Evidence did not Establish Defendant Proximately Caused Plaintiff’s Damages in Violation of Ordinance, an Element of Plaintiff’s Negligence Per Se Claim
The court in Johnson v. Enriquez, 460 S.W.3d 669 (Tex. App.- El Paso 2015), affirmed the trial court’s take nothing judgment of an action asserting claims of negligence, negligence per se, premises liability, and strict liability against defendant homeowner to recover for injuries sustained as a result of an attack by a dog (a St. Bernard) belonging to defendant.
Plaintiff Bobby Johnson alleged he was bitten in his left thigh while walking past defendant Juan Enriquez’s home. At the time, defendant and his wife owned three dogs: two Saint Bernard’s and a Basset Hound. The dogs were allowed to roam the defendant’s property, which included a cement patio located in the front of the home. The patio was enclosed by a wrought iron fence, and the fence separated the patio from an adjacent public sidewalk. It was estimated that the gap between the fence’s vertical rods was no more than 6 inches. Because of the gaps, defendant placed screening similar to chicken wire on the fence to prevent puppies from escaping and children from sticking their hands through the gaps. The screening was routinely torn down by the dogs. Plaintiff was in defendant’s neighborhood searching for jobs “as required by the terms of his probation.” The plaintiff testified that as he was walking by he felt something stinging on his leg, and that he looked back and there was a hole in his leg, blood on the back of his jeans, and a St. Bernard walking away from the fence. He did not actually witness the dog bite him. Nor was the plaintiff certain where on the sidewalk he was in relation to the fence. Defendant testified that the dog in question was meek and had never acted aggressively or bitten anyone. Defendant’s wife testified the dog could not have bitten plaintiff because the gaps in the fence were too narrow and the dog could not get his head through the gaps. Defendant did admit that the dog could get his snout through the fence.
In his negligence per se action, the plaintiff relied upon a municipal animal control ordinance which provided “every person owning or having charge, care, custody or control of any animal shall keep such animal exclusively upon his own premises by means of physical restraint, provided, however, that such animal may be off such premises if it is under direct physical control of a competent person.” On appeal, plaintiff contended the defendant was liable under the theory of negligence per se as a matter of law since the defendant’s actions violated the city ordinance.
After stating the elements of a negligence per se action, the court focused on the proximate cause element of plaintiff’s required proof. The plaintiff did not witness the dog bite him, nor did he observe the dog’s head or snout through the fence. Further, plaintiff placed himself in the middle of the public sidewalk, a spot where the defendant was certain the dog’s snout could not reach. Finally, the court stated defendant’s testimony that the dog was meek and had never acted aggressively or bitten anyone, were traits that may be a factor in determining whether or not a plaintiff has proven proximate cause.
Plaintiff claimed he was bitten by the dog through a wrought iron fence as he walked on a public sidewalk. The jury found no negligence. In support of his appeal, Plaintiff alleged that the homeowner’s placing chicken wire on the fence to prevent children from putting their hands through the fence, the homeowner’s failure to ensure the chicken wire netting remained up, and the homeowner witnessing the dog stick his snout through the fence on other occasions, was sufficient to demonstrate the jury’s finding of no negligence was against the great weight and preponderance of the evidence.
Comment: The court avoids the interesting issue, whether the fence with gaps in it adjacent to a public sidewalk violated the ordinance which provided: “[e]very person owning or having charge, care, custody or control of any animal shall keep such animal exclusively upon his own premises by means of physical restraint, provided, however, that such animal may be off such premises if it is under direct physical control of a competent person.” El Paso, Tex., Ordinance No. 16229 § 1 (2006), as amended and codified in The City of El Paso, Texas, Code of Ordinances, § 7.08.030.
Also, what’s with the mention of probation? Is this the court’s way of advertising the plaintiff is a dirtball and that there’s no way in hell he’s getting any money from this court? Remember, the defendant likes puppies and children. What puppies? There are three dogs: to Saint Bernard’s and a Basset Hound. There’s no mention of puppies. Besides, according to the evidence, the chicken wire – let’s call it chicken wire – comes down every other day or so. And speaking of chicken wire, does it really protect the children? Kids can stick a finger or two through chicken wire. So the court has framed the issue: the criminal plaintiff versus the puppy and children loving defendant. Wouldn’t we be better served by knowing whether or not a wrought iron fence with 6 inch gaps is negligence per se? The plaintiff has two problems in this appeal: first, the jury ruled against him and courts are reluctant to disturb a jury’s finding. Also, if the court’s recitation of the facts is accurate, the plaintiff put on a terrible case. What was he doing to not notice a 140 pound dog – the average weight of a Saint Bernard male is between 140 and 180 pounds – sink his teeth into his left thigh? And the plaintiff put himself in a spot where the dog could not have reached him. The plaintiff must prove proximate cause. I can make the argument dogs are territorial, especially when it comes to their yards, and anyone getting close to the fence is going to get bit, even by an ordinarily gentle dog.