Karen Lindsey Smith v. Terry P. Province

07-18-00026-CV ACCEPTED
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
3/23/2018 7:09 PM
Vivian Long, Clerk
NO. 07-18-00026-CV
FILED IN
SEVENTH DISTRICT COURT OF APPEALS 7th COURT OF APPEALS
AMARILLO, TEXAS
Amarillo, Texas 3/23/2018 7:09:40 PM
__________________________________________VIVIAN LONG
CLERK
KAREN LINDSEY SMITH
v.
TERRY P. PROVINCE
__________________________________________
On Appeal from Cause No. CV-2016-00729
County Court of Law #2, Denton County, Texas
Honorable Robert Ramirez, Judge Presiding
APPELLANT’S BRIEF
PAUL FLANNIGAN
State Bar No. 24012633
paul@flanniganlawfirm.com
MARK D. JOHNSON
State Bar No. 10770175
mark@flanniganlawfirm.com
FLANNIGAN & JOHNSON, P.L.L.C.
5600 Tennyson Parkway, Suite 330
Plano, Texas 75024
Phone: (972) 383-9377
Fax: (844) 287-8882
ATTORNEYS FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
IDENTITIES OF PARTIES AND COUNSEL
Appellant
Karen Lindsey Smith
Counsel for Appellant
Paul Flannigan
Paul@Flanniganlawfirm.com
Mark D. Johnson
Mark@Flanniganlawfirm.com
FLANNIGAN & JOHNSON, P.L.L.C.
5600 Tennyson Parkway, Suite 330
Plano, Texas 75024
Appellee
Terry P. Province
Counsel for Appellee
Brantley J. Saunders
Brantley@SaundersWalsh.com
Abigail K. Christmann
Abby@SaundersWalsh.com
SAUNDERS, WALSH & BEARD
Craig Ranch Professional Plaza
6850 TPC Drive, Suite 210
McKinney, Texas 75070
i
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL i
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES iv
STATEMENT OF THE CASE vi
STATEMENT REGARDING ORAL ARGUMENT vii
ISSUES PRESENTED viii
STATEMENT OF FACTS ix
SUMMARY OF ARGUMENT xiii
STANDARD OF REVIEW xiv
ARGUMENT 1
Issue 1 -- This Court should reverse and remand because the Trial Court erred when it struck
evidence offered by Smith regarding the well-known tendencies of the breeds (German
Shepherd Dog and Boxer) making up the Attack Dog. 1
Issue 2 – This Court should reverse and remand because the Trial Court erred when it granted
summary judgment to Province, despite the fact that Smith offered competent summary
judgment evidence (some of which Province did not oppose) indicating (a) the aggressive
tendencies of the breeds (in part German Shepherd Dog and Boxer) comprising the Attack Dog,
(b) that Province permitted a hole to exist in his gate, at the main point of ingress and egress to
his property, (c) that Province knew the Attack Dog could stick its head through the hole, and
ii
potentially could bite anyone (including a licensee such as Smith) who came to the gate, and (d)
Smith was seriously injured when the Attack Dog in fact stuck its head through the hole, and bit
her in the neck. 4
PRAYER 10
iii
INDEX OF AUTHORITIES
Cases
Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 666 (Tex. App.—Waco 2002, no pet.) .................... xxii
Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989) ...................................................................... xvi
Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied) (op. on reh'g) .............................................................................................................. xvii
Dunnings v. Castro, 881 S.W.2d 559, 563 (Tex. App.—Houston [1st Dist.] 1994, writ denied) . xx
El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360, 366 (Tex. App.—Dallas 2005, no pet.) ........ xvi
Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396, 32 Tex. Sup. Ct. J. 217 (Tex. 1989). ... xiv
Labaj v. VanHouten, 322 S.W.3d 416, 420 (Tex. App.—Amarillo 2010, no pet.) ........................ xx
Lewis v. Great Southwestern Corporation, 473 S.W.2d 228, 230 (Tex.Civ.App.—Fort Worth 1971,
writ ref’d n.r.e.) ........................................................................................................................ xix
LSR Joint Venture No. 2 v. Callewart, 837 S.W.2d 693, 698 (Tex. App.-Dallas 1992, writ denied)
(op. on reh'g). ........................................................................................................................... xiv
Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974) ......................................................................... xix
Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied) ........ xv
Muela v. Gomez, 343 S.W.3d 491, 496 (Tex. App.—El Paso 2011, no pet.) ................................ xx
Robinson v. Warner-Lambert Co., 998 S.W.2d 407, 410 (Tex. App.--Waco 1999, no pet.) ........ xiv
Rodriguez v. Haddock, 2003 WL 1784923 at *2 (Tex.App.—Fort Worth, April 3, 2003, no pet.)
.................................................................................................................................................. xix
Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex. App.--Waco 2000, pet. denied) ...... xiv
Sasser v. Dantex Oil & Gas, Inc., 906 S.W.2d 599, 602 (Tex. App.--San Antonio 1995, writ denied)
iv
.................................................................................................................................................. xiv
Stein v. Reger, 2016 Tex. App. LEXIS 5961, 2016 WL 3162589 (Tex. App.—Houston [1st Dist.]
2016) ........................................................................................................................................ xix
Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) ................................................ xvi
Yzaguirre v. KCS Res., Inc., 47 S.W.3d 532, 543 (Tex. App.-Dallas 2000), aff'd, 53 S.W.3d 368, 44
Tex. Sup. Ct. J. 973, 44 Tex. Sup. Ct. J. 1122 (Tex. 2001) ...................................................... xiv
Statutes
TEX. R. APP. P. 44.1(a)(1)........................................................................................................... xiv
TEX. R. EVID. 801(d) ................................................................................................................... xvii
TEX. R. EVID. 803(21) ................................................................................................................. xvii
v
STATEMENT OF THE CASE
The Appellant, KAREN LINDSEY SMITH (“Smith”), Plaintiff below, filed
this negligence action on March 30, 2016 for damages caused when she was bitten
by a dog owned by the Appellee, TERRY P. PROVINCE (“Province”), Defendant
below.
Province filed a Second Amended Motion for Summary Judgment (the
“Motion”) on or about October 5, 2017. (CR 243-275). In the Motion, Province
contended that he was not liable for damages caused by his dog. Smith responded
to the Motion (the “Response”) on or about November 7, 2017. (CR 282-374).
Province filed a reply to the Motion on or about November 10, 2017. (CR 375-385).
Judge Robert Ramirez of County Court No. 2 of Denton County, Texas (the
“Trial Court”) heard the Motion. Judge Ramirez granted the Motion on November
13, 2017. (CR 386). Judge Ramirez also sustained Province’s objections to certain
summary judgment evidence offered by Smith in her response. (CR 387-388).
vi
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is not requested.
vii
ISSUES PRESENTED
Issue 1 – Whether the Trial Court erred when it struck evidence by Smith regarding
the well-known tendencies of the breeds (in part German Shepherd Dog and Boxer)
making up the Attack Dog.
Issue 2 – Whether the Trial Court erred when it granted summary judgment to
Province, despite the fact that Smith offered competent summary judgment evidence
(some of which Province did not oppose) indicating (a) the aggressive tendencies of
the breeds (in part German Shepherd Dog and Boxer) making up the Attack Dog, (b)
that Province permitted a hole to exist in his gate, at the main point of ingress and
egress to his property, (c) that Province knew the Attack Dog could stick its head
through the hole, and potentially could bite anyone (including a licensee such as
Smith) who came to the gate, and (d) Smith was seriously injured when the Attack
Dog in fact stuck its head through the hole, and bit her in the neck.
viii
STATEMENT OF FACTS
1. This lawsuit involves a vicious attack (the “Attack”) by one of
Province’s dogs upon Smith. (C.R. 7-39; Plaintiff’s Original Petition). On January
4, 2016, Smith was working for United Parcel Service (“U.P.S.”). Id. Smith was a
temporary, holiday season employee for U.P.S., but was working with an
experienced driver. Id.
2. Smith and her co-worker were dispatched to Province's home in Ponder
to deliver a package. (C.R. 7-39; Plaintiff’s Original Petition). Smith's co-worker
warned Smith that Province kept dogs on his property. Id. To avoid any interaction
with Province's dogs, Province's wife claims “before the incident at issue, [she] told
delivery persons to put packages on the ground outside the gate/fence, and not
attempt to put them over the fence.” (C.R. 246, 274). In the Motion (but not in the
Original Motion), Province claims this instruction was given not because of the dogs’
violent tendencies, but instead because “[Province and his wife] do not like strangers
coming onto [their] property. [Province and his wife] also fear that someone opening
the gate and entering [their] property might not close and secure the gate properly
when leaving the property, thereby making it possible for [their] dogs to escape
[their] property.” (C.R. 260, 274).
3. After driving to Province's home, Smith exited the U.P.S. truck. (C.R.
285). Smith saw two dogs on Province's property, but did not see a third dog. Id.
ix
Smith set the package outside the gate, as she was instructed by her U.P.S. co-worker.
Id. Smith does not specifically recall whether she laid the package on the ground,
leaned the package against the gate post, or gently tossed the package to the ground.
Id.
4. While Smith was leaving the package outside the gate, a third dog (the
“Attack Dog”) approached. (C.R. 285). Without any warning, the Attack Dog stuck
its head through an opening in the gate, and bit Smith in the neck. Id. No one knows
precisely why the Attack Dog acted this way, but Smith (who was the only person in
direct proximity with the Attack Dog) has testified “the [Attack Dog] obviously
wanted the package or wanted some type of toy or something. It was a little bit
aggressive more than the norm. So it made a point of coming through the fence
more than like a worst-case scenario.” Id.
5. Unfortunately, the Attack was both foreseeable and preventable. The
Attack Dog is a large dog, weighing approximately 100 pounds. The Attack Dog is
a mixed breed dog, comprised primarily of German Shepherd Dog and Boxer. (C.R.
299-304; see DNA Analysis, a copy of which is attached as Exhibit A to the
Response). Statistically, these dogs are extraordinarily dangerous. (C.R. 306-307;
see 14 Dog Breeds Blacklisted by Insurance Companies [Psychology Today, May
27, 2014], a copy of which is attached as Exhibit B to the Response). In fact,
according to Forbes and Dog’s World, the German Shepherd Dog is the fourth most
x
dangerous breed, and the Boxer is the eighth most dangerous breed. (C.R. 308-322;
see Exhibits C and D to the Response). This does not mean that a particular dog of
these breeds may be vicious; it does mean, however, that these breeds present a
heightened risk, requiring greater care.
6. At very little time or expense, Province could have protected Smith
from the Attack Dog, but chose not to do so. Province has a wire fence around his
property, with a gate at the primary point of ingress/egress. (C.R. 358-359; see T.
Province Depo [excerpts of which are attached as Exhibit F to the Response] at p.
33, l. 17 to p. 34, l. 8). There are gaps in the gate. Id. Province knew there were
openings in the gate “large enough for a dog that felt threatened, like [the Attack
Dog], to stick its nose through.” Id.
7. Province and his wife have several dogs, some of which are “outside”
dogs. In order to keep the smaller dogs on Defendant’s property, he installed chicken
wire over lower gaps in the gate. (C.R. 353-354; see T. Province Depo [excerpts of
which are attached as Exhibit F to the Response] at p. 28, l. 21 to p. 29, l. 8).
However, he did not cover the entire gate with chicken wire because “that’s just how
much wire [he] had at the time." Id. Had he done so, the Attack Dog would not
have been able to stick his snout through the gate, and would not have been able to
bite Smith.
xi
8. Province's indifference to the public's safety is clearly shown by his
actions following the Attack. During his deposition, Smith's counsel asked Province
what repairs, if any, he made to the gate after the Attack:
Q. Sir, since the time of the [Attack], have you made any changes to
the gate?
A. No.
Q. You haven't put chicken wire all the way up?
A. No.
Q. So if someone came to the gate and dropped a package again,
this same thing, [the Attack Dog] could bite that person again?
A. I – I have no expectation that that would happen at all.
Q. But it would be possible.
A. It would be, in my opinion, monumentally improbable, but not
impossible.
(C.R. 368; see T. Province Depo [excerpts of which are attached as Exhibit F to the
Response] at p. 43, ll. 1-14).
xii
SUMMARY OF ARGUMENT
Issue 1 – Smith respectfully submits that this Court should reverse and remand
because the Trial Court erred when it struck evidence by Smith regarding the well-
known tendencies of the breeds (in part German Shepherd Dog and Boxer)
comprising the Attack Dog.
Issue 2 – Smith respectfully submits that this Court should reverse and remand
because the Trial Court erred when it granted summary judgment to Province,
despite the fact that Smith offered competent summary judgment evidence (some of
which Province did not oppose) indicating (a) the aggressive tendencies of the breeds
(in part German Shepherd Dog and Boxer) comprising the Attack Dog, (b) that
Province permitted a hole to exist in his gate, at the main point of ingress and egress
to his property, (c) that Province knew the Attack Dog could stick its head through
the hole, and potentially could bite anyone (including a licensee such as Smith) who
came to the gate, and (d) Smith was seriously injured when the Attack Dog in fact
stuck its head through the hole, and bit her in the neck.
xiii
STANDARD OF REVIEW
Issue 1 – This Court reviews a trial court's decision on the admission
of evidence under an abuse of discretion standard. Yzaguirre v. KCS Res., Inc., 47
S.W.3d 532, 543 (Tex. App.-Dallas 2000), aff'd, 53 S.W.3d 368, 44 Tex. Sup. Ct. J.
973, 44 Tex. Sup. Ct. J. 1122 (Tex. 2001); LSR Joint Venture No. 2 v. Callewart, 837
S.W.2d 693, 698 (Tex. App.-Dallas 1992, writ denied) (op. on reh'g). To obtain
reversal of a judgment based on the admission or exclusion of evidence, the
appellant must show the trial court's ruling was in error and the error probably caused
the rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1); Gee v. Liberty
Mut. Fire Ins. Co., 765 S.W.2d 394, 396, 32 Tex. Sup. Ct. J. 217 (Tex. 1989).
Issue 2 – This Court reviews summary judgment de novo. Rucker v. Bank One Texas,
N.A., 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)) . This Court applies the same standard in reviewing a no-
evidence summary judgment as it would in reviewing a directed verdict. Robinson
v. Warner-Lambert Co., 998 S.W.2d 407, 410 (Tex. App.--Waco 1999, no pet.)
. This Court reviews the summary-judgment evidence in the light most favorable to
the nonmovant, disregarding all contrary evidence and inferences. Id. A no-
evidence summary judgment will be defeated if the non-movant produces more than
xiv
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) .
xv
ARGUMENT
I. This Court should reverse and remand because the Trial Court erred
when it struck evidence offered by Smith regarding the well-known tendencies
of the breeds (German Shepherd Dog and Boxer) making up the Attack Dog.
1. One of the primary issues in this lawsuit is whether the Attack Dog had
vicious tendencies prior to the Attack. In order to demonstrate the Attack Dog’s
“peacefulness,” Province offered (a) a picture of the Attack Dog lying next to a cat
and (b) affidavits of Province and his wife stating “[the Attack Dog] has no vicious
tendencies and had never bitten anyone before the incident at issue.” (CR 259-260,
274-275; see Affidavit of Terry Province [Motion at Exh. A] [emphasis added] and
Affidavit of Renee Province [Motion at Exh. D] [emphasis added]).
2. Plaintiff objected to the Affidavits of Terry Province and Renee
Province on the grounds they are self-serving and conclusory. (C.R. 288-289).
Under Texas law, a self-serving affidavit (i.e. an affidavit offered by a person with
an interest in the outcome of the lawsuit) can be admissible summary judgment
evidence, but must contain statements that may be confirmed or denied by
independent evidence. Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.
1997); Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989)Similarly, conclusory
statements in affidavits are not proper summary judgment evidence if there are no
facts to support the conclusions. El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360,
366 (Tex. App.—Dallas 2005, no pet.) ; Dolcefino v. Randolph, 19 S.W.3d 906, 930
1
(Tex. App.—Houston [14th Dist.] 2000, pet. denied) (op. on reh'g).
3. In order to refute Province’s unsupported (and self-serving) contention
that he was unaware of any “vicious tendencies” the Attack Dog might have, Smith
offered internet articles regarding the well-known tendencies of German Shepherd
Dogs and Boxers. (C.R. 305-322; Response at Exhs. B, C, and D). Province
objected to these articles, claiming they were hearsay. (C.R. 375-384). The Trial
Court sustained these objections, and struck Exhibits B, C, and D from the Response.
