CASE NO. 06-14-00094-CV

_____________________________________________________________

IN THE SIXTH COURT OF APPEALS

TEXARKANA, TEXAS 

_____________________________________________________________

Nancy Elizabeth Bowman,

Appellant,

vs.

Jerry Davidson and 

Diana Davidson,

Appellees.

____________________________________________________________

On Appeal from the 71st Judicial District

Harrison County, Texas

Cause No. 13-0618

The Honorable Brad Morin, Presiding

_____________________________________________________________

BRIEF OF APPELLANT

_____________________________________________________________

JACK M. SANDERS, JR.

State Bar No. 17592000

 109 East Houston Street

P.O. Box 1387

Marshall, Texas 75671-1387

(903) 935-7172

(903) 938-8616 (Fax)

sanders.jack@sbcblobal.net

ATTORNEY FOR APPELLANT

ORAL ARGUMENT REQUESTED

ACCEPTED

06-14-00094-CV

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

3/19/2015 10:52:36 AM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 3/19/2015 11:05:00 AM DEBBIE AUTREY Clerk
Preamble

COMES NOW NANCY ELIZABETH BOWMAN, Appellant herein, who

hereby respectfully makes and files this, her Appellant’s Brief. 

In the interest of clarity, Nancy Elizabeth Bowman will be referred to as

“Bowman,” while JERRY DAVIDSON, Appellee herein, will be referred to as

“Jerry”, and DIANA DAVIDSON, the other Appellee herein, will be referred to as

“Diana.” Collectively, the Appellees will be referred to as “the Davidsons.”

In this Brief, the Reporter’s Record will be cited by volume and page:line as

“___ RR ___:___”, the Reporter’s Supplemental Indexes will be cited as R. Supp.

R. Index, the Clerk’s Record will be cited by page as “CR _____,” the Clerk’s

Supplemental Records will be cited as “ C. Supp. R. ” and the plaintiff’s

exhibits will be cited by record volume and exhibit number as “4 RR P.Ex. ____.” 

The Appendix will be referred to as “Appx. .”

ii
Identity of Parties and Counsel

Pursuant to Tex. R. App. P. 38.1(a), Bowman hereby submits a list of parties

and counsel interested in this case:

Appellant and her Appellate/Trial Counsel:

Nancy Elizabeth Bowman

c/o Jack M. Sanders, Jr. 

State Bar No. 17592000

109 East Houston Street

P.O. Box 1387

Marshall, Texas 75671-1387

(903) 935-7172

(903) 938-8616 (Fax)

sanders.jack@sbcblobal.net

Appellees and their Trial Counsel:

Jerry and Diana Davidson

c/o Alan E. Brown

State Bar No. 03090500

Boyd & Brown, P.C.

1215 Pruitt Place

Tyler, Texas 75703

(903) 526-9000

(903) 526-9001 (Fax)

aebrown@suddenlinkmail.com

iii
Table of Contents

Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Standards of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Legal Sufficiency of the Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Factual Sufficiency of the Evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Bubba Bit a Long Time Friend of the Davidsons Prior to

Biting Bowman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. Bubba Had a History of Aggressive, Protective and Possessive 

Behavior. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

C. Due to Bubba’s Behavior, the Davidsons Warned New Guests

At Their Home Not to Interact With Bubba.. . . . . . . . . . . . . . . . . . . 10

D. The Lawsuit and the Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iv
Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

First Issue.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bowman was entitled to affirmative jury findings as a matter of law

regarding the dangerous propensities of the Davidsons’ dog and the

Davidsons’ knowledge of the dog’s dangerous propensities, or in the

alternative, the jury’s findings was against the great weight and

preponderance of the evidence.

Arguments Relating to the First Issue

A. Strict Liability Claims Involving a Domestic Dog.. . . . . . . . . . . . . . 13

1. The Second Element of Dangerous Propensities. . . . . . . . . . . 14

2. The Third Element Requiring the Owner’s Knowledge. . . . . 16

B. The Record Contains Only Affirmative Evidence of Bubba’s

Dangerous Propensities and the Davidsons’ Knowledge 

of the Dangerous Propensities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

1. There is No or Little Evidence to Support Bubba Did

Not Have Dangerous Propensities and Affirmative 

Evidence to Support He Did.. . . . . . . . . . . . . . . . . . . . . . . . . . 18

2. No or Little Evidence to Support the Davidsons Did Not

Know or Did Not Have Reason to Know Bubba Had

Dangerous Propensities and Affirmative Evidence to

Support They Did Have Knowledge. . . . . . . . . . . . . . . . . . . . 25

C. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

v
Second Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Bowman was entitled to an affirmative answer as a matter of law that the

dog’s dangerous propensities were the producing cause of Bowman’s

injuries, or in the alternative, a negative finding would have been against

the great weight and preponderance of the evidence. 

Arguments Relating to the Second Issue

A. Strict Liability Requires Bowman to Prove the Dangerous

Propensities Were the Producing Cause of Bowman’s Injuries.. . . . 31

B. The Record Contains Only Affirmative Evidence in Support

of Bubba’s Dangerous Propensities As the Producing

Cause of the Bite.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

C. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

vi
Index of Authorities

Cases

Texas Supreme Court

Cain v. Bain, 

709 S.W.2d 175 (Tex. 1986) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Collora v. Navarro, 

574 S.W.2d 65 (Tex. 1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Croucher v. Croucher, 

660 S.W.2d 55 (Tex. 1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Ford Motor Co. v. Ledesma, 

242 S.W.3d 32 (Tex. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Holley v. Watts, 

629 S.W.2d 694 (Tex. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Marshall v. Ranne, 

511 S.W.2d 255 (Tex. 1974).. . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 16, 31

Traylor v. Goulding, 

497 S.W.2d 944 (Tex. 1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Washington v. Reliable Life Ins. Co., 

581 S.W.2d 153 (Tex. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Texas Courts of Appeal

Allen ex rel. B.A. v. Albin, 

97 S.W.3d 655 (Tex. App. — Waco 2002, no pet.). . . . . . . . . . . . . . . . . . 13

Beard v. Beard, 

49 S.W.3d 40 (Tex. App. — Waco 2001, pet. denied).. . . . . . . . . . . . . . . . . 6

vii
Belger v. Sweeney, 

836 S.W.2d 752 (Tex. App. — Houston [1st Dist.] 1992, writ denied).. . . 16

Carrasco v. Stewart, 

224 S.W.3d 363 (Tex. App. — El Paso 2006, no pet.).. . . . . . . . . . . . . . . . . 5

Dunnings v. Castro, 

881 S.W.2d 559 (Tex. App. — Houston [1st Dist.] 1994, writ denied).. . . 15

Farley v. M.M. Cattle Co., 

549 S.W.2d 453 (Tex. Civ. App. — Waco 1977, writ ref’d n.r.e.). . . . . . . 15

Machala v. Weems, 

56 S.W.3d 748 (Tex. App. — Texarkana 2001, no pet.). . . . . . . . . . . . . . . . 6

Owens v. Coury, 

614 S.W.2d 926 (Tex. App. — Amarillo 1981, no writ). . . . . . . . . . . . 13, 15

Plummer v. Estate of Plummer, 

51 S.W.3d 840 (Tex. App. — Texarkana 2001, pet. denied).. . . . . . . . . . . . 6

Raw Hide Oil & Gas Co., Inc. v. Maxus Exploration Co., 

766 S.W.2d 264 (Tex. App. — Amarillo 1988, writ denied).. . . . . . . . . . 5, 6

Thompson v. Curtis, 

127 S.W.3d 446 (Tex. App. — Dallas 2004, no pet.). . . . . . . . . . . . . . 13, 31

Villareal v. Elizondo, 

831 S.W.2d 474 (Tex. App. — Corpus Christi 1992, no writ). . . . . . . . . . 15

Wells v. Burns, 

480 S.W.2d 31 (Tex. Civ. App. —El Paso 1972, no writ). . . . . . . . . . . 13, 15

viii
Out of State Cases

Supreme Court

Poznanski ex rel Poznanski v. Horvath, 

788 N.E.2d 1255 (Ind. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Deardoff v. Burger, 

606 A.2d 489 (Pa. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Robinson v. Marino, 

3 Wash. 434, 28 P. 752 (1892). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Texas Rules of Appellate Procedure

Tex. R. App. Pro. 9.4(i)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Tex. R. App. Pro. 9.5(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Tex. R. App. Pro. 38.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Other Authorities

Restatement (Second) of Torts § 509. . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16, 19, 20

ix
Statement of the Case

Nature of the

Underlying Case: Suit for personal injuries due to the Davidsons’ dog attacking

Bowman. CR 11-16.

Trial Court: The 71st Judicial District Court, Harrison County, Texas, the

Honorable Brad Morin, Presiding.

Disposition: The Court entered Judgment for the Davidsons based on the

Jury’s findings. Appx. 1; 3A C. Supp. R. 4-5.

Statement Regarding Oral Argument

Bowman believes oral argument is called for in this case. There are not many

cases in Texas where strict liability has been found with regard to domestic animals. 

But this case is unique and fits squarely within the common law requirements for

strict liability set out by the Texas Supreme Court years ago. Thus, this is an

important case with regard to future dog bite cases and to the jurisprudence of this

State. 

Further, it is impossible to include all of the evidence presented during the

three day trial which supports strict liability into this Brief. Thus, Bowman requests

the opportunity to argue to the Court the main points of evidence which leave no

question that the jury made incorrect findings as to strict liability in this case. 

1
Issues Presented

First Issue

Bowman was entitled to affirmative jury findings as a matter of law

regarding the dangerous propensities of the Davidsons’ dog and the

Davidsons’ knowledge of the dog’s dangerous propensities, or in the

alternative, the jury’s findings was against the great weight and

preponderance of the evidence.

Second Issue

Bowman was entitled to an affirmative answer as a matter of law that the

dog’s dangerous propensities were the producing cause of Bowman’s

injuries, or in the alternative, a negative finding would have been against

the great weight and preponderance of the evidence. 

2
Summary of the Argument

Strict liability with regard to domestic animals is not a new concept in Texas. 

The law has long been if a dog has dangerous propensities, the owners knew or had

reason to know about the dangerous propensities and the dog bites someone, as a

result of the dangerous propensities, then the owners are liable, period. That is the

law in Texas. The jury is charged with applying the facts of the specific case to the

law. If the preponderance of the evidence support the elements, then the jury must

enter the finding. 

Here, the jury failed to follow the law, and thus, failed to enter the correct

findings. There was overwhelming evidence presented at trial in support of the

Davidsons’ dog having dangerous propensities in the form of the protectiveness and

aggression toward strangers. There was also overwhelming evidence at trial that the

Davidsons knew from early on that Bubba exhibited such behaviors. The Davidsons

even warned for safety of new guests to prevent a bite like what happened to

Bowman. The law does not require an actual prior bite to show dangerous

propensities. Yet, there is one in this case. Finally, there was overwhelming

evidence at trial that Bubba’s protectiveness and aggression toward strangers caused

Bubba to bite Bowman. Despite all of the overwhelming evidence, the jury chose not

to enter the correct finding. It may have been because they jury sympathized with the

3
Davidsons or disliked Bowman. The reason for the jury’s failure to follow the law

is irrelevant. Bowman is now entitled to seek this evidentiary review to correct the

wrong based on the record. Accordingly, Bowman asks this Court to review the

record in its entirety and reverse the jury’s finding to Question No. 1 as to either

Diana or Jerry and enter an affirmative finding as to Question No. 2.1 Then, remand

the cause back to the trial court for a determination as to damages alone. 

1The Court of Appeals can reverse the jury finding as to Diana or Jerry alone and send the

cause back to the trial court because either answer will lead to liability of a defendant. 

4
Standards of Review

When a party having the burden of proof appeals from an adverse fact-finding

in the trial court, the point of error should be the matter was established as a matter

of law or that the jury’s finding was against the great weight and preponderance of

the evidence. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). The specific

standards as they relate to legal and factual sufficiency of the evidence are set forth

below. 

A. Legal Sufficiency of the Evidence

Legalsufficiency points of error assert a complete lack of evidence on an issue.

Raw Hide Oil & Gas Co., Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex.

App. — Amarillo 1988, writ denied). Legal sufficiency points are designated as “no

evidence points” or “matter of law points,” depending upon whether the complaining

party had the burden of proof. Id. The appropriate legal sufficiency challenge here,

as Bowman had the burden of proof for her strict liability claim, is a matter of law

point. Carrasco v. Stewart, 224 S.W.3d 363, 367 (Tex. App. — El Paso 2006, no

pet.). 

In reviewing a matter of law point, the Court of Appeals must examine the

entire record for evidence that supports the jury’s finding, ignoring any evidence to

the contrary. Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982). If no evidence to

5
support the finding is found, the Court of Appeals must then examine the entire

record again to determine if a contrary position is established as a matter of law. Id.;

Plummer v. Estate of Plummer, 51 S.W.3d 840, 841 (Tex. App. — Texarkana 2001,

pet. denied). 

B. Factual Sufficiency of the Evidence

Factual sufficiency points of error concede conflicting evidence on an issue,

yet maintain that the evidence against the jury’s finding is so great as to make the

finding erroneous. Raw Hide Oil & Gas Co., Inc., 766 S.W.2d at 275. Factual

sufficiency points of error are designated as “insufficient evidence points” or “great

weight and preponderance points,” depending upon whether the complaining party

had the burden of proof. Id. The appropriate factual sufficiency challenge here as

Bowman had the burden of proof for her strict liability claim is a great weight and

preponderance point. Beard v. Beard, 49 S.W.3d 40, 55 (Tex. App. — Waco 2001,

pet. denied); Machala v. Weems, 56 S.W.3d 748, 754 (Tex. App. — Texarkana 2001,

no pet.). In reviewing a great weight and preponderance point, the Court of Appeals

must examine the entire record to determine if there is some evidence to support the

jury’s finding, and then determine whether, in light of the entire record, the finding

is manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam);

Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973).

6
Statement of Facts

This suit arises from the injuries Bowman suffered on the evening of June 24,

2012 as a result of Davidsons’ dog biting her in the face. The Davidsons own two

AustralianBlue Heelers. 4RR 87:19-24. Diana acquired the dogs, brother and sister,

when they were six weeks old. 4 RR 88:6-9. The dog that bit Bowman was her 11

year old male Blue Heeler named Bubba. 

A. Bubba Bit a Long Time Friend of the Davidsons Prior to Biting Bowman

About a year before Bubba bit Bowman, he bit Billy Strong (“Strong”), a long

time family friend. Appx. 3; 1 R. Supp. R Index, Video Deposition of Billy Strong;

2

8 RR P. Ex. 20. The incident occurred when a repairman left his bag of tools inside

the Davidsons’ home. Appx. 3; 1 R. Supp. R Index, Video Deposition of Billy

Strong. Diana asked Strong to take the bag of tools outside to the repairman before

he had a chance to leave. Id. After Strong grabbed the tool bag, he took off at a trot

towards the front door, and Bubba bit him on the back of the leg. Id. Bubba had a

hold of Strong’s leg and Diana had to holler at Bubba to turn Strong loose. 4 RR

99:24-100:3. Diana witnessed the entire event. 4 RR 99:16-19. She knew that

Bubba laid his teeth on Strong and that Bubba had left a red mark and bruise on the

2For the Court of Appeals’ convenience, in addition to citing to the video deposition

included in the Reporter’s Record in the Supplemental Exhibit Index, Bowman has also attached

the line and page excerpt from Billy Strong’s deposition that Bowman is relying on and that was

included in the video shown the jury in the Appellant’s Appendix, Tab 3.

7
back of Strong’s leg. 4 RR 100:4-10; Appx. 3; 1 R. Supp. R. Index, Video

Deposition of Billy Strong. Although the Davidsons do not always describe the prior 

incident with Strong as a “bite,” Strong certainly does. Appx. 3; 1 R. Supp. RR

Video Deposition of Billy Strong. He also thought the dog should have been put up

after the incident whenever anyone came over to the Davidsons so it would not

happen again. Appx. 3, 1 R. Supp. R. Index, Video Deposition of Billy Strong.

B. Bubba Had a History of Aggressive, Protective and Possessive Behavior

Bubba generally does not have a problem with people he knows. 4 RR 100:17-

20. However, he shows aggression toward strangers. 4 RR 100:21-22. Diana has

known this all of Bubba’s life. 4 RR 100:23-24. Both of the Davidsons admit Bubba

is aggressive, protective and possessive. 4 RR 94:17-19; 4 RR 138:20-22, 146:19-23. 

Bubba is just not like other dogs. 4 RR 147:23-148:1. Diana frequently uses both

aggressive and protective when describing Bubba. 4 RR 93:22-94:16. Diana knows

Bubba is aggressive because he barks and jumps at the fence when people come to

their house. 4 RR 94:20-22. She has signs up saying beware of the dogs because she

wants people to beware of them and does not want to take the chance that Bubba will

hurt someone by biting them. 4 RR 94:23-95:5, 95:9-11. Bubba acts protectively

when anyone, including Jerry, gets between him and Diana. 4 RR 138:12-16, 138:24-

25. Bubba is showing his protectiveness and possessiveness when he barks and

pushes people away from Diana. 4 RR 139:5-7. Further, when Bubba gets between

8
Jerry and Diana, he is exhibiting a low level of aggression towards Jerry. 4 RR

138:12-15, 138:21-25; 5 RR 28:7-11. To have Bubba exhibiting such behavior

towards Jerry, someone Bubba has also bonded with, is a red flag for dangerous

behavior. 5 RR 28:12-18. The Davidsons put Bubba up when children come over

because the children might get bit, 4 RR 102:9:17, and they put Bubba up also when

there are a large number of people at their home that the dog does not know. 4 RR

103:18-24, 4 RR 140:18-24. There was a propensity for Bubba to be dangerous. 4

RR 147:6-22. The Davidsons’friends would even warn new guests about interacting

with Bubba. 5 RR 24:24-25:7. Jerry testified that you never know what Bubba is

going to do at any time or when he is going to blow up. 4 RR 149:13-14, 150:3-5. 

Bowman also hired an expert to testify at trial in this case, Dr. Lore Haug (“Dr.

Haug”), who is Board Certified Veterinarian Behavior. 5 RR 8:21. She also received

additional training specifically in animal behavior. 5 RR 8:24-25. She works with

animals with various levels and styles of behavior disorders, 5 RR 9:7-8, including

dogs with aggressive tendencies. 5 RR 9:13-15. All of her opinions at trial were

offered based on her training, education and experience. 5 RR 9:24-10:1. Dr. Haug

testified that “protective” and ‘territorial” are wordsthat owners use to describe types

of aggressive behavior. 5 RR 25:13-15. In the vast majority of cases, dogs only get

worse when the owners do not do anything to stop aggressive tendencies. 5 RR

25:16-22. A dog that is possessive and protective can be a danger, 5 RR 25:23-25,

9
especially if the owners do nothing to train the dog. 5 RR 27:18-21. The Davidsons

did nothing to properly train Bubba. 4 RR 89:14-15; 4 RR 130:17-18; 5 RR 27:18-

21. Further, this protective and aggressive behavior does not fall within the range of

a typical or normal companion dog. 5 RR 23:14-16. Moreover, Bubba biting Strong

was not appropriate even for cattle herding dogs. 5 RR 29:13-15. Well socialized

and trained dogs know the difference between a human being and cattle. 5 RR 38:10-

17. With Bubba’s past possessive and protective behaviors and the concern that

prompted the Davidsons warnings, it was only a matter of time before someone got

hurt. 5 RR 37:13-16. Dr. Haug is positive that the Davidsons recognized the risk

Bubba posed to new guests. 5 RR 39:13-21. 

