Despite negligence per se, plaintiff was still required to show proximate cause, which she did not.
In Stakes by Anthony v. Waits, No. 01-88- 00055-CV, 1989 WL 27306 (Tex. App. – Houston [1st Dist.] 1989, writ denied) (not designated for publication), a jury found the defendants did not commit any act of negligence that was a proximate cause of the plaintiff’s injuries. After the jury trial, the trial court entered a take-nothing judgment in favor of defendants. The plaintiffs appealed and the court of appeals affirmed, holding the evidence supported the jury’s finding of no proximate cause.
The minor plaintiff and her cousin went to defendants’ house play with the defendants’ minor children. The defendants owned a dog, Lucky, who was confined inside the garage until Mr. Waits, defendant, could repair the fence gate. The four girls rode bikes until a back tire of a bike went flat. The bicycle pump was kept in the garage, which was closed since Lucky was confined in the garage. There is a dispute as to who opened the garage door and as to who chased Lucky down the street in order to retrieve him. Defendants’ daughter and plaintiff’s cousin told the jury that the minor plaintiff opened the door. Plaintiff’s cousin also told the jury the plaintiff chased the dog, grabbed it by its fur, tried to push it back into the garage, at which point the dog turned and bit plaintiff. Plaintiffs brought suit alleging negligence per se, a violation of the Fort Bend County Ordinance which they contended required Lucky be restrained.
The issue in this case is whether the defendants’ failure to restrain the dog was a proximate cause of plaintiff’s injuries and whether such conduct constituted negligence. From reading the opinion, is difficult to determine what the jury’s findings were on the issue of proximate cause. At one point the court states “the jury found that appellees failed to restrain the dog, but that appellees were not negligent in failing to restrain the dog, nor was this failure a proximate cause of appellant’s injuries.” A short while later the court states that the jury “answered that such failure was the proximate cause of appellant’s injuries.” The court stated the rule that “even where there is a finding of negligence per se, it does not establish liability, only its possibility. Both elements of proximate cause must also be present; that is, cause in fact and foreseeability.” There was no evidence in this case that would lead the defendants to believe that if the dog was let out of the garage he would bite someone. The court also cited the rule that an “owner of a domestic animal is not liable for injuries caused by it in a place where it has a right to be, absent knowledge by the owner of the animal’s vicious propensities or vicious or unruly nature.” Here, the court said, the jury could find there was no reason to anticipate or foresee if the dog were unrestrained he would bite the child.