Billie Ann Allen, as Next Friend of B. A., a Minor v. Frances Albin and Gladys Haferkamp--Appeal from 170th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

 

No. 10-01-063-CV

 

BILLIE ANN ALLEN,

AS NEXT FRIEND OF B.A., A MINOR,

Appellants

v.

 

FRANCES ALBIN

AND GLADYS HAFERKAMP,

Appellees

 

From the 170th District Court

McLennan County, Texas

Trial Court # 2000-1736-4

O P I N I O N

This is a personal injury case. Billie Ann Allen, as next friend of Bradley Allen, a minor, sued Frances Albin (the dog s owner) and Gladys Haferkamp (Bradley s baby-sitter) for damages as a result of an injury inflicted by a dog. Both Albin and Haferkamp filed summary-judgment motions that were granted by the trial court. Allen argues that the trial court erred in granting the defendants motions. We will reverse the judgment in part and affirm it in part.

FACTUAL AND PROCEDURAL BACKGROUND

During 1985, Gladys Haferkamp provided day-care services to Jack and Billie Ann Allen by caring for their seventeen-month-old son, Bradley Allen. Haferkamp ran a day-care business at her home in Waco, where she took care of Bradley and two other children. Frances Albin lived next door to Haferkamp and their back-yards were adjacent to one another, separated by a chain-link fence. Albin kept a dog in her backyard. On November 13, 1985, Bradley was bitten or scratched by the dog as he was standing next to the chain-link fence. The dog apparently attacked Bradley through the fence. Although Haferkamp was standing near Bradley, she did not see the dog in time to prevent the attack. As a result, Bradley suffered lacerations to his face. He was taken to the hospital where he received stitches to close the lacerations.

In 2000, Bradley, on his physician s recommendation, began to consider cosmetic surgery to reduce or remove the residual scarring caused by the lacerations. In May of that year, on Bradley s behalf, his mother brought this suit against Albin and Haferkamp seeking compensation for her son s injuries. Because Albin had died, Allen sued her heirs. //

After some discovery, the defendants filed summary-judgment motions. Tex. R. Civ. P. 166a. Allen filed responses to both motions and offered evidence to support her claims. Albin filed a written motion objecting to part of Allen s summary-judgment evidence, and the day the summary-judgment hearing was scheduled, Allen asked for a continuance seeking more time to cure possible defects in her summary-judgment evidence. The court granted the request and set the hearing for a later date. Allen then filed supplemental responses to both Albin s and Haferkamp s summary-judgment motions and offered additional evidence. Albin again filed a written motion objecting to part of Allen s evidence. Shortly thereafter, the court held a hearing on the defendants summary-judgment motions and also on Albin s objections to Allen s evidence. At the end of the hearing, the court granted both summary-judgment motions. On appeal, Allen contends that the trial court erred in doing so.

SUMMARY JUDGMENT IN FAVOR OF ALBIN

We initially address Allen s issue concerning the trial court s granting of Albin s no-evidence summary-judgment motion. We must also discuss a related issue involving Albin s objections to Allen s summary-judgment evidence.

Standard of Review

We review a 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)). We apply the same standard in reviewing a no-evidence summary judgment as we would in reviewing a directed verdict. Robinson v. Warner-Lambert Co., 998 S.W.2d 407, 410 (Tex. App. Waco 1999, no pet.). We review the summary-judgment evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. A no-evidence summary judgment will be defeated if the non-movant produces more than 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).

More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact s existence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). On the other hand, no more than a scintilla of evidence exists when the evidence offered to prove a vital fact is so weak so as to do no more than create a mere surmise or suspicion of its existence and, in legal effect, is no evidence. Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284-85 (Tex. App. Houston [14th Dist.] 2000, no pet.) (citing Kindred, 650 S.W.2d at 63).

The trial court granted the motion without stating the specific reasons for doing so. When the trial court does not specify the basis for a no-evidence summary judgment, the appealing party must show it is error to base it on any no-evidence ground asserted in the summary-judgment motion. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

Allen s Claims

Allen pled two claims against Albin: (1) a strict liability claim; and (2) a negligence claim for injuries caused by the negligent handling of the dog. //

