Allen ex rel. B.A. v. Albin
| Citation | 97 S.W.3d 655 |
| Decision Date | 31 December 2002 |
| Docket Number | No. 10-01-063-CV.,10-01-063-CV. |
| Parties | Billie Ann ALLEN, As Next Friend of B.A., A Minor, Appellants, v. Frances ALBIN and Gladys Haferkamp, Appellees. |
| Court | Texas Court of Appeals |
Jim Hering, Pakis, Giotes, Page & Burleson, P.C., Waco, for Appellants.
John A. Stephens and David Johnson, Fulbright Winniford, Waco, James A. Lawrence, Flowers, Davis, Menard & Witt, P.L.L.C., for Appellees.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.
This is a personal injury case. Billie Ann Allen, as next friend of Bradley Allen, a minor, sued Frances Albin (the dog's owner) and Gladys Haferkamp (Bradley's baby-sitter) for damages as a result of an injury inflicted by a dog. Both Albin and Haferkamp filed summary-judgment motions that were granted by the trial court. Allen argues that the trial court erred in granting the defendants' motions. We will reverse the judgment in part and affirm it in part.
During 1985, Gladys Haferkamp provided day-care services to Jack and Billie Ann Allen by caring for their seventeen-monthold son, Bradley Allen. Haferkamp ran a day-care business at her home in Waco, where she took care of Bradley and two other children. Frances Albin lived next door to Haferkamp and their backyards were adjacent to one another, separated by a chain-link fence. Albin kept a dog in her backyard. On November 13, 1985, Bradley was bitten or scratched by the, dog as he was standing next to the chainlink fence. The dog apparently attacked Bradley through the fence. Although Haferkamp was standing near Bradley, she did not see the dog in time to prevent the attack. As a result, Bradley suffered lacerations to his face. He was taken to the hospital where he received stitches to close the lacerations.
In 2000, Bradley, on his physician's recommendation, began to consider cosmetic surgery to reduce or remove the residual scarring caused by the lacerations. In May of that year, on Bradley's behalf, his mother brought this suit against Albin and Haferkamp seeking compensation for her son's injuries. Because Albin had died, Allen sued her heirs.1
After some discovery, the defendants filed summary-judgment motions. TEX.R. Civ. P. 166a. Allen filed responses to both motions and offered evidence to support her claims. Albin filed a written motion objecting to part of Allen's summary-judgment evidence, and the day the summary-judgment hearing was scheduled, Allen asked for a continuance seeking more time to cure possible defects in her summary-judgment evidence. The court granted the request and set the hearing for a later date. Allen then filed supplemental responses to both Albin's and Haferkamp's summary-judgment motions and offered additional evidence. Albin again filed a written motion objecting to part of Allen's evidence. Shortly thereafter, the court held a hearing on the defendants' summary-judgment motions and also on Albin's objections to Allen's evidence. At the end of the hearing, the court granted both summary-judgment motions. On appeal, Allen contends that the trial court erred in doing so.
We initially address Allen's issue concerning the trial court's granting of Albin's no-evidence summary-judgment motion. We must also discuss a related issue involving Albin's objections to Allen's summary-judgment evidence.
We review a summary judgment de novo. Rucker v. Bank One Texas, NA, 36 S.W.3d 649, 653 (Tex.App.-Waco 2000, pet. denied) (citing Sasser v. Dantex Oil & Gas, Inc., 906 S.W.2d 599, 602 (Tex. App.-San Antonio 1995, writ denied)). We apply the same standard in reviewing a no-evidence summary judgment as we would in reviewing a directed verdict. Robinson v. Warner-Lambert, 998 S.W.2d 407, 410 (Tex.App.-Waco 1999, no pet.). We review the summary-judgment evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Id. A no-evidence summary judgment will be defeated if the non-movant produces more than a scintilla of probative evidence to raise a genuine issue of material fact on the elements challenged by the movant. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied).
More than a scintilla of evidence exists "if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds" about a vital fact's existence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). On the other hand, no more than a scintilla of evidence "exists when the evidence offered to prove a vital fact is so weak so as to do no more than create a mere surmise or suspicion of its existence and, in legal effect, is no evidence." Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284-85 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (citing Kindred, 650 S.W.2d at 63).
The trial court granted the motion without stating the specific reasons for doing so. When the trial court does not specify the basis for a no-evidence summary judgment, the appealing party must show it is error to base it on any no-evidence ground asserted in the summary-judgment motion. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
Allen pled two claims against Albin: (1) a strict liability claim; and (2) a negligence claim for injuries caused by the negligent handling of the dog.2
Strict liability
Allen alleged that Albin was strictly liable for Bradley's injuries because she knew or should have known that her dog was capable of causing injury to others. Under Texas law, strict liability is imposed only in very limited situations, such as in products liability cases involving dangerously defective products or cases involving a dangerous domesticated animal. E.g., Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 613 (Tex.1996) (involving defective products); Marshall v. Ranne, 511 S.W.2d 255, 258 (Tex.1974) (). The elements of a strict liability claim for injury by a dangerous domesticated animal are: (1) the defendant was the owner or possessor of the animal; (2) the animal had dangerous propensities abnormal to its class; (3) the defendant knew or had reason to know the animal had dangerous propensities; and (4) those propensities were a producing cause of the plaintiffs injury. Owens v. Coury, 614 S.W.2d 926, 928 (Tex.Civ.App.-Amarillo 1981, no writ)3; Wells v. Burns, 480 S.W.2d 31, 33 (Tex. Civ.App.-El Paso 1972, no writ).
