Dog bites injuries, liability and insurance

Louisiana Case Law

McBRIDE v. XYZ INS., 41,129 (La.App. 2 Cir. 6/28/06); 935
So.2d 326 Tasha McBRIDE, Individually & on Behalf of her
Minor Child, Desiree McBride, Plaintiff-Appellee v. XYZ
INSURANCE and Earline L. Hill, Defendant-Appellants. No.
41,129-CA. Court of Appeal of Louisiana, Second Circuit.
June 28, 2006.

Appeal from the Twenty-Sixth Judicial District Court,
Parish of Bossier, No. 113618, Parker Self, J. West Page
327

Lemle & Kelleher, L.L.P., by Dale G. Cox, Shreveport, for
Appellants.

Norman R. Gordon & Assoc., by W. Brett Cain, Shreveport,
for Appellee.

Before GASKINS, CARAWAY and MOORE, JJ.

MOORE, J. Page 1

Both the plaintiff, Tasha McBride, and the defendants,
Allstate Insurance Company and its insured, Earline Hill,
appeal a judgment awarding Ms. McBride’s daughter damages
of $20,043.93 as the result of a dog bite. For the reasons
expressed, we affirm in part, reverse in part and render.
West Page 328

Factual and Procedural Background

The defendant, Mrs. Hill, lives on O’Keefe Drive in the
Swan Lake area of Bossier City. She owns a large-to-medium
Chow named Smokey, who weighs 50-65 lbs. According to Mrs.
Hill and her daughter, Tierra West, Smokey was always kept
in the back yard, which was completely enclosed by a
chain-link fence, and tied to a tree. In addition, three
“Beware of the Dog” signs were posted: one on the fence
gate, one on the rear fence, and one on the tree. On the
afternoon of April 24, 2003, Mrs. Hill was at work but
20-year-old Ms. West, a full-time student and resident of
NSU in Natchitoches, had stopped by the house.

The plaintiff, Tasha McBride, was a friend of Ms. West’s.
Driving down O’Keefe Drive with her two children, Oceana
and Desiree (ages 5 and 3Ë?, respectively), Ms. McBride
stopped to talk with Ms. West. After chatting on the street
and then in the driveway for a few minutes, Ms. West
invited them into the back yard. Both women testified they
came through the house to reach the back porch. Oceana and
Desiree, along with Ms. West’s two-year-old brother, ran
out to the swing set in the back yard. Ms. West admitted
she did not warn them to keep away from the dog, but both
she and Mrs. Hill insisted that Smokey had never shown any
aggressive Page 2 behavior. The swing set was, at any
rate, beyond the reach of the dog’s tether. Ms. West then
ducked into the house to get a rag to wipe off the patio
chairs.

When Ms. West returned, she saw that Desiree had walked
from the swing set over to Smokey. She testified that the
child was petting, hugging, rubbing the dog and holding its
head, i.e., nothing to provoke it. Ms. McBride testified
that both her girls had gone over to pet the dog and were
not provoking it, but when they turned to go back to the
swing set, Smokey suddenly bit Desiree’s right arm just
above the elbow. Both women ran out to pull the dog off the
child.

Ms. West testified that Ms. McBride got there first and
was swatting at Smokey’s face with one of her slippers or
flip-flops. Ms. West grabbed the dog and pulled it away.
Ms. McBride testified that she “blacked out” and did not
recall exactly what happened, but admitted she may have
struck the dog with her shoe. Smokey then bit Ms. McBride
on the left forearm as she was pulling the child away. Ms.
West phoned 911; an ambulance carried Desiree and Ms.
McBride to Willis Knighton Bossier, where they were treated
and released.

