dog bites in word

8/12/2019 Dog Bites in Word

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NO. ____________________

______________________________________________________________

IN THE SUPREME COURT OF TEXAS_______________________________________________________________

KELLY KANTON LABAJ AND THIRD COAST AUTO GROUP,LP

Petitioners

v.

DEEANN VANHOUTEN

Respondent

_____________________________________________________________

On Appeal From Cause No. 07-09-00241CV

Seventh Court of Appeals

Amarillo, Texas

___________________________________________________

PETITION FOR REVIEW

___________________________________________________

ROBLES & ASSOCIATES

Lloyd Robles

5205 Airport Blvd., Ste, 100

Austin, Texas 78751(512) 416-1208

(512) 416-0082 Facsimile

ATTORNEY FOR PETITIONER


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ORAL ARGUMENT REQUESTED

INDEX OF PARTIES AND COUNSEL

PETITIONERS: Kelly Kanton Labaj and Third Coast Auto Group, L.P.

PETITIONERS COUNSEL:

Lloyd Robles

ROBLES & ASSOCIATES

5205 Airport Blvd., Ste. 100

Austin, Texas 78751

(512) 416-1208(512) 416-0082 Facsimile

RESPONDENT: DeeAnn VanHouten

RESPONDENT COUNSEL:

Charles L. Levy

Rosenthal & Watson6601 Vaught Road, Ste. 200Austin, Texas 78730

512-477-2275

Fax: 512-474-2667

Signed this 18th day of November, 2010.

___________________________________

Lloyd Robles


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TABLE OF CONTENTS

INDEX OF

COUNSEL.....................................................................................

i

TABLE OFCONTENTS...................................................................................

ii

INDEX OF

AUTHORITIES...............................................................................iii

I. STATEMENT OF THE

CASE......................................................................iv.

II. STATEMENT OF

JURISDICTION..............................................................v.

III. ISSUES PRESENTED FOR

REVIEW........................................................

Did the Court of Appeals Err By Holding That Petitioners Could

Be Held Liable For An Attack By A Non-vicious Dog Which

Occurred Where The Dog Had A Right To Be?

vi.

IV. STATEMENT OF THE

FACTS...................................................................1

V. SUMMARY OF THE

ARGUMENT............................................................4

VI.

ARGUMENTS............................................................................................4

VII. CONCLUSION AND

PRAYER..................................................................7

CERTIFICATE OF

SERVICE............................................................................ 8


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TABLE OF AUTHORITIES

CASES

Bushnell v. Mott, 254 S.W.3 d 451 (Tex.2008)........................................................ 2,3, 4

Bushnell v Mott, 4-05-00846-CV (Tex.App. [4th Dist.] 2006................................ 5,6

Jones v. Gill, 2-03-298-CV (Tex.App.-Ft. Worth [2nd Dist.]2005)........................ 5,6

Lewis v. Great S.W. Corp., 473 S.W.2d 228, 230 (Tex.Civ.App.-Fort Worth1971, writ ref'dn.r.e)................................................................................... 5

Petry v. Gasca, No. A14-93-00433-CV, 1994 WL 132772, at *1

(Tex.App.-Houston [14th Dist.] 1994, nowrit)............................................ 5

Rodriguez v. Haddock, 2003 WL 1784923, at *2 (Tex.App.-Fort Worth,

Apr.3, 2003, no pet.)(mem.op.)................................................................... 5

Searcy v Brown, 607 SW2d 937 (Tex. Civ. App. - 1stDist. Houston-1980)............. 5


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NO. ____________________

______________________________________________________________

IN THE SUPREME COURT OF TEXAS

_______________________________________________________________

KELLY KANTON LABAJ AND THIRD COAST AUTO GROUP, LP

Petitioners

v.

DEEANN VANHOUTEN

Respondent_____________________________________________________________

On Appeal From Cause No. 07-09-00241CV

Seventh Court of Appeals

Amarillo, Texas

___________________________________________________

PETITION FOR REVIEW

___________________________________________________

TO THE HONORABLE SUPREME COURT OF TEXAS:

Petitioners Kelly Kanton Labaj and Third Coast Auto Group, LP,

pursuant to Texas Rule Of Appellate Procedure 53, respectfully submit this

petition seeking review of the Seventh Court of Appeals opinion in this

matter. As set forth below, this Honorable Court should grant this petition.

STATEMENT OF THE CASE


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This is a dog bite case in which the Respondent was bit by a dog

named Star while on premises belonging to Petitioner Third Coast Auto

Group LP on May 30, 2007. Respondent filed suit alleging a strict liability

cause of action as well as a negligent handling of a dog cause of action. The

case was submitted to a jury on jury questions. In response to jury question

No. 2

(Appendix, No. 1), which asked the jury if they found that Star (the dog

involved) had dangerous propensities abnormal to an animal of its class, thejury answer No. The jury answered Yes with respect to both Petitioners inresponse to Jury Question No. 6 (Appendix, No. 1), which inquired aboutsimple negligence. After the trial both parties filed Motions for Judgment.

