want to take? A:I don’t want to take any chances of any of our animals hurting anybody. 4 RR 94:21-95:5. Q: Is it fair to say you didn’t want to take the chance of the dog biting somebody? A: That is right. 4 RR 95:9-11. Although Jerry testified that Bubba was not dangerous, the question is dangerous propensities or tendencies. In other words, a propensity or natural inclination to act dangerous. Jerry stated the following at trial in support of Bubba having “dangerous propensities”: 21 Jerry Davidson: Q: So, I realize your position is that the dog is not dangerous, correct? A: Right. Q: But you can’t say that all your, your warnings all were there for there was this propensity for danger, correct? That is different from being dangerous. A: Right. Q: There was a propensity there; correct? A: Correct. 4 RR 147:6-14. Further, Jerry testified that Bubba was very protective of Diana, 4 RR 130:22-131:6, 138:21-25, and had a clear dislike of strangers. 4 RR 136:16-20. Jerry admitted Bubba would bark and push him away from Diana when they danced and Bubba would do the same to anyone else that tried to get between the dog and Diana. 4 RR 138:21-25, 139:5-7. Jerry even admits someone leaning in toward Diana would be a threat to the dog. 4 RR 140:3-5. Dr. Haug testified that barking, jumping and pushing between Jerry and Diana is a low level aggression that is a red flag. 5 RR 28:7-18. If Bubba would act that way towards Jerry, Bubba would not hesitate to be more aggressive with a stranger. Further, Jerry admits that Bubba was different in that way from other dogs, 4 RR 147:23-148:1. Lastly, whether you use the word protective, possessive or aggressive, Bubba exhibited dangerous behaviors that caused the Davidsons to warn all new guests not to interact with Bubba for fear that he would be protective of Diana and bite them. 22 4 RR 95:13-14, 95:21-25; 4 RR 131:12-15, 131:20-23. The Davidsons had been giving the warning about Bubba for a long time before Bubba bit Bowman. 4 RR 101:6-15. Further, not only did the Davidsons warn people, but their friends would even warn new guests about Bubba. 5 RR 24:24-25:7. Jerry admits that Bubba was protective in that he would stand his ground with Diana and that is also why Diana gave the warnings. 4 RR 130:22-131:10. Protective and possessive behavior generally just gets worse and worse over time if not formally corrected. 5 RR 25:16- 22. So, if not corrected, protectiveness and possessiveness becomes dangerous. 5 RR 25:23-25. The Davidsons did not ever correct Bubba’s behavior. 4 RR 89:14-15; 4RR 130:17-18; 5 RR 27:18-21. Bubba’s behavior did not fit within the behavior of what is acceptable of a typical or normal dog. 5 RR 23:14-16. Diana herself admitted she had reason to know the dog might bite somebody and that was reason to know he [Bubba] might be dangerous. 4 RR 101:24-102:2. The Davidsons also testified as follows: Diana Davidson: Q: Is it fair to say you didn’t want to take a chance of the dog biting somebody? A: That is right. Q: That is why you warn them? A: I warned them, yes, because he is very protective of me and he does - - he, if he doesn’t know someone he barks at them. 4 RR 95:9-15. 23 Q: So the cause of your warnings is him being aggressive? A: Yes Q: Your wanting to avoid a bite; correct? A: Yes. 4 RR 95:21-25. Jerry Davidson: Q: Do you believe he would be aggressive if he, the dog, thought Diana was in danger? Y: Yes. 4 RR 139:20-22. Q: Okay. Well, that is why you give the warnings is because you knew the propensity was there for it [the bite] to happen? A: Yes, that is the reason that they give the warning. 4 RR 140:10-13. Q: There was a propensity there; correct? A: Correct. Q: Okay. And you knew that? A: Well, like I say, I didn’t give the warning? Q: That was the reason, that was the reason for the warning? A: That was the reason my wife gave the warning. Q: Because of the propensity for danger? A: Right. 4 RR 147:13-22. Accordingly, the Davidsons’ own testimony demonstrates that they gave the warnings to new guests because of Bubba’s protective and aggressive 24 tendencies and because they were afraid Bubba would bite someone if they did interact with the dog. 2. No or Little Evidence to Support the Davidsons Did Not Know or Did Not Have Reason to Know Bubba Had Dangerous Propensities and Affirmative Evidence to Support They Did Have Knowledge Next, the record reveals that the Davidsons clearly knew or had reason to know of Bubba’s dangerous propensities. First, the Davidsons were aware of Bubba’s prior bite. Diana witnessed Bubba bite Strong. 4 RR 99:24-100:3. She had to call the dog off Strong to get him to let go of Strong’s leg. 4 RR 99:24-100:3. Diana knew that Bubba bit or nipped Strong and left a bruise on his leg. 4 RR 100:4-10. Jerry also knew about the prior bite. 4 RR 146:19-23. Second, both Diana and Jerry admit they warned new people to stay away from Bubba because they were afraid Bubba would bite someone. 4 RR 95:21-25, 101:24- 102:2, 114:2-4; 4 RR 131:12-15, 131:20-23. Dr. Haug testified that every client she has had that gave warnings about their dog did so because they had some knowledge about the dog’s previous behavior that made them concerned that something bad was going to happen. 5 RR 17:3-7. People give warnings about their dogs because the dog’s behavior concerns them. 5 RR 17-12-14. Dr. Haug was positive that the Davidsons recognized the risk Bubba posed. 5 RR 39:10-21. Again, the Davidsons did not refute or contradict Dr. Haug’s testimony. 25 Third, both Diana and Jerry describe Bubba as protective of Diana and as disliking strangers. Both Diana and Jerry repeatedly describe Bubba as aggressive, protective and possessive at different points during their trial testimony. 4 RR 94:17- 19; 4 RR 138:20-22. Diana admits Bubba was that way all of his life. 4 RR 100-23- 24. Further, Jerry admits that Bubba acts aggressive by barking and pushing anyone that gets too close to Diana. 4 RR 138: 12-15, 21-25. He had known about this behavior for a long time. 4 RR 139:1-4. Further, he understood the behavior was a part of Bubba being protective of Diana. 4 RR 139: 5-7. Diana herself admitted she had reason to know the dog might bite somebody and that was reason to know he [Bubba] might be dangerous. 4 RR 101:24-102:2. A prior bite is not required to show dangerous propensities. The Davidsons’ testimony at trial seemed to suggest that when Bubba bit Strong it was a playful bite. 4 RR 96:13-21. Therefore, the prior bite does not count and is irrelevant. But even if the Court believes this to be true, it does not change the Davidsons own testimony regarding Bubba’s aggressiveness toward strangers and protectiveness of Diana. 4 RR 95:9-13;4 RR 130:22-131:6, 136:16-20, 138:21-25, 139:1-7. These are dangerous propensities and the Davidsons were well aware of them prior to Bubba biting Bowman. Most, if not all, of the Davidsons’ testimony evidencing knowledge of Bubba’s dangerous propensities was solicited during Bowman’s case in chief when the 26 Davidsons were called as adverse witnesses. If their testimony had been anything other than concise, clear and conclusive, they could have corrected their own testimony during the Davidsons’ case in chief. However, in Davidsons’ case in chief, only Diana testified (Jerry did not). In fact, the only question asked of Diana when she testified in her own case in chief by Bowman’s counsel was: Diana Davidson: Q: Mrs. Davidson, are you recanting any of your testimony from yesterday? A: I don’t think so. 4 RR 157:21-23. In Collora v. Navarro, the Texas Supreme Court held a directed verdict may be based on the uncontroverted testimony of a party to the lawsuit when the testimony is clear, direct, positive and uncontradicted, is devoid of inconsistencies and is uncontradicted. Collora, 574 S.W.2d 65, 69 (Tex. 1978); see also Washington v. Reliable Life Ins. Co., 581 S.W.2d 153, 159 (Tex. 1979) (holding the jury must believe an interested witness as a matter of law if their testimony is the only testimony on an issue and it is clear, direct and positive and is uncontradicted). Clearly, if the jury has to believe a plaintiff’s clear and concise testimony when the plaintiff has the burden of proof, the jury would certainly have to take the defendants, in this case the Davidsons’ testimony, during Bowman’s case in chief as true, without being able to pass on its credibility. This is especially true since the Davidsons had an opportunity to recant or rebut the testimony in their own case in 27 chief, but failed to do so. The Davidsons called no expert witnesses. Further, the knowledge of the other witnesses called by the Davidsons is not at issue in this case. The Davidsons’ knowledge of their own dog’s propensities to be dangerous is the question for the jury. The other lay witnesses cannot be said to have contradicted the Davidsons’ own admissions to their knowledge of Bubba’s dangerous propensities. There is no question to the jury as to what others observed or believed. The Davidsons’ testimony must be relied upon as credible. According to the Texas Supreme Court, the jury cannot disregard the Davidsons’ testimony for any reason and must take it as true. Thus, the jury had no option, but to find the Davidsons strictly liable as a matter of law, period. If the Court finds some evidence in the record to support the jury’s finding, a factual sufficiency review of the evidence reveals the jury’s findings as to Question No. 1 for both Jerry and Diana were against the great weight and preponderance of the evidence. Thus, although there may be some conflicting evidence on the issue, the evidence against the jury’s findings to Question No. 1 is so great as to make the jury’s findings erroneous and subject to reversal. Accordingly, Bowman asks the Court of Appeals to reverse the jury’s findings of “no” to Question No. 1 as to Diana and/or Jerry and enter findings of “yes.” Because there is legally and factually insufficient evidence in support of the jury’s findings, the jury’s findings should be reversed. 