Tasha filed this suit in January 2004, individually and on
behalf of Desiree. She alleged that Mrs. Hill and her
homeowners’ insurer, Allstate Insurance,[fn1] were strictly
liable under La. C.C. art. 2321 and negligent for their
injuries. Allstate answered that Ms. McBride was
comparatively or contributorily negligent for allowing her
3Ë?-year-old daughter to play with Page 3 the dog
unsupervised. By pretrial memorandum, Allstate also alleged
that Smokey posed no unreasonable risk of harm and that
Mrs. Hill took every reasonable precaution to protect the
public from dog bites.

At trial in August 2005, the witnesses testified as
outlined above. Ms. McBride did not recall seeing any of
the “Beware of the Dog” signs posted in the yard. She
offered hospital records showing that she and Desiree had
incurred medical expenses West Page 329 of $1,371.86 and
$2,243.93 respectively, as well as a letter from Dr. John
Valiulis, a plastic surgeon. The letter advised that
Desiree’s scars “can be revised,” and if performed today
the surgery would cost $5,300. However, he did not
recommend it until the child was 10 or 11 years old, and
even then he could not guarantee a complete revision of the
scar.

By written reasons for judgment, the district court made
various findings of fact. Noting the conflicting testimony,
the court found that Smokey had released Desiree and Ms.
West had restrained the dog before Ms. McBride started
hitting him with her shoe. After discussing a dog owner’s
liability under Art. 2321 and the minor child’s freedom
from fault under Dufrene v. Duncan, 93-0403 (La.App. 1 Cir.
3/11/94), 634 So.2d 19, the court awarded Desiree special
damages of $2,243.93, future medical expenses of $5,300,
and general damages of $12,500, for a total of $20,043.93.
The court denied Ms. McBride’s claims for her own injuries
as she should have noticed the warning signs around the
yard and she in fact provoked the dog. The court assessed
costs 2/3 to Mrs. Hill and Allstate, and 1/3 to Ms.
McBride. Page 4

Allstate and Mrs. Hill appealed suspensively, urging by
five assignments of error that the district court erred in
finding them liable for Smokey’s behavior. Ms. McBride
answered the appeal, urging by three assignments of error
that the court erred in denying her own claim for damages.

Applicable Law

The liability of animal owners is regulated by La. C.C.
art. 2321, with italicized text marking the special
provision for dog owners:

The owner of an animal is answerable for the damage
caused by the animal. However, he is answerable for the
damage only upon a showing that he knew or, in the
exercise of reasonable care, should have known that his
animal’s behavior would cause damage, that the damage
could have been prevented by the exercise of reasonable
care, and that he failed to exercise such reasonable care.
Nonetheless, the owner of a dog is strictly liable for
damages for injuries to persons or property caused by the
dog and which the owner could have prevented and which did
not result from the injured person’s provocation of the
dog. Nothing in this Article shall preclude the court
from the application of the doctrine of res ipsa loquitur
in an appropriate case.

In the recent case of Pepper v. Triplet, 2003-0619 (La.
1/21/04), 864 So.2d 181, the court performed a textual
analysis of art. 2321, beginning with Holland v. Buckley,
305 So.2d 113 (La. 1974), the seminal case which abrogated
the “first bite free” negligence analysis and adopted a
strict liability theory. Holland had held that when a
domesticated animal harms a person, the master of the
animal is presumed to be at fault; in the “crowded society
of today, the burden of harms caused by an animal should be
borne by its master who keeps him for his own pleasure or
use rather than by an innocent victim injured by the
animal.” However, the Pepper court did not Page 5
precisely adopt this bright-line approach.

Instead, the Pepper court drew heavily on the strict
liability theory as applied to inanimate objects in Loescher
v. Parr, 324 So.2d 441 (La. 1975). Loescher had held that
the guardian of a thing which damages a person is liable to
that person when the plaintiff proves the thing which
caused his damage was in the garde of the defendant, there
was a defect or vice in the thing, i.e., an unreasonable
risk of harm was created by it, and the damage occurred
West Page 330 because of this defect or vice, unless the
guardian can prove the damage was caused by the fault of
the victim, by the fault of a third person, or by an
irresistible force. Moreover, the strict liability theory
of Loescher applies to animals. Boyer v. Seal, 553 So.2d
827 (La. 1989).

