Diane Moore, Individually and as Next Friend of Sarah Moore v. Ruby and George Moore & Georgia and Jerry Brown--Appeal from 225th Judicial District Court of Bexar County

No. 04-00-00831-CV

Diane MOORE, Individually and as Next Friend of Sarah Moore,

Appellants

v.

Ruby and George MOORE and Georgia and Jerry Brown,

Appellees

From the 225th Judicial District Court, Bexar County, Texas

Trial Court No. 94-CI-16049

Honorable Victor Negron, Judge Presiding

Opinion by: Tom Rickhoff, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: November 7, 2001

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

In this dog bite case, we are asked to determine whether the trial court properly rendered summary judgment in favor of the appellees for injuries to the minor child, Sarah Moore, who was bitten by a dog owned by Georgia and Jerry Brown, while Sarah was a guest in the Brown's home. Ruby and George Moore own another dog that was placed at the Brown's house for purposes of breeding with the Brown's dog. We conclude that the appellants did not raise a fact issue sufficient to defeat Jerry Brown's and Ruby and George Moore's entitlement to summary judgment as a matter of law; therefore, we affirm that portion of the summary judgment. However, appellants raised a fact issue on the claim of negligent handling against Georgia Brown sufficient to defeat Georgia's entitlement to summary judgment as a matter of law; therefore, we reverse and remand on that claim.

BACKGROUND

On November 21, 1992, Gary Moore called his mother, Ruby Moore, and asked her if she would pick up Gary's daughters, Sarah and Susan, because their mother, Diane Moore, was not yet at home and Gary had to go to work. With Gary's permission, Ruby took the children to the home of Georgia and Jerry Brown, the children's aunt and uncle.

Georgia and Jerry owned a male Labrador dog, about five or six years old, named J.D. Ruby and George owned a female Labrador dog, named General. General had spent about one week before the accident at the Brown's house so that General and J.D. could breed.

Other than the two children, the only other people present at the Brown's house were Ruby, Georgia, and a friend, Raquel Loque. Jerry and George were not at the house. While Ruby and Georgia were outside and Raquel was inside the house with the children cooking their breakfast, Sarah walked out the front door of the Brown's house and stood on the porch, where she saw General and J.D. There is no dispute that J.D. bit Sarah, severely injuring her.

THE APPLICABLE LAW

In general, a dog's owner is not liable for damages the dog causes, unless the dog is vicious and the owner has actual or constructive knowledge of the viciousness. Belger v. Sweeney, 836 S.W.2d 752, 754 (Tex. App.--Houston [1st Dist.] 1992, writ denied). If the animal is vicious or has aggressive tendencies and the owner has knowledge of that propensity, the owner is subject to liability under the law of strict liability. Marshall v. Ranne, 511 S.W.2d 255, 258 (Tex. 1974). If an animal is non-vicious, the owner may still be subject to liability for his negligent handling of the animal. Marshall, 511 S.W.2d at 258. The Restatement (Second) of Torts addresses the liability for harm caused by domestic animals that are not abnormally dangerous, and provides that "one who possesses . . . a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm caused by the animal if, but only if, (a) he intentionally causes the animal to do harm, or (b) he is negligent in failing to prevent harm." Restatement (Second) of Torts 518 (1976). Comment (h) to section 518 states:

One who keeps a domestic animal that possesses only those dangerous propensities that are normal to its class is required to know its normal habits and tendencies. He is therefore required to realize that even ordinary gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm. . . . So, too, the keeper of an ordinary gentle bitch or cat is required to know that while caring for her puppies or kittens she is likely to attack other animals and human beings.

Id. 518 cmt. h.

We hold that the owner of a domestic animal may be liable for the negligent handling of the animal if the owner had actual or constructive notice of facts that would put an ordinary person on notice that the animal could cause harm and the owner was negligent in preventing such harm.

DIANE'S CLAIMS AGAINST GEORGIA AND JERRY BROWN

Diane sued the Browns, alleging strict liability, negligence, and negligence per se. The Browns moved for summary judgment on all Diane's claims. The trial court granted the Browns partial summary judgment on Diane's causes of action for strict liability and negligence per se. Almost three years later, the Browns filed a second motion for summary judgment on Diane's negligence claim, alleging they were not liable because there was no evidence that they willfully, wantonly or by gross negligence caused Sarah harm, and there was no evidence that they had actual knowledge of a condition that involved an unreasonable risk of harm to Sarah when she was bitten. The trial court granted the Browns' motion for summary judgment and rendered a take-nothing judgment against Diane.

