Holland v. Buckley

• Decision Date: 28 October 1974
• Docket Number: No. 54317,54317
• Citation: 305 So.2d 113
• Parties: Jerome C. HOLLAND, Plaintiff-Appellant-Relator, v. Charles E. BUCKLEY, Jr., et al., Defendants-Appellees-Respondents.
• Court: Louisiana Supreme Court

Page 113

305 So.2d 113

Jerome C. HOLLAND, Plaintiff-Appellant-Relator, v. Charles E. BUCKLEY, Jr., et al., Defendants-Appellees-Respondents.

No. 54317.

Supreme Court of Louisiana.

Oct. 28, 1974.

Rehearing Denied Nov. 27, 1974.

Kenneth Rigby, Love, Rigby, Dehan & Love, Shreveport, for plaintiff-applicant.

Steven H. Beadles, Cook, Clark, Egan, Yancey & King, Shreveport, for defendants-respondents.

TATE, Justice.

The issue before us is: When an innocent bystander is bitten by a dog, who shall bear the damages so caused? The bystander passing on the street, who did not provoke the attack? Or the owner of the dog, who created the risk by letting the dog go loose?

For reasons to be elaborated, we here determine that, in accordance with the intent of our Louisiana Civil Code, the owner of an animal is ordinarily responsible for the harm it does, although certain limited defenses are available to absolve him of the presumption of fault created by the animal's injuring another. We here overrule as erroneous certain decisions which have crept in, based upon the common law of England, that an owner of a domestic animal is not liable for injuries caused by the animal unless the victim proves that the owner knew or should have known of the animal's harm-causing characteristic and nevertheless negligently let it do harm.

Facts

The plaintiff Holland sues to recover for personal injuries suffered as a result of a dog-bite. Made defendants are the dog's owner (Buckley) and his liability insurer. The court of appeal affirmed the dismissal of the plaintiff's suit. 287 So.2d 599 (La.App.2d Cir. 1974), certiorari granted 288 So.2d 639 (La.1974).

The plaintiff Holland was walking his nine-pound toy poodle on the sidewalk across the street from the defendant Buckley's residence. Buckley's 60-pound German shepherd Candy, about eighteen months old, was running loose on his lawn, in the presence of the defendant's father.

Without warning, Candy ran across the street and grabbed Holland's poodle by the neck and shoulders and threw her over onto her back. Holland stepped in and warded off Candy with his foot while picking up the poodle. Candy then jumped up, apparently still trying to get to the poodle, and bit Holland deeply on the inside of his elbow.

In dismissing the suit, the previous courts held that the injured victim had the burden of proving that the owner of the animal was negligent and that this negligence caused the injury. Our trial brother held: 'This dog has been shown not to be vicious, and not to the knowledge of the defendant owner, certainly . . . The dog gets the first bite free, under the domestic animals' rule of this (Second) circuit.'

Louisiana Jurisprudence Interpreting Civil Code Article 2321

We now find to be incorrect the judicial interpretations, upon which the previous courts herein relied, of Civil Code Article 2321. As will be shown, the judicial interpretations of this article, which provides for liability of the owner or keeper of animals for damage caused by them, has been subject to judicial interpretations inconsistent with one another, as well as with what we find to be the legislative intent of such article.

Article 2321 of the Civil Code of 1870 provides: 'The owner of an animal is answerable for the damage he has caused * * *.' ¹ This provision was essentially enacted by the codification of 1808 (Book III, title 4, art. 20, par. 7) and re-enacted in its present text as article 2301 of the Civil Code of 1825. The wording of the 1808 enactment is identical to that proposed for the equivalent provision by the Project of the Year VIII (1800) for the French Civil Code (Book III, Title III, Art. 19, par. 6), which was adopted almost verbatim as Article 1385 of the Code Napoleon (1804). See Art. 2321, La.C.C. Comp.Ed., in 17 West's LSA-C.C. p. 19 (1972).

The first three decisions to discuss the basis of an owner's liability for the harm done by his animal, all happened to concern damage done by a dog known to be vicious: Delisle v. Bourriague, 105 La. 77, 29 So. 731 (1901); McGuire v. Ringrose, 41 La.Ann. 1029, 6 So. 895 (1895); and Montgomery v. Koester, 35 La.Ann. 1091 (1883). All of course, held the dog's owner liable for the injuries caused by his animal.

Montgomery recognized that Article 1385 of the Code Napoleon corresponded to our own Article 2321 and that the French interpretations held the owner to strict liability for harm caused by the animal, except only in the cases of vis major (act of God) or of contributory fault of the person injured--and regardless of whether the animal was vicious, or the owner knew of its character. The opinion also noted the English rule which based the master's liability on negligence: the owner of an animal was responsible for harm caused by it only if the animal was known by him to be dangerous and he nevertheless let it escape to do harm. However, since liability was clear under both the English and French authorities, the court did not find it to be necessary to determine whether Louisiana should follow the French holdings that the owner's scienter is immaterial, rather than the English rule.

