Karen Lindsey Smith v. Terry P. Province

07-18-00026-CV ACCEPTED

SEVENTH COURT OF APPEALS

AMARILLO, TEXAS

3/23/2018 7:09 PM

Vivian Long, Clerk

NO. 07-18-00026-CV

FILED IN

SEVENTH DISTRICT COURT OF APPEALS 7th COURT OF APPEALS

AMARILLO, TEXAS

Amarillo, Texas 3/23/2018 7:09:40 PM

__________________________________________VIVIAN LONG

CLERK

KAREN LINDSEY SMITH

v.

TERRY P. PROVINCE

__________________________________________

On Appeal from Cause No. CV-2016-00729

County Court of Law #2, Denton County, Texas

Honorable Robert Ramirez, Judge Presiding

APPELLANT’S BRIEF

PAUL FLANNIGAN

State Bar No. 24012633

paul@flanniganlawfirm.com

MARK D. JOHNSON

State Bar No. 10770175

mark@flanniganlawfirm.com

FLANNIGAN & JOHNSON, P.L.L.C.

5600 Tennyson Parkway, Suite 330

Plano, Texas 75024

Phone: (972) 383-9377

Fax: (844) 287-8882

ATTORNEYS FOR APPELLANT

ORAL ARGUMENT NOT REQUESTED

IDENTITIES OF PARTIES AND COUNSEL

Appellant

Karen Lindsey Smith

Counsel for Appellant

Paul Flannigan

Paul@Flanniganlawfirm.com

Mark D. Johnson

Mark@Flanniganlawfirm.com

FLANNIGAN & JOHNSON, P.L.L.C.

5600 Tennyson Parkway, Suite 330

Plano, Texas 75024

Appellee

Terry P. Province

Counsel for Appellee

Brantley J. Saunders

Brantley@SaundersWalsh.com

Abigail K. Christmann

Abby@SaundersWalsh.com

SAUNDERS, WALSH & BEARD

Craig Ranch Professional Plaza

6850 TPC Drive, Suite 210

McKinney, Texas 75070

i

TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL i

TABLE OF CONTENTS ii

INDEX OF AUTHORITIES iv

STATEMENT OF THE CASE vi

STATEMENT REGARDING ORAL ARGUMENT vii

ISSUES PRESENTED viii

STATEMENT OF FACTS ix

SUMMARY OF ARGUMENT xiii

STANDARD OF REVIEW xiv

ARGUMENT 1

Issue 1 -- This Court should reverse and remand because the Trial Court erred when it struck

evidence offered by Smith regarding the well-known tendencies of the breeds (German

Shepherd Dog and Boxer) making up the Attack Dog. 1

Issue 2 – This Court should reverse and remand because the Trial Court erred when it granted

summary judgment to Province, despite the fact that Smith offered competent summary

judgment evidence (some of which Province did not oppose) indicating (a) the aggressive

tendencies of the breeds (in part German Shepherd Dog and Boxer) comprising the Attack Dog,

(b) that Province permitted a hole to exist in his gate, at the main point of ingress and egress to

his property, (c) that Province knew the Attack Dog could stick its head through the hole, and

ii

potentially could bite anyone (including a licensee such as Smith) who came to the gate, and (d)

Smith was seriously injured when the Attack Dog in fact stuck its head through the hole, and bit

her in the neck. 4

PRAYER 10

iii

INDEX OF AUTHORITIES

Cases

Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 666 (Tex. App.—Waco 2002, no pet.) .................... xxii

Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989) ...................................................................... xvi

Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th Dist.] 2000, pet.

denied) (op. on reh'g) .............................................................................................................. xvii

Dunnings v. Castro, 881 S.W.2d 559, 563 (Tex. App.—Houston [1st Dist.] 1994, writ denied) . xx

El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360, 366 (Tex. App.—Dallas 2005, no pet.) ........ xvi

Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396, 32 Tex. Sup. Ct. J. 217 (Tex. 1989). ... xiv

Labaj v. VanHouten, 322 S.W.3d 416, 420 (Tex. App.—Amarillo 2010, no pet.) ........................ xx

Lewis v. Great Southwestern Corporation, 473 S.W.2d 228, 230 (Tex.Civ.App.—Fort Worth 1971,

writ ref’d n.r.e.) ........................................................................................................................ xix

LSR Joint Venture No. 2 v. Callewart, 837 S.W.2d 693, 698 (Tex. App.-Dallas 1992, writ denied)

(op. on reh'g). ........................................................................................................................... xiv

Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974) ......................................................................... xix

Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied) ........ xv

Muela v. Gomez, 343 S.W.3d 491, 496 (Tex. App.—El Paso 2011, no pet.) ................................ xx

Robinson v. Warner-Lambert Co., 998 S.W.2d 407, 410 (Tex. App.--Waco 1999, no pet.) ........ xiv

Rodriguez v. Haddock, 2003 WL 1784923 at *2 (Tex.App.—Fort Worth, April 3, 2003, no pet.)

.................................................................................................................................................. xix

Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex. App.--Waco 2000, pet. denied) ...... xiv

Sasser v. Dantex Oil & Gas, Inc., 906 S.W.2d 599, 602 (Tex. App.--San Antonio 1995, writ denied)

iv

.................................................................................................................................................. xiv

Stein v. Reger, 2016 Tex. App. LEXIS 5961, 2016 WL 3162589 (Tex. App.—Houston [1st Dist.]

2016) ........................................................................................................................................ xix

Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) ................................................ xvi

Yzaguirre v. KCS Res., Inc., 47 S.W.3d 532, 543 (Tex. App.-Dallas 2000), aff'd, 53 S.W.3d 368, 44

Tex. Sup. Ct. J. 973, 44 Tex. Sup. Ct. J. 1122 (Tex. 2001) ...................................................... xiv

Statutes

TEX. R. APP. P. 44.1(a)(1)........................................................................................................... xiv

TEX. R. EVID. 801(d) ................................................................................................................... xvii

TEX. R. EVID. 803(21) ................................................................................................................. xvii

v

STATEMENT OF THE CASE

The Appellant, KAREN LINDSEY SMITH (“Smith”), Plaintiff below, filed

this negligence action on March 30, 2016 for damages caused when she was bitten

by a dog owned by the Appellee, TERRY P. PROVINCE (“Province”), Defendant

below.

Province filed a Second Amended Motion for Summary Judgment (the

“Motion”) on or about October 5, 2017. (CR 243-275). In the Motion, Province

contended that he was not liable for damages caused by his dog. Smith responded

to the Motion (the “Response”) on or about November 7, 2017. (CR 282-374).

Province filed a reply to the Motion on or about November 10, 2017. (CR 375-385).

Judge Robert Ramirez of County Court No. 2 of Denton County, Texas (the

“Trial Court”) heard the Motion. Judge Ramirez granted the Motion on November

13, 2017. (CR 386). Judge Ramirez also sustained Province’s objections to certain

summary judgment evidence offered by Smith in her response. (CR 387-388).

vi

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested.

vii

ISSUES PRESENTED

Issue 1 – Whether the Trial Court erred when it struck evidence by Smith regarding

the well-known tendencies of the breeds (in part German Shepherd Dog and Boxer)

making up the Attack Dog.

Issue 2 – Whether the Trial Court erred when it granted summary judgment to

Province, despite the fact that Smith offered competent summary judgment evidence

(some of which Province did not oppose) indicating (a) the aggressive tendencies of

the breeds (in part German Shepherd Dog and Boxer) making up the Attack Dog, (b)

that Province permitted a hole to exist in his gate, at the main point of ingress and

egress to his property, (c) that Province knew the Attack Dog could stick its head

through the hole, and potentially could bite anyone (including a licensee such as

Smith) who came to the gate, and (d) Smith was seriously injured when the Attack

Dog in fact stuck its head through the hole, and bit her in the neck.

viii

STATEMENT OF FACTS

1. This lawsuit involves a vicious attack (the “Attack”) by one of

Province’s dogs upon Smith. (C.R. 7-39; Plaintiff’s Original Petition). On January

4, 2016, Smith was working for United Parcel Service (“U.P.S.”). Id. Smith was a

temporary, holiday season employee for U.P.S., but was working with an

experienced driver. Id.

2. Smith and her co-worker were dispatched to Province's home in Ponder

to deliver a package. (C.R. 7-39; Plaintiff’s Original Petition). Smith's co-worker

warned Smith that Province kept dogs on his property. Id. To avoid any interaction

with Province's dogs, Province's wife claims “before the incident at issue, [she] told

delivery persons to put packages on the ground outside the gate/fence, and not

attempt to put them over the fence.” (C.R. 246, 274). In the Motion (but not in the

Original Motion), Province claims this instruction was given not because of the dogs’

violent tendencies, but instead because “[Province and his wife] do not like strangers

coming onto [their] property. [Province and his wife] also fear that someone opening

the gate and entering [their] property might not close and secure the gate properly

when leaving the property, thereby making it possible for [their] dogs to escape

[their] property.” (C.R. 260, 274).

3. After driving to Province's home, Smith exited the U.P.S. truck. (C.R.

285). Smith saw two dogs on Province's property, but did not see a third dog. Id.

ix

Smith set the package outside the gate, as she was instructed by her U.P.S. co-worker.

Id. Smith does not specifically recall whether she laid the package on the ground,

leaned the package against the gate post, or gently tossed the package to the ground.

Id.

4. While Smith was leaving the package outside the gate, a third dog (the

“Attack Dog”) approached. (C.R. 285). Without any warning, the Attack Dog stuck

its head through an opening in the gate, and bit Smith in the neck. Id. No one knows

precisely why the Attack Dog acted this way, but Smith (who was the only person in

direct proximity with the Attack Dog) has testified “the [Attack Dog] obviously

wanted the package or wanted some type of toy or something. It was a little bit

aggressive more than the norm. So it made a point of coming through the fence

more than like a worst-case scenario.” Id.