Strict liability

Allen alleged that Albin was strictly liable for Bradley s injuries because she knew or should have known that her dog was capable of causing injury to others. Under Texas law, strict liability is imposed only in very limited situations, such as in products liability cases involving dangerously defective products or cases involving a dangerous domesticated animal. E.g., Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 613 (Tex. 1996) (involving defective products); Marshall v. Ranne, 511 S.W.2d 255, 258 (Tex. 1974) (involving animals known to be vicious). The elements of a strict liability claim for injury by a dangerous domesticated animal are: (1) the defendant was the owner or possessor of the animal; (2) the animal had dangerous propensities abnormal to its class; (3) the defendant knew or had reason to know the animal had dangerous propensities; and (4) those propensities were a producing cause of the plaintiff s injury. Owens v. Coury, 614 S.W.2d 926, 928 (Tex. Civ. App. Amarillo 1981, no writ) // ; Wells v. Burns, 480 S.W.2d 31, 33 (Tex. Civ. App. El Paso 1972, no writ).

Negligent handling of an animal

With respect to the negligence claim, Allen contended that Albin owed a duty to ensure that her dog would not cause injury to anyone. Allen claimed that Albin breached that duty by failing to take reasonable steps to prevent the dog s contact with Bradley. The elements of an action for injuries caused by the negligent handling of an animal are: (1) the defendant was the owner or possessor of an 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. Marshall, 511 S.W.2d at 259 (elements 1, 4); Dunnings v. Castro, 881 S.W.2d 559, 561-62 (Tex. App. Houston [1st Dist.] 1994, writ dism d) (elements 2, 3). Unlike for strict liability, the plaintiff does not have to prove that the animal was vicious or dangerous. Dunnings, 881 S.W.2d at 562-63; see Pearson v. Jones Co., 898 S.W.2d 329, 332 (Tex. App. Eastland 1994, no writ) (owner may be liable for negligence in the handling of a non-vicious or non-dangerous animal).

Albin s Summary-Judgment Motion

Albin filed a no-evidence summary-judgment motion claiming she was entitled to summary judgment because Allen could not produce any evidence of some of the elements of her two claims.

Challenged elements of the strict liability claim

Albin did not contest the first element of Allen s strict liability claim, i.e., whether Albin was the owner or possessor of the animal. Owens, 614 S.W.2d at 928; Wells, 480 S.W.2d at 33. Albin s motion challenged Allen to produce evidence of the second, third, and fourth elements: (2) the dog had dangerous propensities abnormal to its class; (3) Albin knew or had reason to know the animal had dangerous propensities; and (4) those propensities were a producing cause of the plaintiff s injury. Id. Accordingly, Allen was required to produce summary-judgment evidence that raised a fact issue on each of the three challenged elements. Tex. R. Civ. P. 166a(i).

Challenged elements of the negligence claim

Again, Albin did not dispute the fact that she owned the dog that harmed Bradley. She did contend, however, that Allen could not produce any evidence of the remaining elements of her negligence action: (2) a duty to exercise reasonable care to prevent the dog from injuring others; (3) a breach of that duty; and (4) the breach proximately caused Bradley s injury. Marshall, 511 S.W.2d at 259 (element 4); Dunnings, 881 S.W.2d at 561-62 (elements 2, 3). Therefore, to defeat Albin s motion, Allen was required to produce summary-judgment evidence that raised a fact issue on each of the three challenged elements.

Albin s Objections to Allen s Summary-Judgment Evidence

In Allen s initial response to the no-evidence motion, she presented deposition testimony from co-defendant Haferkamp. In her deposition, Haferkamp testified about oral statements that Albin allegedly made to her in a conversation they had after Bradley was injured. Albin filed an objection to the testimony arguing that it was inadmissible under the dead man s rule. Tex. R. Evid. 601(b). Allen s supplemental response presented additional evidence: a tape-recorded conversation between Haferkamp and Lisa Simpson, a claims representative from Farmers Insurance Group, that occurred on January 17, 2000, and was transcribed on February 14. // Albin filed objections to the transcript, this time on the grounds that it was not authenticated by either party to the conversation or by the person who transcribed the conversation and was hearsay.

Preservation of objections

On appeal, Allen contends that Albin s objections to the summary-judgment evidence have been waived because of failure to obtain a ruling from the trial court. Accordingly, Allen urges us not to exclude the objected-to evidence. In the alternative, Allen contends if we find the court implicitly sustained the objections, the court erred because the evidence is competent. Meanwhile, Albin argues that her complaints about the summary-judgment evidence were preserved, because the trial court expressly sustained those objections. In the alternative, Albin contends the trial court implicitly sustained the objections by granting summary judgment.

