In Allen v. Albin, 97 S.W.3d 655 (Tex. App. – Waco 2002, no pet.), Billy Allen, as next friend of Bradley Allen, a minor, sued Francis Albin (the dog’s owner) and Gladys Haferkamp (Bradley’s babysitter) for injuries resulting from a dog bite.
The defendants filed a motion for summary judgment which the trial court granted. The defendant babysitter, who ran a daycare business at her home, provided day care services for 17 month old Bradley Allen. Defendant Albin lived next-door to the defendant babysitter and their backyards were adjacent to one another, separated by chain-link fence. On the date in question, Bradley was bitten or scratched by the dog as he was standing next to the chain-link fence. Apparently, the dog attacked the boy through the fence. Plaintiff sued the dog owner, Albin, alleging strict liability and negligent handling, and sued the baby sitter, Haferkamp, alleging premises liability and ordinary negligence.
The court looked at the negligence claim against the neighbor dog owner, Francis Albin. An element of a negligent handling claim requires a plaintiff to prove the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others. Relying on Marshall v. Ranne, 511 S.W.2d 255, 258 (Tex.1974), Dawkins v. Van Winkle, 375 S.W.2d 341, 344 (Tex.Civ.App.- Waco), writ dism’d w.o.j., 377 S.W.2d 830 (Tex.1964), and the RESTATEMENT (SECOND) OF TORTS § 518 (1977), the court stated “we recognize that Albin owed a duty to exercise reasonable care to prevent her dog under particular circumstances from injuring others….”
Another element of a negligence claim the plaintiff must prove is that the defendant breached her duty to exercise reasonable care to prevent the dog from injuring others. The court found the plaintiff did not present evidence sufficient to raise a fact issue regarding defendant Albin’s alleged breach of duty and affirmed the summary judgment on the negligence claim.