5. Unfortunately, the Attack was both foreseeable and preventable. The

Attack Dog is a large dog, weighing approximately 100 pounds. The Attack Dog is

a mixed breed dog, comprised primarily of German Shepherd Dog and Boxer. (C.R.

299-304; see DNA Analysis, a copy of which is attached as Exhibit A to the

Response). Statistically, these dogs are extraordinarily dangerous. (C.R. 306-307;

see 14 Dog Breeds Blacklisted by Insurance Companies [Psychology Today, May

27, 2014], a copy of which is attached as Exhibit B to the Response). In fact,

according to Forbes and Dog’s World, the German Shepherd Dog is the fourth most

x

dangerous breed, and the Boxer is the eighth most dangerous breed. (C.R. 308-322;

see Exhibits C and D to the Response). This does not mean that a particular dog of

these breeds may be vicious; it does mean, however, that these breeds present a

heightened risk, requiring greater care.

6. At very little time or expense, Province could have protected Smith

from the Attack Dog, but chose not to do so. Province has a wire fence around his

property, with a gate at the primary point of ingress/egress. (C.R. 358-359; see T.

Province Depo [excerpts of which are attached as Exhibit F to the Response] at p.

33, l. 17 to p. 34, l. 8). There are gaps in the gate. Id. Province knew there were

openings in the gate “large enough for a dog that felt threatened, like [the Attack

Dog], to stick its nose through.” Id.

7. Province and his wife have several dogs, some of which are “outside”

dogs. In order to keep the smaller dogs on Defendant’s property, he installed chicken

wire over lower gaps in the gate. (C.R. 353-354; see T. Province Depo [excerpts of

which are attached as Exhibit F to the Response] at p. 28, l. 21 to p. 29, l. 8).

However, he did not cover the entire gate with chicken wire because “that’s just how

much wire [he] had at the time." Id. Had he done so, the Attack Dog would not

have been able to stick his snout through the gate, and would not have been able to

bite Smith.

xi

8. Province's indifference to the public's safety is clearly shown by his

actions following the Attack. During his deposition, Smith's counsel asked Province

what repairs, if any, he made to the gate after the Attack:

Q. Sir, since the time of the [Attack], have you made any changes to

the gate?

A. No.

Q. You haven't put chicken wire all the way up?

A. No.

Q. So if someone came to the gate and dropped a package again,

this same thing, [the Attack Dog] could bite that person again?

A. I – I have no expectation that that would happen at all.

Q. But it would be possible.

A. It would be, in my opinion, monumentally improbable, but not

impossible.

(C.R. 368; see T. Province Depo [excerpts of which are attached as Exhibit F to the

Response] at p. 43, ll. 1-14).

xii

SUMMARY OF ARGUMENT

Issue 1 – Smith respectfully submits that this Court should reverse and remand

because the Trial Court erred when it struck evidence by Smith regarding the well-

known tendencies of the breeds (in part German Shepherd Dog and Boxer)

comprising the Attack Dog.

Issue 2 – Smith respectfully submits that this Court should reverse and remand

because the Trial Court erred when it granted summary judgment to Province,

despite the fact that Smith offered competent summary judgment evidence (some of

which Province did not oppose) indicating (a) the aggressive tendencies of the breeds

(in part German Shepherd Dog and Boxer) comprising the Attack Dog, (b) that

Province permitted a hole to exist in his gate, at the main point of ingress and egress

to his property, (c) that Province knew the Attack Dog could stick its head through

the hole, and potentially could bite anyone (including a licensee such as Smith) who

came to the gate, and (d) Smith was seriously injured when the Attack Dog in fact

stuck its head through the hole, and bit her in the neck.

xiii

STANDARD OF REVIEW

Issue 1 – This Court reviews a trial court's decision on the admission

of evidence under an abuse of discretion standard. Yzaguirre v. KCS Res., Inc., 47

S.W.3d 532, 543 (Tex. App.-Dallas 2000), aff'd, 53 S.W.3d 368, 44 Tex. Sup. Ct. J.

973, 44 Tex. Sup. Ct. J. 1122 (Tex. 2001); LSR Joint Venture No. 2 v. Callewart, 837

S.W.2d 693, 698 (Tex. App.-Dallas 1992, writ denied) (op. on reh'g). To obtain

reversal of a judgment based on the admission or exclusion of evidence, the

appellant must show the trial court's ruling was in error and the error probably caused

the rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1); Gee v. Liberty

Mut. Fire Ins. Co., 765 S.W.2d 394, 396, 32 Tex. Sup. Ct. J. 217 (Tex. 1989).

Issue 2 – This Court reviews summary judgment de novo. Rucker v. Bank One Texas,

N.A., 36 S.W.3d 649, 653 (Tex. App.--Waco 2000, pet. denied) (citing Sasser v.

Dantex Oil & Gas, Inc., 906 S.W.2d 599, 602 (Tex. App.--San Antonio 1995, writ

denied)) . This Court applies the same standard in reviewing a no-

evidence summary judgment as it would in reviewing a directed verdict. Robinson

v. Warner-Lambert Co., 998 S.W.2d 407, 410 (Tex. App.--Waco 1999, no pet.)

. This Court reviews the summary-judgment evidence in the light most favorable to

the nonmovant, disregarding all contrary evidence and inferences. Id. A no-

evidence summary judgment will be defeated if the non-movant produces more than

xiv

a scintilla of probative evidence to raise a genuine issue of material fact on the

elements challenged by the movant. Moore v. K Mart Corp., 981 S.W.2d 266, 269

(Tex. App.--San Antonio 1998, pet. denied) .

xv

ARGUMENT

I. This Court should reverse and remand because the Trial Court erred

when it struck evidence offered by Smith regarding the well-known tendencies

of the breeds (German Shepherd Dog and Boxer) making up the Attack Dog.

1. One of the primary issues in this lawsuit is whether the Attack Dog had

vicious tendencies prior to the Attack. In order to demonstrate the Attack Dog’s

“peacefulness,” Province offered (a) a picture of the Attack Dog lying next to a cat

and (b) affidavits of Province and his wife stating “[the Attack Dog] has no vicious

tendencies and had never bitten anyone before the incident at issue.” (CR 259-260,

274-275; see Affidavit of Terry Province [Motion at Exh. A] [emphasis added] and

Affidavit of Renee Province [Motion at Exh. D] [emphasis added]).

2. Plaintiff objected to the Affidavits of Terry Province and Renee

Province on the grounds they are self-serving and conclusory. (C.R. 288-289).

Under Texas law, a self-serving affidavit (i.e. an affidavit offered by a person with

an interest in the outcome of the lawsuit) can be admissible summary judgment

evidence, but must contain statements that may be confirmed or denied by

independent evidence. Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.

1997); Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989)Similarly, conclusory

statements in affidavits are not proper summary judgment evidence if there are no

facts to support the conclusions. El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360,

366 (Tex. App.—Dallas 2005, no pet.) ; Dolcefino v. Randolph, 19 S.W.3d 906, 930

1

(Tex. App.—Houston [14th Dist.] 2000, pet. denied) (op. on reh'g).

3. In order to refute Province’s unsupported (and self-serving) contention

that he was unaware of any “vicious tendencies” the Attack Dog might have, Smith

offered internet articles regarding the well-known tendencies of German Shepherd

Dogs and Boxers. (C.R. 305-322; Response at Exhs. B, C, and D). Province

objected to these articles, claiming they were hearsay. (C.R. 375-384). The Trial

Court sustained these objections, and struck Exhibits B, C, and D from the Response.

(C.R. 387-388).

4. Under Texas law, an out-of-court statement constitutes hearsay if it is

used to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Exhibits B, C,

and D are not hearsay for the simple reason that they are not offered to prove that

German Shepherd Dogs and Boxers in fact are hyper-aggressive breeds. Instead,

these Exhibits are offered to demonstrate that it is common knowledge that members

of these breeds may have aggressive traits. In this way, Exhibits B, C, and D speak

to the breeds’ “reputation.” “Reputation” is an exception to the general rule

regarding hearsay. TEX. R. EVID. 803(21).

5. German Shepherd Dogs’ and Boxers’ “reputation” for aggressiveness

is relevant to Smith’s negligence claims in this lawsuit. Smith has called into

question whether Province acted as a reasonable and responsible property owner

when he intentionally left large holes in the gate to his property – holes large enough

2

that the Attack Dog could stick her head through them. If the Attack Dog had been

a teacup poodle, Province could argue persuasively that such breed’s reputation for

aggressiveness (i.e. none) negated the need for any special care to protect invitees.

The converse of such an argument is equally true; if the Attack Dog’s breeds had a

reputation for aggressiveness, Province should have taken that reputation into

account in deciding how to maintain his gate. In that Exhibits B, C, and D were

offered to show the common belief that German Shepherd Dogs and Boxers may be

aggressive breeds, and not to actually prove the truth of such beliefs, these Exhibits

should not have been stricken from the summary judgment record.

6. However, even if this Court were to sustain the Trial Court’s evidentiary

ruling, the summary judgment record still contains evidence of the Attack Dog's

aggressiveness. For example, the DNA report (to which Province did not object)

states "[t]here have been reported incidents of German Shepherd Dogs being

aggressive with other pets or people." (C.R. 301; Response at Exh. A). Likewise,

the DNA report states that Boxers have a "[t]endency to jump up on people . . . ."

(C.R. 302; Response at Exh. A). The DNA report (which was produced by Province

in the course of discovery) is dated April 11, 2011 – before the Attack. Id. As such,

the DNA report confirms not simply that a German Shepherd Dog/Boxer mix has

well-known aggressive tendencies, but that Province himself was aware of such

tendencies before the Attack.