28 C. Conclusion The Davidsons clearly wanted Bubba to be protective and possessive of Diana so she would be protected when Jerry was out of town with work. 4 RR 139:8-16. Bowman is not claiming the Davidsons were wrong to want or even encourage protectiveness in their dog. But as Dr. Haug testified, protectiveness is a behavior that can have a tendency or propensity toward danger. 5 RR 25:16-25, 26:2-3. Thus, it is the dog owner’s responsibility to train a dog with regard to when to be protective and with whom. 5 RR 27:1-17. Further, if the owners do not properly train their dog, then they have the responsibility to remove the dog from situations where the dog may act protectively in inappropriate situations. 5 RR 25:23-27:17. The Davidsons had the ability and knowledge to know when a dog had dangerous propensities and to protect guests because they had a dog named, Maggie, before Bubba and always kept her up when people came over. 5 RR 31:16-32:2; 5 RR 150:4-18. The Davidsons knew gatherings involving strangers in their home were situations when the dog would act protectively or the Davidsons would not have warned all new guests about the dog, 4 RR 95:13-14, 95:21-25, 4 RR 130:22-131:10, or put the dog up when there was a large gathering. 4 RR 103:18-24. It was only a matter of time before someone got hurt. 5 RR 37:13-16. Yet the Davidsons did not train the dog, 4 RR 89:14-15; 4 RR 130:17-18; 5 RR 27:18-21, nor did they always put the dog up. In order to satisfy the elements of strict liability with domestic dogs 29 all Bowman had to prove was dangerous propensity and knowledge. She did so through the Davidsons’ own testimony at trial. The fact that the jury answered “No” to Question No. 1 may reflect the jury’s dissatisfaction with the law, but it was not within their power to chose to follow the law or not. The evidence in the record fulfills the second and third elements of the claim as a matter of law or the evidence is so overwhelmingly in support of affirmative findings as to justify reversal. Accordingly, Bowman asks the Court to follow the law and reverse the jury’s findings as to both Jerry and Diana for Question No. 1. 30 Second Issue (Restated) Bowman was entitled to an affirmative answer as a matter of law that the dog’s dangerous propensities were the producing cause of Bowman’s injuries, or in the alternative, a negative finding would have been against the great weight and preponderance of the evidence. A. Strict Liability Requires Bowman to Prove the Dangerous Propensities Were the Producing Cause of Bowman’s Injuries Bowman is also entitled to a finding that Bubba’s dangerous propensities were the producing cause of her injuries. With regard to the last element, Bowman has conclusive evidence to prove Bubba’s dangerous propensities were the producing cause of her injuries. Marshall, 511 S.W.2d at 258. A “producing cause” is a substantial factor in bringing about an injury, and without which the injury would not have occurred. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007). This definition includes the essential elements of producing cause: (1) the cause must be a substantial cause of the event at issue and (2) it must be a but-for cause, namely without which the event would not have occurred. Id. Proof of producing cause involves a lower burden than proof of proximate cause, because proof of producing cause does not require a showing of foreseeability. Thompson, 127 S.W.3d at 451. B. The Record Contains Only Affirmative Evidence in Support of Bubba’s Dangerous Propensities As the Producing Cause of the Bite Although the jury did not answer Question No. 2 regarding producing cause in the Court’s Charge, the evidence in the record, either as a matter of law or because 31 the great weight and preponderance of the evidence supports it, entitles Bowman to an affirmative answer to the question of whether Bubba’s dangerous propensities were the producing cause of Bowman’s injuries. As set forth above, the Davidsons admit Bubba was aggressive, protective and possessive. 4 RR 94:17-19; 4 RR 146:11-18. Bubba was very protective of Diana, 4 RR 93:22-25, and had a clear dislike of strangers. 4 RR 100:21-24. These dangerous tendencies were the producing cause of Bubba’s bite. On the night of the occurrence, Bowman sat next to Diana at the dinner table. 4 RR 29:14-21; 4 RR 106:17-18. She was leaning toward Diana when Bubba bit her in the face. 4 RR 32:15-18; 4 RR 108:6-7, 110:13- 16. Further, Dr. Kenneth W. Sanders, Bowman’s medical expert, testified that in his opinion, based on reasonable medical probability, all of the problems Bowman has experienced with her lips and mouth were a result of the dog attack on June 24, 2012. Appx. 4; 1 R. Supp. R. Index, Video Deposition of Dr. Kenneth W. Sanders.4 The aggressive, protective, and possessive behaviors previously exhibited by Bubba led to this bite. 5 RR 87:14-25. Bubba was protecting Diana from the stranger of the group, Bowman. If Bubba would push Jerry away from Diana demonstrating 4 For the Court of Appeals’ convenience, in addition to citing to the video deposition included in the Reporter’s Record in the Supplemental Exhibit Index, Bowman has also attached the line and page excerpt from Dr. Kenneth Sanders’ deposition that Bowman is relying on and that was included in the video shown the jury in the Appellant’s Appendix, Tab 4. 32 a low level of aggression, 5 RR 28:7-18, what would he do to someone he did not know who was leaning toward Diana: the answer is protect Diana by biting them. Jerry Davidson: Q: and the mere fact of somebody leaning toward Diana, as far as we know, that could set the dog off? A: Right. 4 RR 140:3-5. Further, Bubba bit her on the right side of the face which is consistent with Bowman leaning over to speak with Diana. 4 RR 33:2-10. Bubba’s dangerous propensities were a substantial factor in bringing about the bite and without which the bite would not have occurred. Accordingly, the evidence supports a finding of “yes” as to whether Bubba’s dangerous propensities were the producing cause of Bowman’s injury. C. Conclusion It is clear from the record that Bubba had dangerous tendencies in that he was very protective of Diana and distrusting of new people. The circumstances of the night in question had Bowman, a newly introduced person to Bubba, sitting close to Diana at the dinner table with Bubba sitting directly in between them. Jerry testified that Bubba does not like anyone, including Jerry, to get too close to Diana. 4 RR 138:12-25, 139:5-7. Further, Bubba will stand his ground when he feels a threat to Diana. 4 RR 130:22-131:6. When Bowman leaned in toward Diana, Bubba saw Bowman trying to get close to Diana. Thus, the only evidence in the record to 33 explain the attack was Bubba’s dangerous propensity for protectiveness and aggression toward strangers. Even the Judge of the trial court believed that Bubba’s dangerous propensities were the producing cause of Bowman’s injuries. 7 RR 9:11- 15. Accordingly, if the Court finds the answer to Question No. 1 should be reversed, the record demonstrates the only acceptable answer to Question No. 2 is “yes.” Therefore, Bowman asks the Court to enter such finding. WHEREFORE, PREMISES CONSIDERED, Bowman prays the judgment be in all respects REVERSED with regard to dangerous propensities as to either or both the Davidsons and producing cause, and the cause be REMANDED back to the trial court for a determination of damages, for the reasons set forth herein. In the alternative, Bowman prays the judgment be REVERSED as to either or both the Davidsons as to dangerous propensities and the cause be REMANDED back to the trial court for further proceedings, as the Court sees fit, for the reasons set forth herein. Further and in the alternative, Bowman prays for the cause to be REMANDED back to the trial court for a new trial, if necessary. 34 Bowman prays for such other and further relief, general or special, in law or in equity, to which she may show herself to be justly entitled. Respectfully submitted, /s/Jack M. Sanders, Jr. JACK M. SANDERS, JR. 109 East Houston Street P.O. Box 1387 Marshall, Texas 75671-1387 (903) 935-7172 (903) 938-8616 (Fax) sanders.jack@sbcblobal.net ATTORNEY FOR APPELLANT Certificate of Compliance Pursuant to Tex. R. App. Pro. 9.4(i)(3), the undersigns hereby certifies that according to the word count function of the computer program used to generate the document, the portions of the Appellant’s Brief subject to the rule contain 7,574 words total and that the text thereof is in 14 point Times New Roman font. /s/Jack M. Sanders, Jr. Jack M. Sanders, Jr. 35 Certificate of Service The undersigned hereby certifies that, pursuant to Tex. R. App. Pro. 9.5(a), a true and correct copy of the foregoing Appellant’s Brief has been sent to the following counsel of record through the Court’s on-line filing system, on this, the 19th day of March, 2015: Alan E. Brown Boyd & Brown, P.C. 1215 Pruitt Place Tyler, Texas 75703 Counsel for the Appellees /s/Jack M. Sanders, Jr. Jack M. Sanders, Jr. 36 CASE NO. 06-14-00094-CV _____________________________________________________________ IN THE SIXTH COURT OF APPEALS TEXARKANA, TEXAS _____________________________________________________________ Nancy Elizabeth Bowman, Appellant, vs. Jerry Davidson and Diana Davidson, Appellees. ______________________________________________________________ On Appeal from the 71st Judicial District Harrison County, Texas Cause No. 13-0618 The Honorable Brad Morin, Presiding ______________________________________________________________ APPENDIX ______________________________________________________________ JACK M. SANDERS, JR. 109 East Houston Street P.O. Box 1387 Marshall, Texas 75671-1387 (903) 935-7172 (903) 938-8616 (Fax) sanders.jack@sbcblobal.net ATTORNEY FOR APPELLANT 37 APPENDIX TABLE OF CONTENTS DOCUMENTS TAB Judgment entered August 14, 2008. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Court’s Charge.