(C.R. 387-388).
4. Under Texas law, an out-of-court statement constitutes hearsay if it is
used to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Exhibits B, C,
and D are not hearsay for the simple reason that they are not offered to prove that
German Shepherd Dogs and Boxers in fact are hyper-aggressive breeds. Instead,
these Exhibits are offered to demonstrate that it is common knowledge that members
of these breeds may have aggressive traits. In this way, Exhibits B, C, and D speak
to the breeds’ “reputation.” “Reputation” is an exception to the general rule
regarding hearsay. TEX. R. EVID. 803(21).
5. German Shepherd Dogs’ and Boxers’ “reputation” for aggressiveness
is relevant to Smith’s negligence claims in this lawsuit. Smith has called into
question whether Province acted as a reasonable and responsible property owner
when he intentionally left large holes in the gate to his property – holes large enough
2
that the Attack Dog could stick her head through them. If the Attack Dog had been
a teacup poodle, Province could argue persuasively that such breed’s reputation for
aggressiveness (i.e. none) negated the need for any special care to protect invitees.
The converse of such an argument is equally true; if the Attack Dog’s breeds had a
reputation for aggressiveness, Province should have taken that reputation into
account in deciding how to maintain his gate. In that Exhibits B, C, and D were
offered to show the common belief that German Shepherd Dogs and Boxers may be
aggressive breeds, and not to actually prove the truth of such beliefs, these Exhibits
should not have been stricken from the summary judgment record.
6. However, even if this Court were to sustain the Trial Court’s evidentiary
ruling, the summary judgment record still contains evidence of the Attack Dog's
aggressiveness. For example, the DNA report (to which Province did not object)
states "[t]here have been reported incidents of German Shepherd Dogs being
aggressive with other pets or people." (C.R. 301; Response at Exh. A). Likewise,
the DNA report states that Boxers have a "[t]endency to jump up on people . . . ."
(C.R. 302; Response at Exh. A). The DNA report (which was produced by Province
in the course of discovery) is dated April 11, 2011 – before the Attack. Id. As such,
the DNA report confirms not simply that a German Shepherd Dog/Boxer mix has
well-known aggressive tendencies, but that Province himself was aware of such
tendencies before the Attack.
3
Issue 2 – This Court should reverse and remand because the Trial Court erred
when it granted summary judgment to Province, despite the fact that Smith
offered competent summary judgment evidence (some of which Province did
not oppose) indicating (a) the aggressive tendencies of the breeds (in part
German Shepherd Dog and Boxer) comprising the Attack Dog, (b) that
Province permitted a hole to exist in his gate, at the main point of ingress and
egress to his property, (c) that Province knew the Attack Dog could stick its
head through the hole, and potentially could bite anyone (including a licensee
such as Smith) who came to the gate, and (d) Smith was seriously injured when
the Attack Dog in fact stuck its head through the hole, and bit her in the neck.
7. Texas adheres to the so-called “one bite” rule with respect to dog bites.
Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974). This name is misleading. A dog
owner is not free of liability the first time his or her dog attacks a person. Instead,
as the court noted in Lewis v. Great Southwestern Corporation, 473 S.W.2d 228, 230
(Tex.Civ.App.—Fort Worth 1971, writ ref’d n.r.e.) (emphasis added), “the owner of
the dog is not liable for injuries caused by it, unless it is vicious and knowledge or
constructive knowledge of that fact is shown or brought home to the owner.” In other
words, if a man knows or should know that his best friend has vicious tendencies,
that man cannot escape liability simply because his dog has not yet hurt someone.
See Rodriguez v. Haddock, 2003 WL 1784923 at *2 (Tex.App.—Fort Worth, April
3, 2003, no pet.) (emphasis added).
8. As recently recognized in Stein v. Reger, 2016 Tex. App. LEXIS 5961,
2016 WL 3162589 (Tex. App.—Houston [1st Dist.] 2016), a dog’s breed can have a
direct impact on whether a homeowner is liable for an attack. In Stein, as in this
4
case, the plaintiff was a U.P.S. worker who was attacked by a German Shepherd.
Although the defendants kept the German Shepherd in a fenced area, the dog jumped
the fence and attacked the plaintiff. The defendants filed a Motion for Summary
Judgment, including affidavits stating that the dog never had bitten anyone before,
and had not previously attempted to jump the fence. Based in part on the defendants’
statements that they “could never have anticipated that [the dog] may have been able
to jump the fence,” the court granted the defendants’ traditional and no-evidence
Motion for Summary Judgment.
9. Even if a dog is not vicious, its owner may be liable for injuries the dog
causes “if the plaintiff can prove the owner’s negligent handling or keeping of the
animal caused the injury.” Labaj v. VanHouten, 322 S.W.3d 416, 420 (Tex. App.—
Amarillo 2010, no pet.); see Dunnings v. Castro, 881 S.W.2d 559, 563 (Tex. App.—
Houston [1st Dist.] 1994, writ denied) (“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 that the
owner's negligent handling of the animal caused the animal to injure the plaintiff”).
“Unlike strict liability claims, to prevail in a negligence action the plaintiff does not
have to prove that the animal was vicious or dangerous.” Muela v. Gomez, 343
S.W.3d 491, 496 (Tex. App.—El Paso 2011, no pet.); see Dunnings, 881 S.W.2d at
562 (although finding of viciousness is necessary in strict-liability claim, it is not
necessary in negligence claim). To sustain such a claim, the victim of the dog bite
5
must show: "(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; (3) the defendant breached that duty; and (4) the defendant's breach
proximately caused the plaintiff's injury." Labaj, 322 S.W.3d at 420-21.
10. Although the Stein court found the defendant did not breach a duty to
the plaintiff, its decision is instructive in this lawsuit. "The threshold inquiry in a
negligence case is duty." Muela, 343 S.W.3d at 497. “The status of the plaintiff who
was injured on the defendant's premises determines the scope of the defendant's
duty.” Labaj, 322 S.W.3d at 421. “A mailman, like Stein, is an invitee and, thus,
the Regers had a duty to ‘exercise ordinary care to keep [their] premises in a
reasonably safe condition.’” Id.; see Dunnings, 881 S.W.2d at 563 (holding
mailman is invitee in dog-bite negligence case).
11. The extent of the duty of “ordinary care” depends to a certain degree
“on proof of whether the risk of injury from a dog bite is foreseeable, i.e., the dog
owner's actual or constructive knowledge of the danger presented by his
dog.” Labaj, 322 S.W.3d at 421 (emphasis added). To establish that a defendant
breached its duty, the plaintiff “must present evidence showing [the defendant] did
not act as a ‘reasonable prudent person’ would have acted in the same or similar
circumstances in handling the dog”:
[The plaintiff] did not proffer evidence that the
[defendants] breached any duty to [the plaintiff] by failing
6
to secure [the dog]. [The plaintiff] did not identify any
evidence that the [defendants] did not use ‘ordinary care’
in securing [their dog] behind an iron-wrought fence. In
response to the motions, [the plaintiff] did not present any
evidence concerning the height of the fence, [the dog’s]
size, the typical height a German Shepherd can jump, or
that [the dog] had previously jumped the fence. In his
brief, he makes one, conclusory statement regarding
breach: that the [defendants] breached their duty by failing
‘to ensure that [their dog], a large German shepherd, was
properly secured in her enclosure.’ This conclusory
statement does not analyze how the [defendants] breached
their duty or how the [defendants] should have secured
[their dog] beyond doing what they had already done, that
is, securing her in a fenced area.
Stein, 2016 Tex. App. LEXIS 5961 at p. 11 (emphasis added), citing Allen ex rel.
B.A. v. Albin, 97 S.W.3d 655, 666 (Tex. App.—Waco 2002, no pet.).
12. Unlike the plaintiff in Stein, Smith has offered summary judgment
evidence regarding the well-known characteristics of the dog in question. The
Attack Dog is a mixed breed dog comprised primarily of German Shepherd Dog and
Boxer. (C.R. 300-304; see DNA Analysis [Response Exh. A]). These breeds are
commonly known to be aggressive and territorial. In Forbes Magazine, German
Shepherds Dogs are ranked as the fourth most-dangerous breed, and are described
as “a powerful dog that is loyal when well-trained but can be fierce.” (C.R. 306;
Response Exh. B). Boxers likewise made the list at Number 8, and are described in
Dogs World as “Boxers are hunting dogs and they have been used as attack and
guard dogs ever since being bred! They have a powerful jaw and bite – which is
7
perfect for protection!” (C.R. 307; Response Exh. B) (emphasis added). These
statements certainly are not meant to suggest that all German Shepherds Dogs and
Boxers are vicious.1 However, a responsible pet owner cannot ignore these in-bred
traits when determining how to protect invitees such as Smith from these animals.
13. With the Attack Dog’s inbred characteristics in mind, a fact issue exists
regarding whether Province’s negligent maintenance of his gate was a cause of the
Attack. The gate to Province's property has large openings through which the Attack
Dog could place its head. (C.R. 358-359; T. Province Depo [Response Exh. F] at p.
33, l. 17 to p. 34, l. 8). Province was aware of these openings. Id. Province could
have covered these openings with chicken wire – which he did for certain openings
– but did not cover all openings for the simple fact that he ran out of wire. (C.R.
353-354; T. Province Depo [Response Exh. F] at p. 28, l. 21 to p. 29, l. 8). This
allowed the Attack Dog to poke his head outside the fence, and bite Smith. Province
should not be permitted to excuse his carelessness on the so-called “one bite rule,”
when he knew or should have known the Attack Dog might do exactly what it was
bred to do, and he gave the Attack Dog the ability to do so (by knowingly leaving an
open gap in the gate).
1
In the interest of candor, the undersigned counsel states that he personally owns a German Shepherd and a
Pit Bull mix (the most “dangerous” breed on all three attached lists). The undersigned counsel’s dogs are well-trained
and well-behaved. That said, the undersigned counsel certainly would not leave a hole in his fence such that the dogs
could bite at passers-by. These dogs are simply too powerful, territorial, and loyal for their owner to take that kind of
a chance with someone else’s life.
8
14. In addition to his traditional Motion for Summary Judgment, Province
sought a no-evidence summary judgment. (CR 255-257). The evidence attached to
Smith's Response (including excerpts from Province's deposition transcript)
establishes that Province owed a duty to protect Smith (as an invitee) from the Attack
Dog’s dangerous and in-bred (i.e. foreseeable) tendencies. This evidence also
establishes that Province breached this duty by failing to cover known openings in
the gate when he easily could have done so. Finally, this evidence establishes that
Province's breach of his duty was a proximate cause of Smith's injuries. Therefore,
for the same reasons that the trial should have denied the traditional Motion for
Summary Judgment, it likewise should have denied the no-evidence Motion for
Summary Judgment.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant KAREN LINDSEY
SMITH prays that this Court sustain both issues raised herein, reverse the Trial
Court’s summary judgment, and remand this case for trial. Appellant further prays
for such other and further relief to which she is justly entitled.
Respectfully submitted,
/s/ Mark D. Johnson
PAUL FLANNIGAN
State Bar No. 24012633
9
paul@flanniganlawfirm.com
MARK D. JOHNSON
State Bar No. 10770175
mark@flanniganlawfirm.com
FLANNIGAN & JOHNSON, P.L.L.C.
5600 Tennyson Parkway, Suite 330
Plano, Texas 75024
Phone: (972) 383-9377
Fax: (844) 287-8882
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF COMPLIANCE
I certify that the word count function on Microsoft Word indicates that this brief contains
4807 words. TEX. R. APP. P. 9.4(I)(3).
/s/ Mark D. Johnson
10
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was
served upon the following party via the means indicated on March 23, 2018:
Via E-mail and E-Service
J. Brantley Saunders
Brantley@SaundersWalsh.com
Abigail K. Christmann
Abby@SaundersWalsh.com
/s/ Mark D. Johnson
Mark D. Johnson
11
APPENDIX
FILE FOR RECORD
DENTON couuw CLERK
NOV 1 3 2017
JULI LUKE
Cause No. CV-2016-00729 __Mn_DEPUTY
KAREN LINDSEY SMITH, § IN THE COUNTY COURT
Plaintiff, §
§
v. § NO. 2
§
TERRY P. PROVINCE §
Defendant. § DENTON COUNTY, TEXAS
ORDER GRANTING DEFENDANT TERRY PROVINCE’S SECOND AMENDED
MOTION FOR SUMMARY JUDGMENT
CAME TO BE HEARD, Defendant Terry Province’s Second Amended Motion for
Summary Judgment in the above captioned matter. After reviewing the Motion, the
Response, the Reply, the competent summary judgment evidence, and the Court’s file, the
Court finds that the Motion should be Granted.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Defendant
Terry Province’s Second Amended Motion for Summary Judgment is GRANTED. All
claims made by Plaintiff against Terry Province are hereby dismissed with prejudice. Court
costs of Terry Province are to be borne by Plaintiff, for which let execution issue.
SIGNED THIS 1
l DAY OF [Z Zl/(wh 2017.
/
JWGéKESIDING
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PAGE 1
Page 386
FILE FOR RECORD
DENTON counw CLERK
NOV 1 3 2017
JULl LUKE
Cause No. CV-2016-00729 m’ DEPUTY
KAREN LINDSEY SMITH, § IN THE COUNTY COURT
Plaintiff, §
§
v. § NO. 2
§
TERRY P. PROVINCE §
Defendant. § DENTON COUNTY, TEXAS
ORDER ON DEFENDANT TERRY PROVINCE’S OBJECTIONS TO
PLAINTIFF ’S SUMMARY JUDGMENT EVIDENCE
CAME ON TO BE CONSIDERED, Defendant Terrjy Province ’s Objections
to Plaintiff’s Summary Judgment Evidence. After reviewing the Objections and the
evidence, the parties’ pleadings, and hearing the argument of counsel, it is the
Opinion of the Court that the Objections should be sustained, and the same hereby is
GRANTED as indicated below. The Court rules on Defendant’s objections to
Exhibit B, Exhibit C and Exhibit D Of Plaintiff’s Response to Defendant’s Second
Amended Motion for Summary Judgment as follows:
I.
Objection NO. 1: Defendant Objects to the use Of Exhibit B, in its entirety, it is
inadmissible hearsay pursuyttJ/Texas Rule of Civil Procedure 802.
Granted Denied
The Court hereby strikes Exhibit B, in its entirety, from the record.
ORDER ON DEFENDANT’S OBJECTlONS TO SUMMARY JUDGMENT EVIDENCE Page 1
Page 387
Objection No. 2: Defendant objects to the use of Exhibit C, in its entirety, it is
inadmissible hearsay pursuant to Texas Rule of Civil Procedure 802.
Granted Denied
The Court hereby strikes Exhibit C, in its entirety, from the record.
Objection No. 3: Defendant objects to the use of Exhibit D, in its entirety, it is
inadmissible hearsay pursuant to exas Rule of Civil Procedure 802.
Granted Denied
The Court hereby strikes Exhibit D, in its entirety, from the record.
JUDyy/FKKESIDING
ORDER ON DEFENDANT’S OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE Page 2
Page 388
Filed:
Filed: 10/5/2017
10/5/2017 4:58 PM
Juli Luke
Denton County,
County, County Clerk
By:
By: Sandra Erp, Deputy
Cause No. CV-2016-00729
KAREN LINDSEY SMITH, §§ IN THE COUNTY COURT
Plaintiff, §§
§§
v.
V. §§ NO. 2
§§
TERRY P. PROVINCE §§
Defendant. §§ DENTON COUNTY, TEXAS
DEFENDANT’S
DEF ENDANT’S SECOND AMENDED MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COURT:
COMES NOW Defendant, Terry Province (hereinafter
(hereinafter “the
“the Defendant”), and
and makes,
makes,
files
files and serves this Defendant’s Second Amended Motion for Summary Judgment pursuant to
Texas Rule of Civil
CiVil Procedure Rule 166a,
166a, and in support thereof would respectfully show this
Honorable Court the following:
following:
I.