3

Issue 2 – This Court should reverse and remand because the Trial Court erred

when it granted summary judgment to Province, despite the fact that Smith

offered competent summary judgment evidence (some of which Province did

not oppose) indicating (a) the aggressive tendencies of the breeds (in part

German Shepherd Dog and Boxer) comprising the Attack Dog, (b) that

Province permitted a hole to exist in his gate, at the main point of ingress and

egress to his property, (c) that Province knew the Attack Dog could stick its

head through the hole, and potentially could bite anyone (including a licensee

such as Smith) who came to the gate, and (d) Smith was seriously injured when

the Attack Dog in fact stuck its head through the hole, and bit her in the neck.

7. Texas adheres to the so-called “one bite” rule with respect to dog bites.

Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974). This name is misleading. A dog

owner is not free of liability the first time his or her dog attacks a person. Instead,

as the court noted in Lewis v. Great Southwestern Corporation, 473 S.W.2d 228, 230

(Tex.Civ.App.—Fort Worth 1971, writ ref’d n.r.e.) (emphasis added), “the owner of

the dog is not liable for injuries caused by it, unless it is vicious and knowledge or

constructive knowledge of that fact is shown or brought home to the owner.” In other

words, if a man knows or should know that his best friend has vicious tendencies,

that man cannot escape liability simply because his dog has not yet hurt someone.

See Rodriguez v. Haddock, 2003 WL 1784923 at *2 (Tex.App.—Fort Worth, April

3, 2003, no pet.) (emphasis added).

8. As recently recognized in Stein v. Reger, 2016 Tex. App. LEXIS 5961,

2016 WL 3162589 (Tex. App.—Houston [1st Dist.] 2016), a dog’s breed can have a

direct impact on whether a homeowner is liable for an attack. In Stein, as in this

4

case, the plaintiff was a U.P.S. worker who was attacked by a German Shepherd.

Although the defendants kept the German Shepherd in a fenced area, the dog jumped

the fence and attacked the plaintiff. The defendants filed a Motion for Summary

Judgment, including affidavits stating that the dog never had bitten anyone before,

and had not previously attempted to jump the fence. Based in part on the defendants’

statements that they “could never have anticipated that [the dog] may have been able

to jump the fence,” the court granted the defendants’ traditional and no-evidence

Motion for Summary Judgment.

9. Even if a dog is not vicious, its owner may be liable for injuries the dog

causes “if the plaintiff can prove the owner’s negligent handling or keeping of the

animal caused the injury.” Labaj v. VanHouten, 322 S.W.3d 416, 420 (Tex. App.—

Amarillo 2010, no pet.); see Dunnings v. Castro, 881 S.W.2d 559, 563 (Tex. App.—

Houston [1st Dist.] 1994, writ denied) (“an owner of a dog may be liable for injuries

caused by the dog even if the animal is not vicious, if the plaintiff can prove that the

owner's negligent handling of the animal caused the animal to injure the plaintiff”).

“Unlike strict liability claims, to prevail in a negligence action the plaintiff does not

have to prove that the animal was vicious or dangerous.” Muela v. Gomez, 343

S.W.3d 491, 496 (Tex. App.—El Paso 2011, no pet.); see Dunnings, 881 S.W.2d at

562 (although finding of viciousness is necessary in strict-liability claim, it is not

necessary in negligence claim). To sustain such a claim, the victim of the dog bite

5

must show: "(1) the defendant was the owner or possessor of the animal; (2) the

defendant owed a duty to exercise reasonable care to prevent the animal from

injuring others; (3) the defendant breached that duty; and (4) the defendant's breach

proximately caused the plaintiff's injury." Labaj, 322 S.W.3d at 420-21.

10. Although the Stein court found the defendant did not breach a duty to

the plaintiff, its decision is instructive in this lawsuit. "The threshold inquiry in a

negligence case is duty." Muela, 343 S.W.3d at 497. “The status of the plaintiff who

was injured on the defendant's premises determines the scope of the defendant's

duty.” Labaj, 322 S.W.3d at 421. “A mailman, like Stein, is an invitee and, thus,

the Regers had a duty to ‘exercise ordinary care to keep [their] premises in a

reasonably safe condition.’” Id.; see Dunnings, 881 S.W.2d at 563 (holding

mailman is invitee in dog-bite negligence case).

11. The extent of the duty of “ordinary care” depends to a certain degree

“on proof of whether the risk of injury from a dog bite is foreseeable, i.e., the dog

owner's actual or constructive knowledge of the danger presented by his

dog.” Labaj, 322 S.W.3d at 421 (emphasis added). To establish that a defendant

breached its duty, the plaintiff “must present evidence showing [the defendant] did

not act as a ‘reasonable prudent person’ would have acted in the same or similar

circumstances in handling the dog”:

[The plaintiff] did not proffer evidence that the

[defendants] breached any duty to [the plaintiff] by failing

6

to secure [the dog]. [The plaintiff] did not identify any

evidence that the [defendants] did not use ‘ordinary care’

in securing [their dog] behind an iron-wrought fence. In

response to the motions, [the plaintiff] did not present any

evidence concerning the height of the fence, [the dog’s]

size, the typical height a German Shepherd can jump, or

that [the dog] had previously jumped the fence. In his

brief, he makes one, conclusory statement regarding

breach: that the [defendants] breached their duty by failing

‘to ensure that [their dog], a large German shepherd, was

properly secured in her enclosure.’ This conclusory

statement does not analyze how the [defendants] breached

their duty or how the [defendants] should have secured

[their dog] beyond doing what they had already done, that

is, securing her in a fenced area.

Stein, 2016 Tex. App. LEXIS 5961 at p. 11 (emphasis added), citing Allen ex rel.

B.A. v. Albin, 97 S.W.3d 655, 666 (Tex. App.—Waco 2002, no pet.).

12. Unlike the plaintiff in Stein, Smith has offered summary judgment

evidence regarding the well-known characteristics of the dog in question. The

Attack Dog is a mixed breed dog comprised primarily of German Shepherd Dog and

Boxer. (C.R. 300-304; see DNA Analysis [Response Exh. A]). These breeds are

commonly known to be aggressive and territorial. In Forbes Magazine, German

Shepherds Dogs are ranked as the fourth most-dangerous breed, and are described

as “a powerful dog that is loyal when well-trained but can be fierce.” (C.R. 306;

Response Exh. B). Boxers likewise made the list at Number 8, and are described in

Dogs World as “Boxers are hunting dogs and they have been used as attack and

guard dogs ever since being bred! They have a powerful jaw and bite – which is

7

perfect for protection!” (C.R. 307; Response Exh. B) (emphasis added). These

statements certainly are not meant to suggest that all German Shepherds Dogs and

Boxers are vicious.1 However, a responsible pet owner cannot ignore these in-bred

traits when determining how to protect invitees such as Smith from these animals.

13. With the Attack Dog’s inbred characteristics in mind, a fact issue exists

regarding whether Province’s negligent maintenance of his gate was a cause of the

Attack. The gate to Province's property has large openings through which the Attack

Dog could place its head. (C.R. 358-359; T. Province Depo [Response Exh. F] at p.

33, l. 17 to p. 34, l. 8). Province was aware of these openings. Id. Province could

have covered these openings with chicken wire – which he did for certain openings

– but did not cover all openings for the simple fact that he ran out of wire. (C.R.

353-354; T. Province Depo [Response Exh. F] at p. 28, l. 21 to p. 29, l. 8). This

allowed the Attack Dog to poke his head outside the fence, and bite Smith. Province

should not be permitted to excuse his carelessness on the so-called “one bite rule,”

when he knew or should have known the Attack Dog might do exactly what it was

bred to do, and he gave the Attack Dog the ability to do so (by knowingly leaving an

open gap in the gate).

1

In the interest of candor, the undersigned counsel states that he personally owns a German Shepherd and a

Pit Bull mix (the most “dangerous” breed on all three attached lists). The undersigned counsel’s dogs are well-trained

and well-behaved. That said, the undersigned counsel certainly would not leave a hole in his fence such that the dogs

could bite at passers-by. These dogs are simply too powerful, territorial, and loyal for their owner to take that kind of

a chance with someone else’s life.

8

14. In addition to his traditional Motion for Summary Judgment, Province

sought a no-evidence summary judgment. (CR 255-257). The evidence attached to

Smith's Response (including excerpts from Province's deposition transcript)

establishes that Province owed a duty to protect Smith (as an invitee) from the Attack

Dog’s dangerous and in-bred (i.e. foreseeable) tendencies. This evidence also

establishes that Province breached this duty by failing to cover known openings in

the gate when he easily could have done so. Finally, this evidence establishes that

Province's breach of his duty was a proximate cause of Smith's injuries. Therefore,

for the same reasons that the trial should have denied the traditional Motion for

Summary Judgment, it likewise should have denied the no-evidence Motion for

Summary Judgment.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant KAREN LINDSEY

SMITH prays that this Court sustain both issues raised herein, reverse the Trial

Court’s summary judgment, and remand this case for trial. Appellant further prays

for such other and further relief to which she is justly entitled.

Respectfully submitted,

/s/ Mark D. Johnson

PAUL FLANNIGAN

State Bar No. 24012633

9

paul@flanniganlawfirm.com

MARK D. JOHNSON

State Bar No. 10770175

mark@flanniganlawfirm.com

FLANNIGAN & JOHNSON, P.L.L.C.

5600 Tennyson Parkway, Suite 330

Plano, Texas 75024

Phone: (972) 383-9377

Fax: (844) 287-8882

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF COMPLIANCE

I certify that the word count function on Microsoft Word indicates that this brief contains

4807 words. TEX. R. APP. P. 9.4(I)(3).