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Transcript Excerpts from the Video Deposition of Billy Strong . . . . . . . . . . . . . . . 3 Transcript Excerpts from the Video Deposition of Dr. Kenneth Sanders. . . . . . . . 4 Poznanski ex rel Poznanski v. Horvath, 788 N.E.2d 1255 (Ind. 2003). . . . . . . . . . 5 Deardoff v. Burger, 606 A.2d 489 (Pa. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Robinson v. Marino, 3 Wash. 434, 28 P. 752 (1892). . . . . . . . . . . . . . . . . . . . . . . . 7 Restatement (Second) of Torts § 509. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 38 08/~/2614 15:28 BOYD- PAGE 05/06 0 flLElHOUteORD +'~ HARRISON, COUNTY, lWS . , CLERK DISTRICT COURT .; CAUSE NO. 13-0618 NANCY ELIZABETH BOWMAN § IN TirE DISTRICT COuRBv § ---t""Ei£!!:::,....;..:.- v. § 71"'" JUDICIAL DISTRICT § JERRY DAVIDSON and § DIANA DAVIDSON § HARRISON COUNTY, TEXAS JtiDGMENT On August 18, 2014, this cause came on to be heard in this court. PlaintiffNancy Elizabeth Bowman appeared in person and by her attorney of record, Jack Sanders, and announced ready for trial. Defendants Jerry Davidson and Diana Davidson appeared in person and by his attorney of record, Alan E. Brown, and announced ready for trial. A jury having been previously dexnanded, a jury consisting oftwelve qualified jurors was duly impaneled and sworn, and the case proceeded to trial. At the conclusion of the evidence, the Court submitted the questions of fact to the jury. The charge ofthe.court and verdict of the jury are inco!'POrated for all purposes herein by reference. Because it appears to the court that the verdict of the jmy was for Defendants and against Plaintiff, judgment should be rendet:ed on the verdict in favor of Defendants and against Plaintiff The court, after hearing the evidence and arguments of counsel, is of the opinion that Plaintiff should take nothing by this suit. ITISTHEREFOREORDEREDBYTHECOURTthatPlaintifftakenothingbythissuitand that ail costs of court be taxed against Plaintiff. Judgment ]>age 1 4 08/25/2~14 15:28 903525'=0 BOVDBFDWN PAGE 06/06 Q All other reliefnot expressly granted in this Judgment is denied. Signed this ...zL of_.,_A'-'-~-J---->' ~· day 1014 JUDG~ APPROVED AS TO FORM: AlllliE. Bro State Bar No~.~9lJ,l.oo"..­ Attomey for Defendants Pagel 5 F I L E D . ~n 1:1 R CAUSE NO. 13-0618 NANCY ELIZABETH BOWMAN § IN THE DISTRICT COURT § v. § 71 ST JUDICIAL DISTRICT § JERRY DAVIDSON AND § DIANA DAVIDSON § HARRISON COUNTY, TEXAS COURT'S CHARGE LADIES AND GENTLEMEN OF THE JURY: This case is submitted to you by asking questions about the facts, which you must decide from the evidence you have heard in this trial. You are the sole judges of the credibility of the witnesses and the weight to be given their testimony, but in matters of Jaw, you must be governed by the instructions in this charge. In discharging your responsibility on this jury, you will observe all the instructions which have previously been given you. I shall now give you additional instructions which you should carefully and strictly follow during your deliberations. 1. Do not let bias, prejudice or sympathy play any part in your deliberations. 2. In arriving at your answers, consider only the evidence introduced here under oath and such exhibits, if any, as have been introduced for your consideration under the rulings of the Court, that is, what you have seen and heard in this courtroom, together with the law as given you by the Court. In your deliberations, you will not consider or discuss anything that is not represented by the evidence in this case. 3. Since every answer that is required by the charge is important, no juror should state or consider that any required answer is not important. ~· 1198 4. You must not decide who you think should win, and then try to answer the questions accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the effect of your answers. 5. You will not decide an issue by lot orby drawing straws, or by any other method of chance. Do not return a quotient verdict. A quotient verdict means that the jurors agree to abide by the result to be reached by adding together each juror's figures and dividing by the number of jurors to get an average. Do not do any trading on your answers; that is, one juror should not agree to answer a certain question one way if others will agree to answer another question another way. 6. You may render your verdict upon the vote of ten or more members of the jury. The same ten or more of you must agree upon all of the answers made and to the entire verdict. You will not, therefore, enter into an agreement to be bound by a majority or any other vote of less than ten jurors. If the verdict and all of the answers therein are reached by unanimous agreement, the presiding juror shall sign the verdict for the entire jury. If any juror disagrees as to any answer made by the verdict, those jurors who agree to all findings shall each sign the verdict. These instructions are given you because your conduct is subject to review the same as that of the witnesses, parties, attorneys and the judge. If it should be found that you have disregarded any of these instructions, it will be jury misconduct and it may require another trial by another jury; then all of our time will have been wasted. The presiding juror or any other juror who observes a violation of the Court's instructions shall immediately warn the one who is violating the same and caution the juror not to do so again. 1199 When words are used in this charge in a sense which varies from the meaning commonly understood, you are given a proper legal definition, which you are bound to accept in place of any other definition or meaning. Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer must be based on a preponderance ofthe evidence. If you do not find that a preponderance ofthe evidence supports a "Yes" answer, then answer "No". The tenn "preponderance of the evidence" means the greater weight and degree of credible testimony or evidence introduced before you and admitted in this case. Whenever a question requires other than a "Yes" or "No" answer, your answer must be based on a preponderance of the evidence. "Bowman" shall mean Nancy Elizabeth Bowman, plaintiff herein. "Defendants" shall refer collectively to Jerry Davidson and Diana Davidson, defendants herein. The "dog" shall mean and refer to Bubba, the male dog owned or possessed by Jerry Davidson and Diana Davidson. The "occurrence in question" means the incident on June 24, 2012 when Bowman was bitten by the dog owned by Jerry Davidson and Diana Davidson. f""- • .. 1 ~: • ~ " :~~~·· qr~t, ·-.. _.... ..a. . ~ 1200 QUESTION NO. 1 On the occasion in question, did the Davidsons know or have reason to know that their dog had dangerous propensities not nonnal for a dog. "Reason to know" means the actor has information from which a person of reasonable intelligence would infer that the fact in question exists, or that such person would govern his conduct under the assumption that such fact exists. It is enough that the possessor of the animal knows that it has on other occasions exhibited such a tendency to attack human beings or other animals or otherwise to do harm as should apprise him of its dangerous character. Thus, the fact that a dog has to his knowledge unsuccessfully attempted to attack human beings or other animals is sufficient to bring its possessor within knowledge requirement. Sufficient also is any form of ill temper displayed in the presence of man or beast which would apprise a reasonable man that the animal if uncontrolled would make such an attack. "Dangerous propensities" means vicious or aggressive tendencies that are not nonnal for a dog. Answer "Yes" or "No". Answer: Jerry Davidson No Diana Davidson . [A. 1201 --- -:: . UL . . -=-- .•...... If you have answered "Yes" to Question No. 1, then answer Question No.2 otherwise, do not answer Question No.2 QUESTION NO.2 Was the animal's dangerous propensities the producing cause of the plaintiffs injury? You are instructed that "PRODUCING CAUSE" means a cause that was a substantial factor in bringing about the injury, and without which the injury would not have occurred. There may be more than one producing cause. Answer "Yes" or "No": Answer: - - - - - u ____ _ J0\7E:V1BEF. 1.8, 2013 11 \]OLUI\]E l OE' J. Ll **************************************** ************** 13 14 15 produced as a wi~ness at the instance of the De M and duly sworn, was taken in the above-styled and 18 4:34 p.m. to 5:43 p.rn., before rerri 19 in and fer the s~ate of Texas, reported by computerized m stenotype machine, at the offices of Mr. Jack Sanders, 21 Jr., 109 East Houston Street, Marshall, Texas, pursuant ll to the Texas Rules of Civil Procedure and the provisions n stated on che record or attached hereto. 24 25 Deposition Resources, 1nc. 800.295.4 l 09 Eiectronica!iy signed by Terri Lynn Smith (501-237-608-4107) 16a5ed0f-8516-4c02-81 cc-9c82S8f78b4c Page2 1 A ~ P E A R A N 2 E S 2 :!LR" ,_T.ACI? 25 A. Me. Deposition Resources. Inc. 800.295 .4109 Electronically signed by Terri Lynn Smith (601-237-608-4107) 16a5ed0f-8516-4c02-81 cc-9c8298f78b4c Paoc b 30 1 Q. Okay" . 2 A. Okay. Tha~'s when I signed it. 3 Q. So so you told Jack or someone in nis 4 office 5 Yes . 6 Q. -- a.bout \-Vha t t1apperled., a.nd. sornebody '-";rote ~ +- 7 out and then you signed it saying, Yeah, that's -- 8 A.. Yes. 9 -- that's what happened? 10 l-\ .. Yes . 11 Q. Okay. Okay. Now, when it says that -- what 12 does it say? It says, I was bitten or the dog bit me. 13 What's the language there? 14 "Niooed me on the back of my leg. 0 Okay. De yol1 rernerr~be:c the occasion., scre? 18 A. t~o .. 19 Had you ever observed Bubba out working, W messing with tne cows? 21 A. Not real no. 22 ('; "'·' Okay. 23 A. He doesn't go cut there mucn. 24 ..,. n Okay. Now, do you know what breed of dog Bubba 25 is? Deposition Resources, Inc. 800.295.4109 E!ectronicaliy signed by Terri Lynn Smith {601-237-608-4107) 16a5ed0f-8516-4c02-81 cc-9c8298f78b4c Page 38 1 know, I'm thinking, weii, ne nipped me, you know. 2 () xo• He might ge1::. somebody else? 3 Yeah. He migbt somebody. I've kr1own 1-iirn, 4 you know, since he was brought there, a puppy, so .... 