FACTUAL BACKGROUND
This is an
an unfortunate dog bite case
case involving the Province’s family dog,
dog, Heidi; aa dog
that had no prior instances of biting or attacking anyone and,
and, at the time of the incident, was
inside
inside Defendant’s
Defendant’s yard,
yard, aa place
place she
she had
had aa right
right to
to be.
be. Plaintiff has alleged that Defendant was
negligent when Plaintiff was allegedly bitten by
by Heidi as
as she placed a
a UPS package at the rural
property, on or about January 4, &
4, 2016. See Plaintiff’s
Plaintz‘fj‘"s Original
Original Petition, pages 5-6.
Petition, pages
A
A dog
dog owner
owner is
is not
not negligent
negligent for
for allowing
allowing their
their dog
dog to
to run
run at
at large
large on
on the
the owner’s
owner’s own
own
property. Bushnell v.
property. v. Mott, 254 S.W.3d 451, 452 (Tex. 2008); Searcy v.
v. Brown, 607 S.W.2d 937,
937,
940-41
940-41 (Tex. Civ.
CiV. App.–Houston
Apprflouston [1st
[lst Dist.]
Dist] 1980,
1980, no writ). The owner of aa dog is
is not liable for
injuries caused
caused by
by it in aa place it has
has the right to be,
be, unless the owner knew or should have
known that the dog had vicious
Vicious propensities or aa Vicious
vicious or unruly nature. Rodriguez v.
v. Haddock,
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 11
Page 243
2003 WL 1784923
1784923 at *2 Apeort Worth, April 3,
*2 (Tex. App.–Fort 3, 2003, no pet);
pet.); Lewis v.
v. Great S.W.
SW.
Corp., 473 S.W.2d 228, 230 (Tex. Civ.
Corp, 473 Apeort Worth
CiV. App.–Fort Worth 1971,
1971, writ
writ ref’d
ref’d n.r.e.).
n.r.e.).
This
This is
is Heidi
Heidi (pictured
(pictured next
next to
to Defendant’s
Defendant’s cat):
cat):
mwmw
Heidi is aa black, seven-year-old,
seven—year—old, 100
100 pound, mixed breed dog that Defendant acquired as
as
aa puppy
puppy and has
has owned the entire time since.E
since. See ExhibitA – Affidavit of
Exhibit A iAfifidavit of Terry Province; Exhibit
,
D – Afidavit
Affidavit of of the incident, Heidi was
Renee Province. At the time of
of Renee was approximately six years
years
E
old and had lived with Defendant on the property since he got her. See id. Heidi had never bitten
anyone,
anyone, including the various delivery people that delivered packages to the property, before the
E
incident at issue. See id.
id. In fact, Heidi is normally a well-behaved dog with no Vicious
a well—behaved vicious
E
tendencies. See id. Defendant currently owns five
five dogs, of which, including Heidi, are
dogs, three of
E
mostly outdoors. See id. Defendant’s
Defendant’s dogs
dogs bark whenever someone
bark Whenever passes by the yard
someone passes yard or
approaches the gate. E
approaches the gate. See id.
Importantly, at all times relevant to the incident, Heidi was contained within
Importantly, Within the fence
& ,
and on property. See Exhibit A – Afidavir
Affidavit of
of Terry Province. Heidi had no vicious
Vicious tendencies
and Defendant had no reason to know that she posed aa danger to anyone
she posed anyone on the other side of
of the
fence or gate.&
gate. See id.
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY JUDGMENT
SUMMARY JUDGMENT PAGE 2
Page 244
It is undisputed that on January 4,
4, 2016, Plaintiff was working as
as a
a temporary, holiday
season
season employee
employee of
of United
United Parcel
Parcel Service
Service (“UPS”)
(“UPS”) and
and was
was dispatched
dispatched to
to Defendant’s
Defendant’s home
home in
in
Ponder to deliver aa package. &
package. See Plaintiff’s
Plaintz‘fj‘"s Original
Original Petition,
Petition, page 3,
3, para. 9.
9. While traveling to
Defendant’s
Defendant’s property,
property, aa fellow UPS employee advised Plaintiff that Defendant kept one or more
dogs
dogs on
on his
his property
property and
and instructed
instructed Plaintiff
Plaintiff to
to leave
leave the package by
the package by Defendant’s
Defendant’s front
front gate.
gate. See E
Plaintiff’s
Plaintz‘fj‘"s Original Petition, page 3,
Original Petition, 3, para. 10.
10.
Plaintiff admits that, upon arriving at
at Defendant’s property, she
Defendant’s property, she could
could see
see one
one or
or more
more
dogs
dogs on
on their
their feet behind Defendant’s
feet behind Defendant’s fence
fence and
and gate
gate as
as she
she approached
approached the
the gate
gate on
on foot
foot to
to
&
deliver the package. See Plaintiff’s Responses to
Plaintz‘fj‘"s Responses Defendant’s’5 Requests
to Defendant for Admission,
Requests fbr Admission, Nos. 11 and
2. Plaintiff says
says that, at first
first she
she noticed two dogs close behind the gate,
gate, later becoming aware of
E
aa third. See Exhibit B –7 Plaintiff’s
Plaintiff’s Depo
Depo Excerpts,
Excerpts, 48:11-49:10.
48:11-49:10. The third dog that Plaintiff
&
claims appeared later was black, and is the one that allegedly bit her. See Exhibit B –7 Plaintiff’s
Plaints’s
147:3-11. Plaintiff agrees that she
Depo Excerpts, 147:3-11. she didn’t
didn’t look
look specifically
specifically at
at the
the gate
gate to
to
Defendant’s
Defendant’s property,
property, and
and wasn’t
wasn’t paying
paying close enough attention to the gate to notice that it had
metal slats with openings in it wide
Wide enough for aa dog to stick its nose through or that the dogs
& – Plaintz‘fj‘"s
were close to the gate. See Exhibit B 7 Plaintiff’s Depo
Depo Excerpts,
Excerpts, 126:4-127:11.
126:4-127:1 1.
The gate to Defendant’s
Defendant’s property is recessed approximately aa foot behind the fence line
on the property. & A –7 Affidavit
property. See Exhibit A of Terry Province; Exhibit C 7– Affidavit of
Affidavit of of Eric
&
– Survey. The fence itself is at or behind the actual property line. See id.
Zollinger; Exhibit C-1 7
Photographs
Photographs attached
attached to
to Defendant’s
Defendant’s affidavit
affidavit as
as Exhibit A-2, accurately depicts the fence and
& – Affidavit of
gate. See Exhibit A 7
gate. of Terry Province; Exhibit A-2 –7 Photograph of Defendant’s
ofDefendant’s
Property.
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 33
Page 245
Defendant’s
Defendant’s wife
Wife told
told delivery
delivery people, including UPS,
UPS, to leave packages outside the gate.
&
See Exhibit D 7– Affidavit
Affidavit of
of Renee Province. Defendant and his wife generally do not like
Renee and his do
strangers coming onto their property.
strangers E Exhibit A –7 Affidavit ofof Terry Province; Exhibit D –7
property. See A
Affidavit of
Affidavit Renee Province. Additionally, Defendant and his wife fear that someone opening the
ofRenee
gate and entering the property might not close and secure the gate properly when leaving,
&
thereby making it possible for their dogs to escape their property. See id. None of Defendant’s
Defendant’s
dogs has
has ever attacked, chewed, or in any
any way damaged aa package or piece of mail left at their
E
property. See id. The package that Plaintiff delivered on the date of the incident contained printer
property.
E – Affidavit
ink. See Exhibit D 7
ink. Affidavit of Renee Province.
ofRenee Province.
II.
SUMMARY OF ARGUMENT
Defendant is entitled to summary judgment on Plaintiff’s claims for negligence because:
1.
1. Heidi was within her fenced in yard,
yard, aa place she had aa right to be.
be. She had no
dangerous tendencies and,
and, therefore, Defendant was certainly not aware of
dangerous propensities or vicious
Vicious tendencies. Because Heidi biting Plaintiff was
not foreseeable,
foreseeable, Defendant cannot be liable. Defendant’s
be liable. Defendant’s summary judgment
summary judgment
evidence affirmatively
affirmatively disproves that Defendant owed or breached any duty
allegedly owed to Plaintiff or that Defendant was the proximate cause of
Plaintiff’s
Plaintiff’ s injuries.
injuries. Defendant acted as
as a
a reasonable prudent person under the
circumstances and,
and, therefore, is not liable to Plaintiff for her injuries.
Alternatively, Plaintiff cannot produce sufficient
sufficient evidence on these issues
issues to
create aa fact issue,
issue, as
as no such evidence exists.
2. As “the
“the existence
existence of
of negligent
negligent conduct
conduct is
is aa prerequisite
prerequisite to
to the
the establishment
establishment of
of
gross negligence,” Defendant cannot be
be found to have been
been grossly negligent
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 4
Page 246
because he did not act negligently at all.
because g
See In re J.H.
J.H. Walker, Inc., 2016 Tex.
Walker, Inc,
(AppiDallas Jan. 15,
App. LEXIS 483 (App.—Dallas 15, 2016). Further, Defendant did not
consciously disregard any
any extreme risk with regard to Plaintiff and,
and, therefore, was
not grossly negligent.
3.
3. Plaintiff has
has insufficient or no evidence to establish that Defendant knew or
should have known that Heidi had any
any dangerous propensities or that the incident
was foreseeable. Therefore, Plaintiff has
was has insufficient or no evidence that
Defendant owed or breached any
any duty allegedly owed to Plaintiff or that
Defendant’s
Defendant’s alleged
alleged breach caused the damages of which Plaintiff complains.
Therefore,
Therefore, Summary
Summary Judgment
Judgment is
is requested
requested as
as to
to all
all of
of Plaintiffs’
Plaintiffs’ claims.
claims.
III.
SUMMARY JUDGMENT EVIDENCE
In support of the Motion for Summary Judgment, Defendant relies on all pleadings and
discovery produced in this case,
case, including but not limited to the following Exhibits which are
attached hereto and fully incorporated herein by this specific
specific reference:
reference:
Exhibit A: Affidavit
Affidavit ofof Terry Province
A-l:
Exhibit A-1: Photograph of Heidi
Exhibit A-2: Photograph
Photograph ofof Defendant’s
Defendant’s Property
Property
Exhibit B: Plaintiff
Plaintiff Karen
Karen Lindsey
Lindsey Smith’s
Smith’s Deposition
Deposition Excerpts
Excerpts
Exhibit C: Affidavit
Affidavit ofof Eric Zollinger
C-l:
Exhibit C-1: Survey
Survey of
of Defendant’s
Defendant’s Property
Property
Exhibit D: Affidavit
Affidavit ofof Renee Province
IV.
TRADITIONAL MOTION FOR SUMMARY JUDGMENT STANDARD
A
A defendant
defendant is
is entitled
entitled to
to summary judgment on
summary judgment on aa plaintiff’s
plaintiff’s cause
cause of
of action
action if the
the
defendant
defendant can
can disprove
disprove at
at least
least one
one element
element of
of the
the plaintiff’s
plaintiff’s cause
cause of
of action
action as
as a
a matter
matter of
of law.
law.
Henkel v.
v. Norman, 441
441 S.W.3d 249,
249, 251
251 (Tex. 2014);
2014); Boerjan
Boeijan v.
v. Rodriguez, 436 S.W.3d 307,
307,
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 55
Page 247
310 (Tex. 2014); Nall v.
v. Plunkett, 404 S.W.3d 552, Randall’s Food
552, 555 (Tex. 2013); Randall’s Mkts, Inc.
Food Mkts, Inc.
v.
v. Johnson, 891
891 S.W.2d 640,
640, 644 (Tex. 1995);
1995); see
see Tex. R. Civ.
CiV. P.
P. 166a(c).
166a(c). Once aa defendant
produces sufficient
sufficient evidence to establish the right to summary judgment, the burden shifts to aa
plaintiff to come forward with competent controverting evidence raising aa genuine issue of
material fact with regard to the element challenged by aa defendant. Centeq Realty,
Realty, Inc.
Inc. v.
v. Siegler,
899 S.W.2d 195,
195, 197
197 (Tex. 1995).
1995). A defendant is entitled to summary judgment on an
an
affirmative
affirmative defense if the defendant conclusively proves all the elements of the affirmative
affirmative
defense. Rhone-Poulenc, Inc. v.
Rhone-Poulenc, Inc. v. Ramirez, 997 S.W.2d 217, 223 (Tex. 1999).
1999). The defendant must
present summary judgment evidence that establishes each element of the affirmative
affirmative defense as
as a
a
matter of law. Ryland Group,
oflaw. Inc. v.
Group, Inc. v. Hood, 924 S.W.2d 120,
120, 121
121 (Tex. 1996).
1996).
V.
PLAINTIFF ’S CLAIMS
TRADITIONAL MOTION FOR SUMMARY JUDGMENT FOR PLAINTIFF’S
In order to prove that Defendant was negligent, Plaintiff must prove:
prove:
1.
1. Defendant was the owner or the possessor of the animal;
2.
2. Defendant owed a a duty to exercise reasonable care to prevent the animal from
injuring others;
3.
3. Defendant breached that duty;
duty; and
4. Defendant’s breach
4. Defendant’s breach proximately
proximately caused
caused Plaintiff’s
Plaintiff’s injury
injury
Labaj v.
v. VanHouten,
VanHouten, 322 S.W.3d 416, 420-21
420-21 (Tex. App.–Amarillo
ApprAmarillo 2010, no pet);
pet.);
Thompson v.
v. Curtis, 127
127 S.W.3d 446, 451
451 (Tex. App.–Dallas
ApprDallas 2004, no pet);
pet.); Allen ex
ex rel. B.A. v.
rel. BA. v.
Albin, 97 S.W.3d 655, Apeaco 2002, no pet.).
655, 660 (Tex. App.–Waco pet).
Defendant’s summary judgment evidence disproves that Defendant breached aa duty to
Plaintiff or that any
any alleged breach by
by Defendant was the proximate cause of Plaintiff’s injury.
And, because “the
“the existence of negligent conduct is aa prerequisite to the establishment of gross
&
negligence,” Plaintiff cannot establish that Defendant was grossly negligent. See In re J.H.
J.H.
Walker, (AppiDallas Jan.
Inc., 2016 Tex. App. LEXIS 483 (App.—Dallas
Walker, Inc, 15, 2016). Defendant’s
Jan. 15, Defendant’s summary
summary
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 66
Page 248
judgment evidence further affirmatively
affirmatively disproves that Defendant consciously disregarded an
extreme risk by
by leaving Heidi outside, enclosed within
Within his property.
A. Heidi was on
on Defendant’s
Defendant’s Property
Property at
at the
the Time
Time of
of the
the Incident;
Incident; Defendant
Defendant Did Not
Know that Heidi had Vicious Propensities or a Vicious or
0r Unruly Nature.
In
In Texas,
Texas, absent
absent some
some showing
showing that
that the
the dog
dog was
was aa “dangerous
“dangerous dog,”
dog,” aa dog
dog owner
owner is
is not
not
liable for simply allowing his dogs to be contained within &
Within his fenced-in yard. See Bushnell v.
v.
Mott, 254 S.W.3d 451, 452 (Tex. 2008); Searcy v.
v. Brown, 607 S.W.2d 937,
937, 940-41
940-41 (Tex. Civ.
CiV.
App.–Houston
Apprflouston [1st
[lst Dist.]
Dist] 1980,
1980, no writ). Furthermore,
Furthermore, the owner of aa dog is not liable for
injuries caused by
by it in aa place it has
has the right to be,
be, unless the owner knew or should have
known that the dog had vicious
Vicious propensities or aa Vicious
vicious or unruly nature. Rodriguez v.
v. Haddock,
2003 WL 1784923
1784923 at *2 Apeort Worth, April 3,
*2 (Tex. App.–Fort 3, 2003, no pet);
pet.); Lewis v.
v. Great S.W.
SW.
Corp.,
Corp, 473 S.W.2d 228, 230 (Tex. Civ. Apeort Worth
CiV. App.–Fort Worth 1971,
1971, writ
writ ref’d n.r.e.).
n.r.e.).