C. Due to Bubba’s Behavior, the Davidsons Warned New Guests At Their Home

Not to Interact With Bubba

Due to Bubba’s aggressive nature, the Davidsons would warn guests who were

strangers to the dog not to touch or look at the dog. 4 RR 93:19-25, 95:21-23, 4 RR

131:7-10. The warnings were given to protect people from a bite. 4 RR 95:24-96:4,

114:2-4, 4 RR 131:20-23. Jerry admitted they give the warnings about Bubba

because they knew there was a propensity there for Bubba to bite. 4 RR 140:10-13. 

The Davidsons have been giving their warning about Bubba for a long period of time

prior to Bubba biting Bowman. 4 RR 101:10-15. Diana just did not know if and

when Bubba might act on his aggressive behavior. 4 RR 101:16-23. If in Bubba’s

10
mind Diana was in danger, Bubba would become aggressive. 4 RR139:20-140:5. 

Diana had reason to know that Bubba may be dangerous because she had reason to

know Bubba may bite someone. 4 RR 101:24-102:2. The Davidsons warned people

that came to their home about Bubba because they were concerned that something

bad might happen. 5 RR 14:22-24. Every client Dr. Haug has ever had that have

given warnings to people about their dogs have done so because the owners have

some knowledge about the dog’s previous behavior that makes them concerned that

something bad is going to happen. 5 RR 17:3-7, 24:1-4. There is no other reason to

give warnings unless something similar has happened in the past. 5 RR 17:7-8,

23:18-24:4, 24:20-22. People that have normal dogs, without aggressive tendencies,

do not give warnings. 5 RR 17:9-12.

On the night of the occurrence, the Davidsons and their guests all sat down to

eat dinner at a table. Diana led Bowman to sit down at the table right next to her. 4

RR 29:14-21. There is no dispute asto where Diana and Bowman were sitting before

the attack. 4 RR 106:17-18. Bubba sat on the floor in between Diana and Bowman

during the dinner. 4 RR 30:11-13. Bubba always sat at the table next to Diana. 4 RR

106:19-22. The seating arrangement was cramped due to the number of guests and

everyone was sitting close together. 4 RR 30:25-31:14; 5 RR 34:9-18. It was noisy

in the room and Bowman leaned over towards Diana to tell her something. 4 RR

11
32:15-18; 4 RR 108:6-7, 110:13-16. At that point, Bubba jumped up and bit Bowman

in the face. 4 RR 33:6-9; 4 RR 108:4-7. 

D. The Lawsuit and the Appeal

On August 5, 2013, Bowman filed suit against the Davidsonsfor strict liability

and negligence in order to recover for her significant injuries caused by Bubba’s bite. 

CR 11-16. On September 30, 2013, the Davidsonsfiled an Original Answer. CR 59-

63. On August 19, 2014 the parties went to trial, 4 RR 6, and three days later the trial

concluded with the submission of the charge to the jury. 6 RR 42; CR 1198-1209. 

On August 21, 2014, the jury returned their verdict answering “no” to the first

question regarding strict liability for both Jerry and Diana. Appx. 2; CR 1198-1209. 

On August 28, 2014, a Judgment was entered by the Court. Appx. 1; 3A C. Supp. R.

4-5. On September 24, 2014, Bowman filed a Motion for New Trial or In the

Alternative, Motion for Judgment Non Obstante Verdicto. 2A C. Supp. R. 4-7. The

Trial Court held a hearing and denied Bowman’s Motion. CR 1430. On November

24, 2014, Bowman filed her Notice of Appeal. CR 1433-1434. Now, Bowman seeks

review with this Court of the jury’s findings regarding dangerous propensities and

producing cause. 

12
Arguments and Authorities

First Issue

(Restated)

Bowman was entitled to affirmative jury findings as a matter of law

regarding the dangerous propensities of the Davidsons’ dog and the

Davidsons’ knowledge of the dog’s dangerous propensities, or in the

alternative, the jury’s findings were against the great weight and

preponderance of the evidence.

A. Strict Liability Claims Involving a Domestic Dog

In Texas, as in many states, it has long been established that actions for

damages caused by vicious domestic animals are governed by principles of strict

liability. Marshall v. Ranne, 511 S.W.2d 255, 258 (Tex. 1974). The elements of a

strict liability claim involving a dog are: (1) the defendant owned or possessed the

dog; (2) the dog had dangerous propensities abnormal to its class; (3) the owner knew

or had reason to know the dog had dangerous propensities; and (4) the dog’s

dangerous propensities were the producing cause of the plaintiff’s injuries. Id.;

Thompson v. Curtis, 127 S.W.3d 446, 451 (Tex. App. — Dallas 2004, no pet.); Allen

ex rel. B.A. v. Albin, 97 S.W.3d 655, 660 (Tex. App. — Waco 2002, no pet.); Owens

v. Coury, 614 S.W.2d 926, 928 (Tex. App. — Amarillo 1981, no writ); Wells v.

Burns, 480 S.W.2d 31, 33 (Tex. Civ. App. —El Paso 1972, no writ). The first

element of a strict liability claim was not at issue in this case in that the Davidsons

13
readily admit they own Bubba, the dog that bit Bowman. 4 RR 87:19-22; 4 RR

130:11-14. 

1. The Second Element of Dangerous Propensities

With regard to the second element, the plaintiff must prove dangerous

propensities abnormal to other dogs. Despite the Texas Supreme Court’s long ago

recognition of strict liability asset forth in the Restatement, there are not many Texas

cases where the elements of strict liability are discussed. Thus, it is helpful to look

to other states Supreme Courts that adopted the Restatement elements for their

explanation as to the elements as well as the Texas cases that have discussed the

elements. Generally, all dogs, regardless of breed and size, are presumed to be

harmless domestic animals. Poznanski ex rel Poznanski v. Horvath, 788 N.E.2d

1255, 1258 (Ind. 2003); Appx. 5.

3 The great majority of dogs are regarded as friends

and companions of man. Restatement (Second) of Torts § 509 cmt. f. (adopted by the

Texas Supreme Court in Marshall, 511 S.W.2d at 258); Appx. 8. They are harmless

and if a dog is in the possession of characteristics dangerous to mankind, it should be

regarded as abnormal. Id. 

Although the majority of dogs are harmless, an owner has a right to keep a

vicious dog for the necessary protection of life and property, provided that the owner

3The out of state cases are included in the Appellant’s Appendix for the Court of Appeal’s

convenience. 

14
takes proper precautionsto preclude that viciousnessfromexhibiting itself. Deardoff

v. Burger, 606 A.2d 489, 492 (Pa. 1992); Appx. 6. 

Texas courts have previously held “dangerous propensities” means the dog

must have had vicious, dangerous or mischievous propensities. Villareal v. Elizondo,

831 S.W.2d 474, 477 (Tex. App. — Corpus Christi 1992, no writ); Owens, 614

S.W.2d at 928; Wells, 480 S.W.2d at 33. This element addresses dogsthat are vicious

as well as animals that are not vicious, but have a dangerous tendency that is unusual

and not necessary for the purposes for which such animals are usually kept. 

Restatement (Second) of Torts § 509 cmt. c.; see also Farley v. M.M. Cattle Co., 549

S.W.2d 453, 456 (Tex. Civ. App. — Waco 1977, writ ref’d n.r.e.). Further, the

animal’s “class” is not limited to a specific breed of that animal. Dunnings v. Castro,

881 S.W.2d 559, 561 (Tex. App. — Houston [1st Dist.] 1994, writ denied) (no

evidence suggesting Weimaraner had dangerous propensities that were abnormal

compared to other dogs). Thus, behaviors that are not usual to dogs in general and

that cause a concern for the safety of others is a dangerous propensity.

Other states have given a little more guidance as to “dangerous tendencies.” 

A dangeroustendency has been defined by the Indiana Supreme Court as “a tendency

of the animal to do any act that might endanger the safety of persons or property in

a given situation.” Poznanski, 788 N.E.2d at 1258; Appx. 5. A dog can even be

found to have dangerous propensities based on the bite that is the basis of the suit. 

15
Id. An unprovoked, intentional bite that is not classified as a playful nibble, even if

it isthe first bite, shows a dangerous propensity.Id. Barking and jumping atstrangers

as well as a prior bite has been found sufficient in other states to show a dog has

vicious tendencies and to hold the defendant strictly liable. Robinson v. Marino, 3

Wash. 434, 28 P. 752, 753 (1892); Appx. 7. 

2. The Third Element Requiring the Owner’s Knowledge

The third element requires the plaintiff to prove the owner knew or had reason

to know the dog had dangerous propensities. It is not necessary to the application of

strict liability for the owner of the dog to know of its abnormally dangerous

propensities. Restatement (Second) of Torts § 509 cmt. g; Appx. 8. It is enough that

he have reason to know thereof. Id. Thus, it is not even necessary for the owner to

know of a prior attack on humans. Id. A dog is no longer regarded as entitled to one

bite. Id. It is enough that the owner knows that the dog on other occasions exhibited

such a tendency to attack humans or other animals or otherwise do harm as should

apprise him of its dangerous character. Id. The knowledge element may be fulfilled

with evidence of either actual or constructive knowledge. See Belger v. Sweeney, 836

S.W.2d 752, 754 (Tex. App. — Houston [1st Dist.] 1992, writ denied). The term

“reason to know” means information from which a reasonably intelligent person

would infer that the animal has dangerous propensities. Marshall, 511 S.W.2d at

258-59. 

16
B. The Record Contains Only Affirmative Evidence of Bubba’s Dangerous

Propensities and the Davidsons’ Knowledge of the Dangerous Propensities

A review of the record demonstratesthat there is no evidence to support Bubba

did not have dangerous propensities nor is there evidence that the Davidsons did not

know or have reason to know of Bubba’s dangerous propensities. Further, the

converse is true, Bowman presented a great deal of evidence in support of Bubba’s

dangerous propensities and the Davidsons’ knowledge. The parties submitted the

second and third strict liability elements together in the following question and

instruction to the jury in the Court’s Charge:

Question No. 1

On the occasion in question, did the Davidsons know or have reason to

know that their dog had dangerous propensities not normal for a dog.

“Reason to know” meansthe actor hasinformation from which a person

of reasonable intelligence would infer that the fact in question exists, or

that such person would govern his conduct under the assumption that

such fact exists. 

It is enough that the possessor of the animal knows that it had on other

occasions exhibited such a tendency to attack human beings or other

animals or otherwise do harm as should apprise him of its dangerous

character. Thus, the fact that a dog hasto his knowledge unsuccessfully

attempted to attack human beings or animals is sufficient to bring its

possessor within knowledge requirement. Sufficient also is any form of

ill temper displayed in the presence of man or beast which would apprise

a reasonable man that animal if uncontrolled would make such an attack.

“Dangerous propensities” means vicious or aggressive tendencies that

are not normal for a dog. 

17
Answer “Yes” or “No”.

Answer: Jerry Davidson 

Answer: Diana Davidson 

Appx. 2; CR 1201. The jury answered “No” to both Jerry and Diana. Id. 

1. There is No or Little Evidence to Support Bubba Did Not Have

Dangerous Propensities and Affirmative Evidence to Support He Did

A review of the entire record demonstrates that there was no evidence to

support the jury’s findings. The Davidsons offered no evidence to prove Bubba’s

protectiveness was normal to all dogs, that Bubba was not unusual with regard to his

behavior around strangers or Diana, or that when Bubba attacked Bowman it was not

an aggressive or dangerous behavior. 

Further, a second review of the record reveals significant evidence to show

Bubba had dangerous propensities. There are no Texas cases that hold the bite at

issue can not be considered to determine whether the animal has dangerous

propensities. Bubba exhibited a dangerous propensity by viciously attacking

Bowman without any provocation causing her severe injuries to her face. 4 RR

32:11-22. Bubba made no noise or warning before he jumped up and attacked

Bowman. 4 RR 32:24-33:6. The Davidsons do not deny the attack nor do they deny

the bite caused Bowman severe injuries. Diana witnessed the attack. 4 RR 33:13-24. 

18
Further, the Davidsons did not try to explain the bite as playful or something other

than a vicious attack meant to injure Bowman. 

Additionally, both Diana and Jerry described dangerous propensities in Bubba

at trial. A “dangerous propensity” would include a prior bite of a human being. See

Restatement (Second) of Torts § 509 cmt. c. Billy Strong described the prior incident

to the jury through his deposition testimony as a bite. 

Billy Strong:

Q: Had Bubba bitten people, anybody before [Bowman] that you were

aware of?

A: Yes. 

Q: Who?

A: Me.

Appx. 3; 1 Sup. RR Video Deposition of Billy Strong. Further, Diana and Jerry

admitted that they knew Bubba bit Strong a year before the attack on Bowman. 

Diana Davidson:

Q: And I believe when Billy Strong got bit that you saw the bite. When Billy

Strong got bit did you see the incident?

A: I did.

4 RR 99:16-19.

Q: So he had a hold of him at the pants leg?

A: Yes.

Q: And you know that it left a bruises?

A: Yes.

Q:So you agree that the dog laid teeth on Mr. Strong, a human being?

A: I do know this, yes.

19
Q: And you saw it?

A: I did. 

4 RR 100:2-10. Jerry also admitted knowing that Bubba caused a red mark on

Strong’s leg. 4 RR 146:19-23. Even with cattle dog instincts, Blue Heelers should

know the difference between a cow and a human being. 5 RR 38:10-17. There are

no Texas cases affirming a finding of no strict liability when there was an admission

of a prior bite.

If Bubba’s bite that is at issue in this case or his prior bite were not enough,

then Diana and Jerry’s testimony regarding his protectiveness of Diana and

aggressivenesstowards strangers demonstrated dangerous propensities. “Dangerous

propensities” also mean dangerous tendencies that are unusual and not necessary for

the purposes for which dogs are usually kept. See Restatement (Second) of Torts, §

509 cmt. c; Appx. 8. The Davidsons admit Bubba had a dangerous tendency to be

aggressive, protective and possessive that was not like other dogs. 4 RR 94:17-19,

146:11-18. He was protective of Diana, 4 RR 93:22-25, and Bubba had a problem

with strangers all of his life. 4 RR 100:21-24. 

Diana Davidson:

Q: And did you also tell her [Bowman] that the dog was aggressive?

A: I think, I don’t know whether I said aggressive or protective. He is

very protective of me.

4 RR 93:22-25

20
Q: I asked you a question right here on Line 20. My question was, okay,

what do you mean by aware of dogs. What was your answer?

A: The dog is aggressive, you know, if he doesn’t know someone. 

4 RR 94:7-11

Q: You said was protective also?

A: He is.

Q: So we have aggressive, protective, and possessive; is that correct?

A: Yes. 

4 RR 94:15-19. When Bowman’s counsel asked Diana why she described Bubba as

aggressive, she said:

A: He is very verbal when strangers come up. He barks, jumps at the fence, he

gives us the indication that, you know, he tells us thatsomeone isthere and all. 

So I have signs out saying beware of the dogs, because I want them to be aware

of them. He has never bitten anybody, but I just didn’t want to take the chance,

because he does bark and jump at the fence when some stranger comes up. 

Q: What chance don’t you want to take?

A:I don’t want to take any chances of any of our animals hurting anybody. 

4 RR 94:21-95:5.

Q: Is it fair to say you didn’t want to take the chance of the dog biting

somebody?

A: That is right. 

4 RR 95:9-11. Although Jerry testified that Bubba was not dangerous, the question

is dangerous propensities or tendencies. In other words, a propensity or natural

inclination to act dangerous. Jerry stated the following at trial in support of Bubba

having “dangerous propensities”:

21
Jerry Davidson:

Q: So, I realize your position is that the dog is not dangerous, correct?

A: Right.

Q: But you can’tsay that all your, your warnings all were there for there

was this propensity for danger, correct? That is different from being

dangerous.

A: Right.

Q: There was a propensity there; correct?

A: Correct. 

4 RR 147:6-14. Further, Jerry testified that Bubba was very protective of Diana, 4

RR 130:22-131:6, 138:21-25, and had a clear dislike of strangers. 4 RR 136:16-20. 

Jerry admitted Bubba would bark and push him away from Diana when they danced

and Bubba would do the same to anyone else that tried to get between the dog and

Diana. 4 RR 138:21-25, 139:5-7. Jerry even admits someone leaning in toward

Diana would be a threat to the dog. 4 RR 140:3-5. Dr. Haug testified that barking,

jumping and pushing between Jerry and Diana is a low level aggression that is a red

flag. 5 RR 28:7-18. If Bubba would act that way towards Jerry, Bubba would not

hesitate to be more aggressive with a stranger. Further, Jerry admits that Bubba was

different in that way from other dogs, 4 RR 147:23-148:1. 

Lastly, whether you use the word protective, possessive or aggressive, Bubba

exhibited dangerous behaviors that caused the Davidsons to warn all new guests not

to interact with Bubba for fear that he would be protective of Diana and bite them. 

22
4 RR 95:13-14, 95:21-25; 4 RR 131:12-15, 131:20-23. The Davidsons had been

giving the warning about Bubba for a long time before Bubba bit Bowman. 4 RR

101:6-15. Further, not only did the Davidsons warn people, but their friends would

even warn new guests about Bubba. 5 RR 24:24-25:7. Jerry admits that Bubba was

protective in that he would stand his ground with Diana and that is also why Diana

gave the warnings. 4 RR 130:22-131:10. Protective and possessive behavior

generally just gets worse and worse over time if not formally corrected. 5 RR 25:16-

22. So, if not corrected, protectiveness and possessiveness becomes dangerous. 5RR

25:23-25. The Davidsons did not ever correct Bubba’s behavior. 4 RR 89:14-15;

4RR 130:17-18; 5 RR 27:18-21. Bubba’s behavior did not fit within the behavior of

what is acceptable of a typical or normal dog. 5 RR 23:14-16. Diana herself admitted

she had reason to know the dog might bite somebody and that was reason to know he

[Bubba] might be dangerous. 4 RR 101:24-102:2. The Davidsons also testified as

follows:

Diana Davidson:

Q: Is it fair to say you didn’t want to take a chance of the dog biting

somebody?

A: That is right.

Q: That is why you warn them?

A: I warned them, yes, because he is very protective of me and he does

- - he, if he doesn’t know someone he barks at them.

4 RR 95:9-15.

23
Q: So the cause of your warnings is him being aggressive?

A: Yes

Q: Your wanting to avoid a bite; correct?