5 ~ow long was it :ram the time when he nipped 7 V' .! .. ,. 8 Q. ()}ca~:/ . 9 A. 10 In c:.hat did any -- was there any 11 other inc:ider1t, else happen that made you any 12 more concerned or was that sort of it? 13 That was it. 14 Q. Did Diana ever say anything to you a:ter 15 ne bit you that she was more concerned or or -~ 16 No. 17 Ckay. aces Bubba respond to Diana? 18 In other hrorc.ts, if Diana ~-;;1.ves I-1in a c:::crrrrnar1d er 19 whatever, does the re 20 Yes . 21 Q. 22 Yes. 23 Equally the same or more one than the a~her? 24 7\ .ti. • I clon.' t T co0ldn't tell you that. 25 Q. Okay. Deposition Resources, Inc. 800.295.4109 Electronicatly signed by Terri Lynn Smlth (601-237-608-4107) 16a5ed0f-8516-4c02-81 cc-9c8298f78b4c Page 45 1 p.m. 2 (Break from 5:17 p.rn. to 5:19 p.m.) 3 4 record at 5:19 o.m. 5 7 Mr. Strong, my name's Jack Sanders, and I 8 represent I"".Ts .. Bo\~1n.art,. And to cl.arify, I cam.e to see 9 you, and you told me what happened, I wrote it down, and w then you made some corrections, I think, where you 11 initialed it and you signed that; is that correct? 12 A. 13 Your stacement. We're talking about No. -- 14 15 Q. -- l'-Jo. t.h.er wc-Jrds, that's like v.rha t yc·u 25 said earlier about ~ ~he dog's aangerous. Deposition Resources, Inc. 800.295.4 l 09 Electror:ica!!y signed by Terri Lynn Smith (601-237-608-4107) 1Sa5ed0f-8516-4c02-81 cc-9c8298f78b4c Page 61 1 bit you, obviously he bi~ at you, he mignc bite somebody 2 else, right? 3 Yes . 4 Q. Okay. But you're still around the dog fairly 5 frequently and nave no real concerns about 6 or biting you? 7 No. When Diana and Jerry leave to go -- or i t 8 they're going to go out of town, they call me, and I go 9 over there and let the dogs out and all that stuff, so 10 it's .... 11 Okay. 12 A. I have no concern about him bi~ me. 13 So the am I correct that the only real thing 14 that sort of changed since ~s. Bowman has been bitten is 15 that now when new neoole er guests come over, 16 they put the dog up? '17 Yes. 18 Q. Because o.f \tJ!:at. I10W 'n.a.s happened? 19 A. Yes. 20 MR. BROWN: Okay. All right. Okay. 21 Thank you I pass the witness. 22 (Examination concluded at 5:40 p.m.l 23 24 BY MR. SANDERS: 25 You sa\l thac. on ·partict:lar n. t there v.:as Deposition Resources. Inc. 800.295.4109 Electronically signed by Terri Lynn Smith {601-237-608-4107) 16a5ed0f-8516-4c02-81 cc-9c8298f78b4c Page 64 l CAUSE NO. 13-0618 2 NAt-JCY ELIZABETl-I BC)ltJ.MAJ~J I IN THE DISTRICT COURT OF Plaintiff, 3 \IS" HARRISON COUNT~, TEXAS 4 JEP.RY DAVIDSON AND Defendants. 71ST JUDICIAL DISTRICT 6 7 DEPOSITION OF BILLY STRONG 8 l'JCiV.EMBF~IZ 18, 2012 9 i, TERRI L~NN SMITH, Certified Shorthand 10 Reporter in and for the State of Texas, he cert.ify 11 to the following: 12 That the witness, BILLY STRONG, was duly sworn Ll by the officer and that the transcript of the oral 14 deposition is a true record of the testimony 15 the 1ntness; 16 That exa1nj. :-i.a ti OTi an.d sigr.ature the - '. ' . ' 17 to depos1~1on ~ranscrip~ was waived by the witness IB and agreeme~t of t~e parties at the time of the ~ deposition; 20 That the original deposition was delivered to 21 Mr. Alan E. Brown; 22 That the amount of time used by each party a~ n the deposition is as follows: 24 Mr. Jack Sanders, 00 hours, 20 minutes 25 Mr. Alan E. Brown - 00 hours, 45 minutes Deposition Resources, Inc 800.295.4109 Electronically signed by Terri Lynn Smith (601-237-608-4107) 16a5ed0f-8516-4c02-81cc-9c8298f78b4c Page 65 1 the deposition officer's 2 charges to the Defendant for preparing the original 3 deposition transcr ana' any 4 5 deposition officer at the time said testimony was taken, 6 tne following includes all pan:.ies of record: 7 Mr. Jack Sanders, Jr., Attorney for Plaintiff, f~ancy Eli zabetl1 BovJman.; 8 Mr. Alan E. Brown, Attorney for Defendants, 9 Jerry Davidson and Diana Davidson. 10 That a copy of this certificate was served on / I 11 all parties shown herein on ll/Ztr/b4 anci filed with t.he 12 Clerk pursuant to Rule 203.3. 13 I further certify that i am neither counsel 14 for, related to, nor any of the parties or 15 attorneys in the action in which this proceeding was 16 taken, and further that I a~ noc financial or U otherwise interested in the outcome of the action. 18 Certifieci cJn the 25th day 19 2013 . 20 21 22 Excira-:.ior1 [)a~.e: Deposition Resocrces, Inc. 23 ?ir1n ist:::-.-ation. l\o . : 409 515 North Church Street 24 Palestine, Texas 75801 'fe lept.one: (903; 729-3289 25 Fac.:s ile: (903) 727-0986 Deposition Resources, Inc. 800.295.4109 E!ectronicaHy signed by Terri Lynn Smith {601-237-608-4107) 16a5ed0f-8516-4c02-81 cc-9c8298f78b4c 1 KENNETH W. SANDERS, M.D. - 3/26/2014 1 NO. 13-0618 2 NANCY ELIZABETH BOWMAN § IN THE DISTRICT COURT Plaintiff, § 3 § v. § 71ST JUDICIAL DISTRICT 4 § JERRY DAVIDSON and § 5 DIANA DAVIDSON § Defendants. § OF HARRISON COUNTY, TEXAS 6 7 8 9 10 VIDEOTAPED/ORAL DEPOSITION OF KENNETH W. SANDERS, M.D. 11 MARCH 26, 2014 12 13 14 15 VIDEOTAPED/ORAL DEPOSITION OF KENNETH W. SANDERS, 16 M.D., produced as a witness at the instance of the 17 Plaintiff, and duly sworn, was taken in the 18 above-styled ~nd -numbered cause on the 26th day of 19 March, 2014, from 3:10 p.m. until 3:54 p.m., before 20 Amanda J. Leigh, certified Shorthand Reporter in and 21 for the State of Texas, reported by machine shorthand, 22 at Knight and sanders, 1811 East Bert Kouns Industrial 23 Loop, conference Room, Shreveport, Louisiana 71105, 24 pursuant to the Texas Rules of civil Procedure and the 25 agreement(s) hereinafter set forth, if a LEIGH & ASSOCIATES COURT REPORTING AND VIDEO (877) 790-3376 FAX (877) 790-33 2 KENNETH W. SANDERS, M.D. - 3/26/2014 1 A P P E A R A N C E S 2 FOR THE PLAINTIFF: 3 4 Jack sanders, Jr., Esq. LAW OFFICE OF JACK SANDERS, JR. 5 109 East Houston Marshall, Texas 75670 6 Telephone: 903-925-7172 7 FOR THE DEFENDANTS: 8 9 Alan E. Brown, Esqe BOYD & BROWN~ P.C. 10 1215 Pruitt Place Tyler, Texas 75703 11 Telephone: 903-526-9000 12 13 ALSO PRESENT: 14 Mr. Bobby Bryant, Videographer 15 16 17 18 19 20 21 22 23 24 25 LEIGH & ASSOCIATES COURT REPORTING AND VIDEO (877) 790-3376 FAX (877) 790-3377 27 KENNETH W. SANDERS, M.D. - 3/26/2014 1 feel the tongue. 2 There's no reason she shouldn't be able 3 to feel the tongue--that's a completely different 4 nerve-~but I -- I think she must be thrusting the S tongue to move the lip out of the way so she doesn't 6 bite it, and she's biting the tongue. That's what I 7 would think. 8 Q. Do you expect her to have any trouble 9 speaking? 10 A. she does wi some -- some sounds, I mean, 11 just almost like a lisp type of a problem. when you 12 can't get the lips to make the correct positioning to 13 make to say the sounds, then you're going to have 14 some some issues with that -- 15 Q. And is that -- 16 A. and that's -- that's what's going on: 17 she's having a little trouble with the lips actually 18 coming together or staying tight in certain areas when 19 we make certain sounds; and so while she's doing that, 20 then the sounds are going to not sound normal. 21 Q. Is it your opinion, based on reasonable 22 medical probability, all of the problems that you have 23 discussed is a result of this dog attack on June 24, 24 2012? 25 A. Yes. LEIGH & ASSOCIATES COURT REPORTING AND VIDEO (877) 790-33 FAX (877) 790-3377 28 KENNETH W. SANDERS, M.D. - 3/26/2014 1 Q. And what is that opinion? I asked you if you 2 had an opinion, and you said yes -- 3 A. Oh. 4 Q. -- and tell us ... ? 5 A. The opinion that I -- okay, I'm sorry. Ask 6 me again. 7 Q. Do you have an opinion as to whether all the 8 problems that you 1 ve talked about here are a direct 9 result of the dog bite or dog attack of June 24, 2012? 10 A. Yes. My opinion is that what I see on her 11 now, around the mouth, is related to dog bites. 12 Q. All right, sir. 13 Now, in your report, you talk about the 14 cost of future surgery and scar revision. Is that 15 something that you -- do we need to talk about that~ or 16 are you going to tell her that she doesn't think -- are 17 you telling her probably not going to help, or is that 18 going to be kind of optional with her? 19 A. At this point, probably the only one I would 20 off -- if she really wanted to try, would be the lower 21 lip, the mucosal advancement area; and we could redo 22 that. Basically cut that off and do another mucosal 23 advancement. 24 Q. And describe that surgery. 25 A. we'd pull the lip back; make an incision on LEIGH & ASSOCIATES COURT REPORTING AND VIDEO (877) 790-3376 FAX (877) 790-3377 43 KENNETH W. SANDERS, M.D. - 3/26/2014 1 NO. 13-0618 2 NANCY ELIZABETH BOWMAN § IN THE DISTRICT COURT Pl ai nt:i ff, § 3 § v. § 71ST JUDICIAL DISTRICT 4 § JERRY DAVIDSON and § 5 DIANA DAVIDSON § Defendants. § OF HARRISON COUNTY, TEXAS 6 REPORTER'S CERTIFICATE TO THE 7 VIDEOTAPED/ORAL DEPOSITION OF KENNETH W. SANDERS, M.D. MARCH 26, 2014 8 9 I, Amanda J. Leigh, certified shorthand Reporter 10 in and for the State of Texas, hereby certify: 11 That the witness~ KENNETH w. SANDERS, M.D., was 12 duly sworn and that the transcript of the deposition is 13 a true record of the testimony given by the witness; 14 That witness waived signature; 15 That $445.00 is the deposition officer's charges 16 to counsel for the Plaintiff, for preparing the 17 original deposition and any copies of exhibits; 18 That pursuant to information given to the 19 deposition officer at the time said testimony was 20 taken, the following includes all parties of record 21 and the amount of time used by each party at the time 22 of the deposition: 23 24 25 LEIGH & ASSOCIATES COURT REPORTING AND VIDEO (877) 790-33 FAX (877) 790-3377 44 KENNETH W. SANDERS, M.D. - 3/26/2014 1 FOR THE PLAINTIFF: TIME: 00:32 2 Jack Sanders, Jr., Esq. LAW OFFICE OF JACK SANDERS, JR. 3 109 East Houston Marshall, Texas 75670 4 FOR THE DEFENDANTS: 5 TIME: 00:11 Alan E. Brown, Esq. 6 BOYD & BROWN, P.C. 1215 Pruitt Place 7 Tyler, Texas 75703 8 I further certify that I am neither counsel for. 9 related to, nor employed by any of the parties in the 10 action in which this proceeding was taken, and further 11 that I am not financially or otherwise interested in 12 the outcome of this action. 