Rule of Appellate Procedure 33.1 considers complaints to have been preserved if the trial court expressly or implicitly rules on an objection. Tex. R. App. P. 33.1(a)(2)(A). In addition, the complaining party preserves a complaint if the trial court refused to rule on an objection and the party objected to the refusal. Id. 33.1(a)(2)(B). Accordingly, Albin waived her complaints about the summary-judgment evidence unless she obtained an express or implied ruling from the court, or objected to the court s refusal to rule. Id.

Was there an express ruling?

At the summary-judgment hearing, counsel for both parties presented arguments about the propriety of summary judgment. As part of Albin s argument, her counsel discussed the objections to the evidence which Albin had filed. Allen s counsel responded. After both parties concluded their arguments, the court made the following ruling:

The Court: Jim, I almost hate to do this because I know you ve worked like a dog, and you ve come up with some almost touching theories that might get you past the summary judgment situation, but I don t think you have, and so I m going to grant the motion for summary judgment. . . . I hate to do it, but I m going to grant the motion for summary judgment.

 

It is clear from the record that the court made an express ruling on the summary-judgment motion at the end of the hearing. The court did not, however, make an express ruling on the objections.

On appeal, Albin argues that the court s order granting summary judgment is an express ruling sustaining her objections. The court s order provides the procedural history of the case, including mention of Albin s written objections to Allen s evidence. The court then concludes that it is hereby ordered and decreed that the motion for summary judgment filed on behalf of the Estate of Frances Albin is, in all respects, granted. (Emphasis added). Albin contends that the emphasized language indicates that the court expressly sustained the objections. We disagree. The order says the court granted the summary-judgment motion in all respects. Albin s no-evidence motion only addressed Allen s claims; Albin separately filed motions objecting to Allen s evidence. Therefore, we interpret the language in all respects to mean that the summary-judgment motion was granted in favor of Albin with respect to all of Allen s claims. The language is not an express ruling on Albin s objections.

Was there an implicit ruling?

In the alternative, Albin contends that the court made an implicit ruling sustaining her objections to the evidence by granting the summary judgment, and therefore, her objections are preserved. She relies on the Fort Worth court s decision in Frazier v. Yu, 987 S.W.2d 607 (Tex. App. Fort Worth 1999, pet. denied). In Frazier, the court held that because the trial court granted summary judgment and stated that it reviewed all competent summary-judgment evidence, this create[d] an inference that the court implicitly sustained [the defendant s] objections to the summary-judgment evidence. Id. at 610 (emphasis in original). Thus, our sister court concluded that the defendant s objections had been preserved by an implicit ruling. Id.; Tex. R. App. P. 33.1(a)(2)(A).

But the Fort Worth court has also held that when a trial court grants summary judgment, this creates an inference that it implicitly reviewed and overruled [the defendant s] objections to the summary-judgment evidence. Blum v. Julian, 977 S.W.2d 819, 823-24 (Tex. App. Fort Worth 1998, no pet.). Accordingly, the holdings in Frazier and Blum are contradictory: how in one case can a summary judgment imply that a court sustained objections, yet in another imply that a court overruled objections? The San Antonio court recently recognized this weakness in the Fort Worth court s analysis of this issue when it wrote:

. . . [R]ulings on a motion for summary judgment and objections to summary-judgment evidence are not alternatives; nor are they concomitants. Neither implies a ruling or any particular ruling on the other. In short, a trial court s ruling on an objection to summary-judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on an objection is simply not capable of being understood from the ruling on the motion for summary judgment. We therefore reject the reasoning in Blum and Frazier. We instead align ourselves with the Fourteenth Court of Appeals. See Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App. Houston [14th Dist.] 2000, no pet. h.) ( Unlike other courts faced with similar situations, we cannot infer from the record in this case that the trial court implicitly overruled or implicitly sustained appellants objections. ).

 

Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App. San Antonio 2000, no pet. h.). We agree with the San Antonio court that the granting of a summary-judgment motion does not necessarily provide an implicit ruling that either sustains or overrules objections to the summary-judgment evidence. Thus, we reject Albin s argument that the court s order granting summary judgment is an implicit ruling sustaining her objections.