A: Yes.

4 RR 95:21-25.

Jerry Davidson:

Q: Do you believe he would be aggressive if he, the dog, thought Diana

was in danger?

Y: Yes. 

4 RR 139:20-22.

Q: Okay. Well, that is why you give the warnings is because you knew

the propensity was there for it [the bite] to happen?

A: Yes, that is the reason that they give the warning. 

4 RR 140:10-13.

Q: There was a propensity there; correct?

A: Correct.

Q: Okay. And you knew that?

A: Well, like I say, I didn’t give the warning?

Q: That was the reason, that was the reason for the warning?

A: That was the reason my wife gave the warning.

Q: Because of the propensity for danger?

A: Right. 

4 RR 147:13-22. Accordingly, the Davidsons’ own testimony demonstratesthat they

gave the warnings to new guests because of Bubba’s protective and aggressive

24
tendencies and because they were afraid Bubba would bite someone if they did

interact with the dog. 

2. No or Little Evidence to Support the Davidsons Did Not Know or Did

Not Have Reason to Know Bubba Had Dangerous Propensities and

Affirmative Evidence to Support They Did Have Knowledge

Next, the record revealsthat the Davidsons clearly knew or had reason to know

of Bubba’s dangerous propensities. First, the Davidsons were aware of Bubba’s prior

bite. Diana witnessed Bubba bite Strong. 4 RR 99:24-100:3. She had to call the dog

off Strong to get him to let go of Strong’s leg. 4 RR 99:24-100:3. Diana knew that

Bubba bit or nipped Strong and left a bruise on his leg. 4 RR 100:4-10. Jerry also

knew about the prior bite. 4 RR 146:19-23.

Second, both Diana and Jerry admit they warned new people to stay away from

Bubba because theywere afraid Bubba would bite someone. 4 RR 95:21-25, 101:24-

102:2, 114:2-4; 4 RR 131:12-15, 131:20-23. Dr. Haug testified that every client she

has had that gave warnings about their dog did so because they had some knowledge

about the dog’s previous behavior that made them concerned thatsomething bad was

going to happen. 5 RR 17:3-7. People give warnings about their dogs because the

dog’s behavior concerns them. 5 RR 17-12-14. Dr. Haug was positive that the

Davidsons recognized the risk Bubba posed. 5 RR 39:10-21. Again, the Davidsons

did not refute or contradict Dr. Haug’s testimony. 

25
Third, both Diana and Jerry describe Bubba as protective of Diana and as

disliking strangers. Both Diana and Jerry repeatedly describe Bubba as aggressive,

protective and possessive at different points during their trial testimony. 4 RR 94:17-

19; 4 RR 138:20-22. Diana admits Bubba was that way all of his life. 4 RR 100-23-

24. Further, Jerry admits that Bubba acts aggressive by barking and pushing anyone

that gets too close to Diana. 4 RR 138: 12-15, 21-25. He had known about this

behavior for a long time. 4 RR 139:1-4. Further, he understood the behavior was a

part of Bubba being protective of Diana. 4 RR 139: 5-7. Diana herself admitted she

had reason to know the dog might bite somebody and that was reason to know he

[Bubba] might be dangerous. 4 RR 101:24-102:2. 

A prior bite is not required to show dangerous propensities. The Davidsons’

testimony at trial seemed to suggest that when Bubba bit Strong it was a playful bite. 

4 RR 96:13-21. Therefore, the prior bite does not count and is irrelevant. But even

if the Court believes this to be true, it does not change the Davidsons own testimony

regarding Bubba’s aggressiveness toward strangers and protectiveness of Diana. 4

RR 95:9-13;4 RR 130:22-131:6, 136:16-20, 138:21-25, 139:1-7. These are

dangerous propensities and the Davidsons were well aware of them prior to Bubba

biting Bowman. 

Most, if not all, of the Davidsons’testimony evidencing knowledge of Bubba’s

dangerous propensities was solicited during Bowman’s case in chief when the

26
Davidsons were called as adverse witnesses. If their testimony had been anything

other than concise, clear and conclusive, they could have corrected their own

testimony during the Davidsons’ case in chief. However, in Davidsons’ case in chief,

only Diana testified (Jerry did not). In fact, the only question asked of Diana when

she testified in her own case in chief by Bowman’s counsel was:

Diana Davidson:

Q: Mrs. Davidson, are you recanting any of your testimony from

yesterday?

A: I don’t think so. 

4 RR 157:21-23. In Collora v. Navarro, the Texas Supreme Court held a directed

verdict may be based on the uncontroverted testimony of a party to the lawsuit when

the testimony is clear, direct, positive and uncontradicted, is devoid of inconsistencies

and is uncontradicted. Collora, 574 S.W.2d 65, 69 (Tex. 1978);see also Washington

v. Reliable Life Ins. Co., 581 S.W.2d 153, 159 (Tex. 1979) (holding the jury must

believe an interested witness as a matter of law if their testimony is the only

testimony on an issue and it is clear, direct and positive and is uncontradicted). 

Clearly, if the jury hasto believe a plaintiff’s clear and concise testimony when

the plaintiff has the burden of proof, the jury would certainly have to take the

defendants, in this case the Davidsons’ testimony, during Bowman’s case in chief as

true, without being able to pass on its credibility. This is especially true since the

Davidsons had an opportunity to recant or rebut the testimony in their own case in

27
chief, but failed to do so. The Davidsons called no expert witnesses. Further, the

knowledge of the other witnesses called by the Davidsons is not at issue in this case. 

The Davidsons’ knowledge of their own dog’s propensities to be dangerous is the

question for the jury. The other lay witnesses cannot be said to have contradicted the

Davidsons’ own admissions to their knowledge of Bubba’s dangerous propensities. 

There is no question to the jury as to what others observed or believed. The

Davidsons’ testimony must be relied upon as credible. According to the Texas

Supreme Court, the jury cannot disregard the Davidsons’ testimony for any reason

and must take it as true. Thus, the jury had no option, but to find the Davidsons

strictly liable as a matter of law, period. 

If the Court finds some evidence in the record to support the jury’s finding, a

factual sufficiency review of the evidence reveals the jury’s findings as to Question

No. 1 for both Jerry and Diana were against the great weight and preponderance of

the evidence. Thus, although there may be some conflicting evidence on the issue,

the evidence against the jury’s findings to Question No. 1 is so great as to make the

jury’s findings erroneous and subject to reversal. Accordingly, Bowman asks the

Court of Appeals to reverse the jury’s findings of “no” to Question No. 1 as to Diana

and/or Jerry and enter findings of “yes.” Because there is legally and factually

insufficient evidence in support of the jury’s findings, the jury’s findings should be

reversed.

28
C. Conclusion

The Davidsons clearly wanted Bubba to be protective and possessive of Diana

so she would be protected when Jerry was out of town with work. 4 RR 139:8-16. 

Bowman is not claiming the Davidsons were wrong to want or even encourage

protectiveness in their dog. But as Dr. Haug testified, protectiveness is a behavior

that can have a tendency or propensity toward danger. 5 RR 25:16-25, 26:2-3. Thus,

it is the dog owner’s responsibility to train a dog with regard to when to be protective

and with whom. 5 RR 27:1-17. Further, if the owners do not properly train their dog,

then they have the responsibility to remove the dog from situations where the dog

may act protectively in inappropriate situations. 5 RR 25:23-27:17. The Davidsons

had the ability and knowledge to know when a dog had dangerous propensities and

to protect guests because they had a dog named, Maggie, before Bubba and always

kept her up when people came over. 5 RR 31:16-32:2; 5 RR 150:4-18.

The Davidsons knew gatherings involving strangers in their home were

situations when the dog would act protectively or the Davidsons would not have

warned all new guests about the dog, 4 RR 95:13-14, 95:21-25, 4 RR 130:22-131:10,

or put the dog up when there was a large gathering. 4 RR 103:18-24. It was only a

matter of time before someone got hurt. 5 RR 37:13-16. Yet the Davidsons did not

train the dog, 4 RR 89:14-15; 4 RR 130:17-18; 5 RR 27:18-21, nor did they always

put the dog up. In order to satisfy the elements of strict liability with domestic dogs

29
all Bowman had to prove was dangerous propensity and knowledge. She did so

through the Davidsons’ own testimony at trial. The fact that the jury answered “No”

to Question No. 1 may reflect the jury’s dissatisfaction with the law, but it was not

within their power to chose to follow the law or not. The evidence in the record

fulfills the second and third elements of the claim as a matter of law or the evidence

is so overwhelmingly in support of affirmative findings as to justify reversal. 

Accordingly, Bowman asksthe Court to follow the law and reverse the jury’sfindings

as to both Jerry and Diana for Question No. 1. 

30
Second Issue

(Restated)

Bowman was entitled to an affirmative answer as a matter of law that the

dog’s dangerous propensities were the producing cause of Bowman’s

injuries, or in the alternative, a negative finding would have been against

the great weight and preponderance of the evidence. 

A. Strict Liability Requires Bowman to Prove the Dangerous Propensities Were

the Producing Cause of Bowman’s Injuries

Bowman is also entitled to a finding that Bubba’s dangerous propensities were

the producing cause of her injuries. With regard to the last element, Bowman has

conclusive evidence to prove Bubba’s dangerous propensities were the producing

cause of her injuries. Marshall, 511 S.W.2d at 258. A “producing cause” is a

substantial factor in bringing about an injury, and without which the injury would not

have occurred. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007). This

definition includes the essential elements of producing cause: (1) the cause must be

a substantial cause of the event at issue and (2) it must be a but-for cause, namely

without which the event would not have occurred. Id. Proof of producing cause

involves a lower burden than proof of proximate cause, because proof of producing

cause does not require a showing of foreseeability. Thompson, 127 S.W.3d at 451. 

B. The Record Contains Only Affirmative Evidence in Support of Bubba’s

Dangerous Propensities As the Producing Cause of the Bite

Although the jury did not answer Question No. 2 regarding producing cause

in the Court’s Charge, the evidence in the record, either as a matter of law or because

31
the great weight and preponderance of the evidence supports it, entitles Bowman to

an affirmative answer to the question of whether Bubba’s dangerous propensities

were the producing cause of Bowman’s injuries. As set forth above, the Davidsons

admit Bubba was aggressive, protective and possessive. 4 RR 94:17-19; 4 RR

146:11-18. Bubba was very protective of Diana, 4 RR 93:22-25, and had a clear

dislike of strangers. 4 RR 100:21-24. These dangerous tendencies were the

producing cause of Bubba’s bite. On the night of the occurrence, Bowman sat next

to Diana at the dinner table. 4 RR 29:14-21; 4 RR 106:17-18. She was leaning

toward Diana when Bubba bit her in the face. 4 RR 32:15-18; 4 RR 108:6-7, 110:13-

16. Further, Dr. Kenneth W. Sanders, Bowman’s medical expert, testified that in his

opinion, based on reasonable medical probability, all of the problems Bowman has

experienced with her lips and mouth were a result of the dog attack on June 24, 2012.

Appx. 4; 1 R. Supp. R. Index, Video Deposition of Dr. Kenneth W. Sanders.

4

The aggressive, protective, and possessive behaviors previously exhibited by

Bubba led to this bite. 5 RR 87:14-25. Bubba was protecting Diana fromthe stranger

of the group, Bowman. If Bubba would push Jerry away from Diana demonstrating

4For the Court of Appeals’ convenience, in addition to citing to the video deposition

included in the Reporter’s Record in the Supplemental Exhibit Index, Bowman has also attached

the line and page excerpt from Dr. Kenneth Sanders’ deposition that Bowman is relying on and

that was included in the video shown the jury in the Appellant’s Appendix, Tab 4.

32
a low level of aggression, 5 RR 28:7-18, what would he do to someone he did not

know who was leaning toward Diana: the answer is protect Diana by biting them. 

Jerry Davidson:

Q: and the mere fact of somebody leaning toward Diana, as far as we

know, that could set the dog off?

A: Right. 

4 RR 140:3-5. Further, Bubba bit her on the rightside of the face which is consistent

with Bowman leaning over to speak with Diana. 4 RR 33:2-10. Bubba’s dangerous

propensities were a substantialfactor in bringing about the bite and without which the

bite would not have occurred. Accordingly, the evidence supports a finding of “yes”

asto whether Bubba’s dangerous propensities were the producing cause of Bowman’s

injury. 

C. Conclusion

It is clear from the record that Bubba had dangerous tendencies in that he was

very protective of Diana and distrusting of new people. The circumstances of the

night in question had Bowman, a newly introduced person to Bubba, sitting close to

Diana at the dinner table with Bubba sitting directly in between them. Jerry testified

that Bubba does not like anyone, including Jerry, to get too close to Diana. 4 RR

138:12-25, 139:5-7. Further, Bubba will stand his ground when he feels a threat to

Diana. 4 RR 130:22-131:6. When Bowman leaned in toward Diana, Bubba saw

Bowman trying to get close to Diana. Thus, the only evidence in the record to

33
explain the attack was Bubba’s dangerous propensity for protectiveness and

aggression toward strangers. Even the Judge of the trial court believed that Bubba’s

dangerous propensities were the producing cause of Bowman’s injuries. 7 RR 9:11-

15. Accordingly, if the Court finds the answer to Question No. 1 should be reversed,

the record demonstrates the only acceptable answer to Question No. 2 is “yes.”

Therefore, Bowman asks the Court to enter such finding. 

WHEREFORE, PREMISES CONSIDERED, Bowman prays the judgment be

in all respects REVERSED with regard to dangerous propensities as to either or both

the Davidsons and producing cause, and the cause be REMANDED back to the trial

court for a determination of damages, for the reasons set forth herein.

In the alternative, Bowman prays the judgment be REVERSED as to either or

both the Davidsons asto dangerous propensities and the cause be REMANDED back

to the trial court for further proceedings, asthe Courtseesfit, for the reasons set forth

herein.

Further and in the alternative, Bowman praysfor the cause to be REMANDED

back to the trial court for a new trial, if necessary. 

34
Bowman prays for such other and further relief, general or special, in law or

in equity, to which she may show herself to be justly entitled.

Respectfully submitted,

/s/Jack M. Sanders, Jr. 

JACK M. SANDERS, JR.

109 East Houston Street

P.O. Box 1387

Marshall, Texas 75671-1387

(903) 935-7172

(903) 938-8616 (Fax)

sanders.jack@sbcblobal.net

ATTORNEY FOR APPELLANT

Certificate of Compliance

Pursuant to Tex. R. App. Pro. 9.4(i)(3), the undersigns hereby certifies that

according to the word count function of the computer program used to generate the

document, the portions of the Appellant’s Brief subject to the rule contain 7,574

words total and that the text thereof is in 14 point Times New Roman font.

/s/Jack M. Sanders, Jr. 

Jack M. Sanders, Jr.

35
Certificate of Service

The undersigned hereby certifies that, pursuant to Tex. R. App. Pro. 9.5(a), a

true and correct copy of the foregoing Appellant’s Brief has been sent to the

following counsel of record through the Court’s on-line filing system, on this, the 

19th day of March, 2015:

Alan E. Brown

Boyd & Brown, P.C.

1215 Pruitt Place

Tyler, Texas 75703

Counsel for the Appellees

/s/Jack M. Sanders, Jr. 

Jack M. Sanders, Jr.

36
CASE NO. 06-14-00094-CV

_____________________________________________________________

IN THE SIXTH COURT OF APPEALS

TEXARKANA, TEXAS 

_____________________________________________________________

Nancy Elizabeth Bowman,

Appellant,

vs.

Jerry Davidson and

Diana Davidson,

Appellees.

 ______________________________________________________________

On Appeal from the 71st Judicial District

Harrison County, Texas

Cause No. 13-0618

The Honorable Brad Morin, Presiding

 ______________________________________________________________

APPENDIX

______________________________________________________________

JACK M. SANDERS, JR.

109 East Houston Street

P.O. Box 1387

Marshall, Texas 75671-1387

(903) 935-7172

(903) 938-8616 (Fax)

sanders.jack@sbcblobal.net

ATTORNEY FOR APPELLANT

37
APPENDIX TABLE OF CONTENTS

DOCUMENTS TAB

Judgment entered August 14, 2008.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Court’s Charge.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Transcript Excerpts from the Video Deposition of Billy Strong .. . . . . . . . . . . . . . 3

Transcript Excerpts from the Video Deposition of Dr. Kenneth Sanders. . . . . . . . 4

Poznanski ex rel Poznanski v. Horvath, 788 N.E.2d 1255 (Ind. 2003). . . . . . . . . . 5

Deardoff v. Burger, 606 A.2d 489 (Pa. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Robinson v. Marino, 3 Wash. 434, 28 P. 752 (1892). . . . . . . . . . . . . . . . . . . . . . . . 7

Restatement (Second) of Torts § 509. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

38
4

08/~/2614 15:28 BOYD- 0 PAGE 05/06 

flLElHOUteORD +'~ 

HARRISON, COUNTY, lWS . , CLERK DISTRICT COURT . ; 

CAUSE NO. 13-0618 

NANCY ELIZABETH BOWMAN 

v. 

JERRY DAVIDSON and 

DIANA DAVIDSON 

§ 

§ 

§ 

§ 

§ 

§ 

IN TirE DISTRICT COuRBv 

---t""Ei£!!:::,....;..:.-

71"'" JUDICIAL DISTRICT 

HARRISON COUNTY, TEXAS 

JtiDGMENT 

On August 18, 2014, this cause came on to be heard in this court. PlaintiffN ancy Elizabeth 

Bowman appeared in person and by her attorney of record, Jack Sanders, and announced ready for 

trial. Defendants Jerry Davidson and Diana Davidson appeared in person and by his attorney of 

record, Alan E. Brown, and announced ready for trial. A jury having been previously dexnanded, a 

jury consisting oftwelve qualified jurors was duly impaneled and sworn, and the case proceeded to 

trial. At the conclusion of the evidence, the Court submitted the questions of fact to the jury. The 

charge ofthe.court and verdict of the jury are inco!'POrated for all purposes herein by reference. 

Because it appears to the court that the verdict of the jmy was for Defendants and against Plaintiff, 

judgment should be rendet:ed on the verdict in favor of Defendants and against Plaintiff 

The court, after hearing the evidence and arguments of counsel, is of the opinion that 

Plaintiff should take nothing by this suit. 

ITISTHEREFOREORDEREDBYTHECOURTthatPlaintifftakenothingbythissuitand 

that ail costs of court be taxed against Plaintiff. 

Judgment ]>age 1 
5

08/25/2~14 15:28 903525'=0 BOVDBFDWN Q 

All other reliefnot expressly granted in this Judgment is denied. 