McGuire simply followed Montgomery although quoting only Montgomery's summary of the common law rule.

In holding the owner liable, Delisle discussed the present issue in these terms, 105 La. 84--85, 29 So. 734: 'Article 2321 of the (Louisiana) Revised Civil Code (article 1385, Code Napoleon) is founded upon the presumption that the fault is chargeable to the owner of the animal that caused the damage, or to the person in whose use or under whose care it was at the time of the accident; and that presumption can be made to give way only in the presence of proof either of an unforeseen event or by the imprudence of the one injured. . . . The French commentators have approvingly referred to this view. From 20 Laurent, p. 675, we quote: 'That is to say, that there is no responsibility when there is no fault; the one to whom the damage is imputable should be permitted to prove that he was not at all at fault. But it is only needful to prove the slightest fault (culpa levis) to hold the owner responsible. '' Since there was obviously some fault, the court affirmed the recovery against the owner for the victim's death without further discussion.

The confusion in the jurisprudence developed following the decision later that year in Martinez v. Bernhard, 106 La. 368, 30 So. 901 (1901). Under very hard facts, ² the court held, again quoting Laurent, that no fault was shown. The syllabus of the court announced the principle as follows: 'The owner of a gentle animal, which has always been of a kind temper, and has never attempted to bite anyone, and has never given occasion to suspect that he would bite, is not liable in damages by the mere fact that the animal has never bitten someone. Unless there be some fault, light as it may be, liability does not arise. * * *' 106 La. 368, 30 So. 901. This was the first case that indicated that, contrary to the French interpretations, an owner of an animal which caused harm could exculpate himself from the presumption of fault simply by proving the previously gentle nature of the creature.

The syllabus in this case, and dicta in Tripani v. Meraux, 184 La. 66, 165 So. 453 (1936) (syllabus 3), ³ are responsible for later expressions that the basis of an owner's liability for harm done by his animal is guilt of some fault or negligence in the ownership or possession of the animal.

The subsequent decisions fall into three main categories: ⁴

(1) Those which allowed the victim to recover from the animal owner upon proof of the dangerous propensities of the animal and the owner's presumed knowledge thereof: Tamburello v. Jaeger, 249 La. 25, 184 So.2d 544 (1966); Serio v. American Brewing Co., 141 La. 290, 74 So. 998 (1917); Beach v. Allstate Insurance Co., 234 So.2d 215 (La.App.2d Cir. 1970); Savoie v. Travelers Indemnity Co., 223 So.2d 432 (La.App.3d Cir. 1969); Kling v. U.S. Fire Insurance Co., 146 So.2d 635, 1 A.L.R.3d 1011 (La.App.1st Cir. 1962). These opinions usually proceeded on the assumption that such proof is necessary for recovery, without discussion of the civil-law basis for liability under Article 2321.

(2) Those which held that the harm caused by the animal created a presumption of fault on the part of its owner, which placed a burden upon the owner to show that he was free to even the slightest fault: Bentz v. Page, 115 La. 560, 39 So. 599 (1905) (new owner did not know of vicious nature of dog, but nevertheless at fault for not knowing); Granger v. United States Fidelity & Guaranty Co., 266 So.2d 526 (La.App.3d Cir. 1972). In these cases, the owner was held liable as failing to exculpate himself of the slightest fault. This principle was also applied in holding liable the owners of horses left unattended in a city area for damages caused when such horses ran away and collided with someone, regardless of whether the horse had ever so misbehaved before: Trenchard v. New Orleans Ry. Co., 123 La. 36, 348 So. 575 (1909); Damonte v. Patton, 118 La. 530, 43 So. 153 (1907).

(3) Those which held that, in order to recover damages caused him by the accident, the victim has the burden of proving both the existence of a dangerous propensity of the animal inflicting the injury and also knowledge of such propensity on the part of the owner: Cox v. Reliance Insurance Co., 284 So.2d 370 (La.App.2d Cir. 1973); Losch v. Travelers Insurance Co., 264 So.2d 240 (La.App.4th Cir. 1972), certiorari denied, 262 La. 1176, 266 So.2d 450 (1972); Rolen v. Maryland Casualty Co., 240 So.2d 42 (La.App.2d Cir. 1970), certiorari denied, 256 La. 1149, 241 So.2d 252 (1970); Braswell v. Central Mutual Insurance Co., 223 So.2d 204 (La.App.2d Cir. 1969); Bailey v. Travelers Insurance Co., 210 So.2d 93 (La.App.1st Cir. 1968), certiorari denied, 252 La. 832, 214 So.2d 160 (1968); Hicks v. Barrow, 208 So.2d 417 (La.App.4th Cir. 1968), certiorari...