We also agree with the court in Dolcefino about the better practice for trial courts when ruling on summary-judgment motions and objections to summary-judgment evidence:

We believe the better practice is for the trial court to disclose, in writing, its rulings on all objections to summary-judgment evidence at or before the time it enters the order granting or denying summary judgment. Practitioners should facilitate this procedure by incorporating all parties objections to summary-judgment evidence in proposed orders granting or denying summary judgment and including a Mother Hubbard recitation to encompass any objections not otherwise addressed in the proposed orders. . . . In any context, however, it is incumbent upon the party asserting objections to obtain a written ruling at, before, or very near the time the trial court rules on the motion for summary judgment or risk waiver. See Tex. R. App. P. 33.1(a).

 

Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App. Houston [14th Dist.] 2000, pet. denied); see Eads v. American Bank, N.A., 843 S.W.2d 208, 211 (Tex. App. Waco 1992, no writ) ( [W]e hold that evidence that has been objected to remains part of the summary-judgment evidence unless an order sustaining the objection is reduced to writing, signed, and entered of record. ). The better practice described in Dolcefino was not followed in the case before us, // and we cannot determine from this record that the trial court implicitly ruled on Albin s objections.

Conclusion

We find that the court did not expressly or implicitly rule on Albin s objections to Allen s summary-judgment evidence. Tex. R. App. P. 33.1(a)(2)(A). Also, Albin did not object to the court s refusal to rule. Id. 33.1(a)(2)(B). Therefore, the objected-to evidence remains a part of the summary-judgment evidence. Wright v. Greenberg, 2 S.W.3d 666, 675 (Tex. App. Houston [14th Dist.] 1999, pet. denied); Williams v. Conroe Indep. School Dist., 809 S.W.2d 954, 957 (Tex. App. Beaumont 1991, no pet.).

Allen s Responses to the Motion

Strict liability claim

In her initial response to Albin s motion, Allen presented Haferkamp s deposition testimony as evidence that would establish a fact issue on the contested elements of her strict liability claim: (2) the dog had dangerous propensities abnormal to its class; (3) Albin knew or had reason to know the dog had dangerous propensities; and (4) those propensities were a producing cause of the plaintiff s injury. Owens, 614 S.W.2d at 928; Wells, 480 S.W.2d at 33. Allen also filed a supplemental response and attached additional evidence: (a) transcript of a tape-recorded conversation that Haferkamp had with an insurance claims adjuster; and (b) deposition testimony from Michael Henderson, Albin s grandson.

The second element of a strict liability claim requires the plaintiff to prove that the animal had dangerous propensities abnormal to its class. E.g., Marshall, 511 S.W.2d at 258 (boar was dangerous); Farley v. M M Cattle Co., 549 S.W.2d 453, 456 (Tex. Civ. App. Waco 1977, writ ref d n.r.e.) (horse named Crowbar had dangerous propensities abnormal to its class). Haferkamp s deposition testimony recounted statements that Albin made during a conversation they had after the incident. Albin told her that the dog had knocked Albin down on occasion and that the dog was ferocious, mean, and bad. In addition, Albin told her that the dog did not like children. Henderson s deposition testimony also corroborated Albin s statement to Haferkamp about the dog s propensity to knock her down.

We find that Allen has produced more than a scintilla of evidence that furnishes some reasonable basis for differing conclusions by reasonable minds about whether the dog had dangerous propensities. Kindred, 650 S.W.2d at 63; cf. Dunnings, 881 S.W.2d at 561 (nothing in the summary-judgment evidence suggested the dog had dangerous propensities that were abnormal when compared to other dogs) (emphasis added). //

The third element of Allen s strict liability claim requires evidence that Albin knew or had reason to know of the dog s dangerous propensities. Owens, 614 S.W.2d at 928; Wells, 480 S.W.2d at 33. Albin contends that even if Allen produced evidence that the dog had dangerous propensities, that evidence does not prove that she had knowledge of those propensities prior to Bradley s being injured. However, we find that a jury might infer that even though the conversation between Albin and Haferkamp occurred after the attack, Albin was conveying what she already knew about the dog s nature. A jury might infer to the contrary, though, and conclude that Albin said those things about the dog s nature only because it had hurt the toddler. But we review the summary-judgment evidence in the light most favorable to Allen, disregarding all contrary evidence and inferences. Robinson, 998 S.W.2d at 410. Thus, we find that the above evidence and favorable inference furnishes some reasonable basis for differing conclusions by reasonable minds about whether Albin knew or had reason to know of her dog s dangerous propensities prior to Bradley being injured. Kindred, 650 S.W.2d at 63.

