The opinion
MIRABAL, Justice,
dissenting.
I dissent.
I disagree with the majority’s conclusion that the summary judgment evidence conclusively establishes (1) that Sweeney’s dog was not vicious, and (2) that Sweeney did not have actual or constructive knowledge of any viciousness of his dog.
In iier petition, Belger alleged the following:
At all times hereinafter mentioned defendant was the owner or had possession, custody and control of and kept a female, mongrel dog, weighing approximately 35 to 45 pounds of a ferocious and vicious nature. Defendant at all times hereinafter mentioned had knowledge or constructive notice of the vicious nature of the dog.
On July 13, 1973, plaintiff was a young girl 5 years old. On or about that day, plaintiff was in the home of defendant upon the invitation of defendant and/or his wife Molly Sweeney. While so visiting the defendant, the defendant’s dog without any provocation on the part of this young girl the plaintiff, viciously *756 attacked her, jumping upon her and knocking her to the ground and biting her and clawing her on the head and face.
Such vicious and unprovoked attack caused severe wounds and lacerations about plaintiff’s head and face, and she sustained severe nervous shock and mental and physical pain and suffering. The facial disfigurement and psychological injury which she suffered are permanent in nature. The dog’s vicious and unprovoked attack on the plaintiff, at the time a young girl only five years old, was directly caused by the acts and omissions of defendant in one or more of the following respects:
a. In permitting this vicious dog to run loose and to have access to this child with knowledge (or with exercise of reasonable diligence he would have had knowledge) of the vicious propensities of this dog.
b. In failing to keep this vicious dog in a safe or locked pen or enclosure where the dog would not be able to get access to children and children would not be able to get access to the dog.
c. In failing to keep this vicious dog on a chain or leash or a securely locked enclosure.
d. In failing to warn this child and others similarly situated of the vicious nature of this dog and the unreasonable risk they would be running if they came in the vicinity of this dog.
e. In failing to take proper measures to be certain young children such as plaintiff at the time of the attack were kept out of reach of this vicious dog.
f. In voluntarily permitting this vicious dog to be in the location which it attacked this child or through carelessness and negligence was permitted to be in that location.
g. In failing to keep and maintain a safe place to entertain visitors by permitting this vicious dog to roam loose, and at will, through defendant’s house and grounds, creating a dangerous and unsafe area for children to visit and play. Plaintiff entered this dangerous and unsafe area, by specific invitation (actual or implied) from defendant and/or his wife, Molly Sweeney, whose actions should be imputed to defendant, and without any warning that this vicious dog was in fact loose on defendant’s grounds.
Defendant Sweeney moved for summary judgment on the grounds that “absolutely no evidence exists which indicates that, pri- or to the incident in question, George B. Sweeney’s dog was vicious.”
The standard for appellate review of a summary judgment for a defendant is whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The movant has the burden to show that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Evidence favorable to the nonmov-ant will be taken as true in deciding whether there is a disputed material fact issue that precludes summary judgment. Id. Every reasonable inference must be indulged in favor of the nonmovants and any doubts resolved in their favor. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). A summary judgment for the defendant, disposing of the entire case, is proper only if, as a matter of law, the plaintiff could not succeed upon any theories pleaded. Dodson v. Kung, 717 S.W.2d 385, 390 (Tex.App.—Houston [14th Dist.] 1986, no writ); Havens v. Tomball Community Hospital, 793 S.W.2d 690, 691 (Tex.App.—Houston [1st Dist.] 1990, writ denied). Once the defendant produces sufficient evidence to establish the right to a summary judgment, the plaintiff must set forth sufficient evidence to give rise to a fact issue to avoid a summary judgment. “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-37 (Tex.1972).
*757 Belger’s answers to interrogatories are a part of the summary judgment proof. 1 Her sworn responses include the following statements:
Defendant’s dog Daharki without any provocation on the part of plaintiff viciously attacked plaintiff jumping upon her and knocking her to the ground and biting her and clawing on the head and face.
[The attack left] scars on left cheek and on head under hair. Other summary judgment evidence establishes that the Swee-neys acquired the dog as a puppy and had owned her for three years at the time of the incident.
In my opinion, even though the Swee-neys stated under oath that their dog was not vicious before the incident in question, and that they had no actual or constructive knowledge of any vicious nature of their dog, their sworn denials did not establish, as a matter of law, that the dog was not vicious or that they, in the exercise of reasonable care, should not have known of the vicious nature of their dog. Further, the fact that Belger, who was five years old at the time of the incident, and her father, who had never seen the dog, were not able to swear that the dog had a history of viciousness, does not entitle Sweeney to summary judgment.
Offsetting Sweeney’s self-serving summary judgment evidence is the following:
—The Sweeneys’ dog viciously attacked, without provocation, a five-year-old little girl;
—the Sweeneys had owned the dog for three years, acquiring it when it was a puppy, and therefore would reasonably be on notice of the nature of the dog.
The vicious nature of the dog on the date of the incident is clearly supported by the summary judgment evidence. This alone, in my opinion, raises a fact issue about whether the dog was vicious before the moment it attacked the little girl. Summary judgment was not proper in this case.
i wouid reverse and remand,
. The record on appeal includes excerpts from Belger’s deposition. However, neither party referred to Belger’s deposition in the summary judgment pleadings, and we, therefore, do not consider her deposition on appeal. Tex.R.Civ.P. 166a(c).