Petitioners filed a motion for judgment based on the jurys answer to JuryQuestion No. 2 while

Respondent based its motion for judgment on the jurys answer to Jury

Questions No. 1, 5, 6, 7 & 8. The trial court entered a judgment in favor of

Respondent awarding Respondent damages in the amount of $50,000.00

(Appendix, No. 2).

Petitioners appealed the trial courts judgment to the Third Court of

Appeals which transferred the case to the Seventh Court of Appeals. On

September 1, 2010 the Court of Appeals issued an opinion authored by

Justice Patrick A. Pirtle. Petitioners filed a motion for rehearing on


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September 16, 2010 (Appendix, No. 4) which was overruled on October 4,

2010.

II. STATEMENT OF JURISDICTION

This Honorable Court has jurisdiction over this appeal under 22.001(a)(2) of

the Texas Government Code because the Court of Appeals decision conflicts

with the decisions of this Honorable Court in Bushnell V. Mott, 254 S.W.3d

451 (Tex. 2008) where this Honorable court approved the holding of the

Fourth Court of Appeals that a dog owner cannot be held liable for an attack

by a non-vicious dog where the alleged attack occurred where the dog had a

right to be.1

Additionally, this Honorable Court enjoys jurisdiction over this appeal underTexas

Government Code 22.001(a)(6) because the Court of Appeals committed anerror of substantive law that is important to the jurisprudence of Texas. Thecourt of appeals has misconstrued the applicable case law by holding that anowner or possessor of a non-vicious dog can be held for an attack that occurswhere the dog has a right to be. Such a holding contradicts holdings from the1st Circuit Court of Appeals, the 2ndCircuit Court of Appeals, the 4thCircuitCourt of Appeals and 14th Circuit Court of Appeals as well as this Courtsdecision in Bushnell v. Mott, 254 S.W.3d 451 (Tex. 2008). This error is soegregious that it can adversely affect the jurisprudence of this state and

should be addressed by this Court

This Court reversed the decision in this case because this Court adopted comment J of 518 of

the RESTATEMENT (SECOND) OF TORTS (1977) which provides that regardless of whetherthe animal in question was non-vicious, the owner of same has a duty to stop the dog from

continuing an attack but did not criticize or disapprove of this holding.


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III. ISSUES PRESENTED FOR REVIEW

Did the Court of Appeals Err By Holding That Petitioners Could Be Held Liable

For An Attack By A Non-vicious Dog Which Occurred Where The Dog Had A

Right To Be?

IV. STATEMENT OF THE FACTS

The instant cause involves a dog biting incident involving Respondent

which occurred on premises owned by her employer, Appellant Third Coast

Auto Group, L.P. on May 30, 2007. Respondent filed suit alleging a strict

liability cause of action and alleging negligent handing of a dog. The case

was submitted to a jury on jury questions. In response to jury question No. 2

(Charge of the Court, Appendix 1), which asked the jury if they found that Star

(the dog involved) had dangerous propensities abnormal to an animal of its

class, the jury answer No. The jury answered Yes with respect to both

Appellants in response to Jury Question No. 6. Id., which inquired about

simple negligence. It was undisputed by Respondent at trial that at the time of

the biting incident that Star was in a place it had the right to be. Nor was this

disputed on appeal by Respondent or by the Court of Appeals (Opinion of

Court Appeals, Appendix 3).


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V. SUMMARY OF THE ARGUMENT

The instant cause was submitted to the jury on two theories of liability:

1) strict liability and 2) negligent handling of a dog. The jury failed to find that

Star, the dog in question, had dangerous propensities that were abnormal to

her class (Jury Question No. 2, Appendix 1). Although the jury found

Defendants were negligent in response to Jury Question No. 6, this finding will

not support a judgment for Plaintiff under the applicable law. This is

particularly so in view of the undisputed evidence showing that Star was

tethered and in an area she had a right to be. The 1st, 2nd , 4thand 14th

Circuit Courts of Appealshave all held that dog owners are not negligent if

the injury occurred where the dog had a right to be and the owner had no

knowledge of any dangerous propensities. This Court has itself cited this rule

in Bushnell v. Mott, 254 S.W.3d 451 (Tex. 2008).

VI. ARGUMENTS

Petitioners do not dispute that Respondent was bitten by a dog named

Star while Star and Petitioner were on premises owned or controlled by

Petitioners. It is of paramount importance to note, however, that Star was in a

place it had every right to be when the biting incident occurred. Petitioner,

Kanton Labaj, testified that on the occasion in question, Star, was in an area


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described as the make ready area and that Star had the right to be in this

area of the premises. (Court

Reporters Record, Vol 4, P. 188). This testimony was never contradicted or

disputed by

Respondent or any of Respondents witnesses. Steve Quiroz, the general

manager of Third Coast Auto, also testified that the dog was kept in this make

ready area and that no part of Respondents job responsibilities required her

to be in this area. (Court Reporters Record, Vol. 3, PP. 196-197).

