Affidavit of defendants as to their actual or constructive knowledge of dog’s vicious propensities could not be readily controverted, and therefore could not support a summary judgment
In Ogden v. Estate of Pettus, No. 03-97-00702-CV, 1998 WL 766766 (Tex. App.–Austin Nov. 5, 1998, no pet.) (not designated for publication), the court reversed a summary judgment in favor of defendants, where Plaintiff brought in action against defendants alleging negligence and negligence per se, as a result of a dog attack.
Plaintiff was riding a bicycle pulling his 17 month old son on a carrier in front of defendant’s home. The defendants’ dog ran into the street and bit him. During the attack, the plaintiff was forced to get off his bike to prevent the dog from attacking his son. Plaintiff sued Betty Pettus, Defendant, who subsequently passed away, and Louis Mize. Louis was listed on the dog’s veterinary records as the owner. It’s not clear whether Betty or Louis owned the dog. Both were sued, both filed motions for summary judgment, which the judge granted.
With respect to the negligence per se claim, the plaintiff alleged defendants violated the Health and Safety Code and a Montgomery County ordinance. The Health and Safety Code provides that “an owner of a dangerous dog commits an offense if the dog makes an unprovoked attack on another person outside the dog’s enclosure and causes bodily injury.” Id. at *3. The Montgomery County ordinance, according to the plaintiff, provided an owner must exercise proper care and control and keep their animals under control and prevent them from becoming a public nuisance.
The defendants attempted to negate the issue of foreseeability by asserting the dog was not vicious. This was successful in the trial court which granted the summary judgment. However, on appeal, the court held the dog’s “lack of vicious propensities does not negate the foreseeability of injury for a violation of the county ordinance. A dog bite is a foreseeable result of a violation of a leash law.” Id. at *3. (Emphasis added). Accordingly, the court held the lower court erred in granting summary judgment on plaintiff’s negligence per se claim for violation of the county ordinance.
With respect to the alleged Health and Safety Code violation, the court dismissed the affidavits of the defendants stating: “the affidavit of an interested party in a matter of which the adversaries have no knowledge or ready means of confirmation does no more than raise a fact issue.” Additionally, the court stated the issues of intent and knowledge are not susceptible of being readily controverted and are generally inappropriate for summary judgment. The court found that since the defendants are clearly interested witnesses, and they did not submit summary judgment evidence from a non-owner, the facts contained in the affidavits could not be readily controverted, and therefore could not support a summary judgment. The court reversed the summary judgment and remanded the case for a trial on the merits.
In addition to the foregoing, the court found multiple problems with the affidavits submitted by the defendants. The affidavits didn’t address the dog’s propensities or past conduct in chasing moving objects while she was running at large. “That is, Roxie’s conduct in the feed store, presumably with her owner in close proximity, does not negate as a matter of law her vicious propensities in a different setting on a public street while running at large, which is where Ogden was attacked.” Id. at *4. The affidavits did not address whether defendants knew about the dog’s vicious propensities in a situation such as the one at bar. The affidavits concerned the dog’s behavior while at Louis’s feed store. Finally, the affidavits were technically deficient for failing to state they were “true and correct.”