Marie v. Am. Alt. Ins. Co.

Decision Date27 March 2012
Docket NumberNo. 11–CA–832.,11–CA–832.
Citation97 So.3d 8
PartiesLenias J. MARIE, Jr. v. AMERICAN ALTERNATIVE INSURANCE COMPANY, Canon Health Care, LLC/T.L.H.C. and Canon Hospice, LLC.
CourtCourt of Appeal of Louisiana — District of US

OPINION TEXT STARTS HERE

Danyelle M. Taylor, Attorney at Law, Westwego, LA, for Plaintiff/Appellee.

Timothy G. Schafer, Attorney at Law, New Orleans, LA, for Defendant/Appellant.

Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.

WALTER J. ROTHSCHILD, Judge.

[5 Cir. 2]Defendants, Canon Hospice, L.L.C. (“Canon”) and American Alternative Insurance Company (“AAIC”), appeal the trial court's May 16, 2011 judgment finding them liable for one-third of plaintiff's damages in this case. For the following reasons, we reverse.

FACT AND PROCEDURAL HISTORY

This case arises from an incident that occurred on January 5, 2005 when plaintiff, Lenias Marie, Jr., was at Canon Hospice visiting his father-in-law. Mr. Marie's father-in-law shared a room with the father of Nicole LaBranche. On that date, Ms. LaBranche brought her Scottish Terrier, Cole, to visit her father. As Mr. Marie was headed to the doorway to get some ice cream for his niece and nephew, Cole was seated on Ms. LaBranche's lap in a chair near the door. Mr. Marie extended his right hand to pet the dog on his snout when Cole snapped at Mr. Marie and bit his finger, causing damage including some loss of feeling and some restricted movement.

[5 Cir. 3]On January 5, 2006, Mr. Marie filed suit against Canon and its liability insurer, AAIC,1 asserting that Canon, as the owner and operator of the premises where the dog bite occurred, was liable for his injuries. He also asserted that Canon was at fault due to its negligence in failing to maintain the premises in a safe condition, allowing an unreasonably dangerous situation to exist, and failing to warn him of the potentially hazardous condition.

Trial of this matter was held on April 11, 2011. At trial, Mr. Marie testified that he first saw Cole on January 4, 2005 when he visited his father-in-law. According to Mr. Marie, he is a dog lover who had worked with the Jefferson Parish Canine Division training dogs. He stated that he asked Ms. LaBranche if he could pet the dog and she agreed. He also allowed his young niece and nephew to pet Cole that day. He testified that Ms. LaBranche stated that Cole was not aggressive and he did not see anything to indicate that the dog was mean. Cole seemed friendly, behaved, and nice. He did not growl, snarl, run around, or seem agitated. Mr. Marie stated that he did not have any concern about going close to him and “never figured he was going to bite” him.

The next day, January 5, 2005, Cole seemed to have the same temperament as the day before. Mr. Marie was about to exit the room to get some ice cream for the children while the dog was seated on Ms. LaBranche's lap in a chair near the door. According to Mr. Marie, he asked Cole if he wanted some ice cream and reached near the dog's face to touch him when Cole jumped forward and bit his finger. Mr. Marie testified that he has a permanent scar on his finger, some “deadness,”and the top knuckle does not bend all the way down.

The defense called Susan Sexton to the stand. She testified that she is the Human Resources Director at Canon Hospice. She stated that Canon's policy is to [5 Cir. 4]allow pets in the facility, but a dog cannot be aggressive and must be muzzled if it barks. She also stated that Canon asks for vaccination records before a dog is allowed in, though she admitted that people who bring animals do not always go to the front desk to be cleared before bringing in a pet.

Dr. Shiva Akula testified that he specializes in internal medicine and has worked with terminally ill patients for at least 20 years. He stated that Canon's policy is to allow guests to bring pets to the facility, because they have a therapeutic effect, help with depression, and reduce blood pressure and incidents of stroke and heart attacks. He testified that Canon screens for aggressive pets, but they rely on information from the owner or the person bringing the pet and that person is responsible for the pet while at the facility.

Nicole LaBranche testified that she is the owner of an 18 to 20–pound Scottish Terrier named Cole, and she brought the dog to visit her father while he was at Canon Hospice. She stated that she brought him in a carrier and he also had a leash. She testified that on the date of the incident, Cole was on her lap with his leash on and he did not bark, run around, growl, or snarl at anyone. She stated that Mr. Marie did not ask to pet the dog before the dog bit him. She stated that Cole is friendly and she was not concerned about him biting anyone. She admitted that he sometimes plays rough, but does not snap at people hard enough to break the skin. Ms. LaBranche testified that a Canon representative told her that pets were allowed at the facility before her father was admitted. She stated that she was not asked by Canon for Cole's vaccination records until after he bit Mr. Marie, though the dog did regularly get his shots.

At the conclusion of trial, the trial judge took the matter under advisement. Thereafter, on May 16, 2011, the trial judge rendered a judgment finding Mr. Marie's damages to be $12,000.00 and finding Canon, Ms. LaBranche, and Mr. [5 Cir. 5]Marie equally at fault. The judgment ordered Canon and AAIC to pay plaintiff $4,000.00, plus costs and interests. Canon and AAIC appeal this judgment.

LAW AND DISCUSSION

On appeal, Canon and AAIC note that the trial judge did not provide any reasons for judgment and thus, it is unclear if the trial judge found them liable under the theory of strict liability, premises liability, or general negligence. In their first two assignments of error, Canon and AAIC argue that they cannot be held strictly liable for the actions of a dog owned by another person simply because the dog was on Canon's premises at the time of the incident. They cite LSA–C.C. art. 2321, which provides that the owner of a dog is strictly liable for damages or injuries caused by the dog which the owner could have prevented and which did not result from the injured person's provocation of the dog. Mr. Marie responds that the trial court did not find Canon strictly liable, because the pre-trial proceedings indicate that plaintiff was alleging premises liability under LSA–2317.1 and negligence under LSA–C.C. art. 2317.

Although it is unlikely that the trial judge found Canon and AAIC liable under the theory of strict liability, we note that Canon and AAIC are correct that they cannot be found strictly liable under LSA–C.C. art. 2321 for Mr. Marie's injuries. This Court has previously held that the strict liability of an animal owner under LSA–C.C. art. 2321 cannot be imputed to a non-owner. Murillo v. Hernandez, 00–1065 (La.App. 5 Cir. 10/31/00), 772 So.2d 868, 871;Verdun v. Hebert, 03–225 (La.App. 5 Cir. 5/28/03), 848 So.2d 138, 140;Parr v. Head, 442 So.2d 1234, 1235 (La.App. 5 Cir.1983). Accordingly, we find that Canon and AAIC are not strictly liable for plaintiff's injuries.

In their remaining assignments of error, Canon and AAIC assert that the trial court erred in finding Canon at fault for plaintiff's damages under [5 Cir. 6]LSA–C.C. arts. 2317 or 2317.1, because the evidence did not show that Canon had custody of the dog, that the dog created an unreasonable risk of harm, or that Canon breached any duty to Mr. Marie. They claim that Ms. LaBranche is the dog's owner and she had custody and control of the dog while at the Canon facility. They also assert that Cole was calm...

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