In fact, Respondent herself acknowledged that she saw a dog house in thearea where she was bitten

(Court Reporters Record, Vo. 3, P. 36) and knows that the dog was chained

at the time of the biting incident (Court Reporters Record, Vol. 3, P. 73). Starhad recently had a litter of puppies before the biting incident and naturallyreacted aggressively when Respondent, a person unknown to Star, entered

Stars home area. Respondent herself acknowledged that it was normal for adog that had just had puppies to be protective. (Ct. Reporters Record, Vol 3,

Pg 135, Lines 1-14). After considering all the evidence, the jury failed to findthat Star had dangerous propensities that were known to Petitioners. EveryCourt of Appeals that has considered cases involving dog bite incidents hasheld that dog owners are not negligent if the injury occurred where the doghad a right to be and the owner had no knowledge of any dangerouspropensities. Jones v. Gill, No. 2-03-298-CV, 2005 WL 503182, at * 4(Tex.App.-Fort Worth Mar. 3, 2005, no pet.); Lewis v. Great S.W. Corp., 473S.W.2d 228, 230 (Tex.Civ.App.-Fort Worth 1971, writ ref'd n.r.e); Rodriguez v.Haddock, No.

2-01-386-CV, 2003 WL 1784923, at *2 (Tex.App.-Fort Worth Apr. 3, 2003, no

pet.); Petry v. Gasca, No. A14-93-00433-CV, 1994 WL 132772, at *1


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(Tex.App.-Houston [14th Dist.] Apr. 14, 1994, no writ) (not designated for

publication); Searcy v. Brown, 607 S.W.2 d 937, 941

(Tex.Civ.App.-Houston [1st Dist.] 1980, no writ). When this Court reviewed

the Fourth Court of Appeals decision in Bushnell v. Mott, 4-05-00846-CV

(Tex.App. [4th Dist.] 2006) you noted that the Court of Appeals relied on this

line of cases without taking issue with the holdings therein. Instead, this Court

distinguished these cases from the facts in Bushnellwhere the facts showed

that once Motts dogs began attacking Ms. Bushnell, Mott failed to take

reasonable steps to stop the attack.

In addressing the foregoing line of cases which were cited by

Petitioners, the Court of Appeals said two things: 1) that these cases were

simply restating the strict liability rule and 2) that these cases were

distinguishable because they involved attacks at residences except for the Gill

case in which the dog bite occurred at a business during non-business hours.

Petitioners contend that the first assertion is patently incorrect and that the

second presents no sound basis of distinction. (See Petitioners Motion for

Rehearing, Appendix No. 4). The Gill, Haddock and the Fourth Court of

Appeals decision in Bushnell all involved negligence theories of liability and in

each case the courts found that the dog owner/possessor could not be held

liable because there was no evidence shown that the dogs in questions had


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dangerous propensities. A close reading of the Gillcase clearly shows that

the court therein attached no special significance to the fact that the business

where the dog had the right to be was closed. Although the plaintiff in Gill

put on evidence that Gill kept his dog behind the counter during business

hours, it was apparent from the Courts discussion that the intent of this

evidence was to convince the trial court that this behavior evidenced Gills

awareness of the dogs aggressive nature. The Court dismissed this

inference pointing out that the dog could just as logically have been kept

behind the counter to protect the customers from the dogs friendliness. It

seems unlikely that the Gillcourt would have decided that case differently if

Jones child had been bit during business hours. A more logical way of

discerning the common thread in the Gillline of cases is that the courts therein

felt that, even in negligence cases, some consideration should be given to the

fact that the owner/possessor of the dogs in question have kept their dogs in

places where the dogs have been conditioned to believe are their domains

and that those owners/possessors should not be held be liable for injuries

resulting from encounters between their guests and their animals unless it be

shown that the owner/possessors had actual or constructive knowledge of

dangerous propensities on the part of their dogs that militates in favor of

taking special measures.


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In view of the obvious fact that many Texans own dogs and other pets

which can inflict harm under the proper circumstances and the countervailing

concern to prevent needless injury to those who may come in contact with

such animals, it is certain that there will be many more cases presenting

similar facts to the case at bar. This reality requires that there be a sound,

clearly articulated rule that dog owners can rely upon in the management of

their dogs.

VII.CONCLUSION AND PRAYER

As this Petition for Review demonstrates, this cause poses critically

important issues concerning the proper rule of liability applicable to dog (or

other domestic animals for that matter) bites occurring on property where the

dog has a right to be. For the reasons stated in this Petition for Review,

Petitioners respectfully request that the Court grant this Petition for Review,

reverse the Court of Appeals judgment and issue an opinion reversing the

judgment of the trial court or otherwise rendering judgment for Petitioners.

Petitioners pray for all other and further relief to which they may be entitled.


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Respectfully submitted,

ROBLES & ASSOCIATES

5205 Airport Blvd., Ste. 100

Austin, Texas 78751

(512) 416-1208

(512) 416-0082 Facsimile

____/s/______________________

Attorney for Petitioners

Lloyd RoblesBar No. 17118150

For the Firm

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing instrumenthas been delivered in accordance with Rule 21a of the Texas Rules of CivilProcedure to the following persons:

Charles L. LevyRosenthal & Watson

6601 Vaught Road, Ste. 200

Austin, Texas 78730

Attorney for Respondent

Signed this 18th day of November, 2010.

___/s/_________________________

Lloyd Robles

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