Attack on mailman not foreseeable absent knowledge of dog’s propensity for violence
In Gill v. Rosas, 821 S.W.2d 689 (Tex. App. – El Paso 1991, no writ), Plaintiff, a mailman, sued alleging the defendant homeowner was negligent in allowing his dog to run at large and attack plaintiff. While it is not clear, it appears the attack occurred on the defendant’s property. The trial court entered a summary judgment in favor of the defendant which the court affirmed.
The defendant’s yard was not enclosed by a fence. The plaintiff attempted to raise the issue of negligence per se, alleging a violation of the city ordinance requiring an owner to keep his dog on his premises by physical restraint, or on leash, if off the premises. The court rejected the negligence per se argument holding that the defendant’s “[f]ailure to enclose the yard was not the cause in fact of the injuries sustained by … Plaintiff.”
The court also held that “the required knowledge, actual or constructive, of the dog’s propensity for violence is a necessarily included factor by law to the element of foreseeability in this type of case.” I’d. at 691. Gill has been cited numerous times for this proposition.