13 certified to by me on this 9th day of April, 14 2014. 15 16 i gh, CSR /3791 17 Expiration: 12/31/2014 Firm Registration: 684 18 LEIGH & ASSOCIATES COURT REPORTING AND VIDEO 19 certified shorthand Reporters 911 west Loop 281, suite 211 20 Longview, Texas 75604 Telephone: {903) 295-2955 21 Facsimile: {214) 279-5900 22 23 24 25 LEIGH & ASSOCIATES COURT REPORTING AND VIDEO (877) 790-3376 FAX (877) 790-3377 Page 1 788 N.E.2d 1255 (Cite as: 788 N.E.2d 1255) [2] Judgment 228 185(2) Supreme Court of Indiana. 228 Judgment Alyssa POZNANSKI, a Minor, by her Parent and 228V On Motion or Summary Proceeding Next Friend, Heather POZNANSKI and Heather 228k182 Motion or Other Application Poznanski, individually, Appellants (Plaintiffs), 228k185 Evidence in General v. 228k185(2) k. Presumptions and Bur- George HORVATH, Appellee (Defendant). den of Proof. Most Cited Cases On motion for summary judgment, any doubt No. 71S03–0111–CV–592. as to a fact or an inference to be drawn is resolved May 30, 2003. in favor of the non-moving party. Trial Procedure Rule 56(C). Minor and her mother brought personal injury action against owner of mixed-breed sheep dog [3] Appeal and Error 30 863 after dog bit minor. The Superior Court, St. Joseph County, R.W. Chamblee, Jr., J., granted summary 30 Appeal and Error judgment for owner. Minor and her mother ap- 30XVI Review pealed. The Court of Appeals reversed and re- 30XVI(A) Scope, Standards, and Extent, in manded. Transfer was granted. The Supreme Court, General Rucker, J., held that owner could not be held liable 30k862 Extent of Review Dependent on given lack of evidence that owner had any know- Nature of Decision Appealed from ledge that dog exhibited dangerous or vicious 30k863 k. In General. Most Cited propensities and absence of evidence that breed to Cases which dog belonged exhibited such propensities. Appellate court must carefully review a de- cision on a summary judgment motion to ensure Judgment of superior court affirmed in part and that a party was not improperly denied its day in cause remanded. court. Trial Procedure Rule 56(C). Opinion, 749 N.E.2d 1283, vacated in part. [4] Animals 28 66.5(2) West Headnotes 28 Animals 28k66 Injuries to Persons [1] Judgment 228 181(2) 28k66.5 Dogs 228 Judgment 28k66.5(2) k. Vicious Propensities and 228V On Motion or Summary Proceeding Knowledge Thereof. Most Cited Cases 228k181 Grounds for Summary Judgment (Formerly 28k68) 228k181(2) k. Absence of Issue of Fact. Act of unprovoked biting by a dog does not ne- Most Cited Cases cessarily mean the dog is dangerous or vicious. A genuine issue of material fact exists in sum- [5] Animals 28 74(3) mary judgment context where facts concerning an issue that would dispose of the litigation are in dis- 28 Animals pute or where the facts are capable of supporting 28k66 Injuries to Persons conflicting inferences. Trial Procedure Rule 56(C). 28k74 Actions 28k74(3) k. Presumptions and Burden of © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 788 N.E.2d 1255 (Cite as: 788 N.E.2d 1255) Proof. Most Cited Cases 28 Animals Under common law, all dogs, regardless of 28k66 Injuries to Persons breed or size, are presumed to be harmless domestic 28k66.1 k. Duties and Liabilities in General. animals. Most Cited Cases (Formerly 28k69) [6] Animals 28 74(3) When wild animals are kept as pets, an owner is liable for injuries caused by the animal, even if 28 Animals the owner had no prior knowledge of the animal's 28k66 Injuries to Persons propensity to cause harm, and even if the owner has 28k74 Actions exercised the utmost care in preventing harm. 28k74(3) k. Presumptions and Burden of Proof. Most Cited Cases [10] Animals 28 66.1 Presumption that dog is harmless domestic an- imal is overcome by evidence of a known or dan- 28 Animals gerous propensity as shown by specific acts of the 28k66 Injuries to Persons particular animal, with “dangerous propensity” be- 28k66.1 k. Duties and Liabilities in General. ing a tendency of the animal to do any act that Most Cited Cases might endanger the safety of persons or property in (Formerly 28k69) a given situation. In essence, strict liability is imposed on owners of wild animals for injuries caused by those anim- [7] Animals 28 66.5(2) als. 28 Animals [11] Animals 28 66.2 28k66 Injuries to Persons 28k66.5 Dogs 28 Animals 28k66.5(2) k. Vicious Propensities and 28k66 Injuries to Persons Knowledge Thereof. Most Cited Cases 28k66.2 k. Vicious Propensities and Know- (Formerly 28k68) ledge Thereof. Most Cited Cases Jury could reasonably conclude in negligence (Formerly 28k70) action against dog owner that dog at least exhibited Owners of domestic animals may be held liable dangerous, if not vicious tendencies, in biting vic- for harm caused by their pet, but only if the owner tim who received hospital and medical attention in- knows or has reason to know that the animal has cluding several stitches to her face. dangerous propensities. [8] Animals 28 74(3) [12] Animals 28 66.5(2) 28 Animals 28 Animals 28k66 Injuries to Persons 28k66 Injuries to Persons 28k74 Actions 28k66.5 Dogs 28k74(3) k. Presumptions and Burden of 28k66.5(2) k. Vicious Propensities and Proof. Most Cited Cases Knowledge Thereof. Most Cited Cases Jury may not reasonably infer, from a dog's ex- (Formerly 28k70) hibition of dangerous or vicious tendencies for the Unlike with wild animals, when the owner of a first time, that the dog's owner knew or should have dog has knowledge of its dangerous propensities, known of those tendencies. rules of liability are based upon negligence and not strict liability. [9] Animals 28 66.1 © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 788 N.E.2d 1255 (Cite as: 788 N.E.2d 1255) [13] Animals 28 66.5(4) sheep dog knew that dog was dangerous or vicious, and thus owner could not be held liable in negli- 28 Animals gence action for first-time bite by dog, where there 28k66 Injuries to Persons was no evidence presented that owner had any 28k66.5 Dogs knowledge that dog exhibited dangerous or vicious 28k66.5(4) k. Contributory and Comparat- propensities and no evidence that breed to which ive Negligence. Most Cited Cases dog belonged exhibited dangerous or vicious (Formerly 28k71) propensities. Animals 28 66.5(6) *1257 Daniel H. Pfeifer,Jon A. Criss, Sweeney, Pfeifer, Morgan & Stesiak, South Bend, IN, Attor- 28 Animals neys for Appellants. 28k66 Injuries to Persons 28k66.5 Dogs Lynn M. Butcher, Don G. Blackmond, South Bend, 28k66.5(6) k. Assumption of Risk. Most IN, Attorneys for Appellee. Cited Cases (Formerly 28k71) Because action against owner to recover for in- CIVIL TRANSFER juries inflicted by dog is one sounding in negli- RUCKER, Justice. gence, the defenses of contributory negligence and The question we address in this opinion is assumption of risk are available to limit liability. whether the very act of an unprovoked biting by a dog that in the past displayed no vicious tendencies [14] Animals 28 66.5(2) is sufficient by itself for a jury to infer that the an- imal's owner knew, or should have known, of the 28 Animals dog's vicious tendencies. We grant transfer to hold 28k66 Injuries to Persons that it is not. 28k66.5 Dogs 28k66.5(2) k. Vicious Propensities and Facts and Procedural History Knowledge Thereof. Most Cited Cases In this summary judgment action the following (Formerly 28k70) facts are not in dispute. George Horvath lives in Where there is no evidence of an owner's actual South Bend and owned a mixed-breed sheepdog knowledge that his or her dog has dangerous named Hey. The dog had never bitten anyone and propensities, the owner may nonetheless be held li- was well behaved. No one had ever complained able provided there is evidence that the particular about Hey, and he did not usually wander out of breed to which the dog belongs has dangerous Horvath's yard. On July 23, 1997, Horvath allowed propensities, even where the owner's dog has never Hey to remain outside unattended. The dog was before attacked or bitten anyone. neither on a leash nor confined by a fence. When Alyssa Poznanski and her mother walked by Hor- [15] Animals 28 66.5(2) vath's home, Hey bit Alyssa without provocation. As a result Alyssa suffered a cut to her face requir- 28 Animals ing stitches. Among other things, a South Bend city 28k66 Injuries to Persons ordinance provides in pertinent part “[e]very owner 28k66.5 Dogs and/or his agent of an animal within the City shall 28k66.5(2) k. Vicious Propensities and see that his or her animal ... is properly restrained Knowledge Thereof. Most Cited Cases and not at large.” Appellant's App. at 91. The ordin- (Formerly 28k70) ance defines “at large” as “any animal that is not Jury could not infer that owner of mixed-breed © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 788 N.E.2d 1255 (Cite as: 788 N.E.2d 1255) under restraint.” Id. at 92. solved of liability simply because his dog had never before bitten anyone. According to the court, “the In her individual capacity and on behalf of very fact that Hey bit Alyssa without provocation is Alyssa as next friend, Alyssa's mother (hereafter evidence from which a reasonable inference can be “the Poznanskis”) sued Horvath for personal injur- made that Hey had vicious tendencies. Further, it ies and medical expenses. In response, Horvath may be inferred that if the dog had vicious tenden- filed a motion for summary judgment. Finding there cies based on this one incident, then similar to Lay- was no genuine issue of material fact as to whether man, a question of fact exists as to whether Horvath Horvath knew or should have known of any vicious knew or, at the least, should have known of these tendencies of the dog, the trial court granted the tendencies.” Poznanski v. Horvath, 749 N.E.2d motion. The Poznanskis appealed. On