The facts and controlling case
case law in this case
case are clear, and reasonable minds could not
differ
differ in
in applying
applying them,
them, so
so summary judgment in
summary judgment in Defendant’s
Defendant’s favor,
favor, the
the equivalent
equivalent of
of an
an
instructed verdict at trial, is proper. At the time of the incident, Heidi was enclosed Within
within aa
fence on
on Defendant’s property, aa place
Defendant’s property, &
be. See Exhibit A 7– Affidavit
place she has aa right to be. Affidavit of
of Terry
– Affidavit
Province; Exhibit C 7 Affidavit of Eric Zollinger; Exhibit C-1 7– Survey.
ofEric Survey. Heidi had never bitten
anyone before the incident at issue in this case,
case, so
so Defendant neither knew nor should have
known the dog was vicious E A 7– Affidavit
Vicious or unruly. See Exhibit A Affidavit of
of Terry Province. In fact, Heidi
was neither vicious
Vicious nor unruly, but professionally-trained and normally well-behaved. &
well-behaved. See id.
As
As Defendant’s
Defendant’s summary judgment evidence
summary judgment evidence affirmatively
affirmatively shows,
shows, Heidi was,
was, at all
relevant
relevant times,
times, enclosed within Defendant’s
enclosed within Defendant’s property,
property, in
in aa place
place she
she had
had aa right
right to
to be.
be. Heidi is
is
not vicious
Vicious and Defendant did not know that Heidi would bite anyone
anyone as
as she
she had never bitten
anyone
anyone in the approximately six years
years he owned her prior to the incident.
incident. Defendant cannot be
be
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 77
Page 249
held
held liable
liable for
for Plaintiff’s
Plaintiff’s injuries under these
injuries under these circumstances.
circumstances. And, although Plaintiff has
has not
plead premises
plead premises liability,
liability, Defendant’s
Defendant’s lack
lack of
of knowledge
knowledge of
of any
any dangerous propensities by
dangerous propensities by Heidi
Heidi
&
also precludes liability on aa premises liability theory.
theory. See Keetch v.
v. Kroger Co.,
Ca, 845 S.W.2d 262,
264 (Tex. 1992)
1992) (elements of premises liability). Therefore, Defendant requests that this court
grant
grant its
its Motion
Motion for
for Summary
Summary Judgment
Judgment as
as to
to all
all of
of Plaintiff’s
Plaintiff’s claims.
claims.
B. Defendant Did Not Owe Any Duty to Plaintiff.
In
In dog
dog bite
bite cases,
cases, the
the existence
existence of
of aa duty
duty “depends
“depends to
to some
some degree
degree on proof of
on proof of whether
Whether
the
the risk
risk of
of injury
injury from
from aa dog bite is
dog bite is foreseeable,
foreseeable, i.e.,
i.e., the
the dog
dog owner’s
owner’s actual
actual or
or constructive
constructive
knowledge
knowledge of
of the
the danger presented by
danger presented by his
his dog.”
dog.” Labaj, 322 S.W.3d at 421. In other words,
Defendant
Defendant “should
“should not
not be
be held
held responsible
responsible for
for the
the consequences
consequences of
of an
an act
act that
that cannot
cannot be
be
reasonably
reasonably foreseen.” Id.
foreseen.” Id.
This incident, however, was not foreseeable.
foreseeable. Defendant did not know that allowing his
dogs,
dogs, including Heidi, to be on his property within
Within an enclosed fence presented any
any danger. It
was certainly not foreseeable that Heidi would attempt to bite someone on the other side of the
fence as
as Defendant was not aware that Heidi had any vicious propensities or tendencies. See
any Vicious E
A –7 Affidavit
Exhibit A Affidavit of
of Terry Province.
Province. To the contrary, Heidi had never bitten anyone prior to
&
this incident and was normally aa well-behaved dog. See id. The risk Heidi would bite someone
on the other side of the fence or gate while
While secured within Defendant’s
secured Within Defendant’s yard
yard was
was not
not foreseeable
foreseeable
and,
and, therefore, Defendant did not owe any
any duty to Plaintiff. To impose aa duty on every owner of
non-Vicious dog to tie up the
aa non-vicious the dog
dog on
on the
the owner’s
owner’s own
own fenced-in property or to install chicken
wire over the Whole
Wire whole fence surrounding his property to protect passersby
passersby is
is not and should not be
be
the public policy of the State
State of Texas.
Texas.
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 88
Page 250
C. Defendant Did Not Breach Any Duty Allegedly Owed to Plaintiff.
A dog owner only has
has a
a general duty to exercise reasonable care to avoid foreseeable
&
injury to others. See Kehler v. AppiFort Worth 1996,
v. Eudaly, 933 S.W.2d 321, 330 (Tex. App.—Fort 1996, writ
denied). Therefore, Defendant
Defendant is
is simply
simply required
required to
to act
act as
as a
a “reasonable
“reasonable prudent person” would
prudent person” would
“under
“under same
same or
or similar
similar circumstances
circumstances regarding
regarding any
any reasonably
reasonably foreseeable
foreseeable risk.” Allen v.
v. Albin,
97 S.W.3d 655,
655, 666 (Tex. App—Waco
App7Waco 2002) (citing Colin v.
v. Red Steel Co.,
Ca, 682 S.W.2d 243,
245 (Tex. 1984)).
1984)).
As has already been established, this incident was not foreseeable.
foreseeable. Defendant was not
aware that allowing his dogs,
dogs, including Heidi, to be on his property Within
within an
an enclosed fence
presented any
any danger. It was certainly not foreseeable that Heidi would attempt to bite someone
on the other side of the fence or gate as
as Defendant was not aware that Heidi had any
any vicious
Vicious
propensities or tendencies. E A 7– Affidavit
tendencies. See Exhibit A Affidavit of
of Terry Province.
Province. To the contrary, Heidi
&
had never bitten anyone prior to this incident and was normally aa well-behaved dog. See id. The
risk Heidi would bite someone on the other side of the fence or gate while
While secured within
Within
Defendant’s yard was
Defendant’s yard was not
not foreseeable
foreseeable and,
and, therefore,
therefore, Defendant
Defendant did
did not breach any
any duty
allegedly owed to Plaintiff.
By keeping his dogs,
dogs, including Heidi, enclosed Within
within his property, Defendant acted as
as a
a
reasonably prudent person would have under the same or similar circumstances.
circumstances. Because
Defendant could not have foreseen that Heidi would bite someone on the other side of the fence,
Defendant
Defendant should
should not be held
not be held responsible
responsible for
for Plaintiff’s
Plaintiff’s injuries
injuries and,
and, therefore,
therefore, summary
summary
is requested and proper on all of Plaintiff’s
judgment is Plaintiff’s claims.
claims.
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 99
Page 251
D. Defendant’s
Defendant’s Actions
Actions or Inactions Did
Did Not
Not Cause
Cause Plaintiff’s
Plaintiff’s Injuries.
Injuries.
Proximate cause requires that two elements be
be present:
present: (1)
(1) cause in fact, and (2)
(2)
foreseeability.
foreseeability. Western Invs. v.
Western Invs. v. Urena,
Urena, 162
162 S.W.3d 547,
547, 551
551 (Tex. 2005); [HS
IHS Cedars Treatment
Ctr.
Ctr. v.
v. Mason, 143
143 S.W.3d 794,
794, 798 (Tex. 2004); D.
D. Houston, Inc. v.
Houston, Inc. v. Love, 92 S.W.3d 450, 454
(Tex. 2002).
2002). The test for cause-in-fact is Whether
whether the negligent act or omission was
was aa substantial
factor in bringing about injury and whether the injury would have occurred Without
without the act or
omission. Del Lago Partners v.
v. Smith, 307 S.W.3d 762,
762, 774 (Tex. 2010); Western
Western Invs., 162
162
S.W.3d at 551; [HS
IHS Cedars Treatment Ctr., 143
143 S.W.3d at 799. There is no cause-in-fact when
the
the defendant’s
defendant’s negligence
negligence did
did nothing
nothing more
more than
than furnish
furnish aa condition
condition that
that made
made the
the injury
injury
possible. [HS
possible. IHS Cedars Treatment Ctr., 143
143 S.W.3d at 799. To prove foreseeability, Plaintiff must
establish that aa person of ordinary intelligence should have anticipated the danger created by the
negligent act or omission. Doe v. Boys Clubs, 907 S.W.2d 472, 478 (Tex. 1995).
v. Boys 1995).
Defendant was not the proximate cause of Plaintiff’s
Plaintiff’s injuries.
injuries. As
As has been established,
has been established,
Defendant could not have foreseen that anyone on the outside of the fence or gate,
gate, including
Plaintiff, would have been bitten by Heidi. Defendant was not aware that Heidi had any vicious
any Vicious
E A 7– Affidavit of
propensities or dangerous tendencies. See Exhibit A of Terry Province. To the
contrary, Heidi had never bitten anyone prior to this incident and was normally aa well-behaved
&
dog. See id. Defendant could not have anticipated that leaving the dogs,
dogs, including Heidi,
enclosed on his property by aa fence would have created any
any danger to those on the other side of
the fence.
Defendant’s
Defendant’s summary judgment evidence
summary judgment evidence affirmatively
affirmatively disproves
disproves that
that Defendant was the
Defendant was the
proximate cause
proximate cause of
of Plaintiff’s
Plaintiff’s injuries.
injuries. As aa result, Defendant requests that this Court grant this
Motion
Motion for
for Summary
Summary Judgment
Judgment as
as to
to Plaintiff’s
Plaintiff’s claims
claims against
against Defendant.
Defendant.
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 10
Page 252
E. Defendant Did Not Consciously Disregard Any Extreme Risk.
Gross negligence is an
an act or omission that, when viewed
Viewed objectively from the standpoint
of the actor at the time of its occurrence, involves an
an extreme degree of risk, and of which the
actor has
has actual, subjective awareness of the risk involved but nevertheless proceeds with
With
conscious indifference to the rights, safety,
safety, or welfare of others. See T &
EX. C
TEX. IV. P
CIV. RAC. & R
PRAC. EM.
REM.
C ODE § 41.001(11);
CODE§ 41.00101); U-Haul Int’l v.
U-Haullnt’l v. Waldrip,
Waldrip, 380 S.W.3d 118,
118, 137
137 (Tex. 2012); Columbia Med.
Med.
Ctr.
Ctr. v.
v. Hogue,
Hague, 271
271 S.W.3d 238, 248 (Tex. 2008); Fairfield
Fairfield Ins.
Ins. v.
v. Stephens Martin Paving,
Paving, LP,
246 S.W.3d 653,
653, 657 (Tex. 2008); Coastal Transp.
Transp. Co.
Co. v.
v. Crown Cent. Pet. Corp.,
Cent. Pet. Corp, 136
136 S.W.3d
227, 231
231 (Tex. 2004).
To
To establish
establish gross
gross negligence,
negligence, “the act
act or
or omission
omission complained
complained of
of must
must depart
depart from
from the
the
ordinary standard of care to such an
an extent that it creates an
an extreme degree of risk of harming
others.”
others.” Hogue,
Hague, 271
271 S.W.3d at 248. An extreme degree of risk is more than aa remote possibility
of injury or even aa high probability of minor harm; it is the likelihood of serious injury to the
E
plaintiff. See Mobil Oil Corp.
Corp. v.
v. Ellender, 968 S.W.2d 917, 921
921 (Tex. 1998).
1998). To prove that aa
defendant had actual, subjective awareness of the risk but proceeded with
With conscious indifference,
the plaintiff must show the defendant knew of the risk but acted anyway. &
anyway. See id. This conscious
indifference refers to the rights, safety, &
safety, or welfare of others. See id.
Here, Defendant was not aware of any risk associated with
With allowing his dogs,
dogs, including
Heidi,
Heidi, to
to roam
roam Defendant’s property within
Defendant’s property Within an
an enclosed
enclosed fence.
fence. As
As has
has been
been established,
established,
Defendant did not know that Heidi had any vicious propensities or tendencies.
any Vicious & –
tendencies. See Exhibit A 7
Affidavit of
Affidavit of Terry Province. To the contrary, Heidi had never bitten anyone
anyone prior to this incident
&
and was normally well-behaved. See id. Furthermore, Defendant did not act with
With conscious
indifference
indifference to
to anyone’s
anyone’s rights,
rights, safety
safety or
or welfare,
welfare, including
including Plaintiff.
Plaintiff. Defendant
Defendant kept
kept his dogs,
dogs,
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 11
11
Page 253
&
including Heidi, contained in aa fence surrounding his property. See id. Defendant did not depart
from the ordinary standard of care by keeping his pet dogs,
dogs, including Heidi, enclosed in aa fence
on his property.
property.
Because Defendant was unaware of any
any risks involved in leaving Heidi inside his fenced-
in yard and did not act With
with conscious disregard of any
any alleged risk, Defendant simply could not
have anticipated that anyone,
anyone, including Plaintiff, would have been
been bitten by
by Heidi from behind
the fence or gate. Therefore, Defendant was not grossly negligent.
Defendant’s
Defendant’s summary judgment evidence
summary judgment evidence affirmatively
affirmatively disproves
disproves that
that Defendant
Defendant was
negligent or grossly negligent under these circumstances.
circumstances. Therefore, Defendant requests the
Court
Court grant
grant this
this Motion
Motion for
for Summary
Summary Judgment
Judgment as
as to
to all
all of
of Plaintiff’s
Plaintiff’s claims
claims against
against Defendant.
Defendant.
VI.
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT STANDARD
A court may grant aa no-evidence
no-eVidence motion for summary judgment if the movant can show
that adequate time for discovery has passed
passed and the non-movant has no evidence to support one
or more essential elements of its claim or defense. Tex. R. Civ.
CiV. P.
P. 166a(i); &
166a(i); see Boerjan v.
v.
307, 310 (Tex. 2014); Fort
Rodriguez, 436 S.W.3d 307,
Rodriguez, Fort Brown
Brown Villas
Villas III Condo. Ass’n
Condo. Ass ’71 v.
v. Gillenwater,
Gillenwater,
285 S.W.3d 879,
879, 882 (Tex. 2009). To determine Whether
whether an adequate time for discovery has
passed, “courts
passed, “courts consider
consider the
the following
following nonexclusive
nonexclusive factors:
factors: (1)
(1) the
the nature
nature of
of the
the suit,
suit, (2)
(2) the
the
evidence necessary to controvert the motion, (3)
(3) the length of time the case has been on file,
file, (4)
(4)
the length of time the motion has been on file,
file, (5)
(5) the amount of discovery that has
has already taken
place, (6)
place, whether the movant requested stricter deadlines for discovery, and (7)
(6) Whether whether the
(7) Whether
discovery deadlines in place were specific
place were specific or
or vague.”
vague.” Cmty. Initiatives, Inc.
Cmty. Initiatives, Inc. v.
v. Chase Bank, 153
153
S.W.3d 270, AppiEl Paso
270, 278 (Tex. App.—El Paso 2004, no pet); fl
pet.); see Mclnnis
McInnis v.
v. Mallia, 261
261 S.W.3d 197,
197,
th
201 Appiflouston [14
201 (Tex. App.—Houston [14th Dist.]
Dist] 2008, no pet).
pet.).
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 12
Page 254
Under Texas Rule of Civil
CiVil Procedure 166a(i),
166a(i), when aa party files
files aa no-evidence
no-eVidence motion
for summary judgment, the burden shifts to the non-moving party to present evidence raising an
an
issue of material fact as
as to the elements specified
specified in the motion. Mack Trucks, Inc. v.
Tmcks, Inc. v. Tamez,
Tamez, 206
572, 582 (Tex.
S.W.3d 572, (Tex. 2006). “A no
2006). “A no evidence
evidence point will be
point Will be sustained
sustained when
when (a)
(a) there
there is
is aa
complete lack of evidence of aa Vital
vital fact, (b)
(b) the court is barred by rules of law or of evidence
from giving weight to the only evidence offered to prove aa Vital
vital fact, (c)
(0) the evidence offered to
prove aa vital
Vital fact is not more than aa mere scintilla, or (d)
(d) the evidence conclusively establishes
the
the opposite
opposite of
of the vital fact.”
the Vital Ranch, Inc.
fact.” King Ranch, Inc. v.
v. Chapman, 118
118 S.W.3d 742, 751
751 (Tex. 2003).
In order to defeat this no-evidence
no-eVidence motion for summary judgment, Plaintiffs must bring
forth more than aa scintilla of probative evidence to raise aa genuine issue of material fact. Tex. R.
Civ.
CiV. P.
P. 166a(i);
166a(i); Wal-Mart
Wal—Mart Stores, Inc. v.
Stores, Inc. v. Rodriguez, 92 S.W.3d 502,
502, 506 (Tex. 2002);
see
see Boerjan,
Boeijan, 436 S.W.3d at 312; Forbes,
Forbes, Inc.