Signed this ...zL day of_.,_A'-'-~-J---->' 1014 ~· 

JUDG~ 

APPROVED AS TO FORM: 

AlllliE. Bro 

State Bar No~. ~9lJ,l.oo"..­

Attomey for Defendants 

Pagel 

PAGE 06/06 
F I L E D . ~n 1 

R 

CAUSE NO. 13-0618 

NANCY ELIZABETH BOWMAN § 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

v. 71 ST JUDICIAL DISTRICT 

JERRY DAVIDSON AND 

DIANA DAVIDSON HARRISON COUNTY, TEXAS 

COURT'S CHARGE 

LADIES AND GENTLEMEN OF THE JURY: 

This case is submitted to you by asking questions about the facts, which you must decide 

from the evidence you have heard in this trial. You are the sole judges of the credibility of the 

witnesses and the weight to be given their testimony, but in matters of Jaw, you must be governed by 

the instructions in this charge. In discharging your responsibility on this jury, you will observe all the 

instructions which have previously been given you. I shall now give you additional instructions 

which you should carefully and strictly follow during your deliberations. 

1. Do not let bias, prejudice or sympathy play any part in your deliberations. 

2. In arriving at your answers, consider only the evidence introduced here under oath and 

such exhibits, if any, as have been introduced for your consideration under the rulings of 

the Court, that is, what you have seen and heard in this courtroom, together with the law 

as given you by the Court. In your deliberations, you will not consider or discuss 

anything that is not represented by the evidence in this case. 

3. Since every answer that is required by the charge is important, no juror should state or 

consider that any required answer is not important. 

~· 

1198
4. You must not decide who you think should win, and then try to answer the questions 

accordingly. Simply answer the questions, and do not discuss nor concern yourselves 

with the effect of your answers. 

5. You will not decide an issue by lot orby drawing straws, or by any other method of 

chance. Do not return a quotient verdict. A quotient verdict means that the jurors agree to 

abide by the result to be reached by adding together each juror's figures and dividing by 

the number of jurors to get an average. Do not do any trading on your answers; that is, 

one juror should not agree to answer a certain question one way if others will agree to 

answer another question another way. 

6. You may render your verdict upon the vote of ten or more members of the jury. The same 

ten or more of you must agree upon all of the answers made and to the entire verdict. You 

will not, therefore, enter into an agreement to be bound by a majority or any other vote of 

less than ten jurors. If the verdict and all of the answers therein are reached by unanimous 

agreement, the presiding juror shall sign the verdict for the entire jury. If any juror 

disagrees as to any answer made by the verdict, those jurors who agree to all findings 

shall each sign the verdict. 

These instructions are given you because your conduct is subject to review the same as that 

of the witnesses, parties, attorneys and the judge. If it should be found that you have disregarded any 

of these instructions, it will be jury misconduct and it may require another trial by another jury; then 

all of our time will have been wasted. 

The presiding juror or any other juror who observes a violation of the Court's instructions 

shall immediately warn the one who is violating the same and caution the juror not to do so again. 

1199
When words are used in this charge in a sense which varies from the meaning commonly 

understood, you are given a proper legal definition, which you are bound to accept in place of any 

other definition or meaning. 

Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer must be 

based on a preponderance ofthe evidence. If you do not find that a preponderance ofthe evidence 

supports a "Yes" answer, then answer "No". The tenn "preponderance of the evidence" means the 

greater weight and degree of credible testimony or evidence introduced before you and admitted in 

this case. Whenever a question requires other than a "Yes" or "No" answer, your answer must be 

based on a preponderance of the evidence. 

"Bowman" shall mean Nancy Elizabeth Bowman, plaintiff herein. 

"Defendants" shall refer collectively to Jerry Davidson and Diana Davidson, defendants 

herein. 

The "dog" shall mean and refer to Bubba, the male dog owned or possessed by Jerry 

Davidson and Diana Davidson. 

The "occurrence in question" means the incident on June 24, 2012 when Bowman was bitten 

by the dog owned by Jerry Davidson and Diana Davidson. 

f""- • .. 1 ~: • ~ " 

:~~~·· qr~t, ·-.. _ .... ..a. . ~ 

1200
QUESTION NO. 1 

On the occasion in question, did the Davidsons know or have reason to know that their dog 

had dangerous propensities not nonnal for a dog. 

"Reason to know" means the actor has information from which a person of reasonable 

intelligence would infer that the fact in question exists, or that such person would govern his conduct 

under the assumption that such fact exists. 

It is enough that the possessor of the animal knows that it has on other occasions exhibited 

such a tendency to attack human beings or other animals or otherwise to do harm as should apprise 

him of its dangerous character. Thus, the fact that a dog has to his knowledge unsuccessfully 

attempted to attack human beings or other animals is sufficient to bring its possessor within 

knowledge requirement. Sufficient also is any form of ill temper displayed in the presence of man or 

beast which would apprise a reasonable man that the animal if uncontrolled would make such an 

attack. 

"Dangerous propensities" means vicious or aggressive tendencies that are not nonnal for a 

dog. 

Answer "Yes" or "No". 

Answer: Jerry Davidson No 

Diana Davidson 

. [A. 

--- -:: . . •UL ...... .... -=--

1201
If you have answered "Yes" to Question No. 1, then answer Question No.2 otherwise, do not 

answer Question No.2 

QUESTION NO.2 

Was the animal's dangerous propensities the producing cause of the plaintiffs injury? 

You are instructed that "PRODUCING CAUSE" means a cause that was a substantial factor 

in bringing about the injury, and without which the injury would not have occurred. There may be 

more than one producing cause. 

Answer "Yes" or "No": 

Answer: -----

< u •• ("~ 

____ ·i _ 1202
QUESTION NO. 3 

If you answered "no" to Question 1, please answer the following question. Otherwise, do not 

answer the following question. 

Did the negligence, if any, of Jerry Davidson or Diana Davidson in handling the dog 

proximately cause Bowman's injuries? 

"Negligence" means failure to use ordinary care, that is, failing to do that which a person of 

ordinary prudence would have done under the same or similar circumstances or doing that which a 

person of ordinary prudence would not have done under the same or similar circumstances. 

"Negligence" with regard to handling a dog, may include one who keeps a dog which 

possesses only those dangerous propensities which are normal to other dogs is required to know its 

normal habits and tendencies. He is, therefore, required to realize that even ordinarily gentle dogs are 

likely to be dangerous under particular circumstances and to exercise reasonable care to prevent 

foreseeable harm. 

"Ordinary care" means that degree of care that would be used by a person of ordinary 

prudence under the same or similar circumstances. 

"Proximate cause" means that cause which, in a natural and continuous sequence, produces 

an event, and without which cause such event would not have occurred. In order to be a proximate 

cause, the act or omission complained of must be such that a person using ordinary care would have 

foreseen that the event, or some similar event, might reasonably result therefrom. There may be more 

than one proximate cause of an event. 

l 

• ..I' 

1203
In order for Bowman to be negligent, Defendants had to adequately warn Bowman. 

An "adequate warning" is a warning that catches the attention of a person and conveys a fair 

indication of the nature and extent of the danger being warned against in the mind of a reasonably 

prudent person. 

Answer "Yes" or "No". 

Jerry Davidson No 

Diana Davidson Nv 

Bowman 

1204
QUESTION NO. 4: 

If you answered "yes" to Jerry Davidson or Diana Davidson and Bowman in Question No.3, 

please answer the following question. Otherwise, do not answer the following question. 

Assign percentages of responsibility only to those you found caused or contributed to cause 

the injury. The percentage you find must total I 00 percent. The percentages must be expressed in 

whole numbers. The percentage of responsibility attributable to a person is not necessarily measured 

by the number of acts or omissions found. The percentage attributable to any one need not be the 

same percentage attributed to that one in answering another question. 

For each person you found that caused or contributed to cause the injury, find the percentage 

of responsibility attributable to each: 

a. Jerry Davidson % ----------------------

b. Diana Davidson % ----------------------

c. Bowman % -----------------------

Total 100 % --------~~-------

- - - ~-

1205
QUESTION NO. 5 

If you answered Questions No. 1 and No.2 with "yes", please answer the following 

question. If you answered Question 3 with "yes" as to Jerry or Diana Davidson and with "no" 

as to Bowman or answered 50 percent or less as to Bowman in Question No. 4, then please 

answer the following question. Otherwise, do not answer the following question. 

What sum of money, if paid now in cash, would fairly and reasonably compensate 

Bowman for her injuries, if any, that resulted from the occurrence in question? 

Consider the elements of damages listed below and none other. Consider each 

element separately. Do not award any sum of money on any element if you have otherwise, 

under some other element, awarded a sum of money for the same loss. That is, do not 

compensate twice for the same loss, if any. Do not include interest on any amount of 

damages you find. 

Answer separately, in dollars and cents, for damages, if any. 

a. Medical care expenses that, in reasonable probability, Bowman will incur in the 

future. 

Answer: ----

b. Physical pain and mental anguish sustained in the past. 

Answer: ----

c. Physical pain and mental anguish that, in reasonable probability, Bowman will 

sustain in the future. 

Answer: ----

1206
d. Disfigurement sustained in the past. 

Answer: ----

e. Disfigurement that, in reasonable probability, Bowman will sustain in the future. 

Answer: ----

f. Physical impairment sustained in the past. 

Answer: ----

g. Physical impairment that, in reasonable probability, Bowman will sustain in the 

future. 

Answer: ----

h. Loss of earning capacity sustained in the past. 

Answer: ----

.. 1207
After you retire to the jury room, you will select your own presiding juror. The first thing the 

presiding juror will do is to have this complete charge read aloud and then you will deliberate upon 

your answers to the questions asked. 

It is the duty of the presiding juror: 

1. To preside during your deliberations; 

2. To see that your deliberations are conducted in an orderly manner and in accordance with 

the instructions in this charge; 

3. To write out and hand to the bailiff any communications concerning the case which you 

desire to have delivered to the judge; 

4. To vote on the issues; 

5. To write your answers to the issues in the spaces provided; and 

6. To certify to your verdict in the space provided for the presiding juror's signature or to 

obtain the signatures of all the jurors who agree with the verdict if your verdict is less 

than unanimous. 

You should not discuss the case with anyone, not even with other members of the jury, unless 

all of you are present and assembled in the jury room. Should anyone attempt to talk to you about the 

case before the verdict is returned, whether at the courthouse, at your home, or elsewhere, please 

inform the judge of this fact. 

When you have answered all of the questions which you are required to answer under the 

instructions ofthe judge, and your presiding juror has placed your answers in the spaces provided 

and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at the 

door of the jury room that you have reached a verdict, and then you will return into Court with your 

verdict. 

JUDGE PRESIDING 

r

"""AA-- .. 1208
We, the jury, have answered the above and foregoing questions as herein indicated, and 

herewith return same into court as our verdict. 

(To be signed by the presiding juror if unanimous.) 