review, the 1283, 1286 (Ind.Ct.App.2001). Court of Appeals reversed and remanded, finding genuine issues of material fact remained regarding In Layman, a father acting in his individual ca- whether Horvath: (1) knew or should have known pacity and as next friend, sued Larry and Sherrod of the dog's vicious propensities; (2) used reason- Atwood when their Saint Bernard bit the father's able care in keeping the dog restrained; and (3) eight-year-old daughter. The Atwoods moved for could be held liable under the local ordinance re- summary judgment that was supported by affidavit. quiring proper restraint of animals. *1258 Horvath Among other things, the affidavit provided that the sought transfer, which this Court previously gran- dog had always been an affectionate companion to ted. Poznanski v. Horvath, 761 N.E.2d 423 the Atwood children and that prior to this incident (Ind.2001). had never bitten or harmed anyone in any way. Lay- man, 370 N.E.2d at 934. The trial court granted the Standard of Review motion. On review the Court of Appeals reversed. [1][2][3] Our standard of review is the same as Noting that the dog-biting incident was unpro- that used in the trial court: summary judgment is voked, the court held: appropriate only where the evidence shows that there is no genuine issue of material fact and the A jury could reasonably infer that the very act of moving party is entitled to judgment as a matter of unprovoked biting by the Atwoods' dog was evid- law. Ind. Trial Rule 56(C); Tom–Wat, Inc. v. Fink, ence of that animal's vicious tendencies. If an an- 741 N.E.2d 343, 346 (Ind.2001). A genuine issue of imal does, indeed, have vicious tendencies a jury material fact exists where facts concerning an issue could reasonably infer that the animal's owner that would dispose of the litigation are in dispute or knew or, at least, should have known of those vi- where the facts are capable of supporting conflict- cious tendencies. ing inferences. Woodward Ins., Inc. v. White, 437 N.E.2d 59, 62 (Ind.1982). Any doubt as to a fact or Id. at 935. an inference to be drawn is resolved in favor of the [4][5][6][7] We first observe that the “very act non-moving party. Bader v. Johnson, 732 N.E.2d of unprovoked biting” by a dog does not necessar- 1212, 1216 (Ind.2000). We must carefully review a ily mean the dog is dangerous or vicious. Under our decision on a summary judgment motion to ensure common law, all dogs, regardless of breed or size, that a party was not improperly denied its day in are presumed to be harmless domestic animals. court. Tom–Wat, 741 N.E.2d at 346. Ross v. Lowe, 619 N.E.2d 911, 914 (Ind.1993). This Discussion presumption is overcome by evidence of a known Relying on Layman v. Atwood, 175 Ind.App. or dangerous propensity as shown by specific acts 176, 370 N.E.2d 933 (1977), the Court of Appeals of the particular animal. Id. A dangerous propensity in this case concluded that Horvath could not be ab- is a tendency of the animal to do any act that might © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 788 N.E.2d 1255 (Cite as: 788 N.E.2d 1255) endanger the safety of persons or property in a giv- complained of to commit such injuries.”); see also en situation. Id. Thus, depending on the facts of a Artificial Ice & Cold Storage Co. v. Martin, 102 particular case, a dog's unprovoked biting may or Ind.App. 74, 198 N.E. 446, 448 (1935). As with may not be evidence of the dog's vicious tenden- wild animals this liability also attaches regardless cies. For example, although technically a “biting,” a of the amount of care exercised by the owner. playful nibble on the hand is one thing, while a However, unlike with wild animals, when the own- “teeth-baring” clamp on the arm is quite another. In er of a dog has knowledge of its dangerous any event, in this *1259 case the record shows that propensities, “[the] rules of liability are based upon Hey either “bit” or “nipped” Alyssa in the face. Ap- negligence and not strict liability.” Alfano v. Stuts- pellant's App. at 59. Regardless of the characteriza- man, 471 N.E.2d 1143, 1144 (Ind.Ct.App.1984) tion, the incident resulted in Alyssa receiving hos- (quoting Doe v. Barnett, 145 Ind.App. 542, 251 pital and medical attention including several N.E.2d 688, 694 (1969)). Because it is an action stitches to her face. Under these circumstances a sounding in negligence, the defenses of contribut- jury could reasonably conclude that Hey at least ex- ory negligence and assumption of risk are available hibited dangerous, if not vicious, tendencies. to limit this liability. Borton v. Lavenduskey, 486 N.E.2d 639, 642 (Ind.Ct.App.1985), trans. denied. [8] The question remains whether in light of a dog exhibiting dangerous or vicious tendencies for In certain instances, a cause of action in negli- the first time, may a jury reasonably infer that the gence can survive without the owner's actual know- dog's owner knew, or at least should have known of ledge of the animal's dangerous propensities. In- those tendencies. If so, then this inference alone is deed, such knowledge may even be constructive. enough to create a genuine issue of material fact to Doe, 251 N.E.2d at 692. Nonetheless, when an defeat a dog owner's claim that he or she was un- owner does not know of his animal's dangerous aware of such tendencies. We conclude however propensities, the rule is not that the jury may infer that a jury may not make such an inference. or impute such knowledge. Rather, “the rule is that the owner is bound to know the natural tendencies [9][10][11][12][13] When wild animals are of the particular class of animals to which [the] kept as pets, an owner is liable for injuries caused dog belongs.” Ross, 605 N.E.2d at 788 (emphasis by the animal. Irvine v. Rare Feline Breeding Ctr., added). If the propensities of the class to which the Inc., 685 N.E.2d 120, 125 (Ind.Ct.App.1997), trans. dog belongs are the kind which one might reason- denied. This is so even if the owner had no prior ably expect would cause injury, then the owner knowledge of the animal's propensity to cause must use reasonable care to prevent injuries from harm, and even if the owner has exercised the ut- occurring. Id. most care in preventing harm. In essence, strict li- ability is imposed on owners of wild animals. Id. [14] Thus, where there is no evidence of an Owners of domestic animals may also be held liable owner's actual knowledge that his or her dog has for harm caused by their pet but only if the owner dangerous propensities, the owner may nonetheless knows or has reason to know that the animal has be held liable provided there is evidence that the dangerous propensities. Klenberg v. Russell, 125 particular breed to which the dog belongs has dan- Ind. 531, 25 N.E. 596, 597 (1890) ( “[T]he owners gerous propensities. And this is so even where the of creatures which, as a species, are harmless and owner's dog has never before attacked or bitten domesticated, and are kept for convenience or use, anyone. See, e.g., *1260Holt v. Myers, 47 Ind.App. such as dogs ... are not liable for injuries willfully 118, 93 N.E. 1002, 1002–03 (1911) (observing that committed by them unless he is proved to have had the ferocious nature of a bulldog was sufficient to notice of the inclination of the particular animals provide the owner with constructive notice of the © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 6 788 N.E.2d 1255 (Cite as: 788 N.E.2d 1255) dog's dangerous propensities). In essence, a jury BOEHM, JJ., concur. may not infer that an owner knew or should have known of a dog's dangerous or vicious propensities Ind.,2003. from the fact of a first time, unprovoked biting. Poznanski ex rel. Poznanski v. Horvath Rather in such an instance, a jury may infer that the 788 N.E.2d 1255 owner knew or should have known of the dog's END OF DOCUMENT dangerous or vicious propensities only where evid- ence shows that the particular breed to which the owner's dog belongs is known to exhibit such tend- encies. [15] In the case before us, there was no evid- ence presented that Horvath had any knowledge that Hey exhibited dangerous or vicious propensit- ies. The record shows Hey was very well trained, behaved well, responded when Horvath called to him or told him to stay. Hey did not wander out of Horvath's yard or wander around the neighborhood. The record also shows that Horvath never received any complaints about Hey's conduct or behavior. And even though Horvath's home was near an ele- mentary school, Hey did not get excited or nervous when he heard children playing, screaming or mak- ing loud noises. Nor was there any evidence presen- ted to the trial court that the breed to which Hey be- longed, a mixed-breed sheep dog, exhibited danger- ous or vicious propensities. Accordingly, a jury could not infer that Horvath knew that his dog was dangerous or vicious. On the question of whether there is any genu- ine issue of material fact that Horvath knew or should have known of Hey's vicious tendencies, we affirm the judgment of the trial court. The Court of Appeals' opinion on this point is thus vacated. We summarily affirm the Court of Appeals' resolution of the Poznanskis' claim that Horvath could be held liable under the local ordinance requiring proper re- straint of animals. Conclusion We affirm the judgment of the trial court in part. This cause is remanded for further proceed- ings consistent with this opinion. SHEPARD, C.J., and DICKSON, SULLIVAN and © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 606 A.2d 489 Page 1 414 Pa.Super. 45, 606 A.2d 489 (Cite as: 414 Pa.Super. 