The fourth element requires the plaintiff to prove that the animal s dangerous propensities were a producing cause of his injuries. Owens, 614 S.W.2d at 928 n.1. A producing cause is a contributing cause that, in a natural sequence, produces the plaintiff s injury. Rourke v. Garza, 530 S.W.2d 794, 801 (Tex. 1975). In her deposition, Haferkamp described how Bradley was harmed by the dog:

Q: Can you tell me what happened?

A: I put the other little children down to take a nap and Bradley, he didn t want to go to sleep that day for some reason, I don t know why. So I thought, well, I ll just take him outside for a little while and then maybe, you know, he ll get tired and sleepy and want to go back in, you know, and take a nap. And then he walked over to that fence and that s when the dog jumped at the fence and scratched him. And I was right there standing right by him.

 

(Emphasis added). We find that this testimony is more than a scintilla of evidence that shows that the dog was a contributing cause, which, in a natural sequence, produced Bradley s injuries. Id.

In conclusion, after reviewing all of the summary-judgment evidence attached to Allen s initial and supplemental responses, we find that Allen has raised fact issues on all of the challenged elements. Tex. R. Civ. P. 166a(i). Thus, we find that the trial court erred by granting summary judgment for Albin with respect to the strict liability claim.

Negligence claim

Allen filed deposition testimony from Haferkamp and Henderson as evidence that would raise fact issues on the challenged elements of her negligent handling of an animal claim: (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. Marshall, 511 S.W.2d at 259 (element 4); Dunnings, 881 S.W.2d at 561-62 (elements 2, 3).

Whether a duty exists is a threshold question of law that we decide from the facts surrounding the case. Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999). In Marshall, the Supreme Court held that negligence can be a correct theory in a personal injury case which concerns an animal. Marshall, 511 S.W.2d at 259. The Court said that [a]ll animals are not vicious and a possessor of a non-vicious animal may be subject to liability for his negligent handling of such an animal. Id. As authority for this proposition, the Court cited our decision in Dawkins v. Van Winkle, where we held that an individual owes a duty to exercise reasonable care to prevent his animal from injuring others. Dawkins v. Van Winkle, 375 S.W.2d 341, 344 (Tex. Civ. App. Waco), writ dism d w.o.j., 377 S.W.2d 830 (Tex. 1964). The Court also cited the Restatement of Torts 518 (1938) as authority in accord with that proposition. Section 518 of the First Restatement provides:

. . . [O]ne who possesses or harbors a domestic animal, which he does not have reason to know to be abnormally dangerous but which is likely to do harm unless controlled, is subject to liability for harm done by such animal if, but only if,

 

(a) he fails to exercise reasonable care to confine or otherwise control it, and

 

(b) the harm is of a sort which it is normal for animals of its class to do.

 

Restatement of Torts 518 (1938).

The Supreme Court decided Marshall in 1974, and three years later the American Law Institute published the Restatement (Second) of Torts (1977). Because the Court in Marshall cited with approval section 518 of the First Restatement, we now look to section 518 of the Second Restatement for an explanation of the duty an owner of a domestic animal owes to others. It states:

Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if,

 

(a) he intentionally causes the animal to do the harm, or

 

(b) he is negligent in failing to prevent the harm.

 

Restatement (Second) of Torts 518 (1977). This section applies to a dog owner, because a dog meets the definition of a domestic animal, which is an animal that is by custom devoted to the service of mankind at the time and in the place in which it is kept. Id. 506. The comments following section 518 explain why there is a duty:

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 ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent forseeable harm. . . . [Thus] the keeper of an ordinarily gentle [female dog] 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.

Accordingly, we recognize that Albin owed a duty to exercise reasonable care to prevent her dog under particular circumstances from injuring others, a legal duty that was acknowledged by the Court in Marshall. We emphasize that we are not creating a new duty, which would require us to apply the four-prong test set out by the Supreme Court in Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994); rather, we find that Albin owed Bradley a duty already recognized by Texas jurisprudence.

The third element of Allen s negligence claim is that Albin breached her duty to exercise reasonable care to prevent her dog from injuring others. Dunnings, 881 S.W.2d at 561-62. When a duty requires the defendant to exercise reasonable care, the defendant s standard of care is defined as what a reasonable prudent person would or would not have done under the same or similar circumstances regarding any reasonably foreseeable risk. Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex. 1984). To prove Albin breached the standard of reasonable care, Allen must present evidence showing Albin did not act as a reasonable prudent person would have acted in the same or similar circumstances in handling the dog. Id.