On the crucial issue of whether an animal poses an
unreasonable risk of harm, the Pepper court quoted
approvingly from Boyer:

As Loescher observes, the person who has the guardianship
and usually the enjoyment of the person or thing should
bear the cost of damage caused by risks they create rather
than the innocent victim. Further, it is thought that the
guardian is in a better position to anticipate, detect,
guard against, and insure against these risks, making him
a better risk spreader and more efficient conductor of
the deterrent effects of civil liability. A competing
policy, however, is that the guardian should not be
responsible for protecting against all risks; some risks
are relatively too small to require him to protect others
therefrom.

Pepper v. Triplet, 864 So.2d at 190 (quoting Boyer v. Seal,
553 So.2d at 834).

Finally, the Pepper court studied the effect of the 1996
amendment to art. 2321, which appeared to confer an
ordinary negligence standard on the owners of all animals
except dogs, for whose owners the strict liability Page 6
standard was retained. 1996 La. Acts, 1st Ex.Sess., No. 1,
§ 1; Joseph F. Piacun, The Abolition of Strict
Liability in Louisiana: A Return to a Fairer Standard or an
Impossible Burden on Plaintiffs?, 34 Loy. L.Rev. 215
(1997). The court found that despite the legislature’s
omission of terms such as “strict liability” or
“unreasonable risk of harm,” nonetheless the amendment
effected no “practical change in how the courts should
apply article 2321 to dog claims.” The court found that the
“could have prevented” provision of the 1996 amendment
showed adequate legislative intent to retain the
pre-amendment concepts of strict liability and unreasonable
risk of harm, with respect to dog owners only.

The court summarized its analysis as follows:

[T]o establish a claim in strict liability against a dog
owner under La. C.C. art. 2321 as amended in 1996, the
plaintiff must prove that his person or property was
damaged by the owner’s dog, that the injuries could have
been prevented by the owner, and that the injuries did not
result from the injured person’s provocation of the dog.
We hold that, to establish that the owner could have
prevented the injuries under Article 2321, the plaintiff
must show the dog presented an unreasonable risk of harm.

Pepper v. Triplet, 864 So.2d at 184; see also Terral v.
Louisiana Farm Bureau Cas. Ins. Co., 39,360 (La.App. 2 Cir.
1/26/05), 892 So.2d 732.

The owner’s liability arises solely from the legal
relationship between the owner and the animal; the owner’s
duty is nondelegable. Rozell v. Louisiana Animal Breeders
Coop. Inc., 434 So.2d 404 (La. 1983); Dotson v. Matthews,
480 So.2d 860 (La.App. 2 Cir. 1985), writ denied, 481 So.2d
1336 (La. 1986). Page 7

Appeals are taken from the judgment, not from the reasons
for judgment. Greater New Orleans Expressway Com’n v.
Olivier, 2002-2795 (La. 11/18/03), 860 So.2d 22; Williams
v. Enriquez, 40,305 (La.App. 2 Cir. 11/17/05), 915 So.2d
434.

Discussion: Liability of Mrs. Hill

By its first four assignments of error, Allstate urges the
district court erred in finding Mrs. Hill liable for
Desiree’s injuries West Page 331 arising from Smokey’s
dog bite. By three assignments of error, Ms. McBride
contends the court erred in failing to find Mrs. Hill
liable for her own (Ms. McBride’s) injuries arising from
Smokey’s dog bite. Because these issues are governed by the
same legal principles, we will discuss them together.

