In Kennamer v. Estate of Noblitt, 332 S.W.3d 559 (Tex. App. – Houston [1st Dist.] 2009, ), the court affirmed a summary judgment in favor of defendants, where plaintiff was attacked and injured on his own ranch by a cow allegedly owned by defendants. Plaintiff sued defendants for negligence, alleging defendants had failed to keep their cows on their property and had failed to warn him, the plaintiff, of the cows and the injuries the cows could inflict. Defendants moved for summary judgment on the grounds they did not own the cows, which the trial court granted.
On appeal, the court spent six pages discussing the facts of the case. Briefly summarized, plaintiff and defendants owned adjoining ranches. Plaintiff was on his ranch driving an ATV and checking fences. At some point, a cow attacked the ATV, flipped it up, causing plaintiff to be thrown off. Plaintiff survived, but sustained severe injuries to his head, chest, and legs. Plaintiff described the cow as being branded with “an upside down U.” A neighbor of defendants’, Fitzgerald, helped John A. Noblitt work his cattle for nearly 50 years. After Noblitt died, Fitzgerald continued to look after the cattle. Plaintiff sued the estate of John Alwin Noblitt, Deceased, Charles R. Noblitt, Jr., and Joann Jones as the alleged owners of the cow. According to Fitzgerald and area ranchers, Fitzgerald’s, and not Noblitt’s, cows were branded with an upside down U. Fitzgerald had been running his own cattle with Noblitt’s herd on Noblitt’s ranch since 2001.
As indicated, Fitzgerald said cows with the upside down U brand belong to him. When the plaintiff was asked how he knew it was the defendants’ cow, plaintiff testified “just by observing the cow for, hell, 10 years, I guess,” and that “[i]t’s just the same way you would identify your son. You’d recognize him.” The plaintiff alleged the cow was owned by the defendants. On appeal, the court pointed out there was no “allegation that [defendants] controlled the cow at issue other than through ownership.” The trial court granted the summary judgment and the Court of Appeals affirmed holding that ownership or control in this case was a sub-element of duty, and since plaintiff failed to prove ownership, there was no duty.
Comment: It appears the court went out of its way to find no fact issue. Had the plaintiff alleged the defendants “owned or controlled” the cow as opposed to “owned” the cow, would the case have gone to a jury. Justice Keyes, in his dissenting opinion, states:
Here, the panel jumps through hoops to uphold the summary judgment, spending six pages of the
slip opinion weighing the deposition testimony attached as summary judgment proof and determining for itself on the basis of its assessment of the credibility of the witnesses and the weight it assigns their deposition testimony that appellees did not own the cow. It concludes that
appellees are entitled to summary judgment because they did not own the cow by disregarding all of the summary judgment evidence of ownership of the cow favorable to Kennamer, the nonmovant, including his recognition of the cow as one owned by Noblitt, its age, its color, its skinniness, the length of its horns, the notches on the cow’s ears, the brands and absence of brands on Noblitt’s, Kennamer’s, and Fitzgerald’s cows, and by seizing upon Kennamer’s testimony that the cow was branded and the movants, ‘ appellees’, conflicting testimony that Noblitt’s cows were not branded. It then credits as true Noblitt’s testimony that his cows were not branded (although one deposition witness suggested that Noblitt might have owned some branded cattle), and, having credited the movant’s self-serving testimony on one of many disputed fact issues as dispositive of ownership of the cow, the panel concludes that no reasonable jury, presented with all the evidence from witnesses subject to cross-examination in a courtroom where their demeanor might be observed and all the disputed indicia of ownership of the cow might be weighed, could have found that Noblitt owned the cow. Therefore, the panel holds that appellees were entitled to judgment as a matter of law declaring them not liable for Kennamer’s injuries.
Also, compare this decision to the Supreme Court of Texas decision in Bushnell v. Mott, where the court holds the following sentence by the plaintiff, that she “never once heard [Mott] scold the dogs,” is sufficient to raise a fact issue on the summary judgment where the issue was whether the defendant had a duty to stop an attack after it started.