Murillo v. Hernandez

Decision Date31 October 2000
Docket NumberNo. 00-CA-1065.,00-CA-1065.
Citation772 So.2d 868
PartiesNorma MURILLO, as Natural Tutor of Her Minor Child, Rodolpho Joshua Murillo v. Vincent HERNANDEZ and Amor Viviente, Inc.
CourtCourt of Appeal of Louisiana — District of US

Max J. Cohen, Paula H. Lee, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, Louisiana, Counsel for Norma Murillo, Plaintiff-Appellant.

James Ryan, III, Glen E. Mercer, Sessions & Fishman, L.L.P., New Orleans, Louisiana, Counsel for Amor Viviente, Inc. and Church Mutual Insurance Company, Defendants-Appellees.

Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS and H. CHARLES GAUDIN, Pro Tempore.

CHEHARDY, Judge.

This is a dog-bite suit in which plaintiff sought recovery for severe injuries inflicted on her six-year-old son by a 65-pound dog belonging to defendant Vincente Hernandez1, which Hernandez had left tied up on the property of defendant Amor Viviente Church. The district court awarded judgment to plaintiff against Hernandez in the amount of $381,980.54, but granted a motion for involuntary dismissal by the defendant church and its insurer.

Plaintiff appeals the granting of the involuntary dismissal. The church and its insurer have answered the appeal, seeking damages for frivolous appeal and also seeking a modification of the judgment insofar as it failed to award costs to appellees as the winning parties and failed to dismiss plaintiff's claims with prejudice.

On appeal plaintiff argues the involuntary dismissal was contrary to the law and the evidence. She contends that in order the grant the dismissal, the trial judge made a finding of fact which was not supported by any evidence in the record. At trial the parties stipulated to the following facts: Joshua Murillo's injuries occurred on July 17, 1994 at approximately 2:30 p.m., on the grounds of property owned by the church, Amor Viviente, Inc. The injury to Joshua Murillo was caused by the dog Spike, owned by defendant Vincent Hernandez, who brought the dog to the property shortly before 10:00 a.m. that day. The church service was conducted between 10:00 a.m. and 12:00 noon by Hector Urbina, the pastor. Hernandez had never brought Spike to the property or church before. Plaintiff, Norma Murillo, had been a member of the church for over four years and had never seen a dog on the property before. Spike was tied to the rear bumper of the truck owned by Hernandez at the time of the incident. Hector Urbina left the area immediately after the service, at approximately 12:00 noon. The incident occurred during the Soccer World Cup Finals. The pastor, Hector Urbina, was not present at the time of the incident. No church officer was present at the time of the incident.

The following facts are drawn from the trial and deposition testimony:

Rodolpho Joshua Murillo (called Josh or Joshua) was on church property to attend Sunday School and to visit his father, who lived in an apartment on church property. By the time of trial he was 12 years old and could no longer recall anything about the dog-bite incident, which had happened when he was six.

Vincent Hernandez testified that Spike was a three-year-old mixed-breed part-Chow dog and weighed about 65 pounds. Hernandez testified that his four children played regularly with the dog and he had never known Spike to be aggressive. He had brought the dog to church that day because his family was out of town and he was planning on staying after church to barbeque and watch the World Cup soccer games on television with a friend who lived in one of the church-owned apartments.

On the day in question Hernandez arrived about 15 minutes before the 10:00 a.m. service. He chained Spike to his truck with a 12-foot chain and gave him some water. Then, before going in to the services, Hernandez chained Spike to a pipe in a shady area beside the church. He checked on the dog around 11:00 a.m. and he was fine.

After the service Hernandez retrieved Spike and drove over to the apartments. He gave Spike some water and let him run loose to play with some children, including Josh. After a few minutes, Hernandez chained Spike to the truck's bumper and went into his friend's apartment. Very shortly he heard Josh scream. The dog bite occurred at approximately 2:30 p.m.

Augusto Patina, the friend whose apartment Hernandez was visiting, was the only eyewitness to the accident. He testified that he could observe Joshua and the dog through his apartment window. He saw the boy playing with the dog normally, but he suddenly attempted to pull the dog's tail and he put his hand "a little deep into the dog" and pulled the dog's testicles as well. The dog then "climbed all over him."

Another church member, Beatrice McDaniel, testified that at around 11:00 a.m. she had seen Josh throwing rocks at Spike, who was tied up. She saw Diogenes Reyes, the church administrator, grab Josh by the arm and tell him to go to his classroom or his father would be notified.

In granting the motion for involuntary dismissal, the trial judge stated in oral reasons for judgment that the law at the time this incident occurred required plaintiff to show that the church had actual knowledge of the dog's vicious propensity. The judge found instead the evidence established that in the pastor's two prior encounters with the Spike, the dog was gentle and friendly. The judge noted that church services had ended some two-and-one-half hours before the incident and...

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  • Smith v. Kopynec
    • United States
    • Court of Appeal of Louisiana (US)
    • June 7, 2013
    ...Electric, Inc., 38,948. p. 3 (La.App.2d Cir.9/22/04), 883 So.2d 469, 472;Murillo v. Hernandez, 00–1065, p. 6 (La.App. 5th Cir.10/31/00), 772 So.2d 868, 871. Additionally, it has been held that the landowner must have knowledge of the animal's presence on his property. Windham v. Murray, 06–......
  • Coburn v. Dixon
    • United States
    • Court of Appeal of Louisiana (US)
    • April 27, 2016
    ...La.Civ.Code art. 2321 cannot be imputed to a non-owner, including a landlord. Murillo v. Hernandez, 00–1065 (La.App. 5 Cir. 10/31/00), 772 So.2d 868. The landlord could still be liable to the damaged party for negligence under La.Civ.Code arts. 2315 and 2316. Id. That court has held that to......
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    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • August 20, 2020
    ......Instead, this proposition has been accepted by all of the Louisiana circuit courts. See Odom, supra; Murillo v. Hernandez, 772 So.2d 868 (La. Ct. App. 5th Cir. 2000); Windham v. Murray, 960 So.2d 328 (La. Ct. App. 4th Cir. 2007); Smith v. Kopynec, 119 So.3d ......
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    • Court of Appeal of Louisiana (US)
    • March 27, 2012
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