/s/ Mark D. Johnson

10

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was

served upon the following party via the means indicated on March 23, 2018:

Via E-mail and E-Service

J. Brantley Saunders

Brantley@SaundersWalsh.com

Abigail K. Christmann

Abby@SaundersWalsh.com

/s/ Mark D. Johnson

Mark D. Johnson

11

APPENDIX

FILE FOR RECORD

DENTON couuw CLERK

NOV 1 3 2017

JULI LUKE

Cause No. CV-2016-00729 __Mn_DEPUTY

KAREN LINDSEY SMITH, § IN THE COUNTY COURT

Plaintiff, §

§

v. § NO. 2

§

TERRY P. PROVINCE §

Defendant. § DENTON COUNTY, TEXAS

ORDER GRANTING DEFENDANT TERRY PROVINCE’S SECOND AMENDED

MOTION FOR SUMMARY JUDGMENT

CAME TO BE HEARD, Defendant Terry Province’s Second Amended Motion for

Summary Judgment in the above captioned matter. After reviewing the Motion, the

Response, the Reply, the competent summary judgment evidence, and the Court’s file, the

Court finds that the Motion should be Granted.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant

Terry Province’s Second Amended Motion for Summary Judgment is GRANTED. All

claims made by Plaintiff against Terry Province are hereby dismissed with prejudice. Court

costs of Terry Province are to be borne by Plaintiff, for which let execution issue.

SIGNED THIS 1

l DAY OF [Z Zl/(wh 2017.

/

JWGéKESIDING

ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 1

Page 386

FILE FOR RECORD

DENTON counw CLERK

NOV 1 3 2017

JULl LUKE

Cause No. CV-2016-00729 m’ DEPUTY

KAREN LINDSEY SMITH, § IN THE COUNTY COURT

Plaintiff, §

§

v. § NO. 2

§

TERRY P. PROVINCE §

Defendant. § DENTON COUNTY, TEXAS

ORDER ON DEFENDANT TERRY PROVINCE’S OBJECTIONS TO

PLAINTIFF ’S SUMMARY JUDGMENT EVIDENCE

CAME ON TO BE CONSIDERED, Defendant Terrjy Province ’s Objections

to Plaintiff’s Summary Judgment Evidence. After reviewing the Objections and the

evidence, the parties’ pleadings, and hearing the argument of counsel, it is the

Opinion of the Court that the Objections should be sustained, and the same hereby is

GRANTED as indicated below. The Court rules on Defendant’s objections to

Exhibit B, Exhibit C and Exhibit D Of Plaintiff’s Response to Defendant’s Second

Amended Motion for Summary Judgment as follows:

I.

Objection NO. 1: Defendant Objects to the use Of Exhibit B, in its entirety, it is

inadmissible hearsay pursuyttJ/Texas Rule of Civil Procedure 802.

Granted Denied

The Court hereby strikes Exhibit B, in its entirety, from the record.

ORDER ON DEFENDANT’S OBJECTlONS TO SUMMARY JUDGMENT EVIDENCE Page 1

Page 387

Objection No. 2: Defendant objects to the use of Exhibit C, in its entirety, it is

inadmissible hearsay pursuant to Texas Rule of Civil Procedure 802.

Granted Denied

The Court hereby strikes Exhibit C, in its entirety, from the record.

Objection No. 3: Defendant objects to the use of Exhibit D, in its entirety, it is

inadmissible hearsay pursuant to exas Rule of Civil Procedure 802.

Granted Denied

The Court hereby strikes Exhibit D, in its entirety, from the record.

JUDyy/FKKESIDING

ORDER ON DEFENDANT’S OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE Page 2

Page 388

Filed:

Filed: 10/5/2017

10/5/2017 4:58 PM

Juli Luke

Denton County,

County, County Clerk

By:

By: Sandra Erp, Deputy

Cause No. CV-2016-00729

KAREN LINDSEY SMITH, §§ IN THE COUNTY COURT

Plaintiff, §§

§§

v.

V. §§ NO. 2

§§

TERRY P. PROVINCE §§

Defendant. §§ DENTON COUNTY, TEXAS

DEFENDANT’S

DEF ENDANT’S SECOND AMENDED MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COURT:

COMES NOW Defendant, Terry Province (hereinafter

(hereinafter “the

“the Defendant”), and

and makes,

makes,

files

files and serves this Defendant’s Second Amended Motion for Summary Judgment pursuant to

Texas Rule of Civil

CiVil Procedure Rule 166a,

166a, and in support thereof would respectfully show this

Honorable Court the following:

following:

I.

FACTUAL BACKGROUND

This is an

an unfortunate dog bite case

case involving the Province’s family dog,

dog, Heidi; aa dog

that had no prior instances of biting or attacking anyone and,

and, at the time of the incident, was

inside

inside Defendant’s

Defendant’s yard,

yard, aa place

place she

she had

had aa right

right to

to be.

be. Plaintiff has alleged that Defendant was

negligent when Plaintiff was allegedly bitten by

by Heidi as

as she placed a

a UPS package at the rural

property, on or about January 4, &

4, 2016. See Plaintiff’s

Plaintz‘fj‘"s Original

Original Petition, pages 5-6.

Petition, pages

A

A dog

dog owner

owner is

is not

not negligent

negligent for

for allowing

allowing their

their dog

dog to

to run

run at

at large

large on

on the

the owner’s

owner’s own

own

property. Bushnell v.

property. v. Mott, 254 S.W.3d 451, 452 (Tex. 2008); Searcy v.

v. Brown, 607 S.W.2d 937,

937,

940-41

940-41 (Tex. Civ.

CiV. App.–Houston

Apprflouston [1st

[lst Dist.]

Dist] 1980,

1980, no writ). The owner of aa dog is

is not liable for

injuries caused

caused by

by it in aa place it has

has the right to be,

be, unless the owner knew or should have

known that the dog had vicious

Vicious propensities or aa Vicious

vicious or unruly nature. Rodriguez v.

v. Haddock,

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 11

Page 243

2003 WL 1784923

1784923 at *2 Apeort Worth, April 3,

*2 (Tex. App.–Fort 3, 2003, no pet);

pet.); Lewis v.

v. Great S.W.

SW.

Corp., 473 S.W.2d 228, 230 (Tex. Civ.

Corp, 473 Apeort Worth

CiV. App.–Fort Worth 1971,

1971, writ

writ ref’d

ref’d n.r.e.).

n.r.e.).

This

This is

is Heidi

Heidi (pictured

(pictured next

next to

to Defendant’s

Defendant’s cat):

cat):

mwmw

Heidi is aa black, seven-year-old,

seven—year—old, 100

100 pound, mixed breed dog that Defendant acquired as

as

aa puppy

puppy and has

has owned the entire time since.E

since. See ExhibitA – Affidavit of

Exhibit A iAfifidavit of Terry Province; Exhibit

,

D – Afidavit

Affidavit of of the incident, Heidi was

Renee Province. At the time of

of Renee was approximately six years

years

E

old and had lived with Defendant on the property since he got her. See id. Heidi had never bitten

anyone,

anyone, including the various delivery people that delivered packages to the property, before the

E

incident at issue. See id.

id. In fact, Heidi is normally a well-behaved dog with no Vicious

a well—behaved vicious

E

tendencies. See id. Defendant currently owns five

five dogs, of which, including Heidi, are

dogs, three of

E

mostly outdoors. See id. Defendant’s

Defendant’s dogs

dogs bark whenever someone

bark Whenever passes by the yard

someone passes yard or

approaches the gate. E

approaches the gate. See id.

Importantly, at all times relevant to the incident, Heidi was contained within

Importantly, Within the fence

& ,

and on property. See Exhibit A – Afidavir

Affidavit of

of Terry Province. Heidi had no vicious

Vicious tendencies

and Defendant had no reason to know that she posed aa danger to anyone

she posed anyone on the other side of

of the

fence or gate.&

gate. See id.

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY JUDGMENT

SUMMARY JUDGMENT PAGE 2

Page 244

It is undisputed that on January 4,

4, 2016, Plaintiff was working as

as a

a temporary, holiday

season

season employee

employee of

of United

United Parcel

Parcel Service

Service (“UPS”)

(“UPS”) and

and was

was dispatched

dispatched to

to Defendant’s

Defendant’s home

home in

in

Ponder to deliver aa package. &

package. See Plaintiff’s

Plaintz‘fj‘"s Original

Original Petition,

Petition, page 3,

3, para. 9.

9. While traveling to

Defendant’s

Defendant’s property,

property, aa fellow UPS employee advised Plaintiff that Defendant kept one or more

dogs

dogs on

on his

his property

property and

and instructed

instructed Plaintiff

Plaintiff to

to leave

leave the package by

the package by Defendant’s

Defendant’s front

front gate.

gate. See E

Plaintiff’s

Plaintz‘fj‘"s Original Petition, page 3,

Original Petition, 3, para. 10.

10.

Plaintiff admits that, upon arriving at

at Defendant’s property, she

Defendant’s property, she could

could see

see one

one or

or more

more

dogs

dogs on

on their

their feet behind Defendant’s

feet behind Defendant’s fence

fence and

and gate

gate as

as she

she approached

approached the

the gate

gate on

on foot

foot to

to

&

deliver the package. See Plaintiff’s Responses to

Plaintz‘fj‘"s Responses Defendant’s’5 Requests

to Defendant for Admission,

Requests fbr Admission, Nos. 11 and

2. Plaintiff says

says that, at first

first she

she noticed two dogs close behind the gate,

gate, later becoming aware of

E

aa third. See Exhibit B –7 Plaintiff’s

Plaintiff’s Depo

Depo Excerpts,

Excerpts, 48:11-49:10.

48:11-49:10. The third dog that Plaintiff

&

claims appeared later was black, and is the one that allegedly bit her. See Exhibit B –7 Plaintiff’s

Plaints’s

147:3-11. Plaintiff agrees that she

Depo Excerpts, 147:3-11. she didn’t

didn’t look

look specifically

specifically at

at the

the gate

gate to

to

Defendant’s

Defendant’s property,

property, and

and wasn’t

wasn’t paying

paying close enough attention to the gate to notice that it had

metal slats with openings in it wide

Wide enough for aa dog to stick its nose through or that the dogs

& – Plaintz‘fj‘"s

were close to the gate. See Exhibit B 7 Plaintiff’s Depo

Depo Excerpts,

Excerpts, 126:4-127:11.