Inc. v.
v. Granada Biosciences, Inc., 124
Biosciences, Inc, 124 S.W.3d 167,
167, 172
172
(Tex.
(Tex. 2003).
2003). The
The evidence
evidence must
must be
be sufficient
sufficient to
to “allow reasonable
reasonable and
and fair-minded
fair-minded people to
differ
differ in
in their
their conclusions”
conclusions” on
on whether
whether the
the challenged
challenged fact
fact exists;
exists; evidence
evidence that
that raises
raises only
only aa
speculation or surmise is insufficient. Forbes, Inc,
insufficient. Forbes, Inc., 124
124 S.W.3d at 172.
172. If less than aa scintilla of
evidence
evidence is
is produced,
produced, the
the defendant
defendant is
is entitled
entitled to
to aa summary judgment on
summary judgment on the
the plaintiff’s
plaintiff’ 5 cause
cause of
of
action.
Pursuant to Rule 166a(i)
166a(i) of the Texas Rules of Civil
CiVil Procedure, Defendant would show
that this case
case has
has been on file
file since March 30,
30, 2016, and more than an adequate time for
discovery has
has passed,
passed, but that Plaintiff has
has failed to produce evidence on one or more of the
essential elements of her claims.
VII.
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT FOR PLAINTIFF’S CLAIMS
In order to prove that Defendant was negligent, Plaintiff must prove:
prove:
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 13
13
Page 255
1.
1. Defendant was the owner or the possessor of the animal;
2. Defendant owed aa duty to exercise reasonable care to prevent the animal from
injuring others;
3.
3. Defendant breached that duty; and
4. Defendant’s breach proximately
Defendant’s breach proximately caused
caused Plaintiff’s
Plaintiff’s injury
injury
Labaj v.
v. VanHouten,
VanHouten, 322 S.W.3d 416, 420-21
420-21 (Tex. App.–Amarillo
ApprAmarillo 2010, no pet);
pet.);
Thompson v.
v. Curtis, 127
127 S.W.3d 446, 451
451 (Tex. App.–Dallas
ApprDallas 2004, no pet);
pet.); Allen ex
ex rel. B.A. v.
rel. BA. v.
Albin, 97
97 S.W.3d 655, Apeaco 2002, no pet.).
655, 660 (Tex. App.–Waco pet).
The owner of aa dog is
is not liable for injuries caused by
by it in aa place it has
has the right to be,
be,
unless the owner knew or should have known that the dog had vicious
Vicious propensities or aa vicious
Vicious
or unruly nature. Rodriguez v.
v. Haddock, 2003 WL 1784923
1784923 at
at *2 Apeort Worth, April
*2 (Tex. App.–Fort
3,
3, 2003, no pet);
pet.); Lewis v.
v. Great S.W.
S. W. Corp.,
Corp, 473 S.W.2d 228, 230 (Tex. Civ. Apeort Worth
CiV. App.–Fort
1971, writ ref’d
1971, writ ref’d n.r.e.).
n.r.e.). Plaintiff
Plaintiff has
has insufficient
insufficient or
or no
no evidence
evidence to
to establish
establish that
that the
the dog was in
dog was in aa
place that it did not have the right to be
be at the time of the accident.
accident. Plaintiff has
has insufficient
insufficient or no
evidence that Defendant knew or should have known that the dog had Vicious
vicious propensities or aa
vicious or unruly nature.
Vicious
Because Plaintiff cannot present sufficient evidence as
as to these elements, Defendant
cannot be held liable for her injuries.
injuries. Furthermore, because
because Plaintiff has
has no evidence that
Defendant was negligent, Defendant cannot be found to have been grossly negligent. See In re E
J.H. Walker,
J.H. Walker, Inc, (AppiDallas Jan.
Inc., 2016 Tex. App. LEXIS 483 (App.—Dallas Jan. 15,
15, 2016). Further, Plaintiff
has
has insufficient
insufficient or no evidence that Defendant consciously disregarded an
an extreme degree of risk
with regard to the incident. And,
And, although
although Plaintiff
Plaintiff has
has not plead premises
not plead premises liability,
liability, Defendant’s
Defendant’s
lack of knowledge of any
any dangerous propensities by
by Heidi also precludes liability on aa premises
liability theory. &
theory. See Keetch v.
v. Kroger Co.,
Ca, 845 S.W.2d 262, 264 (Tex. 1992)
1992) (elements of
premises liability).
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 14
Page 256
Plaintiff presents
presents insufficient
insufficient or no evidence that Defendant owed Plaintiff any
any duty,
insufficient
insufficient or no evidence that Defendant breached aa duty owed to the Plaintiff (if any),
any), and
insufficient or no evidence that Defendant’s
insufficient Defendant’s actions or inactions proximately caused the
Plaintiff’s
Plaintiff’ s injuries. There is therefore insufficient
insufficient or no evidence tending to prove the breach of
duty or proximate cause elements of Plaintiff’s
Plaintiff’ s negligence and gross negligence causes
causes of action.
Because Plaintiff cannot meet her burden on either of these elements, this motion must be
granted. Tex. R. Civ.
CiV. P.
P. 166a(i).
166a(i). On this basis,
basis, Defendant requests the Court grant summary
judgment in favor of Defendant pursuant to Texas Rule of Civil
CiVil Procedure 166a(i)
166a(i) as
as adequate
time for discovery has passed.
passed.
VIII.
PRAYER
WHEREFORE,
WHEREF ORE, PREMISES CONSIDERED, Defendant Terry P.
P. Province
respectfully requests that this Court grant his Motion for Summary Judgment against Plaintiff’s
claims of negligence, gross negligence, and any
any other cause of action. Defendant further prays
prays
for all such other and further relief, both general and special, in law and in equity, including costs
and
and attorney’s
attorney’s fees,
fees, to
to which
which he has
has proved himself to be
be justly entitled.
Respectfully submitted,
flux;
Mn 0\ xx \x
____________________________
c__1_L~Lqi\\._; K:- \
J.
J. Brantley
Brant‘lley Saunders
State Bar No. 17681500
17681500
Abigail K. Christmann
State Bar No. 24097523
SSAUNDERS,
AUNDERS, W ALSH & B
WALSH EARD
BEARD
Craig Ranch Professional Plaza
6850 TPC Drive, Suite 210
McKinney, Texas 75070
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 15
Page 257
(214)
(214) 919-3555 Telephone
(214)
(214) 615-9019 Telecopier
Brantley@SaundersWalsh.com
Abby@SaundersWalsh.com
ATTORNEYS FOR DEFENDANT
CERTIFICATE
CERTIFICATE OF SERVICE
This is to certify that aa true and correct copy of the foregoing document, Defendant’s
Second Amended Motion for Summary Judgment, was
was served upon all counsel of record on
th
this the 55th day
day of October 2017, pursuant to Texas Rules of Civil
CiVil Procedure 21
21 and 21a.
Paul Flannigan
F lannigan
paul@flanniganlawfirm.com
paul@flanniganlawfirm.com
Mark D. Johnson
mark@flanniganlawfirm.com
mark@flanniganlawfirm.com
Nick Tedford
nick@flanniganlawfirm.com
nick@flanniganlawfirm.com
F LANNIGAN L
FLANNIGAN AW FIRM
LAW IRM,, P.L.L.C.
3350 Parkwood Boulevard, Suite A201A201
Frisco, Texas 75034
Phone: (972)
(972) 383-9377
Fax: (844)
(844) 287-8882
ATTORNEYS FOR PLAINTIFF
fllcd K“ Qr£’\rk-¥'Aj‘t\\\ 0K
______________________________ K \ \ \}
DEFENDANT’S
DEFENDANT’S SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT PAGE 16
Page 258
/ EXHIBIT A
EXHIBIT A
Cause No.
Cause No. CV-2016-00729
CV-2016-00729
KAREN
KAREN LINDSEY
LINDSEY SMITH,
SMITH, §§ IN
IN THE
THE COUNTY COURT
COUNTY COURT
Plaintiff,
Plaintiff, §§
§§
v.
v. §§ N0.2
NO. 2
§§
TERRY
TERRY P.
P. PROVINCE
PROVINCE §§
Defendant.
Defendant. §§ DENTON
DENTON COUNTY,
COUNTY, TEXAS
TEXAS
AFFIDAVIT
AFFIDAVIT OF
OF TERRY
TERRY PROVINCE
PROVINCE
STATE
STATE OF
OF TEXAS
TEXAS §§
COU NTY OF
COUNTY
'.
OF scLe 'D fl’oh §§
2g }'\toY\ §§
BEFORE
BEFORE ME, the undersigned
ME, the undersigned notary,
notary, on this day
on this personally appeared
day personally appeared Terry
Terry Province,
Province, aa
person whose
person whose identity
identity is
is known
known to
to me.
me. After
After I
I administered
administered an
an oath
oath to
to affiant,
affiant, affiant
affiant testified:
testified:
"My
“My name
name is
is Terry
Terry Province.
Province. II am the Defendant
am the Defendant in this suit.
in this suit. II am
am over
over the
the age
age of
of 18
18
years,
years, competent
competent inin all
all respects to make
respects to this affidavit,
make this affidavit, have
have personal
personal knowledge
knowledge of
of the
the facts
facts
stated
stated herein,
herein, and
and everything
everything stated
stated herein
herein is true and
is true and correct.
correct.
The
The dog
dog that
that Plaintiff
Plaintiff has
has identified
identified as the "black
as the “black dog"
dog” that
that bit
bit her
her is
is named
named "Heidi."
“Heidi.”
Heidi
Heidi is
is now
now seven
seven years old,
years old, weighs
weighs approximately
approximately 100
100 pounds,
pounds, and
and is
is a
a mixed
mixed breed.
breed. At
At the
the
time of
time the incident,
of the incident, Heidi
Heidi was
was six
six years
years old.
old. Attached
Attached hereto
hereto as
as Exhibit
Exhibit A-1 A—l is
is a photograph of
a photograph of
Heidi
Heidi lying
lying beside
beside one
one ofof our
our cats.
cats. Attached
Attached hereto
hereto asas Exhibit
Exhibit A-2
A-2 is is a photograph that
a photograph that
accurately
accurately depicts the fence
depicts the fence and
and gate
gate on
on my
my property
property on on the
the day
day of
of the
the incident
incident atat issue.
issue. Both
Both of
of
these photos
these photos are true and
are true and accurate
accurate depictions
depictions ofof what they purport
what they purport to
to show
show asas stated
stated above.
above.
The
The gate to my
gate to my property
property isis recessed
recessed about
about aa foot
foot behind
behind the
the fence
fence line.
line. The
The fence
fence
immediately
immediately surrounding
surrounding thethe gate
gate is
is at,
at, or
or behind, the actual
behind, the property line.
actual property line. The
The location
location ofof the
the
gate
gate and
and the portions of
the portions of the
the fence
fence surrounding the gate
surrounding the gate has
has been
been confirmed
confirmed by by a
a professional
professional
surveyor,
surveyor, Eric
Eric M.
M. Zollinger, to be
Zollinger, to be wholly
wholly onon my property. Based
my property. Based upon the Plaintiffs
upon the Plaintiff’s description
description
of the incident,
of the incident, Heidi was within
Heidi was within aa place
place that
that she
she had
had a
a right
right to
to be
be on
on my
my property
property at the time
at the time of
of
the incident.
the incident.
Heidi
Heidi has
has no
no vicious tendencies and
Vicious tendencies and had
had never
never bitten
bitten anyone
anyone before
before the
the incident
incident at
at issue.
issue.
II acquired
acquired Heidi
Heidi when
when she
she was
was just
just aa puppy,
puppy, about
about eight
eight weeks
weeks old.
old. II have
have owned
owned Heidi
Heidi
the
the entire
entire time
time since then. Heidi
since then. Heidi is
is normally
normally aa well-behaved
well-behaved dog,
dog, having
having received
received formal
formal training
training
from
from aa commercial
commercial dog
dog trainer that made
trainer that made her
her obedient
obedient to
to the
the following
following commands:
commands: come,
come, sit,
sit,
down, place, stay,
down, place, stay, off,
off, quiet,
quiet, and
and release.
release. My
My wife,
wife, Renee,
Renee, and
and II currently
currently own
own five
five dogs,
dogs, three
three of
of
which,
which, including
including Heidi,
Heidi, are
are mostly
mostly outdoors.
outdoors. The
The dogs
dogs are
are kept
kept within
within our
our fenced-in
fenced—in yard.
yard. The
The
dogs
dogs run
run along the fence
along the fence and
and bark whenever someone
bark whenever passes by
someone passes by the
the yard
yard or
or approaches the gate.
approaches the gate.
AFFIDAVIT
AFFIDAVIT OF
OF TERRY
TERRY PROVINCE
PROVINCE PAGE
PAGE 1 1
Page 259
EXHIBIT A
EXHIBIT A
II was
was not
not present
present on my property
on my property when the incident
when the incident at
at issue
issue occurred.
occurred. My
My wife
wife and
and II were
were
away together running
away together running errands.
errands. When my wife
When my wife and
and II returned
returned home,
home, all
all of
of the
the dogs were still
dogs were still
contained within the
contained within the fence
fence on
on our
our property.
property.
My
My wife,
wife, Renee,
Renee, and
and II preferred
preferred for
for delivery people to
delivery people to leave
leave packages
packages outside the gate
outside the gate to
to
our
our property.
property. We
We do
do not
not like
like strangers
strangers coming
coming onto
onto our
our property.
property. We
We also
also fear that someone
fear that someone
opening the gate
opening the gate and
and entering
entering ourour property
property might not close
might not close and
and secure
secure the
the gate properly when
gate properly when
leaving,
leaving, thereby
thereby making
making it possible for
it possible for our
our dogs to escape
dogs to escape our property. None
our property. None of of our
our dogs
dogs has
has
ever
ever attacked,
attacked, chewed,
chewed, or
or in
in any way damaged
any way damaged aa package
package or piece of
or piece mail left
of mail left at
at our
our property.
property.
The
The information
information contained
contained in this affidavit
in this affidavit is
is true
true and
and correct
correct and
and based
based on my personal
on my personal
knowledge."
knowledge.”
FURTHER
FURTHER AFFIANT
AFFIANT SAYETH NOT.
SAYETH NOT.
Terr ov
SWORN
SWORN TO TO AND
AND SUBSCRIBED
SUBSCRIBED TOTO before
before me, the undersigned
me, the undersigned authority,
authority, by the said
by the said
Terry
Terry Province
Province on the �" day of Septern't>er
day of
m Seflembcr ,,2017.
MW
on the 2017.
��
NOTARY
NOTARY PUBLIC
PUBLIC IN
IN AND
AND FOR
FOR
THE
THE STATE
STATE OF
OF TEXAS
TEXAS
QM Po, DEVIN ERICKSON
‘m‘rrrr
g (g, Notary Public
‘d} t
va
A
‘LL
-W ”PM“ |§§a§§?6§§§%57 .
My Comm. Expires 03‘22-2021
1 u,
.Lbu.
AFFIDAVIT
AFFIDAVIT OF
OF TERRY
TERRY PROVINCE
PROVINCE PAGE2
PAGE 2
Page 260
EXHIBIT A-11
E X H B H A.
..
,;·
r I.�&.• ·,
. . :� ·"
.,•
.,t..
. ':. ·
, -,·-; ;-> '<:..
_
.., a?
,. ..,. _ ,
Li
,12 A. 1I ·w
A. ould say
would say that's
lhul's aa fair
fair assumption.
assumption lIdidn‘l didn't 12
1 2 still
still barking
barking closeclose to to the
lhe gate
gale when
when you you leaned
leaned down
down to to
13 have
have a a reason
reason to to pay attention or or look
look atall it
il until
until nciw. 13 place
place thelhc package
package by by it,
it. end quote.
HHHHHH
Ln.:»mm»—o
payallenlion now. 1 3 and quote.
14 Q.
Q. (BY
(BY MR.
MR HANSEN)
HANSEN) Request cucsl for for Admission
Admission NumberNumhcr 14
1 4 You
You said
said youyou could
could neither
neilher admit
admit nor nor deny
deny
15 5S asked
asked you you to10 admit
admit that,Ihal. quote,
quotc‘ os as you
you approached
approached it, ll, 15
1 5 that
that request.
request. Why Why not? nol'?
16
15 you
you could
could see
see that
that the
the openings between the
openlngsbclwccn lhe metal
metal slats
Sluts 16
1 6 A.