Negligent handling of an animal
With respect to the negligence claim, Allen contended that Albin owed a duty to ensure that her dog would not cause injury to anyone. Allen claimed that Albin breached that duty by failing to take "reasonable steps" to prevent the dog's contact with Bradley. The elements of an action for injuries caused by the negligent handling of an animal are: (1) the defendant was the owner or possessor of an animal; (2) the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others; (3) the defendant breached that duty; and (4) the defendant's breach proximately caused the plaintiffs injury. Marshall, 511 S.W.2d at 259 (elements 1, 4); Dunnings v. Castro, 881 S.W.2d 559, 561-62 (Tex.App.-Houston [1st Dist.] 1994, writ dism'd) (elements 2, 3). Unlike for strict liability, the plaintiff does not have to prove that the animal was vicious or dangerous. Dunnings, 881 S.W.2d at 562-63; see Pearson v. Jones Co., 898 S.W.2d 329, 332 (Tex.App.-Eastland 1994, no writ) (owner may be liable for negligence in the handling of a nonvicious or non-dangerous animal).
Albin filed a no-evidence summary-judgment motion claiming she was entitled to summary judgment because Allen could not produce any evidence of some of the elements of her two claims.
Challenged elements of the strict liability claim
Albin did not contest the first element of Allen's strict liability claim, i.e., whether Albin was the owner or possessor of the animal. Owens, 614 S.W.2d at 928; Wells, 480 S.W.2d at 33. Albin's motion challenged Allen to produce evidence of the second, third, and fourth elements: (2) the dog had dangerous propensities abnormal to its class; (3) Albin knew or had reason to know the animal had dangerous propensities; and (4) those propensities were a producing cause of the plaintiffs injury. Id. Accordingly, Allen was required to produce summary-judgment evidence that raised a fact issue on each of the three challenged elements. TEX.R. CIV. P. 166a(i).
Challenged elements of the negligence claim
Again, Albin did not dispute the fact that she owned the dog that harmed Bradley. She did contend, however, that Allen could not produce any evidence of the remaining elements of her negligence action: (2) a duty to exercise reasonable care to prevent the dog from injuring others; (3) a breach of that duty; and (4) the breach proximately caused Bradley's injury. Marshall, 511 S.W.2d at 259 (element 4); Dunnings, 881 S.W.2d at 561-62 (elements 2, 3). Therefore, to defeat Albin's motion, Allen was required to produce summary-judgment evidence that raised a fact issue on each of the three challenged elements.
In Allen's initial response to the no-evidence motion, she presented deposition testimony from co-defendant Haferkamp. In her deposition, Haferkamp testified about oral statements that Albin allegedly made to her in a conversation they had after Bradley was injured. Albin filed an objection to the testimony arguing that it was inadmissible under the "dead man's rule." TEX.R. Ewa 601(b). Allen's supplemental response presented additional evidence: a tape-recorded conversation between Haferkamp and Lisa Simpson, a claims representative from Farmers Insurance Group, that occurred on January 17, 2000, and was...
To continue reading
Request your trial
-
Williams v. Williams
...a plaintiff may properly sue the heirs or beneficiaries. Rooke v. Jenson, 838 S.W.2d 229, 230 (Tex. 1992); Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 658 & n.1 (Tex. App.—Waco 2002, no pet.). Here, Plaintiffs have made clear that they intend to pursue their breach of contract claim against......
-
Schronk v. City of Burleson
...standing alone, does not constitute an implicit ruling on objections to the movant's summary-judgment proof. See, e.g., Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 663 (Tex.App.-Waco 2002, no pet.). The Schronks contend that a different rule applies for special exceptions. See, e.g., Fieldt......
-
Lovett v. Lovett
...ruling on Peter's objections. See Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 206-07 (Tex.App.-Dallas 2005, no pet.); Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 663 (Tex.App.-Waco 2002, no 1. I use the term modified Hooks v. Bridgewater test because it is undisputed that the third elemen......
-
Schronk v. City of Burleson and Laerdal Medical Corp., No. 10-07-00399-CV (Tex. App. 7/22/2009)
...standing alone, does not constitute an implicit ruling on objections to the movant's summary-judgment proof. See, e.g., Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 663 (Tex. App.-Waco 2002, no pet.). The Schronks contend that a different rule applies for special exceptions. See, e.g., Field......