In her petition, Allen alleged that Albin breached her duty of ordinary care by failing to take reasonable steps to prevent the dog from coming into contact with Bradley. In responding to Albin s no-evidence summary-judgment motion, Allen was required to produce evidence of the element of breach, i.e., (a) that Albin did not act as an ordinarily prudent person would have in handling the dog, or (b) in Allen s words, evidence that Albin failed to take reasonable steps in handling the dog. Id. In her responses to the motion, Allen did not present evidence of a breach to raise a fact issue. Accordingly, because Allen did not produce any evidence of breach, the court properly granted Albin s no-evidence summary judgment on Allen s negligent handling of an animal claim.

Summary

We conclude that the trial court: (1) erred in granting summary judgment concerning the strict liability claim; and (2) properly granted summary judgment concerning the negligent handling of an animal claim. Thus, we will affirm the judgment in part, upholding the court s decision to grant summary judgment on the negligence claim; we will reverse the court s judgment in part, remanding the cause for further proceedings on Allen s strict liability claim.

SUMMARY JUDGMENT IN FAVOR OF HAFERKAMP

We now address Allen s second issue concerning the trial court s granting of Haferkamp s traditional summary-judgment motion.

Standard of Review

Haferkamp filed what purports to be a no-evidence summary-judgment motion. Tex. R. Civ. P. 166a(i). In support of the motion, Haferkamp attached deposition testimony from four witnesses: (1) Jack Allen; (2) Billie Ann Allen; (3) Bradley; and (4) Haferkamp. We have previously determined that a no-evidence summary-judgment motion should be made without presenting evidence to support the motion. Williams v. Bank One, N.A., 15 S.W.3d 110, 116 (Tex. App. Waco 1999, no pet.); Ethridge v. Hamilton County Elec. Coop. Ass n, 995 S.W.2d 292, 295 (Tex. App. Waco 1999, no pet.). Haferkamp s motion claimed [t]he depositions taken of Bradley Allen and his parents conclusively show that the plaintiffs have no evidence of the proximate-cause element of Allen s negligence claims. Moreover, Haferkamp relied on her own deposition testimony in which she testified under oath that she had no knowledge of the dog before the incident that forms the basis of this lawsuit. In other words, Haferkamp argued that the evidence attached to her motion demonstrated that there was no genuine issue of material fact concerning the proximate-cause element of Allen s negligence claims. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990); see Tex. R. Civ. P. 166a(c).

Although Haferkamp labeled her summary-judgment motion as a no-evidence motion, she presented it with evidence that she contended would conclusively show that there was no genuine issue of material fact regarding one of the essential elements of Allen s claims. See Jacobo v. Binur, 70 S.W.3d 330, 333 (Tex. App. Waco 2002, pet. filed). Therefore, we will examine the motion under the traditional summary-judgment standard of review.

The standard of review for a traditional summary judgment is well established: (i) the movant for summary judgment has the burden of showing there is no genuine issue of material fact and she is entitled to summary judgment as a matter of law; (ii) in deciding whether there is a disputed material-fact issue preventing summary judgment, we take evidence favorable to the non-movant as true; and (iii) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in her favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Larsen v. Carlene Langford & Assocs., 41 S.W.3d 245, 248-49 (Tex. App. Waco 2001, pet. denied). When necessary to establish a fact issue, the non-movant must present summary-judgment evidence. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex. 1982); Ethridge, 995 S.W.2d at 294. To prevail on summary judgment, Haferkamp must show there is no genuine issue of material fact concerning one or more essential elements of Allen s causes of action, or establish each element of an affirmative defense as a matter of law. Black, 797 S.W.2d at 27; Larsen, 41 S.W.3d at 249.

The trial court granted the motion without stating the specific reasons for doing so. [W]hen the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the [summary-judgment] motion. Star-Telegram, Inc., 915 S.W.2d at 473.

Allen s Claims

Allen alleged two causes of action against Haferkamp: (1) a premises liability action claiming Bradley was injured by a condition of Haferkamp s property; and (2) an ordinary negligence action claiming Bradley was injured by Haferkamp s negligent activity on her property. //

Premises liability claim

Allen pled that Bradley was Haferkamp s business invitee, and thus, Haferkamp owed him a duty of ordinary care. Allen alleged that Haferkamp breached that duty because she knew or should have been known that toddlers such as Bradley were susceptible to being injured by Albin s dog, and she failed to take reasonable steps to reduce the risk that the children she baby-sat would come into contact with the dog while playing in her backyard. According to Allen, the condition on Haferkamp s premises that posed an unreasonable risk of harm to the children was the chain link fence that separated her backyard from Albin s backyard where the dog was kept.