On appeal, Diane challenges the summary judgment on her negligence claim against the Browns; she does not challenge the summary judgment on her strict liability or negligence per se claims. In support of their motion for summary judgment, the Browns submitted Georgia's and Jerry's deposition testimony. Georgia said she did not know and had never been told that J.D. had bitten anyone. Georgia testified that she had not observed any tendencies or attitudes in either dog that would characterize them as vicious. Georgia said the dogs had attempted to breed earlier in the week, but she did not observe any attempt to breed on the day of the accident. Georgia admitted reading a book that talked generally about how dogs may become agitated or irritable when mating, and she understood there was a possibility J.D. and General could act abnormally. However, she said that in the week General was in her home, she did not notice a personality change in either dog. She said that when Ruby, Raquel, and the children arrived at her home, she and both dogs went up to the car and the girls petted the dogs. Jerry said a perimeter fence surrounded the house.

In response to the Brown's motion, Diane also relied on Georgia's deposition testimony in which Georgia said she did not know J.D.'s history because he was a stray, she knew dogs could be irritable when mating, and she allowed the dogs to freely roam her yard. Georgia stated she told Ruby that she wanted to keep the girls in the house because she did not know how the dogs would react, and she was aware that the girls could be in danger. Diane also relied on the affidavit of Sarah's treating physician, Sean Campbell. The relevant portion of Doctor Campbell's affidavit states:

I asked the adults present if the dog that had injured Sarah had a history of biting others prior to this injury. I recall Sarah's mother said that the dog had bitten before. Sarah's father, Gary Moore, verbally agreed with this history, and Sarah's aunt, Georgia Brown, nodded her head in agreement. No one in the room denied that the dog had a history of previous bites. I recall telling the adults that if it were my dog, I'd put the dog to sleep because of this bite history. No one said anything after I made this comment.

In her own deposition, Diane recalled an incident when everyone was sitting around Georgia and Jerry's swimming pool, and J.D. growled at her. Diane said Georgia told her that sometimes the dog did not "like to be bothered," and "if we didn't bother the dog, it wouldn't bother us."

The summary judgment evidence raises a fact issue as to whether Georgia had actual or constructive notice of facts that would put an ordinary person on notice that J.D. could cause harm and as to whether Georgia was negligent in preventing such harm. Therefore, summary judgment in favor of Georgia was not proper. There is no evidence that Jerry had actual or constructive notice of facts that would put an ordinary person on notice that J.D. could cause harm or as to whether he was negligent in preventing such harm. Therefore, Diane did not raise a fact issue sufficient to defeat Jerry's entitlement to summary judgment on her claim of negligent handling.DIANE'S CLAIMS AGAINST RUBY AND GEORGE MOORE

Diane sued the Moores, alleging strict liability, res ipsa loquitur, attractive nuisance, and negligence. At about the same time the Browns filed their second motion for summary judgment, the Moores filed their first motion for summary judgment on all of Diane's claims against them. The trial court granted the Moores' motion for summary judgment and rendered a take-nothing judgment against Diane.

On appeal, Diane challenges the summary judgment on her strict liability and negligence claims against the Moores; she does not challenge the summary judgment on her res ipsa loquitur and attractive nuisance claims.

Negligence

Most of Diane's argument on appeal focuses on what Georgia allegedly said or did, not on the Moores' alleged actions. Diane's only factual allegations against the Moores are that no one restrained the dogs and that Georgia told Ruby she wanted the girls inside the house because she did not know the dogs' temperament.

George Moore was not at the house when the accident occurred and the Moores do not own J.D. No one disputes that the adults told the two children to stay in the house with Raquel. There is no evidence against the Moores that would put an ordinary person on notice that J.D. could cause harm. There is no evidence that the Moores were negligent in their handling of J.D., a dog they did not own. Therefore, Diane failed to raise a fact issue sufficient to defeat the Moores' entitlement to summary judgment on her claim of negligent handling.

Strict liability

Diane stated in her deposition that before the accident she did not know whether J.D. had bitten anyone, J.D. growled at her once, and she heard at a later date that J.D. had bitten someone once. Even if we take as true that J.D. growled at Diane once and had bitten someone once, this testimony does not raise a fact issue on whether the Moores (who did not own J.D.) knew or should have known that J.D. (the Brown's dog) had dangerous propensities abnormal to its class. Therefore, Diane failed to raise a fact issue sufficient to defeat the Moores' entitlement to summary judgment on her claim of strict liability.

CONCLUSION

We reverse the summary judgment in favor of Georgia Brown on Diane's claim of negligent handling and remand for further proceedings on that claim, and we affirm the summary judgment in all other respects. (1)

Tom Rickhoff, Justice

DO NOT PUBLISH

1. Diane's appellate brief also raises an argument with regard to a claim of negligence per se. However, at the beginning of her brief, Diane states "the issue of negligence per se will not be pursued" and, notwithstanding her assertions on appeal, Diane did not plead a cause of action for negligence per se. Therefore, on appeal, we do not consider the merits of her arguments on this claim. As to both the Moores and Browns, Diane asserts "there was sufficient evidence of . . . gross negligence . . . that the evidence presented to the trial court did not warrant the granting of summary judgment . . . ." Diane did not plead a cause of action for gross negligence, and she did not allege the Moores or Browns were consciously indifferent or that their conduct created an extreme degree of risk; therefore, we do not consider the merits of an argument on this claim.