AFFIRMED and Opinion Filed April 26, 2023 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-00659-CV KENNETH CERNAK, Appellant V. JILL STUDLEY AND DAVID POLLOCK, Appellee On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-03116-2021 MEMORANDUM OPINION Before Justices Pedersen , III, Garcia and Kennedy Opinion by Justice Garcia This case involves the alleged negligen t handling of a puppy. The trial court granted a no-evidence summary judgment in favor of Jill Studley and David Pollock (together, “Studley-Pollock”) on Kenneth Ce rnak’s (“Cernak”) negligence claim. Cernak now argues the summary judgment is erroneous because it was foreseeable that the puppy would escape from the house and the backyard, run into the street, startle him, and cause him to fall. As di scussed below, we affirm the trial court’s judgment.–2– I. Background On the day in question, Cernak was walking his 100-p ound dog Riley across the street from the Studley-Pollock ’s home. Cernak carried a baton. Studley’s father was visiting the Studley-Pollock residence and a third party was in their backyard to pick up a swing se t. The third party left the gate open, and when Studley’s father opened the back door to the residence, Grayson, a five-monthold twenty-five to thirty pound puppy, dart ed out the door, out of the backyard and into the street. Grayson did not bark or grow l, but instead, ran in circles in the street. Cernak and Riley were on the opposite si de of the street and had passed the Studley-Pollock residence. Cernak heard yelling and when he saw Grayson, he unsheathed his baton and pointed it at Gr ayson. Grayson ran toward Cernak and stopped about six feet from the baton. Gr ayson did not bark, growl, attack, or otherwise make contact w ith Cernak or Riley. Studley, her father, and the person ta king the swing set tried to collect Grayson. Grayson moved to the right side of Cernak and Cernak moved. He was standing in what he described as a “severel y sloped yard” with a five to six inch “grass curb.” Cernak’s foot hit the “hard di rt that was holding the grass,” lost his balance, and fell. Cernak sustained a s houlder injury as a result of the fall.–3– Cernak sued Studley and Pollock for neg ligent handling of an animal, strict liability, negligence per se, and gross negligence. 1 Studley and Pollock moved fortraditional and no-evidence summary judgment on Cernak’s claims. The noevidence section of the motion argued, in ter alia, that Cernak was not entitled to recover on his negligence claim because th ere was no evidence that the incident was foreseeable. Prior to the court’s summary judgment ru ling, Cernak conceded that his strict liability, negligence per se, and gross neg ligence claims were not viable because Grayson had no “vicious propensities.” Cern ak responded to the summary judgment motion and included his deposition, the Pollock and Studley depositions, and a picture of an unknown dog in support. 2 Studley-Pollock object ed to and moved to strike some of Cernak’s evidence, but our record does not include a ruling on those objections. After a hearing, the trial court grante d Studley-Pollock’s summary judgment motion and dismissed Cernak’s claims with prejudice. Cernak moved for reconsideration and the trial court deni ed the motion. This appeal followed.

1 Cernak’s petition also named a J ohn Doe defendant described as an unknown contractor or contracting company, but Cernak subsequently nonsu ited his claims against this defendant. 2 The picture is not authenticated, but purports to be a full-grown Thai Ridgeback, the same breed as Grayson.–4– II. Analysis Standard of Review and Applicable Law Although Studley-Pollock initially moved for summary judgment on all of Cernak’s claims, Cernak conceded all but th e negligence claim as a matter of law. Accordingly, we review the no-evidence summary judgment on Cernak’s negligence claim. After an adequate time for discove ry, a party may move for summary judgment on the ground that there is no evid ence of one or more essential elements of a claim or defense on whic h an adverse party would ha ve the burden of proof at trial. T EX