45, 606 A.2d 489) 28k66 Injuries to Persons 28k66.2 k. Vicious Propensities and Know- Superior Court of Pennsylvania. ledge Thereof. Most Cited Cases Cathy A. DEARDORFF, Natural Mother and (Formerly 28k70) Guardian of Jessica Deardorff, and Cathy A. Dear- Mere awareness and ownership of vicious an- dorff, Individually, Appellants, imal does not per se expose one to liability for in- v. juries inflicted absent failure on part of owner to Carol BURGER, Appellee. take proper precautions to preclude that viciousness from exhibiting itself. Argued Jan. 15, 1992. Filed April 3, 1992. [3] Animals 28 66.5(2) Dog bite victim and mother brought action 28 Animals against owner. The Court of Common Pleas, 28k66 Injuries to Persons Dauphin County, Civil Division, No. 2060 S of 28k66.5 Dogs 1988, Schaffner, J., entered judgment on jury ver- 28k66.5(2) k. Vicious Propensities and dict in favor of owner. Plaintiffs appealed. The Su- Knowledge Thereof. Most Cited Cases perior Court, No. 00442 Harrisburg 1991, Popovich (Formerly 28k70) , J., held that: (1) theory of absolute liability was Single bite on prior occasion was insufficient inapplicable; (2) single bite on prior occasion was to put owner on notice of dog's allegedly vicious insufficient to put owner on notice of dog's al- propensity; there was lack of evidence concerning legedly vicious propensity; and (3) alleged negli- circumstances surrounding the prior bite. gence of one owner could not be imputed to alleged co-owner. [4] Animals 28 66.5(7) Affirmed. 28 Animals 28k66 Injuries to Persons West Headnotes 28k66.5 Dogs 28k66.5(7) k. Persons Liable for Injuries [1] Animals 28 66.5(2) in General. Most Cited Cases 28 Animals (Formerly 28k72) 28k66 Injuries to Persons Alleged negligence of one owner of dog could 28k66.5 Dogs not be imputed to alleged co-owner in action to re- 28k66.5(2) k. Vicious Propensities and cover for dog bite. Knowledge Thereof. Most Cited Cases **490 *46 Theresa L. Shade Wix, Harrisburg, for (Formerly 28k70) appellants. Theory of absolute liability was inapplicable to action to recover for dog bite, even if owner had Kerry V. Smith, Harrisburg, for appellee. knowledge of dog's previous biting of another per- son. Before McEWEN, POPOVICH and JOHNSON, JJ. [2] Animals 28 66.2 28 Animals POPOVICH, Judge: © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 606 A.2d 489 Page 2 414 Pa.Super. 45, 606 A.2d 489 (Cite as: 414 Pa.Super. 45, 606 A.2d 489) In this appeal, we re-examine the law concern- when something's happening to him that he does ing the liability of dog owners for the actions of not like. But [Shane] did not see [the dog], you their pets. We are asked to review the June 26, know-there was no lunging at the child or any- 1991, order of the Court of Common Pleas of thing like that. The dog veered back. She fell Dauphin County denying a motion for a new trial down, and we grabbed the kid and, you know, filed by the plaintiff/appellant, Cathy A. Deardorff, went because then we realized ... she's bleed- natural mother and guardian of Jessica Deardorff, ing.... And it just happened like that, (indicating) FN1 individually. We affirm. that fast. [N.T. 54] FN1. The June 26, 1991, order was re- Jessica was taken to the hospital, sedated and duced to judgment on July 11, 1991, and, received stitches “all over the face ... under the eye, thus, is appealable. Pa.R.App.P. 301(c). over her eye [and] by her lip[.]” The child was re- leased the same day. Within a month, the stitches In reviewing the denial of a motion for a new were removed, and a scar remained above and be- trial, this Court will reverse only when the lower low the child's left eye. court has clearly and palpably abused its discretion or committed an error of law which controlled the On June 13, 1988, a writ of summons was filed outcome of the case. Lilley v. Johns-Manville against Carol Burger, Shane's mother and the owner Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991). of the home in which the dog lived, for “negligently and carelessly restraining her dog.” Paragraph 5. With the preceding in mind, our review of the The plaintiff claimed damages in excess of $20,000 evidence discloses that, on the afternoon of Novem- for the injuries sustained by the child “[d]ue solely ber 16, 1986, 2-year-old Jessica, her father (David) to the negligence and carelessness of [Carol Bur- and Shane Burger were in Shane's backyard raking ger].” Id. at 6. Following a two-day trial, the jury leaves. Within 15 minutes of their arrival, Shane let returned a verdict in favor of the defendant/Carol the dog out of the house to roam in the backyard. Burger. Post-trial motions were denied and an ap- peal to this Court ensued. Shane recalled that the trio played in the leaves and Jessica ran toward the dog, a 75-pound German [1] The first claim of the appellant concerns the shepherd named “Smokey”. Jessica was told by her assertion that the trial court erred in refusing to father to “get *47 back” toward him. Shane offered charge the jury on the theory of absolute liability of to return the dog to the house, but the father did not a dog owner aware of the animal's vicious feel it was necessary. The next thing to occur, as propensities and the resulting injuries incurred by told by Shane, was that: someone bitten by the animal. This liability, *48 the appellant maintains, is absolute regardless of ... [the child] was playing in the leaves. And she the circumstances of the accident and the exercise came upon [the dog] ... She hugged him around of any care or caution by the dog's owner. the neck and she was off to the side. And [the dog] tried ... to get away from her at that point in The appellant cites Section 509 of the Restate- time.... ment (Second) of Torts and Mann v. Weiand, 81* Pa. 243 (1875) in support of her proposition. We ... [I]t all happened so fast. [Shane] just saw find that the trial **491 court's instructions on neg- Smokey pulling back. There was-if he would ligence were sufficient and did not require the in- have bit Jessica, she probably would not have a clusion of an absolute liability charge given that face at this point in time. He's got quite a snout Section 509 of the Restatement (Second) of Torts on him. He did yelp, okay, as he usually does has yet to be adopted in this Commonwealth, a © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 606 A.2d 489 Page 3 414 Pa.Super. 45, 606 A.2d 489 (Cite as: 414 Pa.Super. 45, 606 A.2d 489) point which the appellant concedes in her brief at 81* Pa. at 254. The reason for so holding was page 11. that an owner of a dog, after he had notice, was bound to secure it at all events, and failure to do so With regard to the case of Mann v. Weiand, resulted in the owner's liability to persons injured supra, a civil action for damages resulting from the thereafter. See Commonwealth v. Carl, 87 defendant's negligent keeping of a ferocious dog, Pa.Super. 110, 112 (1925). the court wrote: [2] In Andrews v. Smith, 324 Pa. 455, 188 A. We think one instance may show such unmis- 146 (1936), our Supreme Court had occasion to re- takable evidence of a vicious propensity as to examine the question in the context of a compuls- make the owner of the dog, with notice, liable for ory non-suit. It wrote: any subsequent act of a similar character. The gist of the action for the subsequent misconduct The theory upon which courts have so long ruled of the dog, is for keeping it after knowledge of its that liability for damages cannot be fastened upon vicious propensity: May v. Burdett, 9 Q.B., 101; the owner of a dog when that dog has bitten Wheeler v. Brandt, 23 Barb., 324. It thereupon someone unless the owner knew of the dog's vi- becomes the duty of the owner so to keep his dog cious propensities, is that it would be unfair to as to guard against a repetition of similar miscon- hold the owners of domestic animals that are nor- duct. He is bound to secure it at all events, and is mally harmless responsible for the vicious acts of liable to parties afterwards injured if the mode he these animals unless they were put on notice that has adopted to secure it proves insufficient: the animal was vicious. In so holding, the courts Wood on Nuisance, section 763; Jones v. Perry, have merely applied the principle that no man is 2 Esp., 482; Mason v. Keeling, 12 Mod., 332. The responsible for injuries caused by his property principle on which this rule rests was held in unless he himself was guilty of negligence in his Mann v. Reed, 4 Allen, 431, to be, that a fero- manner of controlling or not controlling that cious animal, liable to do injury to men or prop- property. erty, is a nuisance, and that keeping it after notice of such liability is so wrongful, that the owner is ****** chargeable for any neglect to keep it with such mere ownership alone of inherently and appar- care that it cannot do any damage to a person ently harmless property does not carry with it li- who without any essential fault is injured ability for damages for an injury of which that thereby. property was the instrumentality. The same rule applies with reference to other ****** nuisances: Wood on Nuisances, section 766; Foish v. Sheet, 221 Barb., 333; Hughes v. Mc- “Knowledge of the dangerous character of a thing Namara, 106 Mass., 281; Marsh v. Jones, 21 Vt., is only the equivalent of foresight of the way in 378. Hence the keeping of a *49 vicious dog near which it will act. If the thing is generally sup- a public highway, endangering the safety of per- posed to be universally harmless, and only a spe- sons passing thereon, is a nuisance, operating as cialist would foresee that in a given case it would an obstruction, and renders the person knowingly do damage, a person who did not foresee it *50 keeping it there liable to indictment, and also li- and who had no warning would not be held liable able to an action in favor of any person injured for the harm....” thereby: Granger v. Findley, 7 Irish C.L.Rep., 417; Wood on Nuisance, section 768. The majority of the court below held that there is nothing in the Dog Law of May 11, 1921, P.L. © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 606 A.2d 489 Page 4 414 Pa.Super. 45, 606 A.2d 489 (Cite as: 414 Pa.Super. 