The elements of a cause of action for premises liability brought by an invitee are: (1) the plaintiff was an invitee, i.e., a person who entered the defendant s premises with the defendant s knowledge and for their mutual benefit; (2) the defendant was an owner or occupier of the premises; (3) a condition on the premises posed an unreasonable risk of harm; (4) the defendant knew or reasonably should have known of the danger; (5) the defendant failed to exercise reasonable care to reduce or to eliminate the risk; and (6) the defendant s breach proximately caused the plaintiff s injuries. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (elements 2-6); Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 161 (Tex. App. Waco 1995, no writ) (element 1).

Negligent activity claim

Regarding the ordinary negligence claim, Allen alleged that Haferkamp acted negligently as a day-care provider. Allen pled that Haferkamp owed Bradley a duty to provide adequate supervision to ensure that he would not suffer injuries while in her care. Allen claimed that Haferkamp breached this duty by allowing Bradley to get too close to Albin s dog. Allen also alleged that her negligence claim is the type of case wherein the circumstances surrounding the accident constitute sufficient evidence of the defendant s negligence; this is the doctrine of res ipsa loquitur, meaning the thing speaks for itself.

The elements of a cause of action for negligence are: (1) the defendant owed a legal duty to the plaintiff; (2) the defendant breached that duty; and (3) the breach proximately caused the plaintiff s injury. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).

Haferkamp s Summary-Judgment Motion

As noted earlier, Haferkamp s motion attacked the proximate cause element of both of Allen s claims by arguing that her own deposition testimony and [t]he depositions taken of Bradley Allen and his parents conclusively show that Allen has no evidence of that element.

The challenged element of both claims: proximate cause

Allen bears the burden of proving the element of proximate cause in both of her claims. The components of proximate cause are cause-in-fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Haferkamp argued in her motion that her summary-judgment evidence showed that Allen could not satisfy the foreseeability component.

To prove foreseeability, the plaintiff must establish that a person of ordinary intelligence should have anticipated the danger created by the negligent act or omission. Boys Clubs, 907 S.W.2d at 478. Foreseeability does not, however, require a person to foresee the particular accident or injury that in fact occurs. Brown v. Edwards Transfer Co., Inc., 764 S.W.2d 220, 223 (Tex. 1988). Foreseeability requires only that (1) the injury be of such a general character as might reasonably have been anticipated, and (2) the injured party be so similarly situated in relation to the wrongful act that the injury to him or to someone similarly situated might reasonably have been foreseen. Nixon, 690 S.W.2d at 551. The question of foreseeability involves a practical inquiry based on common experience applied to human conduct. City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex. 1987). The inquiry is whether the injury might reasonably have been contemplated as a result of the defendant s conduct. Id.

Haferkamp s summary-judgment evidence

Haferkamp s motion contended that the following evidence demonstrated that she did not know Albin had a dog prior to the attack:

Jack Allen, Bradley s father, stated in his deposition that he cannot dispute the fact that Haferkamp denies having any knowledge of the existence of Albin s dog prior to the attack.

Billie Ann Allen, Bradley s mother, testified in her deposition that she had never seen Albin s dog before the incident and no one had ever mentioned the dog to her.

Bradley testified in his deposition that he remembered nothing about the attack.

Haferkamp stated in her deposition that she had no knowledge of the dog before the incident.

 

Haferkamp concluded: Without knowledge of the dog it was impossible for the Defendant to foresee the events that form the basis of this lawsuit. In other words, Haferkamp argued that because she did not know Albin had a dog, she could not have anticipated the danger that Bradley would be injured by the dog.

The Doctrine of Res Ipsa Loquitur

We initially address Allen s contention that we should reverse the summary judgment because Haferkamp did not address Allen s cause of action of res ipsa loquitur in her summary-judgment motion. Allen argues that the summary judgment ordered by the trial court did not dispose of the res ipsa loquitur claim. However, the doctrine of res ipsa loquitur is merely a rule of evidence by which a jury may infer negligence; it is not a separate cause of action apart from negligence. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990); Schorlemer v. Reyes, 974 S.W.2d 141, 146 (Tex. App. San Antonio 1998, pet. denied). Accordingly, Allen s contention that the summary judgment in favor of Haferkamp should be reversed because of a surviving cause of action of res ipsa loquitur is without merit.

