No proximate cause where mail carrier was bit in defendant’s front yard after defendant’s wife opened gate.
The court in Williams v. Sable affirmed a take nothing summary judgment in favor of the defendant whose dog attacked the plaintiff mail carrier delivering mail to the defendant’s home. The plaintiff mail carrier was walking through the defendant’s front yard to deliver mail to the mailbox, which was located at the side of defendant’s front door. The defendant was unloading his car in his driveway and, because his arms were full, defendant’s wife opened a gate for him. A wrought iron gate extended across the defendant’s driveway, behind which the dog was kept. At the time the defendant’s wife opened the gate, she was holding the dog by the collar. The dog broke free, lunged forward, ran past defendant, and bit plaintiff. Plaintiff brought suit alleging gross negligence, negligence, and negligence per se.
In order to prove negligence, a plaintiff must prove, among other things, that a defendant’s breach of a duty proximately caused a plaintiff’s injury. Each of plaintiff’s alleged causes of action – common-law negligent handling, gross negligence, and negligence per se – contain the element of proximate cause. The court, in affirming the trial court’s summary judgment in favor of defendant, focused its analysis on the foreseeability component of proximate cause stating: “thus, each of Williams’s claims – negligence, negligence per se, and gross negligence – include the element of proximate cause.”
To show foreseeability, plaintiff relied on evidence that the dog had barked at a Federal Express delivery truck just before the incident and that the dog was barking and jumping when she delivered mail to the next-door neighbor. The court rejected this argument and cited the following language: “dogs bark for many reasons and sometimes for reasons known only to themselves.” The court also pointed out that the plaintiff admitted that the defendant’s dog always barked at her and, before the incident, she had no reason to believe the dog would attack her. Sometime after the attack the defendant made a statement to the effect “[t]he mail carrier put herself in a precarious situation, and she knows my dog will protect me and my property” as evidence the defendant knew of the dog’s propensities. The court rejected this argument stating: “[the defendant’s] post-incident statement does not undermine [defendant’s] uncontroverted sworn statement Tova had never before broken lose or bitten anyone.” The key component in this case is the uncontroverted evidence that the dog “had never bitten anyone, jumped on anyone or knocked anyone to the ground. The dog had never bolted outside the gate before. The dog had never attacked chased anyone approaching or passing by my gate or front yard before.”
Comment: This is the typical result in a dog bite case where the attack occurs on the property of the homeowner and there is no evidence the dog has a prior history of aggression. However, consider the defendant’s statement that “[t]he mail carrier put herself in a precarious situation, and she knows my dog will protect me and my property.” Shouldn’t that have been enough evidence to allow the case to go to the jury? Compare to Bushnell v. Mott, 254 S.W.3d 451 (Tex. 2008) (per curiam)(Plaintiff’s statement that defendant did nothing to stop attack was sufficient to raise a fact issue).