126:4-127:1 1.

The gate to Defendant’s

Defendant’s property is recessed approximately aa foot behind the fence line

on the property. & A –7 Affidavit

property. See Exhibit A of Terry Province; Exhibit C 7– Affidavit of

Affidavit of of Eric

&

– Survey. The fence itself is at or behind the actual property line. See id.

Zollinger; Exhibit C-1 7

Photographs

Photographs attached

attached to

to Defendant’s

Defendant’s affidavit

affidavit as

as Exhibit A-2, accurately depicts the fence and

& – Affidavit of

gate. See Exhibit A 7

gate. of Terry Province; Exhibit A-2 –7 Photograph of Defendant’s

ofDefendant’s

Property.

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 33

Page 245

Defendant’s

Defendant’s wife

Wife told

told delivery

delivery people, including UPS,

UPS, to leave packages outside the gate.

&

See Exhibit D 7– Affidavit

Affidavit of

of Renee Province. Defendant and his wife generally do not like

Renee and his do

strangers coming onto their property.

strangers E Exhibit A –7 Affidavit ofof Terry Province; Exhibit D –7

property. See A

Affidavit of

Affidavit Renee Province. Additionally, Defendant and his wife fear that someone opening the

ofRenee

gate and entering the property might not close and secure the gate properly when leaving,

&

thereby making it possible for their dogs to escape their property. See id. None of Defendant’s

Defendant’s

dogs has

has ever attacked, chewed, or in any

any way damaged aa package or piece of mail left at their

E

property. See id. The package that Plaintiff delivered on the date of the incident contained printer

property.

E – Affidavit

ink. See Exhibit D 7

ink. Affidavit of Renee Province.

ofRenee Province.

II.

SUMMARY OF ARGUMENT

Defendant is entitled to summary judgment on Plaintiff’s claims for negligence because:

1.

1. Heidi was within her fenced in yard,

yard, aa place she had aa right to be.

be. She had no

dangerous tendencies and,

and, therefore, Defendant was certainly not aware of

dangerous propensities or vicious

Vicious tendencies. Because Heidi biting Plaintiff was

not foreseeable,

foreseeable, Defendant cannot be liable. Defendant’s

be liable. Defendant’s summary judgment

summary judgment

evidence affirmatively

affirmatively disproves that Defendant owed or breached any duty

allegedly owed to Plaintiff or that Defendant was the proximate cause of

Plaintiff’s

Plaintiff’ s injuries.

injuries. Defendant acted as

as a

a reasonable prudent person under the

circumstances and,

and, therefore, is not liable to Plaintiff for her injuries.

Alternatively, Plaintiff cannot produce sufficient

sufficient evidence on these issues

issues to

create aa fact issue,

issue, as

as no such evidence exists.

2. As “the

“the existence

existence of

of negligent

negligent conduct

conduct is

is aa prerequisite

prerequisite to

to the

the establishment

establishment of

of

gross negligence,” Defendant cannot be

be found to have been

been grossly negligent

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 4

Page 246

because he did not act negligently at all.

because g

See In re J.H.

J.H. Walker, Inc., 2016 Tex.

Walker, Inc,

(AppiDallas Jan. 15,

App. LEXIS 483 (App.—Dallas 15, 2016). Further, Defendant did not

consciously disregard any

any extreme risk with regard to Plaintiff and,

and, therefore, was

not grossly negligent.

3.

3. Plaintiff has

has insufficient or no evidence to establish that Defendant knew or

should have known that Heidi had any

any dangerous propensities or that the incident

was foreseeable. Therefore, Plaintiff has

was has insufficient or no evidence that

Defendant owed or breached any

any duty allegedly owed to Plaintiff or that

Defendant’s

Defendant’s alleged

alleged breach caused the damages of which Plaintiff complains.

Therefore,

Therefore, Summary

Summary Judgment

Judgment is

is requested

requested as

as to

to all

all of

of Plaintiffs’

Plaintiffs’ claims.

claims.

III.

SUMMARY JUDGMENT EVIDENCE

In support of the Motion for Summary Judgment, Defendant relies on all pleadings and

discovery produced in this case,

case, including but not limited to the following Exhibits which are

attached hereto and fully incorporated herein by this specific

specific reference:

reference:

Exhibit A: Affidavit

Affidavit ofof Terry Province

A-l:

Exhibit A-1: Photograph of Heidi

Exhibit A-2: Photograph

Photograph ofof Defendant’s

Defendant’s Property

Property

Exhibit B: Plaintiff

Plaintiff Karen

Karen Lindsey

Lindsey Smith’s

Smith’s Deposition

Deposition Excerpts

Excerpts

Exhibit C: Affidavit

Affidavit ofof Eric Zollinger

C-l:

Exhibit C-1: Survey

Survey of

of Defendant’s

Defendant’s Property

Property

Exhibit D: Affidavit

Affidavit ofof Renee Province

IV.

TRADITIONAL MOTION FOR SUMMARY JUDGMENT STANDARD

A

A defendant

defendant is

is entitled

entitled to

to summary judgment on

summary judgment on aa plaintiff’s

plaintiff’s cause

cause of

of action

action if the

the

defendant

defendant can

can disprove

disprove at

at least

least one

one element

element of

of the

the plaintiff’s

plaintiff’s cause

cause of

of action

action as

as a

a matter

matter of

of law.

law.

Henkel v.

v. Norman, 441

441 S.W.3d 249,

249, 251

251 (Tex. 2014);

2014); Boerjan

Boeijan v.

v. Rodriguez, 436 S.W.3d 307,

307,

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 55

Page 247

310 (Tex. 2014); Nall v.

v. Plunkett, 404 S.W.3d 552, Randall’s Food

552, 555 (Tex. 2013); Randall’s Mkts, Inc.

Food Mkts, Inc.

v.

v. Johnson, 891

891 S.W.2d 640,

640, 644 (Tex. 1995);

1995); see

see Tex. R. Civ.

CiV. P.

P. 166a(c).

166a(c). Once aa defendant

produces sufficient

sufficient evidence to establish the right to summary judgment, the burden shifts to aa

plaintiff to come forward with competent controverting evidence raising aa genuine issue of

material fact with regard to the element challenged by aa defendant. Centeq Realty,

Realty, Inc.

Inc. v.

v. Siegler,

899 S.W.2d 195,

195, 197

197 (Tex. 1995).

1995). A defendant is entitled to summary judgment on an

an

affirmative

affirmative defense if the defendant conclusively proves all the elements of the affirmative

affirmative

defense. Rhone-Poulenc, Inc. v.

Rhone-Poulenc, Inc. v. Ramirez, 997 S.W.2d 217, 223 (Tex. 1999).

1999). The defendant must

present summary judgment evidence that establishes each element of the affirmative

affirmative defense as

as a

a

matter of law. Ryland Group,

oflaw. Inc. v.

Group, Inc. v. Hood, 924 S.W.2d 120,

120, 121

121 (Tex. 1996).

1996).

V.

PLAINTIFF ’S CLAIMS

TRADITIONAL MOTION FOR SUMMARY JUDGMENT FOR PLAINTIFF’S

In order to prove that Defendant was negligent, Plaintiff must prove:

prove:

1.

1. Defendant was the owner or the possessor of the animal;

2.

2. Defendant owed a a duty to exercise reasonable care to prevent the animal from

injuring others;

3.

3. Defendant breached that duty;

duty; and

4. Defendant’s breach

4. Defendant’s breach proximately

proximately caused

caused Plaintiff’s

Plaintiff’s injury

injury

Labaj v.

v. VanHouten,

VanHouten, 322 S.W.3d 416, 420-21

420-21 (Tex. App.–Amarillo

ApprAmarillo 2010, no pet);

pet.);

Thompson v.

v. Curtis, 127

127 S.W.3d 446, 451

451 (Tex. App.–Dallas

ApprDallas 2004, no pet);

pet.); Allen ex

ex rel. B.A. v.

rel. BA. v.

Albin, 97 S.W.3d 655, Apeaco 2002, no pet.).

655, 660 (Tex. App.–Waco pet).

Defendant’s summary judgment evidence disproves that Defendant breached aa duty to

Plaintiff or that any

any alleged breach by

by Defendant was the proximate cause of Plaintiff’s injury.

And, because “the

“the existence of negligent conduct is aa prerequisite to the establishment of gross

&

negligence,” Plaintiff cannot establish that Defendant was grossly negligent. See In re J.H.

J.H.

Walker, (AppiDallas Jan.

Inc., 2016 Tex. App. LEXIS 483 (App.—Dallas

Walker, Inc, 15, 2016). Defendant’s

Jan. 15, Defendant’s summary

summary

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 66

Page 248

judgment evidence further affirmatively

affirmatively disproves that Defendant consciously disregarded an

extreme risk by

by leaving Heidi outside, enclosed within

Within his property.

A. Heidi was on

on Defendant’s

Defendant’s Property

Property at

at the

the Time

Time of

of the

the Incident;

Incident; Defendant

Defendant Did Not

Know that Heidi had Vicious Propensities or a Vicious or

0r Unruly Nature.

In

In Texas,

Texas, absent

absent some

some showing

showing that

that the

the dog

dog was

was aa “dangerous

“dangerous dog,”

dog,” aa dog

dog owner

owner is

is not

not

liable for simply allowing his dogs to be contained within &

Within his fenced-in yard. See Bushnell v.

v.

Mott, 254 S.W.3d 451, 452 (Tex. 2008); Searcy v.

v. Brown, 607 S.W.2d 937,

937, 940-41

940-41 (Tex. Civ.

CiV.

App.–Houston

Apprflouston [1st

[lst Dist.]