A. I don't
1 don't even
even know know the the dogs
dogs were
were barking
barking in in the
lhc
17
17 in
in the
the gate
gate were
\xcn: wide
wide cn0l1gh
enough forfor aa dog
dog to to stick
stick its
its nose
nuse 17
1 7 first
fins! place.
place, How How could
could [I tell{all you
you if one or
ifonc or more
more werewere
18
18 1hrough,
Ihrough, end end quole.
qunlc. Why Why did you deny
did you deny that one"1
that one' 18
18 still
still barking?
barking? l1 don't don‘t recall.
recall.
19
19 A.
A. [I didn't
didn't even
even know
knowthalthat --
~- [mean,
I mean, there
there were
were 199
'1
Q.
Q. Request
Requcsl for Admission Number
fbrAdmission Numbcr 9, 9, we
we asked
asked you you to
to
20
20 two
two dogs
dogs [I was
was aware of [I didn't
aware 01‘. didn’t know
know there
lherc was
was a a 20
20 admit
admit that, quote, you
that, quole, you leaned
leaned downdown so so close
close to 10 the
the gate
gate
21
2L third.
third. [I didn't
didn't even
even know
know what
\vhal the
lhe gate
gale looked
looked like
like 21
2]. that one of
that on: of defendant's
defcndzlnl's dogs dogs waswas able
able to to make
make contact
contact
22
22 much
much less
less that
that there
there was
was aa gate
gate there.
lhere. So So [I didn't
didn‘t stop
slop 22
22 with
with youyou through
through the the metal
metal slats
slais inin the
lhc gate,
gmc, close
close
23
'7
and examine
and examine if there were
It‘lhere uerc holes
holes oror not.
Hal. 23
23 quote.
quolc.
24
24 So
So ifIf]I didn't
didn't know
know what
what t.he
(In: gate slots
gale slots 24
2 I. You
You mademade objection
objection to that.rI eequcsl
to than quest and
and saidsaid
25
25 looked
looked like,
like, then
then [I wouldn't
wouldn‘t know
know ifaifu dog's
dog‘s head
head could
could 25
25 you
you could
could neither admit nor
neither admit nor deny
deny it it as
as worded.
worded.
32
32 (Pages
(Pages 125
125 to
to 128)
128)
GOODENOUGH
GOODENOUGH && ASSOCIATES
ASSOCIATES (817)
(817) 261-9095
261—9095
Page 267
EXHIBIT
EXHIBIT B
B
KAREN
KAREN LINDSEY
LINDSEY SMITH
SMITH 08/26/2016
08/26/2016
Page
Page 145
145 Page
Page 147
14’]
11 Q.
Q. Here
Here is is Exhibit
Exhibit 20 20 to your deposition.
[0 your deposition. Whentn 11
22
Q.
Q. IsIx the
the dog
dog depicted
depicted in in Exhibit
Exhibfl 20 2. the
the one one that
{hat
22 was
was that
that photograph
photograph taken? taken? bit
bit you?
you?
33 A.
A, After
After the[he incident,
incident, II thinkthink Brandon
Brandon had had gone
gone 33 A.
A, Recalling
Recalling backback to to the
the incident,
incida yes. ,Vcs. [lkncwknew
4A1 back
back and
and putpm thethe package
package down down to lo make
make aa picture
picture of it
ofit. 44 the
the dog
dog wa5
W23 black.
black. A fted turned
After] turned away away to 10 leave
leave andand Il
55 Because
Because we we never
never took
look aa picture
picture of ofthethe gate
gale right
right atml the
the 55 had
had the
the bite,
bile, [knew
I knew that
lll‘dt it
it was
was a a black
black dog
dog that that had
had
66 event.
event. II think
think he he bud
had gonegone backback to to gel
get aa picture.
picture. 66 bit
bit me.
me. I[didn't
didn't know
know whatwhat type type of dog.
ofdog.
77 Q.
Q, What
What do do you
you mean
mean he he put
put thethe package
package down?down? 77 Q.
Q. How
HOW manymany black
black dogs dogs were
weretherethere onon the the
88 A.
A, Well,
Well, like
like he
he moved
movcd it it over
over to to get
gel like
like aa photo
photo 88 Provinces'
Provinces‘ property
property on on the the day
day of the incident'/
ofthe incident?
9
.9 off of the area.
offoflhe area. II didn‘t
didn't put put the
the package
package -- --1I mean,
mean, it it 99 A.
A. One.
One, There
There were
were two that r[was
(\VOIlIat was aware
aware of and
ofaud
10
1 O was
was in in that area. I'm
Ilmtaren. not sure where
l'n1nolsure where I gel
1 set it
it but
but it
it 10
1 0 then after it
then after it had
had bitten
bitten me me and
and II turned
turned tolo leave,
leave. I was
1 was
11
1 1 was
was within
within th.at
that general
general area. area. So So II !11ink
think hehe went
went back
back 11
1 1 aware . that
aware that there
there were
were tlu·ee.
lhrec‘
12
1 2 just
just to
to get
gel a a picture
piclum of of‘hethe dog
dog after
after thethe eve.
event nl had
had 12
1 2 Q,
Q. So50 wewe cau
can conclude
conclude as as a'd matter
maltCl’ of
01‘ logic
logic -­ -~
13
1 3 happened
happened sometime
sometime when when ll was. was in in the
the waiting
waiting room.
room. 13
1 3 A.
A. Yes,
Yes.
14
14 Q.
Q. So So you
you think
think this
this photograph
photograph marked marked as as Exhibit
Iixllibil 14
1 4 Q.
Q. ---~ that this dog
lllflllllis dog depicted
depicted in in Exhibit20
Exhibit 20 is is the
the
15
15 20
20 was
was taken
taken thethe day
day of oflhethe incident
incidem after after it
it occurred?
manual? 15
1 5 one
one that
that bityou')
bit you?
16
1 6 A.
A. Correct.
Correct, 1I think
think Brandon
Brandon took look a a picture
piclure to to 16
1 '5 A.
A, Correct.
Correct,
17
1 7 show
Show whatWhat the
the dog
dog looked
luukcd like.like. Or Or it it could
could have
have been
been 17
1 7 Q.
Q, Here
Here is is Exhibit
Exhibit 21 21 ‘0to your deposition. Who
yourdeposilim, Who
18
18 the
the anima1
animal cop cop police
police lady.Indy. It 1! was
was either
either Brandon
Brandon or or 18
1 3 took
100k that
tlml photograph?
photograph?
19
1 9 her.
her. I'mI'm not
not sure
sure who
who took took it, but evenhially it
it, bulevenlually it got
got 19
1 9 A.
A. Not
N01 sure, but I know
sure, but 1know it's “'5 now
now the
the prope1ty.
propefly.
20
2O texted
texted toto me.
me, 20
20 Q.
Q. When
When was was this
this photograph
photograph marked marked as as Exhibit
Exhibit 21
2!
21
2 1 Q.
Q. WhoWho texted
lcxled it it to
to you?
you? 21
2 1 taken?
taken?
22
2 2 A.
A. Either
Either Brandon
Brandon or or my
my mom.
mom. 22
2 2 A.
A. Sometime
Sometime after after thelhc: event.
event.
23
23 Q.
Q. DidDid your
your mommom tell tell you
you thatthat anan animal
animal control
control 23
2 3 Q.
Q- DoDO you
YOU know
know when?
when?
24
2 '1 officer
officer sentsent her
her this
this photograph?
photograph? 24
2 4 A.
AA No.
N0.
25
2 5 A.
A, No. No. l mean
1menu -- -- 25
2 5 Q,
Q. Do you know
Do you know whowho took look Exhibit
Exhibit 21?2 l ‘.’
1--------------------------1----------------------·-·--·······.
Page
Page 146
146 Page
Page 148
148
11 Q.
Q. Why
Why did did you)ou mention
mention an an animal
animal control
control officer?
omccr‘? 1l A
A. No,sir.
N0, sir.
22 A.
A. Becm1se
Because she she was
was in in the
the hospital
hospital and·she
and she was was 22 Q
Q Here
Here is is Exhibit
Exlnbit 2222 to10 your
your deposition.
deposition Who Who
33 trying
trying lo
to inquire
inquireabout about thethe dog dog andand that
that she
she waswas going
going 33 took
took that
that photograph?
pholograph‘.’
44 to go oufto
to go out Iolhethe house
house and and laketake pictures
pictures of of itit and
and 44 A.
A. II don't
don’t know.
know. II never
never took
took any any pictures.
pictures.
55 denote what type
denolcwlmt type of of dog
dog it it was.
was. 55 Q.
Q. When
When was
\ms Exhibit
Exhibit 22 22 taken?
taken?
66 Q.
Q. DoDo you
you kHow
know who who took look this
this photograph
photograph marked marked as as 56 A.
A. After
Aficr the (he event,
evenl.
77 Exhibit20?
Exhibit 20? 77 Q.
Q Do Do you
you know
know what
whm day day itit was
was taken?
taken?
88 A
A. No,!
No, I do do not.
not, 8B A.
A. No, s.ir.
No, sir
99 Q.
Q. DoDo you
you know
know that that Brandon
Brandon moved moved the the package
package from
from 99 Q.
Q. DoDo you
you know what Exhibit
know wha‘ Exhibn 22 22 is
is meant
meant to to shm1
Show?1/
10
ID somewhere
somewhere and and placed
placed it it -­
-- 10
10 A
A, The
The fonce.
fence,, II would
would gt1css
guess because
because that's
that‘s the
the
11
L1 A.
A, No.
No. 11
11 center
center point
point of of viewpoint.
Vlewpoinl,
12
L2 Q.
Q. -- up
—-
up against
against the the gate
gate in in this
[his photograph�
photograph? 12
12 Q.
Q. DoDo you
you know
know ,,11y
why Exhibits
Exhibits 22k[ and and 2222 were
um taken?
mkcn"
13
13 A.
A. Your
Your guess
guess is is as
as good
good as as mine.
mine. 13
13 A.
A. One
One shows
shows thethe acttrnl
actual gate.
gate. One One shows
shows the“10
14
l4 Q.
Q, Okay.
Okayv Is Is that
that where
where you you placed
placed thethe package
package at at 14
14 fence.
fence. So So I would
1 would guess
guess that
that they're
they're just
just trying
trying toto
l
15S the
the time
time of of the
the incident
ineldcnl on on the [he day
day of
of the
the incident
incident as as 15
15 piece
vice: together
together whatwhat the
the property
properly lookedlooked like.
like.
16
16 shown
shown in in Exhibit
Exhibil20’? 20? 16
1 6 Q.
Q. \Vho
Who is is "they"?
"they"?
17
1 7 AA, II know
know it it was
was somewhere
somewhere around around thatthat area.
area 1
I 17'i
1 A
A, Whoever
Wlmewr took took the
the picture.
picturc.
l
188 don't
don‘t know
knmv if if]I set
so! it
it against
against the lhc fence
fence or or on
on !hethe 18
1 8 Q.
Q. Okay.
Okay. So So you
you don't
don‘t honestly
honestly know know why why it i! was
was
19
1 9 ground,
ground, butInn I know
1 know it it was
was somewhere
somewhere close, closc,1lmtthat general
general 19
1 9 taken,
taken, dodo you?
you?
20
20 realm.
realm, 20
2U A.
A. Besides showing the
Besides showing the fence
fence or or the
the gate.
gate.
21
21 Q.
Q. Okay.
Okay. You You can't
can't say
say for for sure
sure that
that itit wa�
was 21
2 1 Q.
Q. Herc's
Here‘s Exhibit
Exhibit 23
23 to your deposition.
to your deposition. Who Who tooktook
22
22 leaning
leaning upup against
against the the gale
gate post post like
like it'
it‘ss shown
shown here here in
in 22
2 2 that?
Illafi’
23
23 Exhibit
Exhibit 20?
20? 23
23 A
A. 2323 lI know
know was was taken
taken thethe same
same timetime llS
as -­
--
24
24 A.
A, No.
No, Burl
But I do do know
know that lhat picture
picture was was after.
afier. II 24
2 4 Q.
Q, MyMy question
question is who took
is who took it?il'!
25
25 can
can tell
tell you
you that.
that. That's
That‘s clear
clear discretion.
discretion. 25
2 5 A.
A. lI don't
don't know.
know.
37
37 (Pages
(Pages 145
145 to
to 148)
148)
GOODENOUGH
GOODENOUGH && ASSOCIATES
ASSOCIATES (817)
(817) 261-9095
261—9095
Page 268
EXHIBIT
EXHIBIT B
B
KAREN
KAREN LINDSEY
LINDSEY SM· ITH
SMITH 08/26/2016: 87
1-187
1 I, KAREN LINDSEY SMITH� .have
,1 ..J�, •
2 foregoing deposition and llereby affi'x '!1Y s'tgnature that
33 same
same is
1‘s true
true and
and correct,
correct, e·except
xcept as
as rioted
noted ··above.
above.
4 '
5
6
7
8
9 THE STATE OF TEX.I'\)
10
11
Page 269
EXHIBIT
EXHIBIT B
B
KAREN
KAREN LINDSEY
LINDSEY SMITH
SMITH 08/26/2016
08/26/2016 186
186
l
J
1 CHANGES
CHANGES AND
AND SIGNATURE
SIGNATURE
2 WITNESS
WITNESS NAME:
NAME: KAREN
KAREN LINDSEY
LINDSEY SMITH
SMITH
3 DATE:
DATE: AUGUST
AUGUST 26,
26, 2016
2015
4 PAGE
PAGE LINE
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Page 270
EXHIBIT
EXHIBIT C
C
Cause No. CV-2016-00729
KAREN LINDSEY SMITH, §§ IN THE COUNTY COURT
Plaintiff, §§
§§
v.
V. §§ NO. 22
§§
TERRY P. PROVINCE §§
Defendant. §§ DENTON COUNTY, TEXAS
AFFIDAVIT OF ERIC M. ZOLLINGER
STATE OF TEXAS §§
§§
COUNTY OF DENTON §§
BEFORE ME, the undersigned notary, on this day day personally appeared Eric Zollinger,
who
WhO being by
by me duly sworn upon his oath, affiant
affiant testified:
testified:
“My name is Eric M. Zollinger. I am over the age
age of 18 years, competent in all respects
18 years,
to make this affidavit,
affidavit, have personal knowledge of the facts stated herein, and everything stated
herein is true and correct.
I am the managing member of CastleRock Surveying, PLLC in Justin, Texas.
Texas. I am the
custodian of the records of CastleRock Surveying, PLLC. Attached to this affidavit
affidavit is 11 page
page of
records. The attached record is aa part of this affidavit.
affidavit.
The attached record is kept by
by CastleRock Surveying, PLLC in the regular course of
business, and it was in the regular course of business for an
business, an employee or representative of
CastleRock Surveying, PLLC With
with knowledge of the act,
act, event, condition, opinion, or diagnosis
recorded to make the record or transmit information to bebe included in the records. The record
was made in the regular course of business at or near the time or reasonably soon after the time
the service was provided.
provided. The record attached hereto is the original or exact duplicate of the
original.
I am aa licensed surveyor in the State of Texas and have been
been licensed and registered as
as a
a
professional land surveyor in the State of Texas since June 20,20, 2012. My license number is
R.P.L.S. 6357.
I performed aa survey of the property located at at 6749 H. Lively Road, Ponder, Texas (the
“Property”) on August 11,11, 2017. Based on the survey I1 performed of the Property, the metal gate
located at the front of the Property is approximately 0.6 feet inside the property line on the West
and approximately 1.2 1.2 feet inside the property line on the East. The portions of the fence
depicted in the detail of the survey are at
at or within the property line.
AFFIDAVIT OF ERIC M. ZOLLINGER PAGE 11
Page 271
EXHIBIT
EXHIBIT C
C
Attached hereto as Exhibit C-l is a true and correct copy of the survey I perfonned on
the Property. The survey depicts the location of the metal gate, the fence, and the property line
on the Property.
The information contained in this affidavit is true and correct and based on my personal
knowledge.”
FURTHER AF F [ANT SAYETH NOT.
flag/4,2
Eric M. 11'1n
SWORN TO AND SUBSCRIBED TO before me, the undersigned authority, by the said
Eric M. Zollinger on the 3&“day of .