Presiding Juror 

(To be signed by those rendering verdict if not unanimous.) 

~~~~6v<U~ 

{) {J.;YU(f/ ,~') ,/! "" Y 1 

,~4,-

(_J 

~- - --

1209
1 

2 

3 

9 

10 

11 

Page I 

CAUSE NO. 13-0618 

N~21~:NCY ELIZABETH BOl~MAN, 

Pla.ir1tiff', 

IN THE DISTRICT COURT OF 

HARRISON COUNTY, TEXAS 

De .fenda.n t.s., 71ST JUDICIAL DISTRICT 

I>J0\7E:V1BEF. 1.8, 2013 

\]OLUI\]E l OE' J. 

Ll **************************************** ************** 

13 

14 

15 produced as a wi~ness at the instance of the De 

M and duly sworn, was taken in the above-styled and 

18 4:34 p.m. to 5:43 p.rn., before rerri 

19 in and fer the s~ate of Texas, reported by computerized 

m stenotype machine, at the offices of Mr. Jack Sanders, 

21 Jr., 109 East Houston Street, Marshall, Texas, pursuant 

ll to the Texas Rules of Civil Procedure and the provisions 

n stated on che record or attached hereto. 

24 

25 

Eiectronica!iy signed by Terri Lynn Smith (501-237-608-4107) 

Deposition Resources, 1nc. 

800.295.4 l 09 

16a5ed0f-8516-4c02-81 cc-9c82S8f78b4c 
Page2 

1 A ~ P E A R A N 2 E S 

2 

:!LR" ,_T.ACI< SPJ'1DERS I ~TR. 

3 fl.TTORNEY AT L~,W 

109 East Houston S~reet 

4 Marshall, Texas 75671 

{903) 935-7.172 

5 - . , ..., l:"acsimi1e: (903) 938-8616 

6 COUNSEL FOR PLAINTIFF: Nancy Elizabeth Bowman 

7 

8 MR. AU\N E. BROWN 

BOYD & BROWN, P.C. 

9 1215 Pruitt Place 

Tyler, Texas 75703 

10 Telep.'.rtorte: 903 ::;26-9JCO 

Facsim.i le: 903 5?6-9CiCl 

11 

COUNSEL FOR DEFENDANTS: Jerry Davi 

12 

13 

14 

15 

~ ALSO PRESENT: Mr Sart Leigh, videographer 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Electronically signed by Terri Lynn Smith (601-237-608-4107) 

Ms. Nancy Elizabeth Bowman 

Deposition Resources, Inc. 

800.295 .4109 

16a5ed0f-8516-4c02-81 cc-9c8298f78b4c 
Page 28 

:I the fac:e, I-1e j:irn.pe<J t:.p arid got f-1er tri.ere. 

Q. Okay. So could you actually see the dog --

3 

4 Q. -- part er the dog when -- when he bit? 

5 

6 Okay. Do you recall before the bite, I mean, 

7 was the do~ making noise or doing anything, or was it 

8 just sort of out of the blue? 

9 No. He was just sitting there. 

10 Q. Novv, y~ou. s.a.-Ld Ms ... 8()V/rI1a.n 1ean.ed, lvha.t, 

11 direction of the dog? 

12 A .. 

13 Now, would that have -- so if the dog's between 

14 Yis. Bowman and Diana, that -- she was tr1en leaning in 

15 tte direction also of Diana? 

16 

17 Had the. Bt1bba 

18 we're, at this point, tal about Bubba. Okay? We 

~ understand that? 

20 Yes. 

21 Q. All right. Had Bubba n1tten peop1e, anybody 

n before that you were aware of? 

23 A. 

24 Q. 

25 A. 

Okay. h7l1c>? 

Me. 

Deposition Resources. Inc. 

800.295 .4109 

Electronically signed by Terri Lynn Smith (601-237-608-4107) 16a5ed0f-8516-4c02-81 cc-9c8298f78b4c 
Paoc 30 b 

1 Q. Okay" .. 

2 A .. Okay. Tha~'s when I signed it. 

3 Q. So so you told Jack or someone in nis 

4 office 

5 Yes .. 

6 Q. -- a.bout \-Vha t t1apperled., a.nd. sornebody '-";rote ~ +-

7 out and then you signed it saying, Yeah, that's --

8 A .. Yes. 

9 -- that's what happened? 

10 l-\ .. Yes .. 

11 Q. Okay. Okay. Now, when it says that -- what 

12 does it say? It says, I was bitten or the dog bit me. 

13 What's the language there? 

14 "Niooed me on the back of my leg. 0 

Okay. De yol1 rernerr~be:c the occasion., sc<rt of 

16 mean, were you just sitting around or can you 

17 -- ao you remember wha~ was happening that the dog did 

18 that? 

19 A,. 

20 ~e_i us -- tell us what occurred. 

21 They had had a repairman there to work on their 

22 heater, and he had gotten up and left and forgot his nag 

n of tools and was out in his car fixing to leave, and 

24 Diana asked me to take the bag of tools out. So I 

25 grabbed che tools and I took off at a trot towards the 

Electronically signed by Terri Lynn Smith (601-237-608-4107) 

Deposition Resources, fnc. 

800.295.4109 

16a5ed0f-8516-4c02-81 cc-9c8298f78b4c 
Page 31 

1 front door, and Bubba got me. 

2 Q. Okay. 

3 !~ .. He nipped me on ~he back of the 

4 ?~ll right .. Did -- did it break the skin? 

5 A. No. 

6 Okay. Just left a reci rnark 

7 A. Yeah; bruised, but .... 

8 Q. Okay. Did you seeK any medical attention? 

9 T~ 

.. c·;,. • No. 

10 Q. Okay. 

11 Diana respond? Did she holler at the dog or :ing? 

12 Do you. rern.err~ber? 

13 Yes. She fussed at him. 

14 Okay. Other than t~at occurrence -- well, ~et 

15 me strike thac:.. 

16 Had you ever known Bubba tc do that, 

17 know, bite, a.hold of sorrtebocly t;E::f<>re? 

18 A. t~o .. 

19 Had you ever observed Bubba out working, 

W messing with tne cows? 

21 A. Not real no. 

22 ('; 

"'·' 

23 A. 

24 n 

..,. 

25 is? 

Okay. 

He doesn't go cut there mucn. 

Okay. Now, do you know what breed of dog Bubba 

Deposition Resources, Inc. 

800.295.4109 

E!ectronicaliy signed by Terri Lynn Smith {601-237-608-4107) 16a5ed0f-8516-4c02-81 cc-9c8298f78b4c 
Page 38 

1 know, I'm thinking, weii, ne nipped me, you know. 

2 () 

xo• He might ge1::. somebody else? 

3 Yeah. He migbt somebody. I've kr1own 1-iirn, 

4 you know, since he was brought there, a puppy, so .... 

5 ~ow long was it :ram the time when he nipped 

7 V' 

.! .. ,. 

8 Q. ()}ca~:/ . 

9 A .. 

10 In c:.hat did any -- was there any 

11 other inc:ider1t, else happen that made you any 

12 more concerned or was that sort of it? 

13 That was it. 

14 Q. Did Diana ever say anything to you a:ter 

15 ne bit you that she was more concerned or or -~ 

16 No. 

17 Ckay. aces Bubba respond to Diana? 

18 In other hrorc.ts, if Diana ~-;;1.ves I-1in a c:::crrrrnar1d er 

19 

20 

21 

22 

23 

24 

25 

whatever, does the re 

Yes .. 

Q. 

Yes. 

Equally the same or more one than the a~her? 

7\ 

.ti .• 

Q. 

I clon.' t 

Okay. 

T co0ldn't tell you that. 

Deposition Resources, Inc. 

800.295.4109 

Electronicatly signed by Terri Lynn Smlth (601-237-608-4107) 16a5ed0f-8516-4c02-81 cc-9c8298f78b4c 
Page 45 

1 p.m. 

2 (Break from 5:17 p.rn. to 5:19 p.m.) 

3 

4 record at 5:19 o.m. 

5 

7 Mr. Strong, my name's Jack Sanders, and I 

8 represent I"".Ts .. Bo\~1n.art,. And to cl.arify, I cam.e to see 

9 you, and you told me what happened, I wrote it down, and 

w then you made some corrections, I think, where you 

11 initialed it and you signed that; is that correct? 

12 A. 

13 Your stacement. We're talking about No. --

14 

15 Q. -- l'-Jo. <l? 

16 lA. Yes .. 

17 All right, sir. Now, I have previous ta.k.en 

18 the deposition of Mrs. Davidson this morning, and we've 

W talked about the bi~e that's mentioned there in Exhibit 

~ No. 4, and she says that she witnessed that -- that 

~b.i.te .. Is that your .., - ' 21 ::·eccJ....Lec-:.::ioc. --

22 Yes. 

23 -- when ~he dog attacked you -- or bit you? 

24 Yes. 

25 And I believe she described it as she had to 

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1 tell you ~he trutn. 

2 I was just wondering if it's as the dog aged he 

3 got more aggressive or more protective? 

4 I think I've lived at that house 

5 longer than what I've thought. If he's 11 years ala, 

6 I've been there longer than that, ~u •••. 

7 That's what t:.hey said this morning. 

8 Looking back on this, what could have been done to avoid 

9 this accident? 

10 1-\. should have been put up, period. 

11 Q. All y 

12 For that fact.. 

13 Q. Sir. 

14 It should have iust been put up to avoid 

15 something like that. 

16 All right. And -- and let me as~ you this: 

·11 Where you work, you're in maintenance? 

18 

19 

20 

21 

7'. 

n. 

Q. 

Q. 

Yes. 

Is safety a big element er aspect of your job? 

-'!.es, sir .. 

.LZ\.nd -- a.nd cio yo1_:_ ag·ree th.at:. i. f t:X.-1:::: .. ~re' s a 

ll dangerous situation, that it's the duty to warn about 

B that dangerous situation; is that correct? 

24 A. 

25 Q. 

Yes. 

A:nd if :/OU c:ar1':. adequa_te1y vvarn ab<)Ut. t~f1at 

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1 dangerous situation, what's the next best thing? 

2 

3 Q. To do away with the --

4 !".. De away --

5 {\ 

':i.::::: .. dangerous situation? 

6 with the dangerous situation, yes. 

7 li.11 riqht. So I guess is it fair to say that 

8 1: the Davidsons couldn't adequately warn about Bubba, 

9 that they shoulti have put nim up? 

10 Yc::s .. 2e should have been put up. 

'11 All riqht. Now, was there beer being consumed 

12 that day? 

A. Yes .. 

14 Q. 

15 beer that day? 

16 I couldn't say about that. 

17 Q .. All right. And is the band still together 

18 ing? 

19 l'i. Occasior1a~l We don't play all the L 

20 anyrncre . 

21 Q. .? ... ll riqt:"C.. Ar:cJ ·io you -- you say you. go o'\rer 

ll there, did you say two or three times a week? 

23 T have been. Here lately I have not been. 

24 Okay. Mr. Davidson said that there was a 

25 group, I think he said jus~ about every day that comes 

Electronically signed by Terri Lynn Smith (601-237-608-4107) 

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1 would have happened? 

2 A .. Yes. 

3 Q. Okay. But d,, 

~, ycu. recall 

4 any anybody raising any concern or the issue of 

5 putting the dog up that icular evenir«;;? 

6 P. •• No. I don't -- I don't recall them saying put 

7 the aog up. 

8 Q. And you observed nothing that you felt like 

9 wo~La have put anyone on notice that, vPS better put 

10 trie dog u"p becau.se tiers ac~ti:-1g c;_ certair1 way 1:or1ic;b.t? 

11 A .. No. 

12 Q. Okay. P. ... nd. t.:..he dog's been 01Jt there a ' ""'-'t- C)f 

13 times when you've been over there since this happened, 

14 righ.t? 

15 Yes. 

16 And you've never asked them to put the dog up 

17 when you've been aver there, nave you? 

18 

19 

20 

21 

22 

23 

24 

25 

1\ 

r--:.. ... No. 

Okay. You haven't been concerned that he's 

going to bite you agaLn or c 

No. 

Q. ()}<a y. I mean, he could, right? 

1:1... -·Y-ea:r1 .. He could, but --

Q. Okay~ J.r1 <::>t.h.er wc-Jrds, that's like v.rha t yc·u 

said earlier about ~ ~he dog's aangerous. 

Deposition Resources, Inc. 

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1 bit you, obviously he bi~ at you, he mignc bite somebody 

2 else, right? 

3 Yes .. 

4 Q. Okay. But you're still around the dog fairly 

5 frequently and nave no real concerns about 

6 or biting you? 

7 No. When Diana and Jerry leave to go -- or it 

8 they're going to go out of town, they call me, and I go 

9 over there and let the dogs out and all that stuff, so 

10 it's .... 

11 Okay. 

12 A. I have no concern about him bi~ me. 

13 So the am I correct that the only real thing 

14 that sort of changed since ~s. Bowman has been bitten is 

15 that now when new neoole er guests come over, 

16 they put the dog up? 

'17 Yes. 

18 Q. Because o.f \tJ!:at. I10W ' n.a.s happened? 

19 A .. Yes. 

20 MR. BROWN: Okay. All right. Okay. 

21 Thank you I pass the witness. 

22 (Examination concluded at 5:40 p.m.l 

23 

24 BY MR. SANDERS: 

25 You sa\l thac. on ·partict:lar n. t there v.:as 

Electronically signed by Terri Lynn Smith {601-237-608-4107) 

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Page 64 

CAUSE NO. 13-0618 

NAt-JCY ELIZABETl-I BC)ltJ.MAJ~J I 

Plaintiff, 

IN THE DISTRICT COURT OF 

\IS" HARRISON COUNT~, TEXAS 

JEP.RY DAVIDSON AND 

Defendants. 71ST JUDICIAL DISTRICT 

DEPOSITION OF BILLY STRONG 

l'JCiV.EMBF~IZ 18, 2012 

i, TERRI L~NN SMITH, Certified Shorthand 

Reporter in and for the State of Texas, he cert.ify 

11 to the following: 

12 That the witness, BILLY STRONG, was duly sworn 

Ll by the officer and that the transcript of the oral 

14 deposition is a true record of the testimony 

15 the 1ntness; 

16 That exa1nj .. :-i.a ti OTi an.d sigr.ature the 

17 to - '. ' . ' 

depos1~1on ~ranscrip~ was waived by the witness 

IB and agreeme~t of t~e parties at the time of the 

~ deposition; 

20 That the original deposition was delivered to 

21 Mr. Alan E. Brown; 

22 That the amount of time used by each party a~ 

n the deposition is as follows: 

24 Mr. Jack Sanders, 00 hours, 20 minutes 

25 Mr. Alan E. Brown - 00 hours, 45 minutes 

Deposition Resources, Inc 

800.295.4109 

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1 the deposition officer's 

2 charges to the Defendant for preparing the original 

3 deposition transcr ana ' any 

4 

5 deposition officer at the time said testimony was taken, 

6 tne following includes all pan:.ies of record: 

7 

8 

9 

10 

Mr. Jack Sanders, Jr., Attorney for Plaintiff, 

f~ancy Eli zabetl1 BovJman.; 

Mr. Alan E. Brown, Attorney for Defendants, 

Jerry Davidson and Diana Davidson. 

That a copy of this certificate was served on 

/ I 

11 all parties shown herein on ll/Ztr/b4 anci filed with t.he 

12 Clerk pursuant to Rule 203.3. 

13 I further certify that i am neither counsel 

14 for, related to, nor any of the parties or 

15 attorneys in the action in which this proceeding was 

16 taken, and further that I a~ noc financial or 

U otherwise interested in the outcome of the action. 

18 

19 2013 .. 

20 

21 

22 

23 

24 

25 

Certifieci cJn the 25th day 

Excira-:.ior1 [)a~.e: 

Deposition Resocrces, Inc. 

?ir1n ist:::-.-ation. l\o .. : 409 

515 North Church Street 

Palestine, Texas 75801 

'fe lept.one: 

Fac.:s ile: 

(903; 729-3289 

(903) 727-0986 

Deposition Resources, Inc. 

800.295.4109 

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KENNETH W. SANDERS, M.D. - 3/26/2014 

NANCY ELIZABETH BOWMAN 

Plaintiff, 

v. 

JERRY DAVIDSON and 

DIANA DAVIDSON 

Defendants. 

NO. 13-0618 

§ IN THE DISTRICT COURT 

§ 

§ 

§ 71ST JUDICIAL DISTRICT 

§ 

§ 

§ 

§ OF HARRISON COUNTY, TEXAS 

VIDEOTAPED/ORAL DEPOSITION OF 

KENNETH W. SANDERS, M.D. 

MARCH 26, 2014 

15 VIDEOTAPED/ORAL DEPOSITION OF KENNETH W. SANDERS, 

16 M.D., produced as a witness at the instance of the 

17 Plaintiff, and duly sworn, was taken in the 

18 above-styled ~nd -numbered cause on the 26th day of 

19 March, 2014, from 3:10 p.m. until 3:54 p.m., before 

20 Amanda J. Leigh, certified Shorthand Reporter in and 

21 for the State of Texas, reported by machine shorthand, 

22 at Knight and sanders, 1811 East Bert Kouns Industrial 

23 Loop, conference Room, Shreveport, Louisiana 71105, 

24 pursuant to the Texas Rules of civil Procedure and the 

25 agreement(s) hereinafter set forth, if a 

LEIGH & ASSOCIATES COURT REPORTING AND VIDEO 

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1 
KENNETH W. SANDERS, M.D. - 3/26/2014 

1 A P P E A R A N C E S 

2 

3 

4 

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8 

FOR THE PLAINTIFF: 

Jack sanders, Jr., Esq. 

LAW OFFICE OF JACK SANDERS, JR. 

109 East Houston 

Marshall, Texas 75670 

Telephone: 903-925-7172 

FOR THE DEFENDANTS: 

9 Alan E. Brown, Esqe 

BOYD & BROWN~ P.C. 

10 1215 Pruitt Place 

Tyler, Texas 75703 

11 Telephone: 903-526-9000 

12 

13 ALSO PRESENT: 

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Mr. Bobby Bryant, Videographer 

LEIGH & ASSOCIATES COURT REPORTING AND VIDEO 

(877) 790-3376 FAX (877) 790-3377 

2 
KENNETH W. SANDERS, M.D. - 3/26/2014 

1 feel the tongue. 

2 There's no reason she shouldn't be able 

3 to feel the tongue--that's a completely different 

4 nerve-~but I -- I think she must be thrusting the 

S tongue to move the lip out of the way so she doesn't 

6 bite it, and she's biting the tongue. That's what I 

7 would think. 

8 Q. Do you expect her to have any trouble 

9 speaking? 

10 

11 just 

A. she does wi some -- some sounds, I mean, 

almost like a lisp type of a problem. when you 

12 can't get the lips to make the correct positioning to 

13 make to say the sounds, then you're going to have 

14 some some issues with that --

15 Q. And is that --

16 A. and that's -- that's what's going on: 

17 she's having a little trouble with the lips actually 

18 coming together or staying tight in certain areas when 

19 we make certain sounds; and so while she's doing that, 

20 then the sounds are going to not sound normal. 

21 Q. Is it your opinion, based on reasonable 

22 medical probability, all of the problems that you have 

23 discussed is a result of this dog attack on June 24, 

24 2012? 

25 A. Yes. 

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1 

2 

3 

KENNETH W. SANDERS, M.D. - 3/26/2014 

Q. And what is that opinion? I asked you if you 

had an opinion, and you said yes --

A. Oh. 

4 Q. -- and tell us ... ? 

5 A. The opinion that I -- okay, I'm sorry. Ask 

6 me again. 

7 Q. Do you have an opinion as to whether all the 

8 problems that you 1 ve talked about here are a direct 

9 result of the dog bite or dog attack of June 24, 2012? 

10 A. Yes. My opinion is that what I see on her 

11 now, around the mouth, is related to dog bites. 

12 Q. All right, sir. 

13 Now, in your report, you talk about the 

14 cost of future surgery and scar revision. Is that 

15 something that you -- do we need to talk about that~ or 

16 are you going to tell her that she doesn't think -- are 

17 you telling her probably not going to help, or is that 

18 going to be kind of optional with her? 

19 A. At this point, probably the only one I would 

20 off -- if she really wanted to try, would be the lower 

21 lip, the mucosal advancement area; and we could redo 

22 that. Basically cut that off and do another mucosal 

23 advancement. 

24 

25 

Q. And describe that surgery. 

A. we'd pull the lip back; make an incision on 

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1 

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5 

6 

KENNETH W. SANDERS, M.D. - 3/26/2014 

NANCY ELIZABETH BOWMAN 

Pl ai nt:i ff, 

v. 

JERRY DAVIDSON and 

DIANA DAVIDSON 

Defendants. 

NO. 13-0618 

§ IN THE DISTRICT COURT 

§ 

§ 

§ 71ST JUDICIAL DISTRICT 

§ 

§ 

§ 

§ OF HARRISON COUNTY, TEXAS 

REPORTER'S CERTIFICATE TO THE 

7 VIDEOTAPED/ORAL DEPOSITION OF KENNETH W. SANDERS, M.D. 

MARCH 26, 2014 

8 

9 I, Amanda J. Leigh, certified shorthand Reporter 

10 in and for the State of Texas, hereby certify: 

11 That the witness~ KENNETH w. SANDERS, M.D., was 

12 duly sworn and that the transcript of the deposition is 

13 a true record of the testimony given by the witness; 

14 That witness waived signature; 

15 That $445.00 is the deposition officer's charges 

16 to counsel for the Plaintiff, for preparing the 

17 original deposition and any copies of exhibits; 

18 That pursuant to information given to the 

19 deposition officer at the time said testimony was 

20 taken, the following includes all parties of record 

21 and the amount of time used by each party at the time 

22 of the deposition: 

23 

24 

25 

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(877) 790-33 FAX (877) 790-3377 

43 
KENNETH W. SANDERS, M.D. - 3/26/2014 

1 FOR THE PLAINTIFF: 

TIME: 00:32 

2 Jack Sanders, Jr., Esq. LAW OFFICE OF JACK SANDERS, JR. 

3 109 East Houston 

Marshall, Texas 75670 

4 

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FOR THE DEFENDANTS: 

TIME: 00:11 

Alan E. Brown, Esq. 

BOYD & BROWN, P.C. 

1215 Pruitt Place 

Tyler, Texas 75703 

I further certify that I am neither counsel for. 

related to, nor employed by any of the parties in the 

action in which this proceeding was taken, and further 

that I am not financially or otherwise interested in 

the outcome of this action. 

2014. 

certified to by me on this 9th day of April, 

i gh, CSR /3791 

Expiration: 12/31/2014 

Firm Registration: 684 

LEIGH & ASSOCIATES COURT 

REPORTING AND VIDEO 

certified shorthand Reporters 911 west Loop 281, suite 211 

Longview, Texas 75604 

Telephone: {903) 295-2955 

Facsimile: {214) 279-5900 

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44 
Supreme Court of Indiana.

Alyssa POZNANSKI, a Minor, by her Parent and

Next Friend, Heather POZNANSKI and Heather

Poznanski, individually, Appellants (Plaintiffs),

v.

George HORVATH, Appellee (Defendant).

No. 71S03–0111–CV–592.

May 30, 2003.

Minor and her mother brought personal injury

action against owner of mixed-breed sheep dog

after dog bit minor. The Superior Court, St. Joseph

County, R.W. Chamblee, Jr., J., granted summary

judgment for owner. Minor and her mother appealed. The Court of Appeals reversed and remanded. Transfer was granted. The Supreme Court,

Rucker, J., held that owner could not be held liable

given lack of evidence that owner had any knowledge that dog exhibited dangerous or vicious

propensities and absence of evidence that breed to

which dog belonged exhibited such propensities.

Judgment of superior court affirmed in part and

cause remanded.

Opinion, 749 N.E.2d 1283, vacated in part.

West Headnotes

[1] Judgment 228 181(2)

228 Judgment

228V On Motion or Summary Proceeding

228k181 Grounds for Summary Judgment

228k181(2) k. Absence of Issue of Fact.

Most Cited Cases

A genuine issue of material fact exists in summary judgment context where facts concerning an

issue that would dispose of the litigation are in dispute or where the facts are capable of supporting

conflicting inferences. Trial Procedure Rule 56(C).

[2] Judgment 228 185(2)

228 Judgment

228V On Motion or Summary Proceeding

228k182 Motion or Other Application

228k185 Evidence in General

228k185(2) k. Presumptions and Burden of Proof. Most Cited Cases

On motion for summary judgment, any doubt

as to a fact or an inference to be drawn is resolved

in favor of the non-moving party. Trial Procedure

Rule 56(C).

[3] Appeal and Error 30 863

30 Appeal and Error

30XVI Review

30XVI(A) Scope, Standards, and Extent, in

General

30k862 Extent of Review Dependent on

Nature of Decision Appealed from

30k863 k. In General. Most Cited

Cases

Appellate court must carefully review a decision on a summary judgment motion to ensure

that a party was not improperly denied its day in

court. Trial Procedure Rule 56(C).

[4] Animals 28 66.5(2)

28 Animals

28k66 Injuries to Persons

28k66.5 Dogs

28k66.5(2) k. Vicious Propensities and

Knowledge Thereof. Most Cited Cases

(Formerly 28k68)

Act of unprovoked biting by a dog does not necessarily mean the dog is dangerous or vicious.

[5] Animals 28 74(3)

28 Animals

28k66 Injuries to Persons

28k74 Actions

28k74(3) k. Presumptions and Burden of

Page 1

788 N.E.2d 1255

(Cite as: 788 N.E.2d 1255)

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Proof. Most Cited Cases

Under common law, all dogs, regardless of

breed or size, are presumed to be harmless domestic

animals.

[6] Animals 28 74(3)

28 Animals

28k66 Injuries to Persons

28k74 Actions

28k74(3) k. Presumptions and Burden of