Dist] 1980,

1980, no writ). Furthermore,

Furthermore, the owner of aa dog is not liable for

injuries caused by

by it in aa place it has

has the right to be,

be, unless the owner knew or should have

known that the dog had vicious

Vicious propensities or aa Vicious

vicious or unruly nature. Rodriguez v.

v. Haddock,

2003 WL 1784923

1784923 at *2 Apeort Worth, April 3,

*2 (Tex. App.–Fort 3, 2003, no pet);

pet.); Lewis v.

v. Great S.W.

SW.

Corp.,

Corp, 473 S.W.2d 228, 230 (Tex. Civ. Apeort Worth

CiV. App.–Fort Worth 1971,

1971, writ

writ ref’d n.r.e.).

n.r.e.).

The facts and controlling case

case law in this case

case are clear, and reasonable minds could not

differ

differ in

in applying

applying them,

them, so

so summary judgment in

summary judgment in Defendant’s

Defendant’s favor,

favor, the

the equivalent

equivalent of

of an

an

instructed verdict at trial, is proper. At the time of the incident, Heidi was enclosed Within

within aa

fence on

on Defendant’s property, aa place

Defendant’s property, &

be. See Exhibit A 7– Affidavit

place she has aa right to be. Affidavit of

of Terry

– Affidavit

Province; Exhibit C 7 Affidavit of Eric Zollinger; Exhibit C-1 7– Survey.

ofEric Survey. Heidi had never bitten

anyone before the incident at issue in this case,

case, so

so Defendant neither knew nor should have

known the dog was vicious E A 7– Affidavit

Vicious or unruly. See Exhibit A Affidavit of

of Terry Province. In fact, Heidi

was neither vicious

Vicious nor unruly, but professionally-trained and normally well-behaved. &

well-behaved. See id.

As

As Defendant’s

Defendant’s summary judgment evidence

summary judgment evidence affirmatively

affirmatively shows,

shows, Heidi was,

was, at all

relevant

relevant times,

times, enclosed within Defendant’s

enclosed within Defendant’s property,

property, in

in aa place

place she

she had

had aa right

right to

to be.

be. Heidi is

is

not vicious

Vicious and Defendant did not know that Heidi would bite anyone

anyone as

as she

she had never bitten

anyone

anyone in the approximately six years

years he owned her prior to the incident.

incident. Defendant cannot be

be

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 77

Page 249

held

held liable

liable for

for Plaintiff’s

Plaintiff’s injuries under these

injuries under these circumstances.

circumstances. And, although Plaintiff has

has not

plead premises

plead premises liability,

liability, Defendant’s

Defendant’s lack

lack of

of knowledge

knowledge of

of any

any dangerous propensities by

dangerous propensities by Heidi

Heidi

&

also precludes liability on aa premises liability theory.

theory. See Keetch v.

v. Kroger Co.,

Ca, 845 S.W.2d 262,

264 (Tex. 1992)

1992) (elements of premises liability). Therefore, Defendant requests that this court

grant

grant its

its Motion

Motion for

for Summary

Summary Judgment

Judgment as

as to

to all

all of

of Plaintiff’s

Plaintiff’s claims.

claims.

B. Defendant Did Not Owe Any Duty to Plaintiff.

In

In dog

dog bite

bite cases,

cases, the

the existence

existence of

of aa duty

duty “depends

“depends to

to some

some degree

degree on proof of

on proof of whether

Whether

the

the risk

risk of

of injury

injury from

from aa dog bite is

dog bite is foreseeable,

foreseeable, i.e.,

i.e., the

the dog

dog owner’s

owner’s actual

actual or

or constructive

constructive

knowledge

knowledge of

of the

the danger presented by

danger presented by his

his dog.”

dog.” Labaj, 322 S.W.3d at 421. In other words,

Defendant

Defendant “should

“should not

not be

be held

held responsible

responsible for

for the

the consequences

consequences of

of an

an act

act that

that cannot

cannot be

be

reasonably

reasonably foreseen.” Id.

foreseen.” Id.

This incident, however, was not foreseeable.

foreseeable. Defendant did not know that allowing his

dogs,

dogs, including Heidi, to be on his property within

Within an enclosed fence presented any

any danger. It

was certainly not foreseeable that Heidi would attempt to bite someone on the other side of the

fence as

as Defendant was not aware that Heidi had any vicious propensities or tendencies. See

any Vicious E

A –7 Affidavit

Exhibit A Affidavit of

of Terry Province.

Province. To the contrary, Heidi had never bitten anyone prior to

&

this incident and was normally aa well-behaved dog. See id. The risk Heidi would bite someone

on the other side of the fence or gate while

While secured within Defendant’s

secured Within Defendant’s yard

yard was

was not

not foreseeable

foreseeable

and,

and, therefore, Defendant did not owe any

any duty to Plaintiff. To impose aa duty on every owner of

non-Vicious dog to tie up the

aa non-vicious the dog

dog on

on the

the owner’s

owner’s own

own fenced-in property or to install chicken

wire over the Whole

Wire whole fence surrounding his property to protect passersby

passersby is

is not and should not be

be

the public policy of the State

State of Texas.

Texas.

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 88

Page 250

C. Defendant Did Not Breach Any Duty Allegedly Owed to Plaintiff.

A dog owner only has

has a

a general duty to exercise reasonable care to avoid foreseeable

&

injury to others. See Kehler v. AppiFort Worth 1996,

v. Eudaly, 933 S.W.2d 321, 330 (Tex. App.—Fort 1996, writ

denied). Therefore, Defendant

Defendant is

is simply

simply required

required to

to act

act as

as a

a “reasonable

“reasonable prudent person” would

prudent person” would

“under

“under same

same or

or similar

similar circumstances

circumstances regarding

regarding any

any reasonably

reasonably foreseeable

foreseeable risk.” Allen v.

v. Albin,

97 S.W.3d 655,

655, 666 (Tex. App—Waco

App7Waco 2002) (citing Colin v.

v. Red Steel Co.,

Ca, 682 S.W.2d 243,

245 (Tex. 1984)).

1984)).

As has already been established, this incident was not foreseeable.

foreseeable. Defendant was not

aware that allowing his dogs,

dogs, including Heidi, to be on his property Within

within an

an enclosed fence

presented any

any danger. It was certainly not foreseeable that Heidi would attempt to bite someone

on the other side of the fence or gate as

as Defendant was not aware that Heidi had any

any vicious

Vicious

propensities or tendencies. E A 7– Affidavit

tendencies. See Exhibit A Affidavit of

of Terry Province.

Province. To the contrary, Heidi

&

had never bitten anyone prior to this incident and was normally aa well-behaved dog. See id. The

risk Heidi would bite someone on the other side of the fence or gate while

While secured within

Within

Defendant’s yard was

Defendant’s yard was not

not foreseeable

foreseeable and,

and, therefore,

therefore, Defendant

Defendant did

did not breach any

any duty

allegedly owed to Plaintiff.

By keeping his dogs,

dogs, including Heidi, enclosed Within

within his property, Defendant acted as

as a

a

reasonably prudent person would have under the same or similar circumstances.

circumstances. Because

Defendant could not have foreseen that Heidi would bite someone on the other side of the fence,

Defendant

Defendant should

should not be held

not be held responsible

responsible for

for Plaintiff’s

Plaintiff’s injuries

injuries and,

and, therefore,

therefore, summary

summary

is requested and proper on all of Plaintiff’s

judgment is Plaintiff’s claims.

claims.

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 99

Page 251

D. Defendant’s

Defendant’s Actions

Actions or Inactions Did

Did Not

Not Cause

Cause Plaintiff’s

Plaintiff’s Injuries.

Injuries.

Proximate cause requires that two elements be

be present:

present: (1)

(1) cause in fact, and (2)

(2)

foreseeability.

foreseeability. Western Invs. v.

Western Invs. v. Urena,

Urena, 162

162 S.W.3d 547,

547, 551

551 (Tex. 2005); [HS

IHS Cedars Treatment

Ctr.

Ctr. v.

v. Mason, 143

143 S.W.3d 794,

794, 798 (Tex. 2004); D.

D. Houston, Inc. v.

Houston, Inc. v. Love, 92 S.W.3d 450, 454

(Tex. 2002).

2002). The test for cause-in-fact is Whether

whether the negligent act or omission was

was aa substantial

factor in bringing about injury and whether the injury would have occurred Without

without the act or

omission. Del Lago Partners v.

v. Smith, 307 S.W.3d 762,

762, 774 (Tex. 2010); Western

Western Invs., 162

162

S.W.3d at 551; [HS

IHS Cedars Treatment Ctr., 143

143 S.W.3d at 799. There is no cause-in-fact when

the

the defendant’s

defendant’s negligence

negligence did

did nothing

nothing more

more than

than furnish

furnish aa condition

condition that

that made

made the

the injury

injury

possible. [HS

possible. IHS Cedars Treatment Ctr., 143

143 S.W.3d at 799. To prove foreseeability, Plaintiff must

establish that aa person of ordinary intelligence should have anticipated the danger created by the

negligent act or omission. Doe v. Boys Clubs, 907 S.W.2d 472, 478 (Tex. 1995).

v. Boys 1995).

Defendant was not the proximate cause of Plaintiff’s

Plaintiff’s injuries.

injuries. As

As has been established,

has been established,

Defendant could not have foreseen that anyone on the outside of the fence or gate,

gate, including

Plaintiff, would have been bitten by Heidi. Defendant was not aware that Heidi had any vicious

any Vicious

E A 7– Affidavit of

propensities or dangerous tendencies. See Exhibit A of Terry Province. To the

contrary, Heidi had never bitten anyone prior to this incident and was normally aa well-behaved

&

dog. See id. Defendant could not have anticipated that leaving the dogs,

dogs, including Heidi,

enclosed on his property by aa fence would have created any

any danger to those on the other side of

the fence.