, 2017.Mk
WW mu OT RY PUBLIC IN AND FOR
Nnrary Puhlu: T TATE OF TEXAS
STATE OF ’I EXAS
Notary ID it 1188124-3
My Comm Exp Anal 12‘ 2020
AFFIDAVIT OF ERIC M. ZOLLINGER PAGE 2
Page 272
EXHIBIT
EXHIBIT C-1
C-l
DETAIL
DETAIL
S
s 89"48'26"
_
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have this
Block
this date
Block 1,
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date 08-11-2017
of EAST
08—11—2017 directed
EAST PONDER
recorded in
Plat recorded
directed aa survey
PONDER ESTATES,
in Cabinet
Cabinet C,
ESTATES, an
C, PAGE
PAGE 397,
survey made
made on
on the
an Addition
397, Plat
the ground
Addition to
Plat Records,
ground of
to Denton
Records, Denton
of the property located
the property
County, Texas,
Denton County,
Danton County,
located at
Texas, according
Texas.
County, Texas.
at Lot
according to
Lot 24,
the
to the
24, Note:
Note: Address
Note:
Address observed
Note: Bearings
Bearings are
posted as
observed posted
based upon
are based
6749 H.
as 6749
upon the
H. LIVELY
LIVELY ROAD.
the Texas
Texas State
ROAD.
State Plane
Plane Coordinate
Coordinate System,
System,
rr,O
mu
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IN FEET
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300'
North Central Zone,
North Central Zone, North
North American
American Datum
Datum 1983,
1983, U.S.
US. Survey
Survey Feet
Feet from
from
This
This survey represents the
survey represents results of
the results of an
an on-the-ground
on—the—ground survey
survey made
made under my direction
under my direction and
and
GPS
GPS observations.
observations. All
A11 distances
distances shown
shown are
are grid measurements. Combined
grid measurements. Combined
supervision
supervision on
on 08-11-2017. There are
08—11—2017. There no visible
are no visible or
or apparent
apparent intrusions,
intrusions, protrusions
protrusions oror easements
easements 0°° 40'
scale
scale factor:
factor: 0.99987457, Convergence angle:
099987457, Convergence angle: 0 40' 29".
29".
except
except as
as shown
shown hereon.
hereon. This
This survey
survey was
was performed without the
performed without the benefit
benefit of
of aa commitment
commitment for title
for title
insurance.
insurance. There
There may
may be
be other
other easements
easements that
that may
may affect
affect this property.
this property. Note:
Note: Field
Field work
work completed
completed on
on 08-11-2017.
08-11-2017. Eric
Eric M.
M. Zollinger
Zollinger R.P.l.J.
R.P.Lfi. No. 6357/
Date
Date 08-14-2017
LEGEND
LEG E N D
08—14—2017
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Page 273
/ EXHIBIT
EXHIBIT D
D
Cause
Cause No.
No. CV-2016-00729
CV-2016-00729
KAREN
KAREN LINDSEY
LINDSEY SMITH,
SMITH, §§ IN
IN THE
THE COUNTY
COUNTY COURT
COURT
Plaintiff,
Plaintiff, §§
§§
v.
v. §§ N0.2
NO. 2
§§
TERRY
TERRY P.
P. PROVINCE
PROVINCE §§
Defendant.
Defendant. §§ DENTON
DENTON COUNTY,
COUNTY, TEXAS
TEXAS
AFFIDAVIT
AFFIDAVIT OF
OF RENEE
RENEE PROVINCE
PROVINCE
STA TE OF
STATE OF TEXAS
TEXAS §§
§§
COU NTY oF
COUNTY OF Oevt
Oéman±on §§
BEFORE
BEFORE ME, the undersigned
ME, the undersigned notary,
notary, on
on this
this day
day personally
personally appeared
appeared Renee
Renee Province,
Province, aa
person whose
person whose identity
identity is
is known
known to me. After
to me. After II administered
administered an
an oath to affiant,
oath to affiant, affiant testified:
afiiant testified:
"My
“My name
name isis Renee
Renee Province.
Province. II am the wife
am the wife of
of Terry
Terry Province, the Defendant
Province, the Defendant in this suit.
in this suit.
II am
am over
over the
the age
age of
of 18
18 years,
years, competent
competent inin all
all respects
respects to make this
to make this affidavit,
affidavit, have personal
have personal
knowledge
knowledge of the facts
of the facts stated
stated herein,
herein, and
and everything
everything stated
stated herein
herein is true and
is true and correct.
correct.
The
The dog
dog that
that Plaintiff
Plaintiff has
has identified
identified as the "black
as the “black dog" that bit
dog” that bit her
her is
is named
named "Heidi."
“Heidi.” Heidi
Heidi
is
is now
now seven
seven years
years old,
old, weighs
weighs approximately
approximately 100 pounds, and
100 pounds, and is
is aa mixed
mixed breed.
breed. At the time
At the time of
of
the incident,
the incident, Heidi was six years
Heidi was six years old.
old.
Heidi
Heidi has
has no
no vicious
vicious tendencies
tendencies and
and had
had never
never bitten
bitten anyone
anyone before the incident
before the incident at
at issue.
issue.
My
My husband,
husband, Terry,
Terry, and
and II currently
currently own
own five
five dogs, three of
dogs, three which, including
of which, including Heidi,
Heidi, are
are
mostly
mostly outdoors.
outdoors. The
The dogs
dogs are
are kept
kept within
within our
our fenced-in
fenced-in yard.
yard. The
The dogs
dogs run
run along
along the
the fence
fence and
and
bark whenever someone
bark whenever passes by
someone passes by the
the yard
yard or
or approaches the gate.
approaches the gate.
II was
was not
not present
present on
on my property when
my property when the
the incident
incident at
at issue
issue occurred.
occurred. My
My husband
husband and
and II
were away
were away together
together running
running errands.
errands. When
When my
my husband
husband and
and II returned
returned home,
home, all
all of the dogs
of the were
dogs were
still
still contained
contained within the fence
within the fence on
on our
our property.
property.
II asked
asked delivery people, including
delivery people, including UPS, to leave
UPS, to leave packages
packages outside the gate
outside the gate to
to our property.
our property.
My
My husband,
husband, Terry,
Terry, and
and II preferred
preferred for
for delivery
delivery people
people to
to leave
leave packages
packages outside
outside the
the gate
gate
to
to our property. We
our property. We dodo not
not like
like strangers
strangers corning
coming onto
onto our
our property.
property. We
We also
also fear that someone
fear that someone
opening the gate
opening the gate and
and entering
entering our
our property might not
property might not close
close and
and secure
secure the
the gate properly when
gate properly when
leaving, thereby making it possible for our dogs to escape our property.
leaving, thereby making it possible for our dogs to escape our property. None of our dogs has ever
None of our dogs has ever
attacked,
attacked, chewed,
chewed, or
or in
in any
any way
way damaged
damaged aa package
package or piece of
or piece mail left
of mail left at
at our
our property.
property.
The package Ms.
The package Ms. Smith was delivering
Smith was delivering on
on the
the day
day of the incident
of the incident contained printer ink.
contained printer ink.
AFFIDAVIT
AFFIDAVIT OF
OF RENEE
RENEE PROVINCE
PROVINCE PAGE
PAGE 1 1
Page 274
EXHIBIT
EXHIBIT D
D
The
The information
mformatlon contained
contamed in this affidavit
1n this affidavit is
is true
true and
and correct
correct and
and based
based on
on my
my personal
personal
knowledge."
knowledge.’
FURTHER
FURTHER AFFIANT
AFFIANT SAYETHNOT.
SAYETH NOT
Renee
Renee Province
Province
SWORN
SWORN TO TO AND
AND SUBSCRIBED
SUBSCRIBED TO TO before
before me, the undersigned
me, the under31gned authority,
authorlty, by the said
by the sad
Renee
Renee Province
Province on the 2"'1
on the 2?“ day of Septern
day of Scpgmbcrber ,, 2017.
2017
NOTARY
DI/WW
NOTARY PUBLIC
PUBLIC IN
IN AND
AND FOR
FOR
WW
THE
THE STA TE OF
STATE OF TEXAS
TEXAS
“RY Pg’ DEVIN ENCKSON
'3“
Notary Public
n Sxate ofTexas
WM
‘$"Ng,
€’ “
ID 13105328--7
4‘
’[uf‘¢ My Comm. Expires
03- 22 20 21
AFFIDAVIT
AFFIDAVIT OF
OF RENEE PROVINCE
RENEE VPROVINCE PAGE2
PAGE 2
Page 275
Filed:
Filed: 11/7/2017
11/7/2017 2:09 PM
Juli Luke
Denton County,
County, County Clerk
By:
By: Alexa Hagenbucher,
Hagenbucher, Deputy
CAUSE
CAUSE NO.
NO. CV-2016-00729
CV—2016-00729
KAREN
KAREN LINDSEY
LINDSEY SMITH,
SMITH, § IN
IN THE
THE COUNTY
COUNTY COURT
COURT
§
Plaintiff,
Plaintiff, §
§
v.
V. §
mmmmmmmmm
NO.
NO. 2
2
§
TERRY
TERRY P.
P. PROVINCE,
PROVINCE, §
§
Defendant.
Defendant. § DENTON
DENTON COUNTY,
COUNTY, TEXAS
TEXAS
PLAINTIFF’S
PLAINTIFF’S RESPONSE
RESPONSE TO
TO DEFENDANT’S
DEFENDANT’S
SECOND
SECOND AMENDED
AMENDED MOTION
MOTION FOR
FOR SUMMARY
SUMMARY JUDGMENT
JUDGMENT
Plaintiff
Plaintiff Karen
Karen Lindsey
Lindsey Smith
Smith (“Plaintiff”)
(“Plaintiff”) files
files this
this Response
Response to
to Defendant’s
Defendant’s
Second Amended Motion
Second Amended Motion for
for Summary
Summary Judgment
Judgment (the
(the “Motion”),
“Motion”), and respectfully
and respectfully
states
states the
the following:
following:
I.
I.
INTRODUCTION
INTRODUCTION
1.
1. Summary judgment is
Summary judgment is appropriate
appropriate only where reasonable
only Where reasonable minds
minds could
could
not disagree
not disagree on
on relevant
relevant facts,
facts, and
and applicable
applicable law.
law. In
In other words, summary
other words, summary
judgment is
judgment is appropriate
appropriate where
Where aa parties’
patties” right
right to judgment is
to judgment is obvious
obvious and
and
indisputable.
indisputable.
PLAINTIFF’S R
PLAINTIFF’S RESPONSE TO D
ESPONSE TO EFENDANT’S S
DEFENDANT’S ECOND
SECOND PAGE 1
PAGE 1
A MENDED M
AMENDED MOTION FOR S
OTION FOR UMMARY J
SUMMARY UDGMENT
JUDGMENT
Page 282
2.
2. Defendant recently filed
Defendant recently filed his
his third
third Motion
Motion for
for Summary
Summary Judgment.
Judgment.
These
These motions
motions all
all are based on
are based on the
the same
same causes
causes of
of action,
action, and
and on
on the
the same
same “facts.”
“facts.”11
Defendant has not
Defendant has not explained, nor could
explained, nor could he, why he
he, Why he believed
believed it
it was necessary to
was necessary to file
file
three
three motions
motions to
to explain his “obvious
explain his “obvious and
and indisputable”
indisputable” right
right to judgment.
to judgment.
3.
3. The
The truth
tmth is,
is, the
the relevant
relevant facts
facts and
and applicable
applicable law
law are
are far
far from
from “obvious
“obvious
and
and indisputable.”
indisputable.” Plaintiff’s
Plaintiff” 3 dog
dog is part German
is part German Shepherd
Shepherd and part Boxer
and part Boxer –
— both
both of
of
which
which are
are widely
widely recognized
recognized as
as “dangerous”
”dangerous” breeds.
breeds. While
While the
the dog’s
dog’s breed
breed does
does
not necessarily
not necessarily make
make the
the vicious,
Vicious, it
it should have put
should have put Defendant
Defendant on notice that
on notice that he
he
needed to
needed use additional
to use additional care
care to
to protect
protect Plaintiff
Plaintiff and
and the
the general
general public
public from
from the
the
dog's
dog's inbred
inbred tendencies.
tendencies.
4. Defendant has no
Defendant has no legitimate
legitimate excuse
excuse for
for failing
failing to
to protect
protect Plaintiff.
Plaintiff.
During his recent
During his recent deposition
deposition (which
(which Defendant
Defendant only
only gave
gave after
after the
the Court
Court ordered
ordered
him to
him to do
do so),
so), Defendant
Defendant testified
testified that he installed
that he installed chicken
chicken wire
Wire over
over aa portion
portion of
of the
the
gate
gate to his property
to his – the
property — the main point of
main point of ingress
ingress and
and egress.
egress. If Defendant
Defendant had
had installed
installed
chicken
chicken wire
Wire over
over the
the entire
entire gate,
gate, his
his dog
dog could
could not
not have bitten Plaintiff
have bitten Plaintiff or
or anyone
anyone
else
else who
Who came
came to
to the
the gate.
gate. And yet Defendant
And yet Defendant did
did not
not do
do so
so for
for the
the sole
sole reason
reason that
that
1
1
Incredibly, Defendant previously claimed to know what his dog was thinking at the time it viciously attacked
Plaintiff. Defendant makes
makes no
no mention
mention of
of this
this “fact” in
in his
his most
most recent
recent Motion for Summary Judgment.
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he ran
he ran out
out of
of chicken wire. In
chicken Wire. In other
other words,
words, Defendant
Defendant exposed
exposed Plaintiff
Plaintiff to
to life
life
threatening
threatening injuries
injuries simply
simply to
to save
save a
a few
few dollars
dollars and
and avoid
avoid aa trip
trip to
to aa hardware
hardware store.
store.
5.
5. As explained
As explained below,
below, and
and in
in Plaintiff’s
Plaintiff’s responses
responses to
to Defendant’s
Defendant’s other
other
motions,
motions, Defendant
Defendant is not entitled
is not entitled to
to summary judgment. This
summary judgment. This lawsuit needs to
lawsuit needs to
proceed to
proceed to trial,
trial, at which time
at which time aa jury
jury will need
need to
to determine
determine whether
Whether Defendant
Defendant is
is
responsible for
responsible his dog's
for his dog's attack
attack on
on Plaintiff.
Plaintiff.
II.
FACTS
FACTS
6.
6. This
This lawsuit
lawsuit involves
involves aa vicious
Vicious attack
attack (the
(the “Attack”)
“Attack”) by
by one
one of
of
Defendant
Defendant Terry
Terry P.
P. Province’s
Province’s dogs
dogs upon
upon Plaintiff.
Plaintiff. On
On January
January 4,
4, 2016,
2016, Plaintiff
Plaintiff
was working
was working for
for United
United Parcel
Parcel Service
Service (“U.P.S.”).
(“U.P.S.”). Plaintiff
Plaintiff was
was aa temporary,
temporary, holiday
holiday
season
season employee
employee for U.P.S., but
for UPS, but was working With
was working with an
an experienced
experienced driver.
driver.
7.
7. Plaintiff
Plaintiff and
and her
her co-worker were dispatched
co-worker were dispatched to
to Defendant’s
Defendant’s home
home in
in
Ponder
Ponder to
to deliver
deliver aa package.
package. Plaintiff’s
Plaintiff’s co-worker warned Plaintiff
co-worker warned Plaintiff that
that Defendant
Defendant
kept
kept dogs
dogs on
on his
his property.
property. To
To avoid
avoid any
any interaction with Defendant’s
interaction with Defendant’s dogs,
dogs,
Defendant’s wife claims
Defendant’s Wife claims “before
“before the
the incident
incident at
at issue,
issue, [she]
[she] told
told delivery persons to
delivery persons to
put packages
put packages on
on the
the ground
ground outside
outside the
the gate/fence,
gate/ fence, and not attempt
and not attempt to put them
to put them over
over
the
the fence.” Amended Motion
fence.” Amended Motion at
at Exhibit
Exhibit E.
E. In
In the
the Third
Third Motion
Motion (but
(but not
not in
in the
the
Original
Original Motion),
Motion), Defendant
Defendant claims
claims this
this instruction was given
instruction was not because
given not because of
of the
the
dogs’
dogs” violent
Violent tendencies, but instead
tendencies, but instead because
“ [Defendant and
because “ [Defendant his Wife]
and his wife] do not like
do not like
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strangers
strangers coming
coming onto
onto [their] property. [Defendant
[their] property. [Defendant and his Wife]
and his wife] also
also fear
fear that
that
someone
someone opening
opening the
the gate
gate and
and entering
entering [their] property might
[their] property not close
might not close and
and secure
secure
the
the gate
gate properly
properly when
when leaving
leaving the property, thereby
the property, thereby making
making it possible for
it possible for [their]
[their]
dogs
dogs to
to escape
escape [their] property.” Motion
[their] property.” Motion at
at Exhibit
Exhibit D.
