Labaj v. Vanhouten
| Decision Date | 04 October 2010 |
| Docket Number | No. 07-09-0241-CV.,07-09-0241-CV. |
| Citation | 322 S.W.3d 416 |
| Parties | Kelly Kanton LABAJ and Third Coast Auto Group, LP, Appellants, v. DeeAnn VANHOUTEN, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Lloyd Robles, Robles & Associates, Austin, TX, for Appellants.
Charles L. Levy, Caroline L. Badinelli, Rosenthal & Watson, PC, Austin, TX, for Appellee.
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellants, Kelly Kanton Labaj and Third Coast Auto Group, LP (collectively “TCAG”), appeal from a judgment rendered in favor of Appellee, DeeAnn VanHouten, following a jury trial of her dog bite case. VanHouten was awarded $50,000 in actual damages. TCAG asserts the trial court erred in failing to grant its motions for: (1) summary judgment; (2) directed verdict; and (3) a new trial because there was no evidence that the dog in question had dangerous propensities that were abnormal for an animal of her class. We affirm.
In May 2007, TCAG operated a used car lot in Travis County, Texas. VanHouten was a TCAG employee working at the lot as a title clerk. On May 30, VanHouten left the front office to check her car for licensing papers. 1 When she reached the garage, she asked Jose Salguero where her car was located. He indicated her car was in the back lot. VanHouten was unaware there was a dog on the back lot.
As VanHouten was walking through the back lot, she saw a Ford Mustang in the “make ready” area 2 that she thought she might like to purchase. As she was looking in the Mustang, she heard a movement or rustle and observed the roof of a doghouse through the car's rear window. Believing a dog might be nearby, she decided to walk away. At that moment, a dog came from behind the Mustang and startled VanHouten. She froze and the dog lunged, attached its jaws to her leg, began shaking her, and pulled her to the ground. When her screams were heard in the repair garage, Jose approached and removed the dog. A portion of VanHouten's leg muscle had been detached from her leg during the attack. An ambulance was called and VanHouten was taken to a local hospital.
VanHouten subsequently filed suit alleging in her amended petition three theories of liability against TCAG: (1) strict liability, (2) negligent handling, and (3) negligence. Under the first theory, she alleged TCAG was liable for her injuries because it knew or should have known of the dog's dangerous and vicious propensities. Her second theory alleged TCAG failed to exercise reasonable care to prevent the dog from injuring her. And, her third theory alleged TCAG failed to keep the premises safe, properly contain the dog, or warn others of its presence.
Following a two day trial, the trial court submitted the following Questions to the jury, in pertinent part, and received the following answers:
In accord with the jury's verdict, the trial court issued a judgment awarding $50,000 in actual damages to VanHouten. Thereafter, TCAG filed a motion for new trial asserting VanHouten's evidence was legally insufficient because she failed to show the dog had dangerous propensities. TCAG's motion was denied and this appeal followed.
TCAG appeals the trial court's denial of its motions for summary judgment and directed verdict asserting VanHouten failed to prove as a matter of law that the dog in question had dangerous propensities that were abnormal for an animal of her class.
Neither ruling by the trial court is reviewable on appeal. Texas law is settled that the denial of a motion for summary judgment may not be challenged on appeal from a final judgment following trial. Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966). See Moore v. Jet Stream Investments, Ltd., 261 S.W.3d 412, 427 (Tex.App.-Texarkana 2008, pet. denied) (). 3 Texas law is also settled that a defendant who moves for a directed verdict after the plaintiff rests, but thereafter elects not to stand on his motion for directed verdict and proceeds with the presentation of evidence, waives any complaint regarding the denial of that motion. Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 412 (Tex.App.-Amarillo 2003, pet. denied) (). See Vermillion Constr. Co. v. Fidelity & Deposit Co. of Maryland, 526 S.W.2d 744, 748 (Tex.Civ.App.-Corpus Christi 1975, no writ) (collected cases cited therein). Accordingly, TCAG's first two issues are overruled.
