In Rodriguez v. Reed, a Texas plaintiff appealed the trial court’s summary judgment in favor of the defendant in a dog bite case. The case arose when the defendant was contacted at work that his burglar alarm was going off. He left his workplace and went home. He turned off the alarm and determined nobody had broken in. Meanwhile, police officers came to his house to respond to the alarm call. The call noted that the front glass had broken and that there were multiple dogs in the home.
The defendant’s car was in the driveway when Officer Espinoza and Officer Rodriguez (the plaintiff) arrived. One of the officers determined that the car was the defendant’s. There was no broken front glass. The officers went to the side of the house and came upon a fence with a locked gate. One officer went to the other side. Rodriguez jumped the gate and drew his weapon. At that moment, the defendant opened the back door and let the dogs out. When the plaintiff went around the corner, two dogs came into the yard, and one of them bit the plaintiff in the forearm. The plaintiff shot the dog, killing him. He jumped back over the fence.
The officer sued on the grounds of strict liability, claiming that the dog was known to have abnormally dangerous propensities and claiming that the defendant had negligently handled the dog. The defendant filed a motion for summary judgment that was both traditional and a “no evidence summary judgment motion.” The latter claims there is no evidence to support an essential element of the other party’s claim. The plaintiff filed a response that included statements from the defendant’s neighbors and copies of police records about prior alarm calls to the defendant’s house.
The defendant filed written objections to the plaintiff’s evidence, arguing that the affidavit and statements included conclusory speculation and weren’t based on personal knowledge. The trial court sustained the objections and excluded the plaintiff’s evidence, granting the defendant’s motion for summary judgment. The plaintiff filed a motion for new trial, which was denied. He appealed.
The appellate court explained that a no-evidence motion will be granted if there is a complete absence of evidence on a vital fact, the court is barred by legal rules from giving weight to the only evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a scintilla, or the evidence conclusively establishes the opposite of a vital fact.
The plaintiff argued that the dog was dangerous and the defendant was aware of his dangerous propensities and was therefore strictly liable. In Texas, an owner of a vicious animal can be held strictly liable if the plaintiff can demonstrate abnormally dangerous propensities that the owner knew or had reason to know of.
The appellate court explained that the plaintiff did not challenge the trial court’s evidentiary ruling regarding the evidence he submitted. Accordingly, there was no summary judgment evidence to prove the dog had dangerous propensities. The plaintiff also failed to meet his burden on the negligent handling claim. The court explained that the owner of a non-vicious animal could also be liable under a theory of negligent handling.
A Texas plaintiff must prove that the defendant owned or possessed the animal and owed a duty to use reasonable care to prevent injury, the defendant breached the duty, and the breach proximately caused injury to the plaintiff. The issue of whether the owner has a duty turns on whether the dog bite is foreseeable such that someone of ordinary intelligence can anticipate the danger to others by an actor’s negligent behavior. The defendant argued there was no evidence of a duty to refrain from letting his dog go into his own yard where he had a right to be, given that he didn’t know the plaintiff was on the property. The court affirmed the judgment in favor of the defendant.
If you or a loved one is bitten or attacked by somebody else’s dog, you may be entitled to compensation, including medical expenses, loss of wages, and pain and suffering. The experienced San Antonio personal injury attorneys at Carabin & Shaw may be able to help. Call our office for more information at 1-800-862-1260.