Allen s Responses to the Motion

Haferkamp asserted in her summary-judgment motion that because she did not know Albin had a dog, she could not have anticipated the danger that Bradley would be injured by the dog. Therefore, she says, the evidence conclusively negates the element of foreseeability. Allen responded to Haferkamp s contention by presenting evidence that demonstrated that Haferkamp knew her neighbor had a dog prior to the attack. Allen s evidence consisted of deposition testimony from Haferkamp and from her neighbor s grandson, Michael Henderson. Haferkamp testified:

Q: And it s your testimony that you never knew before that she even had a dog?

A: No, I did not know she had a dog. She would have a dog and then it would leave, and then she d have another one that come back, and when she got this one I did not know.

 

(Emphasis added). Admittedly, Haferkamp said that she did not know when her neighbor started possessing the particular dog that harmed Bradley. But a jury might rely on her testimony as circumstantial evidence that because she had been aware of the fact that her neighbor kept a dog in the past, it is probable that she was aware of when her neighbor came into possession of the dog in question. Allen presented more poignant evidence on this issue, however.

Henderson, Albin s grandson, testified that his grandmother always kept the dog he gave to her outside in her backyard. He said his grandmother had the dog for a few months prior to the incident. More importantly, he said that Haferkamp was aware his grandmother kept that particular dog. He knew that Haferkamp ran a day-care business in her home, and he often saw the children she baby-sat playing with the dog through the chain-link fence. He said that when the children would play with the dog through the fence, sometimes Haferkamp would be outside watching them and sometimes she would not. He remembered specific instances when Haferkamp and his grandmother would talk to each other at the fence while the dog was close to them. He recalled a conversation he had with Haferkamp when the dog was in plain view. Finally, he said all of these events occurred before the dog hurt Bradley.

As already noted, in deciding whether there is a disputed material fact issue preventing summary judgment, we take evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 548-49; Larsen, 41 S.W.3d at 248-49. We take Henderson s testimony concerning Haferkamp s knowledge of the dog prior to the attack as true. Id. Therefore, there was evidence Haferkamp knew about the dog. //

Haferkamp s other argument is that because the dog had been friendly towards the children, she could not foresee that the dog would suddenly attack Bradley. However, foreseeability does not require that Haferkamp have foreseen the particular accident or injury, i.e., the dog suddenly attacking Bradley. Brown, 764 S.W.2d at 223. Foreseeability requires only that: (1) the injury be of such a general character as might reasonably have been anticipated; and (2) the injured party be so similarly situated in relation to the wrongful act that the injury to him or to someone similarly situated might reasonably have been foreseen. Nixon, 690 S.W.2d at 551. We apply this definition to the summary-judgment evidence.

Allen s evidence shows that Haferkamp baby-sat three children during 1985, the year Bradley was injured by the dog. There is evidence that Haferkamp was aware that Albin kept the particular dog that attacked Bradley. Henderson s deposition testimony reveals that Haferkamp allowed the children she baby-sat to play with the dog. Henderson said that sometimes the children would be unattended when playing with the dog through the fence. A non-vicious domestic animal, e.g., a dog, can cause injury to others under particular circumstances even though the animal has not exhibited such behavior in the past. See Restatement (Second) of Torts 518 cmt. h (1977). Therefore, we conclude that a jury could find that Bradley s injury was of such a general character as might reasonably have been anticipated. Nixon, 690 S.W.2d at 551 (part 1" of the definition of foreseeability ). We also conclude that a jury might find that Bradley was so similarly situated in relation to the wrongful act that the injury to him or to someone similarly situated, i.e., the other children Haferkamp baby-sat, might reasonably have been foreseen. Id. (part 2" of the definition of foreseeability ).

that establishes a fact issue on the element of proximate cause as to each claim. Westland Oil Dev. Corp., 637 S.W.2d at 907; Ethridge, 995 S.W.2d at 294. Thus, the trial court erred by granting summary judgment in favor of Haferkamp with respect to the claims Allen brought against her.

Summary

Having found that the trial erred by granting summary judgment, we will reverse and remand the cause for further proceedings.

CONCLUSION

The summary judgment is affirmed regarding Allen s negligence claim against Albin, and that claim is severed. The summary judgment is reversed on Allen s strict liability claim against Albin and her claims against Haferkamp. The cause is remanded for further proceedings.

BILL VANCE

Justice

 

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

(Justice Gray dissenting and concurring)

Reversed in part, Affirmed in part

Opinion delivered and filed December 31, 2002

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