Defendant’s

Defendant’s summary judgment evidence

summary judgment evidence affirmatively

affirmatively disproves

disproves that

that Defendant was the

Defendant was the

proximate cause

proximate cause of

of Plaintiff’s

Plaintiff’s injuries.

injuries. As aa result, Defendant requests that this Court grant this

Motion

Motion for

for Summary

Summary Judgment

Judgment as

as to

to Plaintiff’s

Plaintiff’s claims

claims against

against Defendant.

Defendant.

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 10

Page 252

E. Defendant Did Not Consciously Disregard Any Extreme Risk.

Gross negligence is an

an act or omission that, when viewed

Viewed objectively from the standpoint

of the actor at the time of its occurrence, involves an

an extreme degree of risk, and of which the

actor has

has actual, subjective awareness of the risk involved but nevertheless proceeds with

With

conscious indifference to the rights, safety,

safety, or welfare of others. See T &

EX. C

TEX. IV. P

CIV. RAC. & R

PRAC. EM.

REM.

C ODE § 41.001(11);

CODE§ 41.00101); U-Haul Int’l v.

U-Haullnt’l v. Waldrip,

Waldrip, 380 S.W.3d 118,

118, 137

137 (Tex. 2012); Columbia Med.

Med.

Ctr.

Ctr. v.

v. Hogue,

Hague, 271

271 S.W.3d 238, 248 (Tex. 2008); Fairfield

Fairfield Ins.

Ins. v.

v. Stephens Martin Paving,

Paving, LP,

246 S.W.3d 653,

653, 657 (Tex. 2008); Coastal Transp.

Transp. Co.

Co. v.

v. Crown Cent. Pet. Corp.,

Cent. Pet. Corp, 136

136 S.W.3d

227, 231

231 (Tex. 2004).

To

To establish

establish gross

gross negligence,

negligence, “the act

act or

or omission

omission complained

complained of

of must

must depart

depart from

from the

the

ordinary standard of care to such an

an extent that it creates an

an extreme degree of risk of harming

others.”

others.” Hogue,

Hague, 271

271 S.W.3d at 248. An extreme degree of risk is more than aa remote possibility

of injury or even aa high probability of minor harm; it is the likelihood of serious injury to the

E

plaintiff. See Mobil Oil Corp.

Corp. v.

v. Ellender, 968 S.W.2d 917, 921

921 (Tex. 1998).

1998). To prove that aa

defendant had actual, subjective awareness of the risk but proceeded with

With conscious indifference,

the plaintiff must show the defendant knew of the risk but acted anyway. &

anyway. See id. This conscious

indifference refers to the rights, safety, &

safety, or welfare of others. See id.

Here, Defendant was not aware of any risk associated with

With allowing his dogs,

dogs, including

Heidi,

Heidi, to

to roam

roam Defendant’s property within

Defendant’s property Within an

an enclosed

enclosed fence.

fence. As

As has

has been

been established,

established,

Defendant did not know that Heidi had any vicious propensities or tendencies.

any Vicious & –

tendencies. See Exhibit A 7

Affidavit of

Affidavit of Terry Province. To the contrary, Heidi had never bitten anyone

anyone prior to this incident

&

and was normally well-behaved. See id. Furthermore, Defendant did not act with

With conscious

indifference

indifference to

to anyone’s

anyone’s rights,

rights, safety

safety or

or welfare,

welfare, including

including Plaintiff.

Plaintiff. Defendant

Defendant kept

kept his dogs,

dogs,

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 11

11

Page 253

&

including Heidi, contained in aa fence surrounding his property. See id. Defendant did not depart

from the ordinary standard of care by keeping his pet dogs,

dogs, including Heidi, enclosed in aa fence

on his property.

property.

Because Defendant was unaware of any

any risks involved in leaving Heidi inside his fenced-

in yard and did not act With

with conscious disregard of any

any alleged risk, Defendant simply could not

have anticipated that anyone,

anyone, including Plaintiff, would have been

been bitten by

by Heidi from behind

the fence or gate. Therefore, Defendant was not grossly negligent.

Defendant’s

Defendant’s summary judgment evidence

summary judgment evidence affirmatively

affirmatively disproves

disproves that

that Defendant

Defendant was

negligent or grossly negligent under these circumstances.

circumstances. Therefore, Defendant requests the

Court

Court grant

grant this

this Motion

Motion for

for Summary

Summary Judgment

Judgment as

as to

to all

all of

of Plaintiff’s

Plaintiff’s claims

claims against

against Defendant.

Defendant.

VI.

NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT STANDARD

A court may grant aa no-evidence

no-eVidence motion for summary judgment if the movant can show

that adequate time for discovery has passed

passed and the non-movant has no evidence to support one

or more essential elements of its claim or defense. Tex. R. Civ.

CiV. P.

P. 166a(i); &

166a(i); see Boerjan v.

v.

307, 310 (Tex. 2014); Fort

Rodriguez, 436 S.W.3d 307,

Rodriguez, Fort Brown

Brown Villas

Villas III Condo. Ass’n

Condo. Ass ’71 v.

v. Gillenwater,

Gillenwater,

285 S.W.3d 879,

879, 882 (Tex. 2009). To determine Whether

whether an adequate time for discovery has

passed, “courts

passed, “courts consider

consider the

the following

following nonexclusive

nonexclusive factors:

factors: (1)

(1) the

the nature

nature of

of the

the suit,

suit, (2)

(2) the

the

evidence necessary to controvert the motion, (3)

(3) the length of time the case has been on file,

file, (4)

(4)

the length of time the motion has been on file,

file, (5)

(5) the amount of discovery that has

has already taken

place, (6)

place, whether the movant requested stricter deadlines for discovery, and (7)

(6) Whether whether the

(7) Whether

discovery deadlines in place were specific

place were specific or

or vague.”

vague.” Cmty. Initiatives, Inc.

Cmty. Initiatives, Inc. v.

v. Chase Bank, 153

153

S.W.3d 270, AppiEl Paso

270, 278 (Tex. App.—El Paso 2004, no pet); fl

pet.); see Mclnnis

McInnis v.

v. Mallia, 261

261 S.W.3d 197,

197,

th

201 Appiflouston [14

201 (Tex. App.—Houston [14th Dist.]

Dist] 2008, no pet).

pet.).

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 12

Page 254

Under Texas Rule of Civil

CiVil Procedure 166a(i),

166a(i), when aa party files

files aa no-evidence

no-eVidence motion

for summary judgment, the burden shifts to the non-moving party to present evidence raising an

an

issue of material fact as

as to the elements specified

specified in the motion. Mack Trucks, Inc. v.

Tmcks, Inc. v. Tamez,

Tamez, 206

572, 582 (Tex.

S.W.3d 572, (Tex. 2006). “A no

2006). “A no evidence

evidence point will be

point Will be sustained

sustained when

when (a)

(a) there

there is

is aa

complete lack of evidence of aa Vital

vital fact, (b)

(b) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove aa Vital

vital fact, (c)

(0) the evidence offered to

prove aa vital

Vital fact is not more than aa mere scintilla, or (d)

(d) the evidence conclusively establishes

the

the opposite

opposite of

of the vital fact.”

the Vital Ranch, Inc.

fact.” King Ranch, Inc. v.

v. Chapman, 118

118 S.W.3d 742, 751

751 (Tex. 2003).

In order to defeat this no-evidence

no-eVidence motion for summary judgment, Plaintiffs must bring

forth more than aa scintilla of probative evidence to raise aa genuine issue of material fact. Tex. R.

Civ.

CiV. P.

P. 166a(i);

166a(i); Wal-Mart

Wal—Mart Stores, Inc. v.

Stores, Inc. v. Rodriguez, 92 S.W.3d 502,

502, 506 (Tex. 2002);

see

see Boerjan,

Boeijan, 436 S.W.3d at 312; Forbes,

Forbes, Inc.

Inc. v.

v. Granada Biosciences, Inc., 124

Biosciences, Inc, 124 S.W.3d 167,

167, 172

172

(Tex.

(Tex. 2003).

2003). The

The evidence

evidence must

must be

be sufficient

sufficient to

to “allow reasonable

reasonable and

and fair-minded

fair-minded people to

differ

differ in

in their

their conclusions”

conclusions” on

on whether

whether the

the challenged

challenged fact

fact exists;

exists; evidence

evidence that

that raises

raises only

only aa

speculation or surmise is insufficient. Forbes, Inc,

insufficient. Forbes, Inc., 124

124 S.W.3d at 172.

172. If less than aa scintilla of

evidence

evidence is

is produced,

produced, the

the defendant

defendant is

is entitled

entitled to

to aa summary judgment on

summary judgment on the

the plaintiff’s

plaintiff’ 5 cause

cause of

of

action.

Pursuant to Rule 166a(i)

166a(i) of the Texas Rules of Civil

CiVil Procedure, Defendant would show

that this case

case has

has been on file

file since March 30,

30, 2016, and more than an adequate time for

discovery has

has passed,

passed, but that Plaintiff has

has failed to produce evidence on one or more of the

essential elements of her claims.

VII.

NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT FOR PLAINTIFF’S CLAIMS

In order to prove that Defendant was negligent, Plaintiff must prove:

prove:

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 13

13

Page 255

1.

1. Defendant was the owner or the possessor of the animal;

2. Defendant owed aa duty to exercise reasonable care to prevent the animal from

injuring others;

3.

3. Defendant breached that duty; and

4. Defendant’s breach proximately

Defendant’s breach proximately caused

caused Plaintiff’s

Plaintiff’s injury

injury

Labaj v.

v. VanHouten,

VanHouten, 322 S.W.3d 416, 420-21

420-21 (Tex. App.–Amarillo

ApprAmarillo 2010, no pet);

pet.);

Thompson v.

v. Curtis, 127

127 S.W.3d 446, 451

451 (Tex. App.–Dallas

ApprDallas 2004, no pet);

pet.); Allen ex

ex rel. B.A. v.

rel. BA. v.

