Plaintiff failed to raise fact issue on foreseeability on claims of negligence and negligence per se
In Garza v. Sancen, No. 05-15-00666-CV, (Tex. App. – Dallas April 14, 2016), plaintiff filed suit alleging negligence and negligence per se when the defendant’s dog escaped the defendant’s backyard and knocked plaintiff down, injuring her shoulder. The trial court entered summary judgment in favor of the defendant, and plaintiff appealed. The court affirmed the summary judgment.
Plaintiff was walking her two dogs, one on a leash and one off, on a residential street in Frisco, Texas. The defendant, her son, and her husband were moving wood into their fenced backyard. Plaintiff and her dogs were across the street from the defendant’s house when the defendant, her son, and husband, began a second trip for wood. A first trip was uneventful.
When the defendant opened her gate to allow her son and husband to pass through, their dog, a two-year-old Rhodesian Ridgeback, ran out of the backyard and toward plaintiff, knocking plaintiff to the ground. Plaintiff injured her shoulder and brought suit. The trial court granted the defendant’s motion for summary judgment and entered judgment in favor of defendant. Plaintiff appealed.
Plaintiff’s negligence per se action was based upon a Frisco city ordinance number 08-01-06. The ordinance provided as follows:
It shall be unlawful for any Owner, Custodian, or harborer to allow any Domestic Dog or other Animal possessed, kept, or harbored, to roam At Large as defined in Section 3(8) of this Ordinance.
Section 3(8) provides:
At Large: An Animal, including fowl or livestock, not in a Secure Enclosure or not completely confined by a building, wall, pen, or fence of sufficient strength of construction, to physically restrain the Animal on the premises behind the front building line of the Owner or Custodian, or an Animal that is not under the physical restraint of the Owner or Custodian or any other person authorized by the Owner to care for the Animal by leash, cord, chain, or rope.
Proximate cause is an element of both a negligence and negligence per se action. Proximate cause consists of cause in fact and foreseeability. The court stated that “[t]he issue of foreseeability is dispositive of both the negligence and negligence per se claims.”
The defendant’s summary judgment evidence, according to the court, showed that the defendant and her family made a first trip for wood without incident. At that time, the unleashed dog did not leave the backyard. On the second trip, when the plaintiff and her two dogs were walking across the street, defendant’s dog ran through the gate. Defendant further testified the dog had not run out of the backyard or gotten loose before. Finally, plaintiff testified she believe the dog ran out because one of defendant’s dogs was off-leash. The defendant’s evidence, according to the court, “addresses the common element of foreseeability and facially establishes [defendant’s] right to summary judgment.” Id. at ___. The court stated the burden then shifted to the plaintiff to raise an issue of fact “that a person of ordinary intelligence should have anticipated that defendant’s dog would run out of the backyard.”
The plaintiff first argued that by leaving the gate open and not restraining the dog it was foreseeable the dog would get out of the backyard. The court rejected the statement stating the statement did not constitute summary judgment evidence. The plaintiff next relied on the Frisco city ordinance as evidence of foreseeability of damage and injury when a dog owner does not leash its animal. The court rejected this argument as well, stating the ordinance “is not evidence of whether a person of ordinary intelligence should have anticipated that [the dog] would escape the fenced backyard or would injure a person once he did escape.” Finally, the plaintiff argued that the fact the defendant kept the dog in a fenced backyard and walked him on a leash is evidence of foreseeability. The court rejected this argument stating the fact the defendant walked her dog on a leash and kept him in a fenced backyard is evidence that the defendant complied with or attempted to comply with the city ordinance.
The court held the plaintiff failed to raise a fact issue on foreseeability and affirmed the trial court’s summary judgment.