No Negligence Per Se when Plaintiff not among Class of Persons City Ordinance was designed to Protect
In Trujillo v. Carrasco, 318 S.W.3d 455 (Tex. App. – El Paso 2010, no pet.), the court reversed a lower court judgment in favor of plaintiff. Plaintiff sued defendant for damages for the deaths of his fowl allegedly caused by defendant’s dog. The Justice Court rendered judgment in favor of plaintiff, and the defendant appealed to County Court. The County Court, after a bench trial, also rendered judgment in favor of plaintiff. Defendant appealed.
The plaintiff, Carrasco, lived outside the city limits of Pecos, Texas, and raised and sold roosters and hens. One day the plaintiff saw a pack of dogs jumping out of his pens after having killed nineteen roosters and three hens. The plaintiff captured two of the dogs, one of which, a black Labrador, had a collar and tag. The Labrador belonged to the defendant, who resided inside the city limits. The evidence showed the defendant kept his dog in a pen inside a fenced yard. The dog had escaped on one prior occasion, but there was no evidence the dog had any vicious tendencies. On the date in question the dog’s pen was open. There was also evidence that the fence surrounding the backyard had holes underneath it. Plaintiff sued defendant alleging negligence and negligence per se.
With respect to negligence per se, plaintiff alleged the defendant violated a city ordinance that required owners to restrain their dogs and prohibited owners from letting their dogs run at large within the city. The defendant alleged that he cannot be held liable for negligence per se when the violated city ordinance was not designed to protect individuals living outside the city limits. The court stated plaintiff was “required to show that a statute or ordinance was violated and that such violation was the proximate cause of his damages.” The plaintiff was further obliged to prove “the statute was designed to prevent injury to a class of persons to which he belongs.” The court held: “[a]s no evidence exists that Carrasco, who lived outside the city, belonged to the class of persons the city ordinances were designed to protect, Trujillo was not liable under the theory of negligence per se.”
In holding the evidence was legally insufficient to support a finding of negligence, the court stated that the plaintiff failed to show foreseeability, and therefore, proximate cause. The court stated plaintiff offered no evidence as to the dangerous propensities of escaped Labradors, such that they are prone to hunting and killing fowl, or that they destroy property. The court stated it was incumbent on plaintiff to present such evidence or ask the court to take judicial notice of a Labrador’s characteristics. The court also held the mere fact the dog had previously escaped was insufficient to establish foreseeability that it would kill another’s fowl, particularly when the city ordinances prohibited the keeping of fowl inside the city limits. Finally, the court pointed out that when the dog had previously escaped, it did not cause harm to any place, thing, animal, or human being.