Proof. Most Cited Cases

Presumption that dog is harmless domestic animal is overcome by evidence of a known or dangerous propensity as shown by specific acts of the

particular animal, with “dangerous propensity” being a tendency of the animal to do any act that

might endanger the safety of persons or property in

a given situation.

[7] Animals 28 66.5(2)

28 Animals

28k66 Injuries to Persons

28k66.5 Dogs

28k66.5(2) k. Vicious Propensities and

Knowledge Thereof. Most Cited Cases

(Formerly 28k68)

Jury could reasonably conclude in negligence

action against dog owner that dog at least exhibited

dangerous, if not vicious tendencies, in biting victim who received hospital and medical attention including several stitches to her face.

[8] Animals 28 74(3)

28 Animals

28k66 Injuries to Persons

28k74 Actions

28k74(3) k. Presumptions and Burden of

Proof. Most Cited Cases

Jury may not reasonably infer, from a dog's exhibition of dangerous or vicious tendencies for the

first time, that the dog's owner knew or should have

known of those tendencies.

[9] Animals 28 66.1

28 Animals

28k66 Injuries to Persons

28k66.1 k. Duties and Liabilities in General.

Most Cited Cases

(Formerly 28k69)

When wild animals are kept as pets, an owner

is liable for injuries caused by the animal, even if

the owner had no prior knowledge of the animal's

propensity to cause harm, and even if the owner has

exercised the utmost care in preventing harm.

[10] Animals 28 66.1

28 Animals

28k66 Injuries to Persons

28k66.1 k. Duties and Liabilities in General.

Most Cited Cases

(Formerly 28k69)

In essence, strict liability is imposed on owners

of wild animals for injuries caused by those animals.

[11] Animals 28 66.2

28 Animals

28k66 Injuries to Persons

28k66.2 k. Vicious Propensities and Knowledge Thereof. Most Cited Cases

(Formerly 28k70)

Owners of domestic animals may be held liable

for harm caused by their pet, but only if the owner

knows or has reason to know that the animal has

dangerous propensities.

[12] Animals 28 66.5(2)

28 Animals

28k66 Injuries to Persons

28k66.5 Dogs

28k66.5(2) k. Vicious Propensities and

Knowledge Thereof. Most Cited Cases

(Formerly 28k70)

Unlike with wild animals, when the owner of a

dog has knowledge of its dangerous propensities,

rules of liability are based upon negligence and not

strict liability.

Page 2

788 N.E.2d 1255

(Cite as: 788 N.E.2d 1255)

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
[13] Animals 28 66.5(4)

28 Animals

28k66 Injuries to Persons

28k66.5 Dogs

28k66.5(4) k. Contributory and Comparative Negligence. Most Cited Cases

(Formerly 28k71)

Animals 28 66.5(6)

28 Animals

28k66 Injuries to Persons

28k66.5 Dogs

28k66.5(6) k. Assumption of Risk. Most

Cited Cases

(Formerly 28k71)

Because action against owner to recover for injuries inflicted by dog is one sounding in negligence, the defenses of contributory negligence and

assumption of risk are available to limit liability.

[14] Animals 28 66.5(2)

28 Animals

28k66 Injuries to Persons

28k66.5 Dogs

28k66.5(2) k. Vicious Propensities and

Knowledge Thereof. Most Cited Cases

(Formerly 28k70)

Where there is no evidence of an owner's actual

knowledge that his or her dog has dangerous

propensities, the owner may nonetheless be held liable provided there is evidence that the particular

breed to which the dog belongs has dangerous

propensities, even where the owner's dog has never

before attacked or bitten anyone.

[15] Animals 28 66.5(2)

28 Animals

28k66 Injuries to Persons

28k66.5 Dogs

28k66.5(2) k. Vicious Propensities and

Knowledge Thereof. Most Cited Cases

(Formerly 28k70)

Jury could not infer that owner of mixed-breed

sheep dog knew that dog was dangerous or vicious,

and thus owner could not be held liable in negligence action for first-time bite by dog, where there

was no evidence presented that owner had any

knowledge that dog exhibited dangerous or vicious

propensities and no evidence that breed to which

dog belonged exhibited dangerous or vicious

propensities.

*1257 Daniel H. Pfeifer,Jon A. Criss, Sweeney,

Pfeifer, Morgan & Stesiak, South Bend, IN, Attorneys for Appellants.

Lynn M. Butcher, Don G. Blackmond, South Bend,

IN, Attorneys for Appellee.

CIVIL TRANSFER

RUCKER, Justice.

The question we address in this opinion is

whether the very act of an unprovoked biting by a

dog that in the past displayed no vicious tendencies

is sufficient by itself for a jury to infer that the animal's owner knew, or should have known, of the

dog's vicious tendencies. We grant transfer to hold

that it is not.

Facts and Procedural History

In this summary judgment action the following

facts are not in dispute. George Horvath lives in

South Bend and owned a mixed-breed sheepdog

named Hey. The dog had never bitten anyone and

was well behaved. No one had ever complained

about Hey, and he did not usually wander out of

Horvath's yard. On July 23, 1997, Horvath allowed

Hey to remain outside unattended. The dog was

neither on a leash nor confined by a fence. When

Alyssa Poznanski and her mother walked by Horvath's home, Hey bit Alyssa without provocation.

As a result Alyssa suffered a cut to her face requiring stitches. Among other things, a South Bend city

ordinance provides in pertinent part “[e]very owner

and/or his agent of an animal within the City shall

see that his or her animal ... is properly restrained

and not at large.” Appellant's App. at 91. The ordinance defines “at large” as “any animal that is not

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788 N.E.2d 1255

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© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
under restraint.” Id. at 92.

In her individual capacity and on behalf of

Alyssa as next friend, Alyssa's mother (hereafter

“the Poznanskis”) sued Horvath for personal injuries and medical expenses. In response, Horvath

filed a motion for summary judgment. Finding there

was no genuine issue of material fact as to whether

Horvath knew or should have known of any vicious

tendencies of the dog, the trial court granted the

motion. The Poznanskis appealed. On review, the

Court of Appeals reversed and remanded, finding

genuine issues of material fact remained regarding

whether Horvath: (1) knew or should have known

of the dog's vicious propensities; (2) used reasonable care in keeping the dog restrained; and (3)

could be held liable under the local ordinance requiring proper restraint of animals. *1258 Horvath

sought transfer, which this Court previously granted. Poznanski v. Horvath, 761 N.E.2d 423

(Ind.2001).

Standard of Review

[1][2][3] Our standard of review is the same as

that used in the trial court: summary judgment is

appropriate only where the evidence shows that

there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of

law. Ind. Trial Rule 56(C); Tom–Wat, Inc. v. Fink,

741 N.E.2d 343, 346 (Ind.2001). A genuine issue of

material fact exists where facts concerning an issue

that would dispose of the litigation are in dispute or

where the facts are capable of supporting conflicting inferences. Woodward Ins., Inc. v. White, 437

N.E.2d 59, 62 (Ind.1982). Any doubt as to a fact or

an inference to be drawn is resolved in favor of the

non-moving party. Bader v. Johnson, 732 N.E.2d

1212, 1216 (Ind.2000). We must carefully review a

decision on a summary judgment motion to ensure

that a party was not improperly denied its day in

court. Tom–Wat, 741 N.E.2d at 346.

Discussion

Relying on Layman v. Atwood, 175 Ind.App.

176, 370 N.E.2d 933 (1977), the Court of Appeals

in this case concluded that Horvath could not be absolved of liability simply because his dog had never

before bitten anyone. According to the court, “the

very fact that Hey bit Alyssa without provocation is

evidence from which a reasonable inference can be

made that Hey had vicious tendencies. Further, it

may be inferred that if the dog had vicious tendencies based on this one incident, then similar to Layman, a question of fact exists as to whether Horvath

knew or, at the least, should have known of these

tendencies.” Poznanski v. Horvath, 749 N.E.2d

1283, 1286 (Ind.Ct.App.2001).

In Layman, a father acting in his individual capacity and as next friend, sued Larry and Sherrod

Atwood when their Saint Bernard bit the father's

eight-year-old daughter. The Atwoods moved for

summary judgment that was supported by affidavit.

Among other things, the affidavit provided that the

dog had always been an affectionate companion to

the Atwood children and that prior to this incident

had never bitten or harmed anyone in any way. Layman, 370 N.E.2d at 934. The trial court granted the

motion. On review the Court of Appeals reversed.

Noting that the dog-biting incident was unprovoked, the court held:

A jury could reasonably infer that the very act of

unprovoked biting by the Atwoods' dog was evidence of that animal's vicious tendencies. If an animal does, indeed, have vicious tendencies a jury

could reasonably infer that the animal's owner

knew or, at least, should have known of those vicious tendencies.

Id. at 935.

[4][5][6][7] We first observe that the “very act

of unprovoked biting” by a dog does not necessarily mean the dog is dangerous or vicious. Under our

common law, all dogs, regardless of breed or size,

are presumed to be harmless domestic animals.

Ross v. Lowe, 619 N.E.2d 911, 914 (Ind.1993). This

presumption is overcome by evidence of a known

or dangerous propensity as shown by specific acts

of the particular animal. Id. A dangerous propensity

is a tendency of the animal to do any act that might

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endanger the safety of persons or property in a given situation. Id. Thus, depending on the facts of a

particular case, a dog's unprovoked biting may or

may not be evidence of the dog's vicious tendencies. For example, although technically a “biting,” a

playful nibble on the hand is one thing, while a

“teeth-baring” clamp on the arm is quite another. In

any event, in this *1259 case the record shows that

Hey either “bit” or “nipped” Alyssa in the face. Appellant's App. at 59. Regardless of the characterization, the incident resulted in Alyssa receiving hospital and medical attention including several

stitches to her face. Under these circumstances a

jury could reasonably conclude that Hey at least exhibited dangerous, if not vicious, tendencies.

[8] The question remains whether in light of a

dog exhibiting dangerous or vicious tendencies for

the first time, may a jury reasonably infer that the

dog's owner knew, or at least should have known of

those tendencies. If so, then this inference alone is

enough to create a genuine issue of material fact to

defeat a dog owner's claim that he or she was unaware of such tendencies. We conclude however

that a jury may not make such an inference.

[9][10][11][12][13] When wild animals are

kept as pets, an owner is liable for injuries caused

by the animal. Irvine v. Rare Feline Breeding Ctr.,

Inc., 685 N.E.2d 120, 125 (Ind.Ct.App.1997), trans.

denied. This is so even if the owner had no prior

knowledge of the animal's propensity to cause

harm, and even if the owner has exercised the utmost care in preventing harm. In essence, strict liability is imposed on owners of wild animals. Id.

Owners of domestic animals may also be held liable

for harm caused by their pet but only if the owner

knows or has reason to know that the animal has

dangerous propensities. Klenberg v. Russell, 125

Ind. 531, 25 N.E. 596, 597 (1890) ( “[T]he owners

of creatures which, as a species, are harmless and

domesticated, and are kept for convenience or use,

such as dogs ... are not liable for injuries willfully

committed by them unless he is proved to have had

notice of the inclination of the particular animals

complained of to commit such injuries.”); see also

Artificial Ice & Cold Storage Co. v. Martin, 102

Ind.App. 74, 198 N.E. 446, 448 (1935). As with

wild animals this liability also attaches regardless

of the amount of care exercised by the owner.

However, unlike with wild animals, when the owner of a dog has knowledge of its dangerous

propensities, “[the] rules of liability are based upon

negligence and not strict liability.” Alfano v. Stutsman, 471 N.E.2d 1143, 1144 (Ind.Ct.App.1984)

(quoting Doe v. Barnett, 145 Ind.App. 542, 251

N.E.2d 688, 694 (1969)). Because it is an action

sounding in negligence, the defenses of contributory negligence and assumption of risk are available

to limit this liability. Borton v. Lavenduskey, 486

N.E.2d 639, 642 (Ind.Ct.App.1985), trans. denied.

In certain instances, a cause of action in negligence can survive without the owner's actual knowledge of the animal's dangerous propensities. Indeed, such knowledge may even be constructive.

Doe, 251 N.E.2d at 692. Nonetheless, when an

owner does not know of his animal's dangerous

propensities, the rule is not that the jury may infer

or impute such knowledge. Rather, “the rule is that

the owner is bound to know the natural tendencies

of the particular class of animals to which [the]

dog belongs.” Ross, 605 N.E.2d at 788 (emphasis

added). If the propensities of the class to which the

dog belongs are the kind which one might reasonably expect would cause injury, then the owner

must use reasonable care to prevent injuries from

occurring. Id.

[14] Thus, where there is no evidence of an

owner's actual knowledge that his or her dog has

dangerous propensities, the owner may nonetheless

be held liable provided there is evidence that the

particular breed to which the dog belongs has dangerous propensities. And this is so even where the

owner's dog has never before attacked or bitten

anyone. See, e.g., *1260Holt v. Myers, 47 Ind.App.

118, 93 N.E. 1002, 1002–03 (1911) (observing that

the ferocious nature of a bulldog was sufficient to

provide the owner with constructive notice of the

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dog's dangerous propensities). In essence, a jury

may not infer that an owner knew or should have

known of a dog's dangerous or vicious propensities

from the fact of a first time, unprovoked biting.

Rather in such an instance, a jury may infer that the

owner knew or should have known of the dog's

dangerous or vicious propensities only where evidence shows that the particular breed to which the

owner's dog belongs is known to exhibit such tendencies.

[15] In the case before us, there was no evidence presented that Horvath had any knowledge

that Hey exhibited dangerous or vicious propensities. The record shows Hey was very well trained,

behaved well, responded when Horvath called to

him or told him to stay. Hey did not wander out of

Horvath's yard or wander around the neighborhood.

The record also shows that Horvath never received

any complaints about Hey's conduct or behavior.

And even though Horvath's home was near an elementary school, Hey did not get excited or nervous

when he heard children playing, screaming or making loud noises. Nor was there any evidence presented to the trial court that the breed to which Hey belonged, a mixed-breed sheep dog, exhibited dangerous or vicious propensities. Accordingly, a jury

could not infer that Horvath knew that his dog was

dangerous or vicious.

On the question of whether there is any genuine issue of material fact that Horvath knew or

should have known of Hey's vicious tendencies, we

affirm the judgment of the trial court. The Court of

Appeals' opinion on this point is thus vacated. We

summarily affirm the Court of Appeals' resolution

of the Poznanskis' claim that Horvath could be held

liable under the local ordinance requiring proper restraint of animals.

Conclusion

We affirm the judgment of the trial court in

part. This cause is remanded for further proceedings consistent with this opinion.

SHEPARD, C.J., and DICKSON, SULLIVAN and

BOEHM, JJ., concur.

Ind.,2003.

Poznanski ex rel. Poznanski v. Horvath

788 N.E.2d 1255

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Superior Court of Pennsylvania.

Cathy A. DEARDORFF, Natural Mother and

Guardian of Jessica Deardorff, and Cathy A. Deardorff, Individually, Appellants,

v.

Carol BURGER, Appellee.

Argued Jan. 15, 1992.

Filed April 3, 1992.

Dog bite victim and mother brought action

against owner. The Court of Common Pleas,

Dauphin County, Civil Division, No. 2060 S of

1988, Schaffner, J., entered judgment on jury verdict in favor of owner. Plaintiffs appealed. The Superior Court, No. 00442 Harrisburg 1991, Popovich

, J., held that: (1) theory of absolute liability was

inapplicable; (2) single bite on prior occasion was

insufficient to put owner on notice of dog's allegedly vicious propensity; and (3) alleged negligence of one owner could not be imputed to alleged

co-owner.

Affirmed.

West Headnotes

[1] Animals 28 66.5(2)

28 Animals

28k66 Injuries to Persons

28k66.5 Dogs

28k66.5(2) k. Vicious Propensities and

Knowledge Thereof. Most Cited Cases

(Formerly 28k70)

Theory of absolute liability was inapplicable to

action to recover for dog bite, even if owner had

knowledge of dog's previous biting of another person.

[2] Animals 28 66.2

28 Animals

28k66 Injuries to Persons

28k66.2 k. Vicious Propensities and Knowledge Thereof. Most Cited Cases

(Formerly 28k70)

Mere awareness and ownership of vicious animal does not per se expose one to liability for injuries inflicted absent failure on part of owner to

take proper precautions to preclude that viciousness

from exhibiting itself.

[3] Animals 28 66.5(2)

28 Animals

28k66 Injuries to Persons

28k66.5 Dogs

28k66.5(2) k. Vicious Propensities and

Knowledge Thereof. Most Cited Cases

(Formerly 28k70)

Single bite on prior occasion was insufficient

to put owner on notice of dog's allegedly vicious

propensity; there was lack of evidence concerning

circumstances surrounding the prior bite.

[4] Animals 28 66.5(7)

28 Animals

28k66 Injuries to Persons

28k66.5 Dogs

28k66.5(7) k. Persons Liable for Injuries

in General. Most Cited Cases

(Formerly 28k72)

Alleged negligence of one owner of dog could

not be imputed to alleged co-owner in action to recover for dog bite.

**490 *46 Theresa L. Shade Wix, Harrisburg, for

appellants.

Kerry V. Smith, Harrisburg, for appellee.

Before McEWEN, POPOVICH and JOHNSON, JJ.

POPOVICH, Judge:

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In this appeal, we re-examine the law concerning the liability of dog owners for the actions of

their pets. We are asked to review the June 26,

1991, order of the Court of Common Pleas of

Dauphin County denying a motion for a new trial

filed by the plaintiff/appellant, Cathy A. Deardorff,

natural mother and guardian of Jessica Deardorff,

individually.FN1 We affirm.

FN1. The June 26, 1991, order was reduced to judgment on July 11, 1991, and,

thus, is appealable. Pa.R.App.P. 301(c).

In reviewing the denial of a motion for a new

trial, this Court will reverse only when the lower

court has clearly and palpably abused its discretion

or committed an error of law which controlled the

outcome of the case. Lilley v. Johns-Manville

Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991).

With the preceding in mind, our review of the

evidence discloses that, on the afternoon of November 16, 1986, 2-year-old Jessica, her father (David)

and Shane Burger were in Shane's backyard raking

leaves. Within 15 minutes of their arrival, Shane let

the dog out of the house to roam in the backyard.

Shane recalled that the trio played in the leaves

and Jessica ran toward the dog, a 75-pound German

shepherd named “Smokey”. Jessica was told by her

father to “get *47 back” toward him. Shane offered

to return the dog to the house, but the father did not

feel it was necessary. The next thing to occur, as

told by Shane, was that:

... [the child] was playing in the leaves. And she

came upon [the dog] ... She hugged him around

the neck and she was off to the side. And [the

dog] tried ... to get away from her at that point in

time....

... [I]t all happened so fast. [Shane] just saw

Smokey pulling back. There was-if he would

have bit Jessica, she probably would not have a

face at this point in time. He's got quite a snout

on him. He did yelp, okay, as he usually does

when something's happening to him that he does

not like. But [Shane] did not see [the dog], you

know-there was no lunging at the child or anything like that. The dog veered back. She fell

down, and we grabbed the kid and, you know,

went because then we realized ... she's bleeding.... And it just happened like that, (indicating)

that fast. [N.T. 54]

Jessica was taken to the hospital, sedated and

received stitches “all over the face ... under the eye,

over her eye [and] by her lip[.]” The child was released the same day. Within a month, the stitches

were removed, and a scar remained above and below the child's left eye.

On June 13, 1988, a writ of summons was filed

against Carol Burger, Shane's mother and the owner

of the home in which the dog lived, for “negligently

and carelessly restraining her dog.” Paragraph 5.

The plaintiff claimed damages in excess of $20,000

for the injuries sustained by the child “[d]ue solely

to the negligence and carelessness of [Carol Burger].” Id. at 6. Following a two-day trial, the jury

returned a verdict in favor of the defendant/Carol

Burger. Post-trial motions were denied and an appeal to this Court ensued.

[1] The first claim of the appellant concerns the

assertion that the trial court erred in refusing to

charge the jury on the theory of absolute liability of

a dog owner aware of the animal's vicious

propensities and the resulting injuries incurred by

someone bitten by the animal. This liability, *48

the appellant maintains, is absolute regardless of

the circumstances of the accident and the exercise

of any care or caution by the dog's owner.

The appellant cites Section 509 of the Restatement (Second) of Torts and Mann v. Weiand, 81*

Pa. 243 (1875) in support of her proposition. We

find that the trial **491 court's instructions on negligence were sufficient and did not require the inclusion of an absolute liability charge given that

Section 509 of the Restatement (Second) of Torts

has yet to be adopted in this Commonwealth, a

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point which the appellant concedes in her brief at