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. P. 166a(i). When reviewing a no -evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and reso lving any doubts against the motion. Sudan v. Sudan , 199 S.W.3d 291, 292 (Tex. 2006). In our review, we apply the same legal sufficiency standard as a directed verdict. Merriman v. XTO Energy, Inc ., 407 S.W.3d 244, 248 (Tex. 2013). Under this sta ndard, the nonmovant has the burden to produce more than a scintilla of evidence to support each challenged element of its claims. Id. Evidence is no more than a scintilla if it is “so weak as to do no more than create a mere surmise or suspicion” of a fact. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc ., 650 S.W.2d 61, 63 (Tex. 1983)).–5– The alleged negligence at issue here is negligent handling. A person injured by a dog or other domestic animal may bri ng suit for negligent handling against the animal’s owner. See Marshall v. Ranne , 511 S.W.2d 255, 258 (Tex. 1974). To recover on such a claim, a plaintiff must prove: (1) the defendant was the owner or possessor of an animal; (2) th e defendant owed a duty to ex ercise reasonable care to prevent the animal from injuring others; (3) the defendant breached that duty; and (4) the defendant’s breach proximatel y caused the plaintiff’s injury. Thompson v.
Curtis , 127 S.W.3d 446, 451 (Tex. App.—Dal las 2004, no pet.). Unlike strict liability, the plaintiff need not prove that the animal was vicious or dangerous. Dunnings v. Castro , 881 S.W.2d 559, 562 (Tex. App. —Houston [1st Dist.] 1994, writ denied). The threshold inquiry in a negligence case is whether the defendant owes a legal duty to the plaintiff. Boerjan v. Rodriguez , 436 S.W.3d 307, 310 (Tex. 2014). In a case such as this, to establish breach of duty, a plaintiff “must present some evidence showing [the defendant] did not act as a reasonable prudent person would have acted in the same or similar circ umstances in the ha ndling of the dog.” Stein v. Reger , No. 01-15-00470-CV, 2016 WL 3162589, at *4 (Tex. App.—Houston [1st Dist.] June 2, 2016, no pet.) (mem. op.). Proximate cause consists of two el ements: (1) cause in fact, and (2) foreseeability. Allen v. Albin, 97 S.W.3d 655, 668 (Tex. A pp. —Waco 2002, no pet.). “Cause in fact means the negligent act or omission was a substantial cause in–6– bringing about the injury and without wh ich no harm would have been incurred.” Searcy v. Brown , 607 S.W.2d 937, 941 (Tex. App.—H ouston [1st Dist.] 1980, no writ). An incident is foreseeable if a pe rson of ordinary intelligence would have anticipated the danger created by a negligent act or omission. See Read v. Scott
Fetzer Co ., 990 S.W.3d 732, 737 (Tex. 1998). A part y is not held responsible for the consequences of an act that cannot be reasonably foreseen . Labaj v. VanHouten , 322 S.W.3d 416, 421 (Tex. App.—Amar illo 2010, pet. denied). Was Cernak’s Injury Foreseeable? Our negligence analysis here turn s on foreseeability. Cernak argues the incident was foreseeable, relying on testim ony that Grayson has a lot of energy, likes to run around, and has previously jumped on strangers. He furt her relies on StudleyPollock’s admission that they read that a Thai Ridgeback dog “should not be your first dog,” and that the breed “can have the propensity to be aggre ssive.” In addition, the Studley-Pollock’s admitted that they have a duty to confine their dog and intentionally unlocked and opened the back ga te for the retrieval of the swing set. But the evidence also shows that Grayson was not in the yard at the time of the incident. He was securely inside th e home when the gate was unlocked and had never escaped the home or backyard in the eleven to twelve weeks he resided with the family. There is no ev idence to suggest that Studley-Pollock knew the man removing the swing set would l eave the gate open, nor is there evidence that they were aware that the gate was open at the tim e of the escape. Ther e is also nothing to–7– establish that anyone in the Studley-Poll ock home was aware that Cernak and Riley were walking by the home. In short, there is no evidence that Studley-Pollock should reasonably anticipated that a third-party would leave the gate open and Studley’s father would open the back door to inadvert ently facilitate Grayson’s escape out of the home and then the yard as Cernak and Riley walked by on uneven terrain. Moreover, despite Cernak’s arguments concerning the general characteristics of Grayson’s breed, there is nothing to establish that Grayson had these characteristics. The foreseeability elemen t requires more than conjecture, guess or speculation. W. Invs. Inc. v. Urena , 162 S.W.3d 547, 551 (Tex. 2005). Although Grayson had previously jumped on strangers, it was in a playful manner and prior to his training. Gray son was a happy, friendly playmate to Studley’s young son. Grayson never barked, growled, or displayed aggressive or vicious behavior toward any person or dog, nor did he engage in this behavior with Cernak or Riley. 3 We reject Cernak’s argument that it is “common sense” that “a dog escaping a yard through an open gate and runnin g towards a passerby” is foreseeable. See
Garza v. Sancen , No. 05-15-00666-CV, 2016 WL 1469345, at *3 (Tex. App.— Dallas Apr. 14, 2018, pet. deni ed) (mere assertion that it was foreseeable that leaving

3 Although evidence of vicious or dangerous propensit y is not required in a negligent handling case, see Dunnings , 881 S.W.2d at 562, Grayson’ s disposition is nonetheless rele vant to whether a reasonable person would anticipate that his escape could potentially cause harm. See Gorman v. Murali , No. 02-17- 00232-CV, 2018 WL 2727825, at *2 (Tex. App.—Fort Wo rth 2018, no pet.) (mem. op.) (animal’s vicious tendencies may be factors in determin ing foreseeability and proximate cause).–8– gate open could lead to the dog getting out did not constitute competent summary judgment evidence). The summary judgment ev idence here does not establish that the incident was foreseeable. See Williams v. Sable , No. 14-09-00806-CV, 2011 WL 238288, at *4 (Tex. App.—Hou ston [14th Dist.] Jan. 25, 2011, no pet.) (mem. op.) (no foreseeability when dog owner did not know plaintiff was there, was not the one who opened the gate, and dog had never done anyt hing similar before). Cernak insists that foreseeability is a f act issue to be determined by a jury. While this is sometimes true, it is not a foregone conclusion. If a nonmovant fails to meet his burden, nothing precludes summary judgment on the foreseeability element of a negligence case . See, e.g., Smith v. Province , No. 07-18-00026-CV, 2019 WL 1870105, at *4 (Tex. App.—Amarillo Apr. 25, 2019, no pet.) (m em. op.) (granting summary judgment on foreseeability). Indeed , when a party moves for no-evidence summary judgment, there is no issue to su bmit to a jury unless the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact. See T EX

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. P. 166a(i); Jones v. Gill , No. 02-03-298-CV, 2005 WL 503182, at *2 (Tex. App.—Fort Worth Ma r. 3, 2005, no pet.) (mem. op.). There is no such evidence of probative force here.–9– Accordingly, the trial court did not err in granting summary judgment on Cernak’s negligence claim. We resolve Cer nak’s issue against him and affirm the trial court’s judgment.

220659F.P05 /Dennise Garcia/ DENNISE GARCIA JUSTICE–10– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT KENNETH CERNAK, Appellant

No. 05-22-00659-CV V.

JILL STUDLEY AND DAVID POLLOCK, Appellee On Appeal from the 416th Judicial District Court, Collin County, Texas Trial Court Cause No. 416-03116- 2021. Opinion delivered by Justice Garcia. Justices Pedersen, III and Kennedy participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee JILL STUD LEY AND DAVID POLLOCK recover their costs of this app eal from appellant KENNETH CERNAK.
Judgment entered this 26th day of April 2023.