Albin, 97

97 S.W.3d 655, Apeaco 2002, no pet.).

655, 660 (Tex. App.–Waco pet).

The owner of aa dog is

is not liable for injuries caused by

by it in aa place it has

has the right to be,

be,

unless the owner knew or should have known that the dog had vicious

Vicious propensities or aa vicious

Vicious

or unruly nature. Rodriguez v.

v. Haddock, 2003 WL 1784923

1784923 at

at *2 Apeort Worth, April

*2 (Tex. App.–Fort

3,

3, 2003, no pet);

pet.); Lewis v.

v. Great S.W.

S. W. Corp.,

Corp, 473 S.W.2d 228, 230 (Tex. Civ. Apeort Worth

CiV. App.–Fort

1971, writ ref’d

1971, writ ref’d n.r.e.).

n.r.e.). Plaintiff

Plaintiff has

has insufficient

insufficient or

or no

no evidence

evidence to

to establish

establish that

that the

the dog was in

dog was in aa

place that it did not have the right to be

be at the time of the accident.

accident. Plaintiff has

has insufficient

insufficient or no

evidence that Defendant knew or should have known that the dog had Vicious

vicious propensities or aa

vicious or unruly nature.

Vicious

Because Plaintiff cannot present sufficient evidence as

as to these elements, Defendant

cannot be held liable for her injuries.

injuries. Furthermore, because

because Plaintiff has

has no evidence that

Defendant was negligent, Defendant cannot be found to have been grossly negligent. See In re E

J.H. Walker,

J.H. Walker, Inc, (AppiDallas Jan.

Inc., 2016 Tex. App. LEXIS 483 (App.—Dallas Jan. 15,

15, 2016). Further, Plaintiff

has

has insufficient

insufficient or no evidence that Defendant consciously disregarded an

an extreme degree of risk

with regard to the incident. And,

And, although

although Plaintiff

Plaintiff has

has not plead premises

not plead premises liability,

liability, Defendant’s

Defendant’s

lack of knowledge of any

any dangerous propensities by

by Heidi also precludes liability on aa premises

liability theory. &

theory. See Keetch v.

v. Kroger Co.,

Ca, 845 S.W.2d 262, 264 (Tex. 1992)

1992) (elements of

premises liability).

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 14

Page 256

Plaintiff presents

presents insufficient

insufficient or no evidence that Defendant owed Plaintiff any

any duty,

insufficient

insufficient or no evidence that Defendant breached aa duty owed to the Plaintiff (if any),

any), and

insufficient or no evidence that Defendant’s

insufficient Defendant’s actions or inactions proximately caused the

Plaintiff’s

Plaintiff’ s injuries. There is therefore insufficient

insufficient or no evidence tending to prove the breach of

duty or proximate cause elements of Plaintiff’s

Plaintiff’ s negligence and gross negligence causes

causes of action.

Because Plaintiff cannot meet her burden on either of these elements, this motion must be

granted. Tex. R. Civ.

CiV. P.

P. 166a(i).

166a(i). On this basis,

basis, Defendant requests the Court grant summary

judgment in favor of Defendant pursuant to Texas Rule of Civil

CiVil Procedure 166a(i)

166a(i) as

as adequate

time for discovery has passed.

passed.

VIII.

PRAYER

WHEREFORE,

WHEREF ORE, PREMISES CONSIDERED, Defendant Terry P.

P. Province

respectfully requests that this Court grant his Motion for Summary Judgment against Plaintiff’s

claims of negligence, gross negligence, and any

any other cause of action. Defendant further prays

prays

for all such other and further relief, both general and special, in law and in equity, including costs

and

and attorney’s

attorney’s fees,

fees, to

to which

which he has

has proved himself to be

be justly entitled.

Respectfully submitted,

flux;

Mn 0\ xx \x

____________________________

c__1_L~Lqi\\._; K:- \

J.

J. Brantley

Brant‘lley Saunders

State Bar No. 17681500

17681500

Abigail K. Christmann

State Bar No. 24097523

SSAUNDERS,

AUNDERS, W ALSH & B

WALSH EARD

BEARD

Craig Ranch Professional Plaza

6850 TPC Drive, Suite 210

McKinney, Texas 75070

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 15

Page 257

(214)

(214) 919-3555 Telephone

(214)

(214) 615-9019 Telecopier

Brantley@SaundersWalsh.com

Abby@SaundersWalsh.com

ATTORNEYS FOR DEFENDANT

CERTIFICATE

CERTIFICATE OF SERVICE

This is to certify that aa true and correct copy of the foregoing document, Defendant’s

Second Amended Motion for Summary Judgment, was

was served upon all counsel of record on

th

this the 55th day

day of October 2017, pursuant to Texas Rules of Civil

CiVil Procedure 21

21 and 21a.

Paul Flannigan

F lannigan

paul@flanniganlawfirm.com

paul@flanniganlawfirm.com

Mark D. Johnson

mark@flanniganlawfirm.com

mark@flanniganlawfirm.com

Nick Tedford

nick@flanniganlawfirm.com

nick@flanniganlawfirm.com

F LANNIGAN L

FLANNIGAN AW FIRM

LAW IRM,, P.L.L.C.

3350 Parkwood Boulevard, Suite A201A201

Frisco, Texas 75034

Phone: (972)

(972) 383-9377

Fax: (844)

(844) 287-8882

ATTORNEYS FOR PLAINTIFF

fllcd K“ Qr£’\rk-¥'Aj‘t\\\ 0K

______________________________ K \ \ \}

DEFENDANT’S

DEFENDANT’S SECOND

SECOND AMENDED

AMENDED MOTION

MOTION FOR

FOR SUMMARY

SUMMARY JUDGMENT

JUDGMENT PAGE 16

Page 258

/ EXHIBIT A

EXHIBIT A

Cause No.

Cause No. CV-2016-00729

CV-2016-00729

KAREN

KAREN LINDSEY

LINDSEY SMITH,

SMITH, §§ IN

IN THE

THE COUNTY COURT

COUNTY COURT

Plaintiff,

Plaintiff, §§

§§

v.

v. §§ N0.2

NO. 2

§§

TERRY

TERRY P.

P. PROVINCE

PROVINCE §§

Defendant.

Defendant. §§ DENTON

DENTON COUNTY,

COUNTY, TEXAS

TEXAS

AFFIDAVIT

AFFIDAVIT OF

OF TERRY

TERRY PROVINCE

PROVINCE

STATE

STATE OF

OF TEXAS

TEXAS §§

COU NTY OF

COUNTY

'.

OF scLe 'D fl’oh §§

2g }'\toY\ §§

BEFORE

BEFORE ME, the undersigned

ME, the undersigned notary,

notary, on this day

on this personally appeared

day personally appeared Terry

Terry Province,

Province, aa

person whose

person whose identity

identity is

is known

known to

to me.

me. After

After I

I administered

administered an

an oath

oath to

to affiant,

affiant, affiant

affiant testified:

testified:

"My

“My name

name is

is Terry

Terry Province.

Province. II am the Defendant

am the Defendant in this suit.

in this suit. II am

am over

over the

the age

age of

of 18

18

years,

years, competent

competent inin all

all respects to make

respects to this affidavit,

make this affidavit, have

have personal

personal knowledge

knowledge of

of the

the facts

facts

stated

stated herein,

herein, and

and everything

everything stated

stated herein

herein is true and

is true and correct.

correct.

The

The dog

dog that

that Plaintiff

Plaintiff has

has identified

identified as the "black

as the “black dog"

dog” that

that bit

bit her

her is

is named

named "Heidi."

“Heidi.”

Heidi

Heidi is

is now

now seven

seven years old,

years old, weighs

weighs approximately

approximately 100

100 pounds,

pounds, and

and is

is a

a mixed

mixed breed.

breed. At

At the

the

time of

time the incident,

of the incident, Heidi

Heidi was

was six

six years

years old.

old. Attached

Attached hereto

hereto as

as Exhibit

Exhibit A-1 A—l is

is a photograph of

a photograph of

Heidi

Heidi lying

lying beside

beside one

one ofof our

our cats.

cats. Attached

Attached hereto

hereto asas Exhibit

Exhibit A-2

A-2 is is a photograph that

a photograph that

accurately

accurately depicts the fence

depicts the fence and

and gate

gate on

on my

my property

property on on the

the day

day of

of the

the incident

incident atat issue.

issue. Both

Both of

of

these photos

these photos are true and

are true and accurate

accurate depictions

depictions ofof what they purport

what they purport to

to show

show asas stated

stated above.

above.

The

The gate to my

gate to my property

property isis recessed

recessed about

about aa foot

foot behind

behind the

the fence

fence line.

line. The

The fence

fence

immediately

immediately surrounding

surrounding thethe gate

gate is

is at,

at, or

or behind, the actual

behind, the property line.

actual property line. The

The location

location ofof the

the

gate

gate and

and the portions of

the portions of the

the fence

fence surrounding the gate

surrounding the gate has

has been

been confirmed

confirmed by by a

a professional

professional

surveyor,

surveyor, Eric

Eric M.

M. Zollinger, to be

Zollinger, to be wholly

wholly onon my property. Based

my property. Based upon the Plaintiffs

upon the Plaintiff’s description

description

of the incident,

of the incident, Heidi was within

Heidi was within aa place

place that

that she

she had

had a

a right

right to

to be

be on

on my

my property

property at the time

at the time of

of

the incident.

the incident.

Heidi

Heidi has

has no

no vicious tendencies and

Vicious tendencies and had

had never

never bitten

bitten anyone

anyone before

before the

the incident

incident at

at issue.

issue.

II acquired

acquired Heidi

Heidi when

when she

she was

was just

just aa puppy,

puppy, about

about eight

eight weeks

weeks old.

old. II have

have owned

owned Heidi

Heidi

the

the entire

entire time

time since then. Heidi

since then. Heidi is

is normally

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