page 11.

With regard to the case of Mann v. Weiand,

supra, a civil action for damages resulting from the

defendant's negligent keeping of a ferocious dog,

the court wrote:

We think one instance may show such unmistakable evidence of a vicious propensity as to

make the owner of the dog, with notice, liable for

any subsequent act of a similar character. The

gist of the action for the subsequent misconduct

of the dog, is for keeping it after knowledge of its

vicious propensity: May v. Burdett, 9 Q.B., 101;

Wheeler v. Brandt, 23 Barb., 324. It thereupon

becomes the duty of the owner so to keep his dog

as to guard against a repetition of similar misconduct. He is bound to secure it at all events, and is

liable to parties afterwards injured if the mode he

has adopted to secure it proves insufficient:

Wood on Nuisance, section 763; Jones v. Perry,

2 Esp., 482; Mason v. Keeling, 12 Mod., 332. The

principle on which this rule rests was held in

Mann v. Reed, 4 Allen, 431, to be, that a ferocious animal, liable to do injury to men or property, is a nuisance, and that keeping it after notice

of such liability is so wrongful, that the owner is

chargeable for any neglect to keep it with such

care that it cannot do any damage to a person

who without any essential fault is injured

thereby.

The same rule applies with reference to other

nuisances: Wood on Nuisances, section 766;

Foish v. Sheet, 221 Barb., 333; Hughes v. McNamara, 106 Mass., 281; Marsh v. Jones, 21 Vt.,

378. Hence the keeping of a *49 vicious dog near

a public highway, endangering the safety of persons passing thereon, is a nuisance, operating as

an obstruction, and renders the person knowingly

keeping it there liable to indictment, and also liable to an action in favor of any person injured

thereby: Granger v. Findley, 7 Irish C.L.Rep.,

417; Wood on Nuisance, section 768.

81* Pa. at 254. The reason for so holding was

that an owner of a dog, after he had notice, was

bound to secure it at all events, and failure to do so

resulted in the owner's liability to persons injured

thereafter. See Commonwealth v. Carl, 87

Pa.Super. 110, 112 (1925).

[2] In Andrews v. Smith, 324 Pa. 455, 188 A.

146 (1936), our Supreme Court had occasion to reexamine the question in the context of a compulsory non-suit. It wrote:

The theory upon which courts have so long ruled

that liability for damages cannot be fastened upon

the owner of a dog when that dog has bitten

someone unless the owner knew of the dog's vicious propensities, is that it would be unfair to

hold the owners of domestic animals that are normally harmless responsible for the vicious acts of

these animals unless they were put on notice that

the animal was vicious. In so holding, the courts

have merely applied the principle that no man is

responsible for injuries caused by his property

unless he himself was guilty of negligence in his

manner of controlling or not controlling that

property.

* * * * * *

mere ownership alone of inherently and apparently harmless property does not carry with it liability for damages for an injury of which that

property was the instrumentality.

* * * * * *

“Knowledge of the dangerous character of a thing

is only the equivalent of foresight of the way in

which it will act. If the thing is generally supposed to be universally harmless, and only a specialist would foresee that in a given case it would

do damage, a person who did not foresee it *50

and who had no warning would not be held liable

for the harm....”

The majority of the court below held that there

is nothing in the Dog Law of May 11, 1921, P.L.

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522, as amended by the Act of May 6, 1927, P.L.

833, that rendered defendants liable to the

plaintiff**492 for the injuries inflicted upon him

by the former's dog. That act does not purport to

change or affect in any way the rule that an owner's liability for the vicious acts of his dog cannot

be predicated upon ownership alone but it must

be based also on an owner's knowledge of his

dog's viciousness and his failure then to take

proper steps to prevent that viciousness displaying itself to the hurt of human beings.

324 Pa. at 459-460, 188 A. 146 (Emphasis added). Thus, it is clear from the Andrews v. Smith

ruling, which made specific reference to and discussed Mann v. Weiand, that mere awareness and

ownership of a vicious animal does not per se expose one to liability for injuries inflicted absent a

failure on the part of the owner to take proper precautions to preclude that viciousness from exhibiting itself. Id.; but see Darby v. Clare F. And R. Co.,

111 Pa.Super. 537, 540, 170 A. 387 (1934).

More recently, this Court in Miller v. Hurst,

302 Pa.Super. 235, 448 A.2d 614 (1982) (en banc),

had reason to decide whether a dog owner who permitted a dog to run free in violation of the Dog Law

of 1965,FN2 requiring that the dog be restrained,

was liable, without further proof of negligence, for

injuries caused when the dog bit a child.

FN2. The Act of December 22, 1965, P.L.

1124, Art. VII, § 702, 3 P.S. § 460-702, repealed by The Dog Law of 1982, December 7, P.L. 784, No. 225, Art. I, § 101, 3

P.S. § 459-101 et seq. (Supp.1991).

We found that the Legislature enacted the statute to protect the public from personal injury, property damage and other hazards created by roving

dogs. As a result, we:

... adopt[ed] the requirement of the statute as the

standard for determining whether a person ha[d]

complied with the common law duty to exercise

ordinary care.

* * * * * *

*51 [We went on to hold that, a]lthough some

states ha[d] gone further and imposed absolute liability for damages caused by roving dogs, we

f[ou]nd it improvident and unnecessary to effect

such a monumental change without legislative action. The legislature in Pennsylvania [was observed to] ha[ve] enacted a Dog Law which require[d] that owners of dogs prevent their animals from running at large, but it ha[d] not yet imposed absolute liability upon an owner who violate[d] such law. Therefore, we d[id] not usurp the

function and prerogative of the legislature. We

h[e]ld merely that violation of the legislatively

enacted Dog Law is negligence per se.8This, we

believe[d], [wa]s consistent with the intent of the

legislature and also with the holdings of courts of

other jurisdictions having similar laws.

-----

FN8. A dog owner may always show that

his or her dog escaped despite the exercise

of due care. In such case, the roving of the

dog would not constitute negligence.

Id., 302 Pa. Superior Ct. at 243-244 & n. 8, 448

A.2d at 618-619 & n. 8.

Likewise, the successor to The Dog Law of

1965 makes no provision for imposing absolute liability upon dog owners for failing to keep their

dogs confined or controlled; to-wit:

§ 459-305. Confinement of dogs

It shall be unlawful for the owner or keeper of

any dog to fail to keep at all times such dog

either:

(1) confined within the premises of the owner;

(2) firmly secured by means of a collar and

chain or other devise so that it cannot stray beyond the premises on which it is secured; or

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(3) under the reasonable control of some person, or when engaged in lawful hunting, exhibition or field training.

The Act of December 7, 1982, P.L. 784, No.

225, Art. III, § 305, effective January 1, 1983, 3

P.S. § 459-305 (Supp.1991); see also Andrews v.

Smith, supra.

**493 *52 However, we do not rest our decision upon the absence of any provision in the

present and past dog statutes to establish liability

premised upon notions of absolute liability, for a

person may rely on common law principles, in addition to statutory violations, to establish liability.

See Skowronski v. Bailey, 330 Pa.Super. 83, 478

A.2d 1362, 1365 n. 3 (1984). Nonetheless, under

either category, be it statute or common law principles, we are convinced that proof of negligence,

in contrast to holding one absolutely liable, is the

vehicle by which accountability for injury sustained

because of a dog bite is to be established. See Andrews v. Smith, supra; Miller v. Hurst, supra.

Therefore, the trial court acted properly in refusing to instruct the jury that absolute liability was

established once it was shown that the appellee had

knowledge of Smokey's previous biting of one John

Walmer. See Andrews v. Smith, supra; Miller v.

Hurst, supra.

[3] The second argument proffered by the appellant suggests that the trial court erred in failing

to instruct the jury that a single instance of vicious

conduct on the part of a dog is sufficient to put its

owner on notice of the dog's vicious propensities.

Again, we look to Andrews v. Smith, supra, for

guidance in responding to the appellant's assertion;

namely, the Court wrote:

“As soon as the owner knows or has good reason

to believe that the animal is likely to do mischief,

he must take care of him; it makes no difference

whether this ground of suspicion arises from one

act or from repeated acts. The only restriction is

that the act done must be such as to furnish a

reasonable inference that the animal is likely to

commit an act of the kind complained of.”

The minority judge in his dissenting opinion said

that the “maxim that ‘every dog is entitled to his

first bite’ is not supportable in law or justice.”

With this we agree. We do not understand that

this maxim has ever found acceptance*53 in the

courts of this Commonwealth. A dog may show

ferocious propensities without biting anyone and

if he does so, it is his master's duty to see to it

that he is not afforded an opportunity to take a

‘first bite.’

* * * * * *

Animals such as horses, oxen and dogs are not

beasts that are ferae nature, i.e., wild beasts, but

are classed as mansuetae natura, i.e., tamed and

domesticated animals, and their owners are not

responsible for any vicious acts of theirs unless

the owners have knowledge that they are likely to

break away from their normal domestic nature

and become vicious. Of all animals, dogs have

probably been the longest domesticated and the

vast majority of them can be allowed their freedom without imperiling the public safety.

324 Pa. at 458, 459, 188 A. 146 (Emphasis added). Further, in Mann v. Weiand, supra, the Court

observed that “one instance [of an attack by a dog]

may show such unmistakable evidence of a vicious

propensity as to make the owner of the dog, with

notice, liable for any subsequent act of a similar

character.” 81* Pa. at 254. Accord Fink v. Miller,

330 Pa. 193, 195, 198 A. 666 (1938).

Instantly, the testimony on the question of

propensity was equivocal. For example, Shane Burger was told by the appellee of the incident in

which Smokey bit a Mr. Walmer. However, he did

describe how Mr. Walmer had been observed kicking Smokey on three occasions. During each episode, the dog, according to Shane, “back[ed] down”

or “just ... jerked away” and made its way into the

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backyard with its tail between its legs. The dog

never exhibited any signs of viciousness to Shane

or Mr. Deardorff.

Also, Shane depicted Smokey as a “kind” animal-like a big puppy dog-who had never

“snapped” at the witness or anyone else in its company.

The appellee described Smokey in terms similar to her son's account, e.g.,

*54 He's a great dog. He has a great personality.

He's actually very timid. If he does anything

wrong, he's the kind of dog that if he does

something wrong **494 he'll sit back and put his

ears back....” [N.T. 69]

Smokey had played with other children without

“any difficulties” and the animal was considered

“just ... part of the family”. In light of the preceding, the trial court gave the following charge to the

jury:

... an important thing for you to decide is

whether this dog, Smokey, had vicious propensities. The dictionary defines propensity as being an

intense and often urgent natural inclination to do

something. Therefore, in considering whether the

dog has a propensity towards violence, you must

determine whether the dog had an intentional and

often urgent natural inclination to be vicious. It's

the Plaintiff's burden to prove that the Defendant

was negligent, and a part of that in this case is

that this dog Smokey had dangerous propensities.

Even if you find that Smokey was a dog with

vicious or dangerous propensities, the Plaintiff

must establish that Defendant Carol Miller knew

that, that she had knowledge that her dog had

those propensities. No matter how innocent the

victim may be or how serious the injury sustained, the owner of the dog is not responsible for

the consequences of the dog's bite if she has no

reason to know the viciousness or dangerous

propensities of the dog. [N.T. 85-86]

Consistent with the precepts espoused by the

Court in Andrews v. Smith, supra, and Mann v. Weiand, supra, we find that, because of a lack of evidence concerning the circumstances surrounding the

Walmer incident, it would have been improper for

the trial court to have advised the jury, in unqualifying terms, that a single bite on a prior occasion

was sufficient to put the appellee on notice of

Smokey's alleged “vicious” propensity. See Fink v.

Miller, supra.

Accordingly, since the appellant did not prove

that Smokey had unmistakable vicious tendencies

known to the appellee,*55 from the single bite of

Mr. Walmer, she failed to make out a case warranting the single-bite instruction. Id.

[4] As to the last of the appellant's averments,

we adopt the rationale of the lower court in response thereto as appropriate and proper under the

facts and law; to-wit:

Finally, the plaintiff contends that the Court

erred in refusing to instruct the jury that the negligent acts of one co-owner of a dog may be imputed to the other co-owner of that dog. The

plaintiff asserts that the Court should have told

the jury that when individuals are engaged in a

common enterprise, a mutual relationship of

agency is created among them and that a finding

of negligence regarding one of them will be imputed to the other. The plaintiff cites DeVillars v.

Hessler, 363 Pa. 498, 70 A.2d 333 (1950) in support of this argument. The plaintiff concludes that

such an instruction was warranted because the

defendant and her son, Shane, were co-owners of

“Smokey.” Actually, in the present case, there

was no allegation in the complaint that the defendant and her son were co-owners of the dog,

or that the son was negligent. The testimony did

establish the premise that mother and son were

co-owners. Legally, the DeVillars case is no authority for the premise that one negligent owner

of a dog makes the other owner responsible and

we are satisfied now, as we were at the trial, that

the suggested instruction was not proper in this

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case.

Lower Court Opinion at 8.

From our review of the evidence against the

backdrop of the applicable law, we find that the

jury's verdict was proper, and no error was committed by the trial court to justify the grant of a new

trial.

Order affirmed.

Pa.Super.,1992.

Deardorff v. Burger

414 Pa.Super. 45, 606 A.2d 489

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Supreme Court of Washington.

ROBINSON ET UX.

v.

MARINO.

Jan. 11, 1892.

Appeal from superior court, King county; T. J.

HUMES, Judge.

Action by E. O. Robinson and Carrie Robinson, his wife, against S. Marino. There was judgment for plaintiffs, and defendant appeals. Affirmed.

HOYT, J., dissenting.

West Headnotes

Animals 28 66.5(2)

28 Animals

28k66 Injuries to Persons

28k66.5 Dogs

28k66.5(2) k. Vicious Propensities and

Knowledge Thereof. Most Cited Cases

(Formerly 28k70)

Unless the owner of a dog knows that it has a

savage disposition, and is accustomed to bite, he is

not liable for injuries due to its bite.

Animals 28 74(4)

28 Animals

28k66 Personal Injuries

28k74 Actions

28k74(4) k. Admissibility of Evidence.

Most Cited Cases

Where the complaint alleged that the dog was

of a ferocious disposition, and accustomed to bite

or attempt to bite people, testimony as to particular

instances when he had done so was proper.

Animals 28 74(8)

28 Animals

28k66 Personal Injuries

28k74 Actions

28k74(8) k. Questions for Jury. Most

Cited Cases

Evidence that the dog was kept chained; that

when at large he had been known to attack people;

and that defendant had said he was afraid the dog

would break loose and hurt some one-warranted

submitting to the jury the question as to the dog's

ferocious disposition and the defendant's knowledge thereof.

Appeal and Error 30 203.3

30 Appeal and Error

30V Presentation and Reservation in Lower

Court of Grounds of Review

30V(B) Objections and Motions, and Rulings

Thereon

30k202 Evidence and Witnesses

30k203.3 k. Competency of Witnesses.

Most Cited Cases

(Formerly 30k203(3))

The competency of a witness will not be considered for the first time on appeal.

Damages 115 127.11

115 Damages

115VII Amount Awarded

115VII(B) Injuries to the Person

115k127.11 k. Internal Injuries in General. Most Cited Cases

(Formerly 115k131(3))

Damages 115 127.15

115 Damages

115VII Amount Awarded

115VII(B) Injuries to the Person

115k127.12 Head and Neck Injuries in

General; Mental Impairment

115k127.15 k. Brain Injuries in General; Mental Impairment. Most Cited Cases

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(Formerly 115k131(3))

Damages 115 127.19

115 Damages

115VII Amount Awarded

115VII(B) Injuries to the Person

115k127.18 Arm, Hand, Wrist, and

Shoulder Injuries

115k127.19 k. In General. Most Cited

Cases

(Formerly 115k131(3))

Where plaintiff had her arm bitten to the bone

by a dog, and her side lacerated, and the nervous

shock consequent upon the attack greatly prostrated

her, a verdict for $800 was not so excessive as to be

disturbed.

Damages 115 158(2)

115 Damages

115VIII Pleading

115k156 Issues, Proof, and Variance

115k158 Personal Injuries and Physical

Suffering

115k158(2) k. Consequences of Injury

in General. Most Cited Cases

Where the allegations of a complaint were that

the plaintiff, by reason of the bite of a dog, suffered

great pain in body and mind, was prevented from

attending to her household duties, and obliged to

expend $50 for the services of a physician, and that

she was damaged to the extent of $2,500, she was

entitled, without any special allegation, to recover

for all the direct and obvious results of the said injury, including physical pain and mental anguish.

Evidence 157 545

157 Evidence

157XII Opinion Evidence

157XII(C) Competency of Experts

157k545 k. Preliminary Evidence as to

Competency. Most Cited Cases

In an action to recover for injuries occasioned

by the bite of a dog, where a physician had testified

that he treated two wounds for the plaintiff, it was

proper to ask him whether he had sufficient knowledge to tell what probably caused the wounds.

Negligence 272 1635

272 Negligence

272XVIII Actions

272XVIII(C) Evidence

272XVIII(C)4 Admissibility

272k1635 k. Similar Facts and Transactions; Other Accidents. Most Cited Cases

(Formerly 272k125)

To show that a defect in property existed and

caused a particular injury, evidence of other accidents or injuries occurring about the same time and

place from the same or similar cause is admissible.

**752 *435 White & Munday, for appellant.

T. H. Cann and Battle & Shipley, for respondents.

ANDERS, C. J.

This was an action brought by respondents, as

husband and wife, to recover damages for injuries

inflicted upon the plaintiff Carrie Robinson by a

dog owned and kept by appellant. On the trial one

Dr. Hilton, a witness for plaintiff, having testified

that he treated two wounds on plaintiff, which he

described, was asked this question: “From your

knowledge as a surgeon and general practitioner,

can you tell what the probable cause of those

wounds was?” The question was objected to by defendant on the ground that the same was incompetent, and was not in the nature of expert testimony.

The court overruled the objection, and exception

was duly taken and allowed, and this ruling *436 of

the court is assigned as error. Appellant also insists

that the witness was not shown to be competent to

testify as an expert, but it is a sufficient answer to

this objection to state that the point was not raised

in the court below, and cannot be urged for the first

time here. We must therefore assume that the witness was competent. Indeed, the competency of the

witness as an expert is sufficiently disclosed by the

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record, for it is there shown that he had been a practicing physician and surgeon for 20 years, and was

still practicing as such at the time of the trial. Physicians and surgeons of experience are presumed to be acquainted with all matters pertaining

to their profession, and to be competent to testify

concerning the same. Rog. Exp. Test. (2d Ed.) 43,

99. And that a medical expert may give an opinion

as to the means by which a particular wound was

inflicted is the prevailing doctrine of the courts. Id.

127, 128, and cases cited. But the question here

objected to called for no opinion whatever except

as to whether the witness had sufficient knowledge

to tell what probably caused the wounds described. He was not asked to state what caused

them, or even what probably caused them. The

question was preliminary in its nature, and the objection was properly overruled. But, even if it was

error to permit the question to be propounded to the

witness, we think the judgment should not be reversed, as the defendant could not have been prejudiced thereby. It was clearly shown by other competent testimony in the case that the plaintiff Mrs.

Robinson was bitten by defendant's dog, and that

whatever injuries she suffered resulted therefrom. The admission of incompetent testimony under such circumstances would not justify us in reversing the judgment of the trial court. Brown v.

Forest, 1 Wash. T. 201.

Appellant also insists that it was error to permit

the witness Addie Simons to testify to particular instances of *437 the action of the dog in question,

for the reason that no testimony had been offered to

show that defendant had any knowledge of the

same, and that it was not competent to prove the