TCAG asserts the trial court erred in denying its motion for a new trial for the single reason that the jury did not find that the dog in question had dangerous propensities which were abnormal for an animal of her class. A motion for a new trial is a proper predicate for preserving a legal sufficiency challenge. Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex.1985). See Allison v. Acel Parks, 763 S.W.2d 606, 607 (Tex.App.-Fort Worth 1989, pet. denied).
Standard of review
In reviewing rulings on motions for directed verdicts, motions for new trial based on no-evidence and judgments notwithstanding the verdict, appellate courts apply the no-evidence standard. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005); McGuire, Craddock, Strother & Hale, P.C. v. Transcontinental Realty, 251 S.W.3d 890, 895 (Tex.App.-Dallas 2008, pet. denied); Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm, Inc., 927 S.W.2d 146, 149 (Tex.App.-Corpus Christi 1996, no pet.). The court considers the evidence in a light most favorable to the challenged finding, indulges every reasonable inference to support it; Wilson, 168 S.W.3d at 822, credits favorable evidence if reasonable jurors would and disregards contrary evidence unless reasonable jurors would not. Id. at 827.
A challenge to the legal sufficiency of evidence will be sustained when, among other things, the evidence offered to establish a vital fact does not exceed a scintilla.
Kroger Tex. Ltd. P'ship v. Suberu, 216 S.W.3d 788, 793 (Tex.2006). Evidence does not exceed a scintilla if it is so weak as to do no more than create a mere surmise or suspicion that the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004)(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)). And, so long as the evidence falls within the zone of reasonable disagreement, we may not invade the fact-finding role of jurors, who alone determine the credibility of witnesses, the weight to be given their testimony, and whether to accept or reject all or part of their testimony. Wilson, 168 S.W.3d at 822.
TCAG asserts VanHouten could only establish her negligence action if she proved TCAG knew or should have known the dog had dangerous propensities that were abnormal to her class. Because the jury answered “No” to Question 2 and determined that the dog did not have dangerous propensities abnormal to her class, TCAG asserts VanHouten's evidence was legally insufficient to establish TCAG was negligent in handling or keeping the dog.
If an animal is vicious or has aggressive tendencies and the owner has knowledge of that propensity, the owner can be subject to liability under the law of strict liability. Marshall v. Ranne, 511 S.W.2d 255, 258 (Tex.1974); Belger v. Sweeney, 836 S.W.2d 752, 754 (Tex.App.-Houston [1st Dist.] 1992, writ denied). However, if an animal is non-vicious, the owner may still be subject to liability for negligent handling of the animal. Marshall, 511 S.W.2d at 258. Therefore, generally, “[t]he gist of an action to recover for injury caused by a domestic animal, resulting from something other than known propensities, is usually negligence of the owner or keeper in the keeping or handling of the animal.” Koepke v. Martinez, 84 S.W.3d 393, 396 (Tex.App.-Corpus Christi 2002, pet. denied) (citing Dunnings v. Castro, 881 S.W.2d 559, 562 (Tex.App.-Houston [1st Dist.] 1994, pet. denied)).
The Restatement (Second) of Torts addresses the liability for harm caused by domestic animals that are not abnormally dangerous and provides that “one who possesses ... a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm caused by the animal if, but only if, (a) he intentionally causes the animal to do harm, or (b) he is negligent in failing to prevent harm.” Restatement (Second) of Torts § 518 (1977). Comment (h) to section 518 states:
One who keeps a domestic animal that possesses only those dangerous propensities that are normal to its class is required to know its normal habits and tendencies. He is therefore required to realize that even ordinary gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm.... So, too, the keeper of an ordinary bitch or cat is required to know that while caring for her puppies or kittens she is likely to attack other animals and human beings.
Id. § 518 cmt. (h).
Thus, an owner of a dog may be liable for injuries caused by the dog even if the animal is not vicious, if the plaintiff can prove the owner's negligent handling or keeping of the animal caused the injury. Dunnings, 881 S.W.2d at 562-63. To recover on such a claim, a plaintiff must prove: (1) the defendant was the owner or possessor of the animal; (2) the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others; (...
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