Allstate’s first assignment shows that the district court
made two factual findings in its reasons for judgment: (1)
“Smokey did not create such an unreasonable risk of harm as
to constitute a case of strict liability against the dog
owner pursuant to [art.] 2321,” and (2) Mrs. Hill “acted
reasonably in securing the dog in such a position as to
prevent it from being able to be on the patio and/or play
area in the yard and did provide notice to persons of
suitable age of discretion of the presence of the dog[.]”
Allstate contends that with these findings clearing Mrs.
Hill of strict liability and negligence, it was incongruous
and legally wrong to hold her liable for any of Smokey’s
conduct. By its second and third assignments, Allstate
urges the court erred in finding that Ms. West was
negligent in inviting Ms. McBride and her children into the
yard, and even if she was negligent, there was no basis to
charge the adult daughter’s negligence to Mrs. Hill. In
Page 8 support, they cite Corley v. Delaney, 92-899
(La.App. 3 Cir. 12/15/93), 629 So.2d 1255, writs denied,
94-0481, 94-0636 (La. 4/22/94), 637 So.2d 156; Verstichele
v. Marriner, 2004-354 (La.App. 3 Cir. 9/29/04), 882 So.2d
1265; and Mahlum v. Baker, 25,876 (La.App. 2 Cir. 6/24/94),
639 So.2d 820.

By her three assignments, Ms. McBride counters that the
two factual findings quoted above were plainly wrong, that
Smokey did indeed pose an unreasonable risk of harm, and
that Mrs. Hill is liable for the dog bites to both Desiree
and Ms. McBride.

The court ultimately held Mrs. Hill liable for Desiree’s
damages, and the appeal is from the judgment, not the
reasons for judgment. Greater New Orleans Expressway Com’n
v. Olivier, supra; Williams v. Enriquez, supra.
Nonetheless, because the district court stated that Smokey
posed no unreasonable risk of harm and that Mrs. Hill was
not negligent, we are constrained to declare these findings
plainly wrong under the rationale of Pepper v. Triplet.

Mrs. Hill, the owner and guardian of Smokey, had the
enjoyment and security of keeping a fairly large Chow in
her yard; thus she, and not the innocent victims, should
normally bear the cost of damages arising from his dog
bites. As owner and guardian, Mrs. Hill was in the superior
position to anticipate, detect, guard against and insure
against precisely this type of harm. It is true that she
took some precautions by fencing and tethering the dog, and
by posting warning signs. However, the record clearly shows
that her daughter invited Ms. McBride and her children into
the yard, thus Page 9 negating the protection of the fence
and tether. It also shows that Ms. McBride and her children
entered the back yard through the house, not through the
gate, and thus would not necessarily have seen the signs.
In any event it is uncertain that 3Ë?-year-old Desiree would
have understood a sign, had she seen it. Most of all, Mrs.
Hill failed to take the obvious precaution of instructing
her daughter not to allow children near the dog. There is
some testimony that Ms. West even told Ms. McBride that the
dog would not bite.

Moreover, on this record, we cannot say that the risk of
harm to Desiree and Ms. McBride was “relatively too small”
to invoke the guardian’s responsibility. These were invited
guests, as distinguished from the virtual trespasser in
Pepper v. Triplet West Page 332 who unlocked a gate and
entered a yard where he had never been invited. The owner
in Pepper took reasonable steps to reduce the risk; Mrs.
West simply did not. On this record, Ms. McBride proved
that Smokey posed an unreasonable risk of harm.

Finally, to make her case under art. 2321 Ms. McBride had
to prove that her injuries did not result from her own
provocation of the dog. All witnesses agreed that the
children were merely playing with Smokey, and doing nothing
to provoke him; this satisfied the burden of proof.

In sum, Ms. McBride proved a case of strict liability
under art. 2321 and Pepper v. Triplet, supra. For other
reasons, the court awarded her damages for Desiree’s
injuries, and this result is not plainly wrong. Page 11

With the finding of strict liability, we are constrained
to hold that the district court erred in failing to find
Mrs. Hill liable for Ms. McBride’s injuries. The district
court reasoned that Ms. McBride failed to use reasonable
caution in reading the warning signs and provoked the dog
by striking him after he had already released Desiree. As
noted, however, Ms. McBride and her children entered the
yard through the house, and she did not notice the signs.
Moreover, both witnesses testified that events unfolded
very fast; the record persuades us that Ms. McBride’s
conduct in swatting Smokey with a shoe was not an
intentional provocation but a natural and inevitable
reaction to seeing her child’s arm in the dog’s jaws. On
this record, Ms. McBride’s conduct was not provocation and
her injury was a foreseeable consequence of the dog’s
unreasonably dangerous propensity. This portion of the
judgment will be reversed and judgment rendered
accordingly.