45, 606 A.2d 489) 522, as amended by the Act of May 6, 1927, P.L. ****** 833, that rendered defendants liable to the plaintiff**492 for the injuries inflicted upon him *51 [We went on to hold that, a]lthough some by the former's dog. That act does not purport to states ha[d] gone further and imposed absolute li- change or affect in any way the rule that an own- ability for damages caused by roving dogs, we er's liability for the vicious acts of his dog cannot f[ou]nd it improvident and unnecessary to effect be predicated upon ownership alone but it must such a monumental change without legislative ac- be based also on an owner's knowledge of his tion. The legislature in Pennsylvania [was ob- dog's viciousness and his failure then to take served to] ha[ve] enacted a Dog Law which re- proper steps to prevent that viciousness display- quire[d] that owners of dogs prevent their anim- ing itself to the hurt of human beings. als from running at large, but it ha[d] not yet im- posed absolute liability upon an owner who viol- 324 Pa. at 459-460, 188 A. 146 (Emphasis ad- ate[d] such law. Therefore, we d[id] not usurp the ded). Thus, it is clear from the Andrews v. Smith function and prerogative of the legislature. We ruling, which made specific reference to and dis- h[e]ld merely that violation of the legislatively 8 cussed Mann v. Weiand, that mere awareness and enacted Dog Law is negligence per se. This, we ownership of a vicious animal does not per se ex- believe[d], [wa]s consistent with the intent of the pose one to liability for injuries inflicted absent a legislature and also with the holdings of courts of failure on the part of the owner to take proper pre- other jurisdictions having similar laws. cautions to preclude that viciousness from exhibit- ing itself. Id.; but see Darby v. Clare F. And R. Co., ----- 111 Pa.Super. 537, 540, 170 A. 387 (1934). FN8. A dog owner may always show that More recently, this Court in Miller v. Hurst, his or her dog escaped despite the exercise 302 Pa.Super. 235, 448 A.2d 614 (1982) (en banc), of due care. In such case, the roving of the had reason to decide whether a dog owner who per- dog would not constitute negligence. mitted a dog to run free in violation of the Dog Law FN2 Id., 302 Pa. Superior Ct. at 243-244 & n. 8, 448 of 1965, requiring that the dog be restrained, A.2d at 618-619 & n. 8. was liable, without further proof of negligence, for injuries caused when the dog bit a child. Likewise, the successor to The Dog Law of 1965 makes no provision for imposing absolute li- FN2. The Act of December 22, 1965, P.L. ability upon dog owners for failing to keep their 1124, Art. VII, § 702, 3 P.S. § 460-702, re- dogs confined or controlled; to-wit: pealed by The Dog Law of 1982, Decem- ber 7, P.L. 784, No. 225, Art. I, § 101, 3 § 459-305. Confinement of dogs P.S. § 459-101 et seq. (Supp.1991). It shall be unlawful for the owner or keeper of We found that the Legislature enacted the stat- any dog to fail to keep at all times such dog ute to protect the public from personal injury, prop- either: erty damage and other hazards created by roving dogs. As a result, we: (1) confined within the premises of the owner; ... adopt[ed] the requirement of the statute as the (2) firmly secured by means of a collar and standard for determining whether a person ha[d] chain or other devise so that it cannot stray bey- complied with the common law duty to exercise ond the premises on which it is secured; or ordinary care. © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 606 A.2d 489 Page 5 414 Pa.Super. 45, 606 A.2d 489 (Cite as: 414 Pa.Super. 45, 606 A.2d 489) (3) under the reasonable control of some per- that the act done must be such as to furnish a son, or when engaged in lawful hunting, exhibi- reasonable inference that the animal is likely to tion or field training. commit an act of the kind complained of.” The Act of December 7, 1982, P.L. 784, No. The minority judge in his dissenting opinion said 225, Art. III, § 305, effective January 1, 1983, 3 that the “maxim that ‘every dog is entitled to his P.S. § 459-305 (Supp.1991); see also Andrews v. first bite’ is not supportable in law or justice.” Smith, supra. With this we agree. We do not understand that this maxim has ever found acceptance*53 in the **493 *52 However, we do not rest our de- courts of this Commonwealth. A dog may show cision upon the absence of any provision in the ferocious propensities without biting anyone and present and past dog statutes to establish liability if he does so, it is his master's duty to see to it premised upon notions of absolute liability, for a that he is not afforded an opportunity to take a person may rely on common law principles, in ad- ‘first bite.’ dition to statutory violations, to establish liability. See Skowronski v. Bailey, 330 Pa.Super. 83, 478 ****** A.2d 1362, 1365 n. 3 (1984). Nonetheless, under either category, be it statute or common law prin- Animals such as horses, oxen and dogs are not ciples, we are convinced that proof of negligence, beasts that are ferae nature, i.e., wild beasts, but in contrast to holding one absolutely liable, is the are classed as mansuetae natura, i.e., tamed and vehicle by which accountability for injury sustained domesticated animals, and their owners are not because of a dog bite is to be established. See An- responsible for any vicious acts of theirs unless drews v. Smith, supra; Miller v. Hurst, supra. the owners have knowledge that they are likely to break away from their normal domestic nature Therefore, the trial court acted properly in re- and become vicious. Of all animals, dogs have fusing to instruct the jury that absolute liability was probably been the longest domesticated and the established once it was shown that the appellee had vast majority of them can be allowed their free- knowledge of Smokey's previous biting of one John dom without imperiling the public safety. Walmer. See Andrews v. Smith, supra; Miller v. Hurst, supra. 324 Pa. at 458, 459, 188 A. 146 (Emphasis ad- ded). Further, in Mann v. Weiand, supra, the Court [3] The second argument proffered by the ap- observed that “one instance [of an attack by a dog] pellant suggests that the trial court erred in failing may show such unmistakable evidence of a vicious to instruct the jury that a single instance of vicious propensity as to make the owner of the dog, with conduct on the part of a dog is sufficient to put its notice, liable for any subsequent act of a similar owner on notice of the dog's vicious propensities. character.” 81* Pa. at 254. Accord Fink v. Miller, 330 Pa. 193, 195, 198 A. 666 (1938). Again, we look to Andrews v. Smith, supra, for guidance in responding to the appellant's assertion; Instantly, the testimony on the question of namely, the Court wrote: propensity was equivocal. For example, Shane Bur- ger was told by the appellee of the incident in “As soon as the owner knows or has good reason which Smokey bit a Mr. Walmer. However, he did to believe that the animal is likely to do mischief, describe how Mr. Walmer had been observed kick- he must take care of him; it makes no difference ing Smokey on three occasions. During each epis- whether this ground of suspicion arises from one ode, the dog, according to Shane, “back[ed] down” act or from repeated acts. The only restriction is or “just ... jerked away” and made its way into the © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. 606 A.2d 489 Page 6 414 Pa.Super. 45, 606 A.2d 489 (Cite as: 414 Pa.Super. 45, 606 A.2d 489) backyard with its tail between its legs. The dog Consistent with the precepts espoused by the never exhibited any signs of viciousness to Shane Court in Andrews v. Smith, supra, and Mann v. Wei- or Mr. Deardorff. and, supra, we find that, because of a lack of evid- ence concerning the circumstances surrounding the Also, Shane depicted Smokey as a “kind” an- Walmer incident, it would have been improper for imal-like a big puppy dog-who had never the trial court to have advised the jury, in unquali- “snapped” at the witness or anyone else in its com- fying terms, that a single bite on a prior occasion pany. was sufficient to put the appellee on notice of Smokey's alleged “vicious” propensity. See Fink v. The appellee described Smokey in terms simil- Miller, supra. ar to her son's account, e.g., Accordingly, since the appellant did not prove *54 He's a great dog. He has a great personality. that Smokey had unmistakable vicious tendencies He's actually very timid. If he does anything known to the appellee,*55 from the single bite of wrong, he's the kind of dog that if he does Mr. Walmer, she failed to make out a case warrant- something wrong **494 he'll sit back and put his ing the single-bite instruction. Id. ears back....” [N.T. 69] [4] As to the last of the appellant's averments, Smokey had played with other children without we adopt the rationale of the lower court in re- “any difficulties” and the animal was considered sponse thereto as appropriate and proper under the “just ... part of the family”. In light of the preced- facts and law; to-wit: ing, the trial court gave the following charge to the jury: Finally, the plaintiff contends that the Court ... an important thing for you to decide is erred in refusing to instruct the jury that the neg- whether this dog, Smokey, had vicious propensit- ligent acts of one co-owner of a dog may be im- ies. The dictionary defines propensity as being an puted to the other co-owner of that dog. The intense and often urgent natural inclination to do plaintiff asserts that the Court should have told something. Therefore, in considering whether the the jury that when individuals are engaged in a dog has a propensity towards violence, you must common enterprise, a mutual relationship of determine whether the dog had an intentional and agency is created among them and that a finding often urgent natural inclination to be vicious. It's of negligence regarding one of them will be im- the Plaintiff's burden to prove that the Defendant puted to the other. The plaintiff cites DeVillars v. was negligent, and a part of that in this case is Hessler, 363 Pa. 498, 70 A.2d [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4043596. Public record. Not legal advice.