disposition of the dog by such testimony. We think

the objection cannot be sustained. It was alleged in

the complaint that the dog was of a ferocious and

mischievous disposition, and accustomed to attack

and bite mankind; and it is quite evident that that

fact could not be more readily made manifest than

by testimony descriptive of his actions. Whether or

not the dog was vicious was one of the principal issues to be determined by the jury, and it was certainly competent to show that previously to the occasion on which he attacked Mrs. Robinson he had

bitten or attempted to bite another person.

It is alleged in the brief of appellant that the

evidence on behalf of the plaintiffs failed to show

that the dog was of a ferocious disposition, and

failed to show that defendant had notice or knowledge of such disposition, and failed to show any

negligence on the part of the defendant in suffering

the dog to be at large; and it is therefore contended

that defendant's motion for a nonsuit should have

been granted. But we are of the opinion that there

was sufficient testimony to go to the jury upon each

of the points made by counsel. Several witnesses

for the plaintiffs had testified that the dog had always been kept chained, which was strong evidence

that he was ill-disposed; and that **753 he would

bark and jump at persons going near him while tied,

and endeavor to get loose. The plaintiff Mrs.

Robinson testified that she had lived on the opposite side of the street from the residence of the defendant for about three years, and that she had

known the defendant's dog during that time, and

that on the morning of November 2, 1890, she went

to the house of defendant to get vegetables, as she

had been accustomed to do; that when she got to

the corner of the house the dog was lying with his

nose on the *438 door-step, which she thought was

something unusual, and sprang upon her and bit and

bruised her badly, and bit her arm to the bone; and

Mrs. Simons had testified that on one occasion, and

the only time she ever saw the dog at large, she saw

him run after and seize hold of a woman's dress as

she ran out through the gate; and Mr. Peterson had

testified that the defendant stated to him the summer before that he was afraid that his dog would get

loose and bite his (Peterson's) child, because she

was in the defendant's garden so much. With such

testimony before it, the court would not have been

justified in granting defendant's motion. The owner

of a domestic animal is not liable, in the absence of

statutory provision, for any injury it may inflict

upon others, unless he has notice of its inclination

to commit such an injury. But, according to the

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more modern and more reasonable doctrine, it is

not necessary that he should have had actual positive notice. If he has notice that the disposition of

the animal is such that it would be likely to commit

an injury similar to the one complained of, it is sufficient. It is not necessary that the notice be of injury actually committed. Thus, in case of a dog

known to be vicious and ferocious by its keeper, it

is unnecessary to show that he had previously bitten

any person. The keeper of such a dog must see to it

that he is kept securely, or be responsible for all injury done by him. Cooley, Torts, (2d Ed.) 404, 405;

2 Shear. & R. Neg. (4th Ed.) § 630; Flansburg v.

Basin, 3 Ill. App. 531; Godeau v. Blood, 52 Vt.

251. In the case last cited, REDFIELD, J., said:

“The duty which the law casts upon the keeper of a

dangerous and malicious domestic animal is but the

enforcement of a common moral duty, binding

upon all men, that a man should so keep and use his

own property as not to wrong and injure others. The

formula used in text-books and in forms given for

pleadings in such cases-‘accustomed *439 to

bite’-does not mean that the keeper of a ferocious

dog is exempt from all duty of restraint until the

dog has effectually mangled or killed at least one

person. But, as he is held to be a man of common

vigilance and care, if he had good reason to believe

from his knowledge of the ferocious nature and

propensity of the dog that there was ground to apprehend that he would, under some circumstances,

bite a person, then the duty of restraint attached,

and to omit it was negligence.” In this case it was

not shown that the defendant had any knowledge

that the dog had ever attacked or bitten any person

before he attacked the plaintiff, but we think it was

fairly shown that he knew, or should have known,

that the disposition of the dog was such as to make

it highly probable that he would bite some one in

case he should ever break his fastening or be untied, and it was therefore the duty of the defendant

to effectually restrain him. 2 Shear. & R. Neg. §

628. And the fact that he endeavored to do so, and

that the dog broke loose, or was untied by some

other person, and without his consent or knowledge, will not, of itself, exempt him from liability

for injury inflicted by the dog while so at large.

Partlow v. Haggarty, 35 Ind. 178; Wilkinson v. Parrott, 32 Cal. 102; Muller v. McKesson, 73 N. Y.

195. In Muller v. McKesson, 73 N. Y. 195, it was

held that, in an action against the owner of a ferocious dog for injuries inflicted by it, proof that the

animal is of a savage and ferocious disposition is

equivalent to express notice. And it has even been

held that the knowledge of the wife is the knowledge of the husband in such cases. 2 Shear. & R.

Neg. § 630, note.

The defendant testified in his own behalf that

the reason he always kept the dog chained was to

prevent him from following his team as he went

around town selling vegetables. He also stated that

he did not recollect ever telling Peterson he was

afraid his dog would bite his child, *440 and did

not think he so stated, and that he never was afraid

the dog would bite anybody, and that the dog had

never before bitten any one, and that no one had

ever complained of the dog to him. Defendant's

wife also testified that the dog never bit any person

before, but neither of them contradicted the testimony of plaintiff's witnesses that he was “cross,”

and would jump at persons while chained, and

would try to get loose. The court properly instructed the jury upon the law applicable to the case, and

specially charged them that before plaintiffs could

recover in the action they must be satisfied by a

preponderance of the evidence that the defendant

had knowledge that the dog was of a ferocious and

mischievous disposition and accustomed to attack

and bite mankind. The jury must have found, upon

all the facts and circumstances in evidence, that defendant had such knowledge; and we cannot say

that their verdict was unwarranted by the evidence,

and therefore find no error in the refusal to grant a

new trial.

Appellant further contends that plaintiffs were

not entitled, upon the pleadings and evidence, to a

verdict for more than the amount paid for medicines and medical attendance. It is claimed that

there is no sufficient allegation of special damage

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in the complaint, and no proof whatever of the

value of plaintiff's services or of the amount of

damage sustained by her; that whatever damages

she sustained were not the necessary consequences

of her injuries,-were, therefore, special, and consequently not recoverable in this action because not

alleged. It is true that there is no proof of the value

of plaintiff's services, and it is therefore reasonable

to presume that the jury awarded no damage**754

on that account. But we think the learned counsel

for appellant are in error in assuming that under the

allegations of the complaint no damages can be recovered except the amount shown to have been paid

for medical services and medicine. The complaint

alleges *441 “that the said dog, while in the wrongful keeping of defendant as aforesaid, and wrongfully and negligently suffered by defendant to go at

large without being properly guarded and confined

as aforesaid, attacked and bit plaintiff Carrie Robinson on the arm and wrist and on her side, thereby

severely wounding and injuring her, said plaintiff,

whereby she suffered, and still suffers, great pain of

body and mind, and thereby was prevented for the

period of five days from attending to her household

duties, and was obliged to and did expend the sum

of $50 for medicines and the services of a physician

in the endeavor to heal herself of said wounds and

injuries; that by reason of said wounds and injuries

plaintiffs have been damaged in the sum of

$2,500.” It is a well-settled principle of law that

damages which are the natural and necessary result

of an injury need not be specially pleaded. The

plaintiffs had a right, under the allegations of the

complaint, to recover a fair compensation for all the

direct and obvious results of the injuries received,

including physical pain and mental anguish. Such

damages are implied by law, and need not be specially alleged. 3 Sedg. Dam. (8th Ed.) p. 586; 3

Suth. Dam. 715; Curtis v. Railroad Co., 18 N. Y.

534, Tyson v. Booth, 100 Mass. 258. And no doubt

the jury, in estimating the damages, took into consideration, as they had a right to do, not only the

physical and mental suffering of plaintiff, but also

the effect produced upon her nervous system as

shown by the evidence, and for which she was

treated by her physician for some six weeks after

the wounds upon her person had healed.

It is further contended by appellant that the

verdict for $800 is excessive. We cannot agree with

counsel for appellant that the injuries received by

plaintiff were altogether of a trifling character. The

wound upon her wrist, while only about the diameter of an “eight-penny nail,” penetrated to the bone.

Her dress and corset were bitten through, and her

side lacerated for the space *442 of three-quarters

of an inch and to the depth of a quarter of an inch.

But her greatest injury resulted from the fright and

mental terror, and the nervous shock produced by

the unprovoked, sudden, and unexpected attack

upon her by this savage and infuriated beast. She

says she was rendered so nervous that she could

scarcely sleep for some time afterwards; and, according to the testimony of her husband, when she

heard the dog barking, as she often did, she was so

terrified that he was afraid she would go into convulsions. And there was testimony tending to show

that she was still suffering from nervousness at the

time of the trial. It is impossible to lay down any

precise rule for measuring the damages in cases like

the one at bar, and the amount of the recovery must

of necessity be left to the sound discretion and

judgment of the jury, subject to be revised by the

court when it clearly appears to be excessive. While

the amount of the verdict may seem large, we cannot say that it is so disproportionate to the injury as

to indicate that it was the result of passion or prejudice on the part of the jury, and we therefore see no

reason for disturbing it.

The judgment of the court below is affirmed.

DUNBAR, STILES, and SCOTT, JJ., concur.

HOYT, J.

I dissent.

Wash. 1892.

Robinson v. Marino

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Restatement of the Law - Torts

Database updated March 2015

Restatement (Second) of Torts

Division

Three. Strict Liability

Chapter

20. Liability of Possessors and Harborers of Animals

Topic

2. Harm Caused by Animals Otherwise Than by Trespass by Livestock

§ 509 Harm Done by Abnormally Dangerous Domestic Animals

Comment:

Reporter's Note

Case Citations - by Jurisdiction

(1) A possessor of a domestic animal that he knows or has reason to know has dangerous

propensities abnormal to its class, is subject to liability for harm done by the animal to another,

although he has exercised the utmost care to prevent it from doing the harm.(2) This liability is

limited to harm that results from the abnormally dangerous propensity of which the possessor

knows or has reason to know.

Comment:

a. The general rule stated in this Section is subject to a number of exceptions and qualifications, too numerous to state in a single Section. The Section should therefore be read together with § 510, on the effect of an unforeseeable act of a third person, another animal or a force of nature; § 511, on liability to trespassers, as to

which there is in turn a qualification in § 512; § 515, on assumption of risk and contributory negligence; § 516,

on watchdogs; and § 517, on acts done in performance of a public duty.

b. The phrase “has reason to know” here as elsewhere in the Restatement means that the person in question

knows or from facts known to him should know. (See § 12).

c. Animals dangerous although not vicious. In the usual situation to which the rule stated in this Section is

applicable the animal is vicious, that is, has a tendency to attack human beings or other animals that is abnormal

in animals of its class. The rule is also applicable if the animal is not vicious but has a dangerous tendency that

is unusual and not necessary for the purposes for which such animals are usually kept. Thus one who keeps a

large dog that he knows to be accustomed to fawn violently upon children and adults is liable under the rule

stated in this Section for harm done by its dangerous playfulness or over-demonstrative affection. This is also

true of one who keeps a dog that he knows to have an abnormal tendency to destroy crops and other vegetation.

d. Rationale. One who keeps a domestic animal that to his knowledge is vicious, or which though not vicious possesses dangerous propensities that are abnormal thereby introduces a danger not usual to the comREST 2d TORTS § 509 Page 1

Restatement (Second) of Torts § 509 (1977)

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munity and which, furthermore, is not necessary to the proper functioning of the animal for the purposes that it

serves. On the other hand, those who keep domestic animals such as bulls and stallions that are somewhat more

dangerous than other members of their species do not introduce any unusual danger, since the somewhat dangerous characteristics of these animals are a customary incident of farming and the slightly added risk due to their

dangerous character is counterbalanced by the desirability of raising livestock.

e. Animals in which dangerous propensities are normal. There are certain classes of domestic animals in

which dangerous propensities are normal although abnormal in other classes of their species. Bulls are more

dangerous than cows and steers; stallions are more dangerous than mares and geldings; rams are more dangerous

than ewes and lambs. However, these animals have been kept for stud purposes from time immemorial so that

the particular danger involved in their dangerous tendencies has become a normal incident of civilized life. This,

together with the fact that the virility which makes them dangerous is necessary for their usefulness in performing their function in the socially essential breeding of livestock, justifies the risk involved in their keeping.

Therefore, the law has not regarded bulls, stallions and rams as being abnormally dangerous animals to be kept

under the strict liability stated in this Section. So, too, certain kinds of livestock are less gentle than others. Thus

Burma cattle are more wild and dangerous than most other breeds. However, since Burma cattle have been recognized as socially desirable animals, this addition to the normal dangerous characteristics of cattle is not

enough to make them abnormally dangerous. Although one who keeps these animals is not subject to the strict

liability stated in this Section, he is liable unless he exercises in their custody care commensurate with their normal dangerous characteristics. On the other hand, although a certain amount of danger is inseparable from the

keeping of these socially essential or useful animals, there is no social value in keeping animals that are vicious

or have other dangerous propensities that are in excess of those necessary for their utility and are abnormal to

their class.

f. Dogs. Although dogs, even hunting dogs, have no material utility comparable to cattle, horses and other

livestock, they have from time immemorial been regarded as the friends and companions of man. The great majority of dogs are harmless, and the possession of characteristics dangerous to mankind or to livestock is properly regarded as abnormal to them. Consequently the possessor of a dog is not liable for its biting a person or

worrying or killing livestock unless he has reason to know that it is likely to do so.

Statutes frequently abolish the necessity of scienter and impose strict liability for all harm caused to human

beings and livestock by dogs. Even in the absence of a statute the possessor of a dog known by him to be vicious

is liable for harm caused by it although he has exercised the utmost care to prevent it. As to the privilege to use

dogs to protect property from intrusion, see § 516. As to the liability to trespassers generally, see §§ 511 and 512

.

g. Knowledge of dangerous propensities—scienter. It is not necessary to the application of the rule stated in

this Section that the possessor of the domestic animal know of its abnormally dangerous propensities; it is

enough that he has reason to know of them. Thus it is not necessary that he know that it has previously attacked

human beings or animals or has done harm by being over-violent in play or by digging up vegetation. A dog is

not necessarily regarded as entitled to one bite. It is enough that the possessor of the animal knows that it has on

other occasions exhibited such a tendency to attack human beings or other animals or otherwise to do harm as

should apprise him of its dangerous character. Thus, the fact that a dog has to his knowledge unsuccessfully attempted to attack human beings or other animals is sufficient to bring its possessor within the rule stated in this

Section. Sufficient also is any form of ill temper displayed in the presence of man or beast that would apprise a

reasonable person that the animal if uncontrolled would make an attack. It is not enough, however, that the posREST 2d TORTS § 509 Page 2

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sessor of the animal has reason to know that it has a propensity to do harm in one or more specific ways; it is necessary that he have reason to know of its propensity to do harm of the type that it inflicts.

Illustrations:

Illustrations:1. A keeps a dog, which he knows to be in the habit of running after automobiles and yapping at their wheels. A chains the dog in his yard. The dog escapes, without any negligence on the part

of A, runs into the street, and barks at the wheels of B's passing automobile. The dog is caught under

one of the wheels, B's car is thrown into the ditch, and B is injured. A is subject to liability to B under

this Section.2. A keeps a dog in his apartment on the second floor. A knows that the dog is in the habit

of rushing at the window and leaning out of it in order to bark at pedestrians passing below. The dog

rushes to the window to bark at B, loses its footing, and falls on B and injures him. A is subject to liability to B under this Section.

h. Knowledge of servant. It is not necessary for the possessor of a domestic animal himself to have reason to

know of its abnormally dangerous propensities; it is enough that a servant to whom he has entrusted its custody

has reason to know of it. (See the Restatement, Second, Agency § 283).

i. Harm resulting from dangerous propensity. The strict liability stated in Subsection (1) extends only to

such harm as results from the abnormally dangerous propensity of the animal, of which the possessor knows or

has reason to know. The basis of his liability is that by keeping the animal with knowledge, or reason to know,

of the abnormal propensity he has exposed those in his vicinity to an abnormal risk. His strict liability is therefore limited to the scope of that risk. He may still be liable for any negligence in keeping the animal or in dealing with it, which results in other harm; but in the absence of knowledge he is not liable for harm not reasonably

to be expected in the light of his knowledge.

Thus one who keeps a vicious dog, knowing that it has a propensity to bite, is not liable when the dog lies

down in the street and is run over by an automobile, with resulting harm to the driver of the car, unless he has in

some way been negligent in failing to prevent the occurrence. If the dog bites a man, he is liable even in the absence of negligence. Knowledge, or reason to know, that an animal has a tendency to attack or fight with other

animals is not necessarily knowledge or reason to know that it will attack human beings. If the possessor knows

that his dog has the playful habit of jumping up on visitors, he will be liable without negligence when the dog

jumps on a visitor, knocks him down and breaks his hip; but he is not necessarily liable when the dog unexpectedly bites a postman, when he never has shown any inclination to do so before. Knowledge of one propensity

may under particular circumstances give reason to know that the animal is likely to do something reasonably

similar, even though he has not yet done it. Thus a horse that has attempted to bite persons in its vicinity may

fairly be regarded as equally likely to kick them if afforded the opportunity.

Reporter's Note

This Section has been changed by the addition of Subsection (2).

In support of the rule stated in Subsection (1) see: Zarek v. Fredericks, 138 F.2d 689 (3 Cir.1943); Vigue v.

Noyes, 113 Ariz. 237, 550 P.2d 234 (1976); Strange v. Stovall, 261 Ark. 53, 546 S.W.2d 421 (1977); Barger v.

Jimerson, 130 Colo. 459, 276 P.2d 744 (1954); Farrior v. Payton, 57 Haw. 620, 562 P.2d 779 (1977); Tamburello v. Jaeger, 249 La. 25, 184 So.2d 544 (1966); Bachman v. Clark, 128 Md. 245, 97 A. 440 (1916); Papke

v. Tribbey, 68 Mich.App. 130, 242 N.W.2d 38 (1976); Harris v. Breezy Point Lodge, 238 Minn. 322, 56 N.W.2d

655 (1953); Humes v. Salerno, 351 S.W.2d 749 (Mo.1961); Emmons v. Stevane, 77 N.J.L. 570, 73 A. 544

REST 2d TORTS § 509 Page 3

Restatement (Second) of Torts § 509 (1977)

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