In light of these conclusions, we would discuss Allstate’s
other assignments of error very briefly. By its second and
third assignments, Allstate contends the fault actually lay
with Ms. West, whose negligence cannot be imputed to Mrs.
Hill; by its fourth assignment, it urges the fault actually
lay with Ms. McBride for failing to supervise her child.
The strict liability of the dog owner, however, arises from
her relationship with the dog and cannot be delegated to
other persons. Rozell v. Louisiana Animal Breeders
Cooperative Inc., supra; Dotson v. Matthews, supra.
Moreover, in the circumstances presented, Ms. McBride’s
conduct was not unreasonable. These assignments of error
lack merit. Page 11

The judgment will be affirmed insofar as it held Mrs. Hill
liable for Desiree’s injuries. It will be reversed insofar
as it absolved her of liability for Ms. McBride’s injuries,
and judgment will be rendered in accordance with this
opinion.

Damages

By its fifth assignment of error, Allstate urges the
district court erred in awarding future medical expenses in
the absence of proof that the procedure was necessary and
that Desiree would actually undergo it. Allstate contends
that Dr. Valiulis was not called to testify, but only wrote
a letter suggesting that Desiree might opt to forgo plastic
surgery because of her Latin American heritage. Ms. McBride
responds that the court did not abuse its discretion in
making this award.

Future medical expenses must be established with some
degree of certainty and will not be awarded in the absence
of medical testimony showing that they are indicated and
setting out their probable cost. Hanks v. Seale, 2004-1485
(La. 6/17/05), 904 So.2d 662. The plaintiff must show that,
more probably than not, the expenses will be incurred.
Kennedy v. Thomas, 34,530 (La.App. 2 Cir. 4/4/01), West
Page 333 784 So.2d 692. While the evidence could have been
stronger, we are persuaded by our viewing of the photograph
of Desiree’s arm, Exhibit P-2, that she will indeed wish to
undergo corrective surgery. We attach no special
significance to Dr. Valiulis’s gratuitous remark that the
child may elect not to have surgery because of her Mexican
and American Indian heritage. We perceive no abuse of the
district court’s discretion. Page 12

By her third assignment of error, Ms. McBride urges the
district court erred in failing to award general and
special damages for her own dog bite injuries. For the
reasons already discussed, she proved her case of strict
liability. Statements submitted as part of Exhibit P-4 show
that she incurred medical expenses of $1,371.86 for the dog
bite; these will be awarded. A letter from Dr. Valiulis
recommended plastic surgery at a cost of $3,800; as with
Desiree, the evidence could be stronger, but this strikes
us as a necessary revision of a serious bite, and will be
awarded. The duration and intensity of her pain and fright
from the incident appear to be significantly less than
those suffered by Desiree. On this record, general damages
of $5,000 are warranted. Judgment will be rendered
accordingly.

Conclusion

For the reasons expressed, the judgment is affirmed insofar
as it found Allstate and its insured, Mrs. Hill, liable for
injuries to Desiree McBride resulting from the dog bite in
the total amount of $20,043.93. The judgment is reversed
insofar as it found Allstate and Mrs. Hill not liable for
injuries to Tasha McBride resulting from the dog bite;
judgment is hereby rendered in her favor in the total
amount of $10,171.86. All costs are to be paid by the
defendants, Allstate and Mrs. Hill.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

[fn1] In the original petition, Ms. McBride referred to the
insurer as “XYZ Insurance Company.”