D. This
This “explanation”
“explanation” for
for
Defendant’s
Defendant’s instruction
instruction in
in no
no way
way explains
explains why
Why Defendant’s
Defendant’s wife
Wife would have
would have
instructed
instructed delivery persons to
delivery persons to place packages on
place packages on the
the ground
ground outside
outside the
the gate/fence,
gate/fence,
and not on
and not on the
the ground
ground inside
inside the
the gate/fence.
gate/fence.
8.
8. After driving
After driving to
to Defendant’s home, Plaintiff
Defendant’s home, Plaintiff exited
exited the
the U.P.S.
UPS. truck.
truck.
Plaintiff
Plaintiff saw
saw two
two dogs
dogs on
on Defendant's property, but
Defendant's property, but did
did not
not see
see a
a third
third dog. Motion
dog. Motion
at
at Exh.
Exh. B,
B, at
at p.
p. 48,
48, ll.
11. 11-14.
11-14. Plaintiff
Plaintiff set
set the package outside
the package outside the
the gate,
gate, as
as she was
she was
instructed
instructed by her U.P.S.
by her U.P.S. co-worker. Id. at
co—worker. Id. p. 48,
at p. 48, l.
1. 21
21 to
to p.
p. 49,
49, l.
1. 1; p. 50,
1; p. 50, l.
1. 17
17 to
to p.
p.
53,
53, l.
1. 3.
3. Plaintiff
Plaintiff does
does not
not specifically recall whether
specifically recall Whether she
she laid
laid the package on
the package on the
the
ground,
ground, leaned
leaned the
the package
package against
against the
the gate
gate post,
post, or
or gently
gently tossed
tossed the package to
the package to the
the
ground. Id. at
ground. Id. at p.
p. 52,
52, l.
1. 8
8 to
to p.
p. 53,
53, l.
1. 3.
3.
9.
9. While
While Plaintiff was leaving
Plaintiff was leaving the package outside
the package outside the
the gate,
gate, a
a third
third dog
dog
(the
(the “Attack
“Attack Dog”)
Dog”) approached.
approached. Without
Without any
any warning,
warning, the Attack Dog
the Attack Dog stuck
stuck its
its head
head
through
through an
an opening
opening in
in the
the gate,
gate, and bit Plaintiff
and bit Plaintiff in
in the neck. No
the neck. No one
one knows
knows precisely
precisely
why the
Why Attack Dog
the Attack Dog acted
acted this
this way,
way, but
but Plaintiff
Plaintiff (who was the
(who was the only person in
only person in direct
direct
proximity with
proximity with the
the Attack
Attack Dog)
Dog) has
has testified
testified “the
“the [Attack
[Attack Dog]
Dog] obviously
obviously wanted
wanted the
the
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package or
package wanted some
or wanted some type
type of
of toy
toy or
or something.
something. It was aa little
It was bit aggressive
little bit aggressive more
more
than
than the
the norm.
norm. So
So it
it made
made aa point
point of
of coming
coming through
through the
the fence
fence more
more than
than like
like aa
worst-case scenario.”
worst—case scenario.” Motion at
Motion at Exh.
Exh. B,
B, at
at p.
p. 129,
129, ll.
11. 4-8.
4-8.
10.
10. Unfortunately, the
Unfortunately, the Attack was both
Attack was both foreseeable
foreseeable and
and preventable.
preventable. The
The
Attack Dog
Attack Dog is
is aa large
large dog, weighing approximately
dog, weighing approximately 100 pounds. The
100 pounds. Attack Dog
The Attack Dog is
is
aa mixed breed dog,
mixed breed dog, comprised
comprised primarily
primarily of
of German
German Shepherd
Shepherd and
and Boxer.
Boxer. See DNA
See DNA
Analysis, aa copy
Analysis, copy of
of which
which is
is attached
attached as
as Exhibit
Exhibit A.
A. Statistically,
Statistically, these
these dogs
dogs are
are
extraordinarily
extraordinarily dangerous.
dangerous. See
See 14 Dog Breeds
I 4 Dog Breeds Blacklisted
Blacklisted by Insurance Companies,
by Insurance Companies,
Psychology
Psychology Today,
Today, May
May 27,
27, 2014
2014 (a
(a copy
copy of
of which
which is
is attached
attached as
as Exhibit
Exhibit B).
B). In
In fact,
fact,
according
according to
to Forbes
Forbes and
and Dog’s
Dog’s World,
World, the
the German
German Shepherd
Shepherd is
is the
the fourth
fourth most
most
dangerous breed, and
dangerous breed, and the
the Boxer
Boxer is
is the
the eighth
eighth most
most dangerous breed. See
dangerous breed. See Exhibits
Exhibits C
C
and
and D.
D. This
This does
does not
not mean
mean that
that aa particular
particular dog
dog of
of these breeds may
these breeds may be
be vicious;
Vicious; it
it
does
does mean, however, that
mean, however, that these breeds present
these breeds present aa heightened risk, requiring
heightened risk, requiring greater
greater
care.
care.
11.
11. At very
At very little
little time
time or
or expense,
expense, Defendant
Defendant could have protected
could have protected Plaintiff
Plaintiff
from
from the
the Attack
Attack Dog, but chose
Dog, but chose not
not to
to do
do so.
so. Defendant has aa wire
Defendant has Wire fence
fence around
around his
his
property, with
property, with aa gate
gate at
at the
the primary
primary point
point of
of ingress/egress.
ingress/egress. T. Province Depo
T Province Depo
(excerpts
(excerpts of
of which
which are
are attached
attached as
as Exhibit
Exhibit F)
F) at
at p.
p. 33,
33, l.
1. 17
17 to p. 34,
to p. 34, l.
1. 8.
8. There
There are
are
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gaps
gaps in
in the
the gate. Id. Defendant
gate. Id. Defendant knew
knew there
there were
were openings
openings in
in the
the gate
gate “large
“large enough
enough
for
for aa dog
dog that
that felt
felt threatened,
threatened, like
like [the
[the Attack
Attack Dog],
Dog], to
to stick
stick its nose through.”
its nose Id.
through.” Id.
12.
12. Defendant
Defendant and
and his
his wife
Wife have
have several
several dogs,
dogs, some
some of
of which
which are
are “outside”
dogs.
dogs. In
In order
order to
to keep
keep the
the smaller
smaller dogs
dogs on
on Defendant’s property, he
Defendant’s property, he installed
installed chicken
chicken
wire over
Wire over lower
lower gaps
gaps in
in the
the gate.
gate. However,
However, he
he did
did not
not cover
cover the
the entire
entire gate with
gate with
chicken
chicken wire because “that’s just
Wire because just how
how much wire [he]
much Wire had at
[he] had at the
the time."
time." T. Province
T Province
Depo at
Depo at p.
p. 28,
28, l.
1. 21
21 to p. 29,
to p. 29, l.
1. 8.
8. Had he done
Had he done so,
so, the Attack Dog
the Attack would not
Dog would not have
have
been able
been able to
to stick
stick his
his snout
snout through
through the
the gate,
gate, and
and would
would not have been
not have been able
able to
to bite
bite
Plaintiff.
Plaintiff.
13.
13. Defendant's
Defendant's indifference
indifference to
to the
the public's
public's safety
safety is
is clearly
clearly shown
shown by his
by his
actions
actions following
following the
the Attack.
Attack. During his deposition,
During his deposition, Plaintiff’s
Plaintiff” s counsel
counsel asked
asked
Defendant what repairs,
Defendant What repairs, if any,
any, he
he made
made to
to the
the gate
gate after
after the
the Attack:
Attack:
Q.
Q. Sir,
Sir, since
since the
the time
time of
of the
the [Attack],
[Attack], have you made
have you made any
any changes
changes to
to
the
the gate?
gate?
A. No.
No.
Q. You
You haven't
haven't put
put chicken wire all
chicken Wire all the
the way up?
way up?
CPO?
A. No.
No.
Q. So
So if
if someone
someone came
came to
to the gate and
the gate and dropped
dropped a package again,
a package again,
this same thing,
this same thing, [the Attack Dog]
[the Attack Dog] could
could bite
bite that person again?
that person again?
A.
A. I – I have
— have no
no expectation
expectation that
that that
that would
would happen
happen at
at all.
all.
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Q.
Q. But it
But it would
would be possible.
be possible.
A.
A. It would
would be,
be, in
in my
my opinion,
opinion, monumentally
monumentally improbable,
improbable, but
but not
not
impossible.
impossible.
T. Province Depo
T Province Depo at p. 43,
at p. 43, ll.
11. 1-14.
1-14.
III.
OBJECTION
OBJECTION TO
TO SUMMARY
SUMMARY JUDGMENT
JUDGMENT EVIDENCE
EVIDENCE
14.
14. One
One of
of the
the primary
primary issues
issues in
in this
this lawsuit
lawsuit is
is whether
Whether the
the Attack
Attack Dog
Dog had
had
vicious
Vicious tendencies prior to
tendencies prior to the
the Attack.
Attack. In
In order
order to
to demonstrate
demonstrate the
the Attack
Attack Dog’s
Dog’s
“peacefulness,”
“peacefulness,” Defendant
Defendant offers
offers (a)
(a) aa picture
picture of
of the
the Attack
Attack Dog
Dog lying next to
lying next to aa cat
cat22
and
and (b)
(b) affidavits
affidavits of
of Defendant
Defendant and his wife
and his Wife stating
stating “[the
“[the Attack
Attack Dog]
Dog] has no vicious
has no Vicious
tendencies
tendencies and
and had never bitten
had never bitten anyone
anyone before
before the
the incident
incident at
at issue.”
issue.” See Affidavit
See Affidavit
of
of Terry Province (Motion
Terry Province (Motion at
at Exh.
Exh. A)
A) and Affidavit of
and Affidavit Renee Province
of Renee Province (Motion
(Motion at
at
Exh.
Exh. D).
D).
15.
15. Plaintiff
Plaintiff objects
objects to
to the Affidavits of
the Affidavits of Terry
Terry Province
Province and
and Renee
Renee Province
Province
on
on the
the grounds
grounds they
they are
are self-serving
self—serving and
and conclusory.
conclusory. Under
Under Texas
Texas law,
law, aa self-serving
self—serving
affidavit
affidavit (i.e.
(i. e. an
an affidavit
affidavit offered
offered by
by aa person with an
person with an interest
interest in
in the
the outcome
outcome of
of the
the
lawsuit)
lawsuit) can be admissible
can be admissible summary judgment evidence,
summary judgment evidence, but
but must
must contain
contain statements
statements
22
Plaintiff’s
Plaintiff's counsel
counsel cannot
cannot fathom
fathom how
how aa picture
picture of aa dog and aa cat is relevant to this lawsuit, or in any
any way
supports the Motion for Summary Judgment. Plaintiff does not contend the cat was responsible for the Attack.
Nevertheless, Plaintiff offers aa photograph of her wounds (a (a copy
copy of which is attached as as Exhibit E)
E) to show the
damage caused byby the Attack Dog. Plaintiff does not offer any opinion regarding the “peacefulness”
“peacefulness” ofof the
the cat.
cat.
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that
that may
may be
be confirmed
confirmed or
or denied by independent
denied by independent evidence.
evidence. Trico
Trico Techs.
Techs. Corp.
Corp. v.
v.
Montiel, 949
Montiel, 949 S.W.2d
S.W.2d 308,
308, 310
310 (Tex.
(Tex. 1997);
1997); Casso
Casso v. Brand, 776
v. Brand, 776 S.W.2d
S.W.2d 551,
551, 558
558
(Tex.
(Tex. 1989).
1989). Similarly,
Similarly, conclusory
conclusory statements
statements in
in affidavits
affidavits are
are not
not proper
proper summary
summary
judgment evidence
judgment evidence if there
there are no facts
are no facts to
to support
support the
the conclusions. El Dorado
conclusions. El Dorado
Motors, Inc.
Motors, Inc. v. Koch, 168
v. Koch, 168 S.W.3d
S.W.3d 360,
360, 366
366 (Tex.
(Tex. App.—Dallas
App—Dallas 2005,
2005, no
no
pet.); Dolcefmo
pet); Dolcefino v. Randolph, 19
v. Randolph, 19 S.W.3d
S.W.3d 906,
906, 930
930 (Tex. App.—Houston [14th
(Tex. App—Houston [14th Dist.]
Dist]
2000,
2000, pet.
pet. denied)
denied) (op.
(Op. on
011 reh'g).
reh'g).
16.
16. In
In their
their affidavits,
affidavits, Defendant
Defendant and his wife
and his Wife state
state “[the
“[the Attack
Attack Dog]
Dog] has
has
no vicious
no Vicious tendencies
tendencies and
and had
had never bitten anyone
never bitten before the
anyone before the incident
incident at
at issue.” Aff.
issue.” Afl.
of Terry Province
ofTerry Province (Motion
(Motion at
at Exh. A) at
Exh. A) p. 1;
at p. Aff. of
1; Afl. Renee Province
0fRenee Province (Motion
(Motion at
at Exh.
Exh.
D)
D) at p. 1.
at p. Although Defendant
1. Although Defendant and his wife
and his Wife clearly
clearly are
are interested persons, they
interested persons, they have
have
not offered
not offered any
any evidence
evidence (e.g.
(e. g. the
the testimony
testimony of
of aa disinterested person) to
disinterested person) to verify
verify their
their
statements.
statements. In
In fact,
fact, the
the Mr.
Mr. and
and Mrs.
Mrs. Province’s
Province’s statement
statement that
that the
the Attack
Attack Dog
Dog “has
“has
no vicious
no Vicious tendencies”
tendencies” is
is so
so vague
vague and
and conclusory
conclusory that
that it would be
it would be impossible
impossible to
to
confirm
confirm or negate such
or negate such aa statement. As such,
statement. As such, Mr.
Mr. and
and Mrs.
Mrs. Province’s
Province’s affidavits
affidavits do
do
not constitute
not constitute admissible
admissible summary judgment evidence.
summary judgment evidence.
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IV.
IV.
ARGUMENT
ARGUMENT
A. Traditional
Traditional Motion
Motion for
for Summary
Summary Judgment.
Judgment.
17.
17. In his previous
In his previous Amended
Amended Motion,
Motion, Defendant
Defendant stated
stated “[t]he
“[t]he facts
facts and
and
controlling
controlling law
law in
in this
this case
case are
are clear,
clear, and reasonable minds
and reasonable minds could not differ
could not differ in
in
applying
applying them,
them, so
so summary judgment in
summary judgment in Defendant’s
Defendant’s favor,
favor, the
the equivalent
equivalent of
of an
an
instructed
instructed verdict
verdict at
at trial,
trial, is
is proper.” Amended Motion
proper.” Amended Motion at
at p.
p. 5. Nothing could
5. Nothing could be
be
further
further from
from the
the truth.
truth.
18.
18. Texas
Texas adheres
adheres to
to the
the so-called
so—called “one
“one bite” rule with respect
rule with respect to
to dog
dog bites.
bites.
Marshall v.
Marshall Ranne, 511
v. Ranne, 511 S.W.2d
S.W.2d 255
255 (Tex.
(Tex. 1974).
1974). This
This name
name is
is misleading.
misleading. A
A dog
dog
owner
owner is not free
is not free of
of liability
liability the
the first
first time
time his
his or her dog
or her dog attacks
attacks aa person.
person. Instead,
Instead,
as
as the
the court noted in
court noted Lewis v.
in Lewis v. Great
Great Southwestern
Southwestern Corporation,
Corporation, 473
473 S.W.2d
S.W.2d 228,
228, 230
230
(Tex.Civ.App.—Fort
(Tex.CiV.App.—F011 Worth
Worth 1971,
1971, writ
writ ref’d n.r.e.)
n.r.e.) (emphasis
(emphasis added),
added), “the
“the owner
owner of
of
the
the dog
dog is
is not
not liable
liable for
for injuries
injuries caused
caused by
by it,
it, unless
unless it
it is
is vicious
Vicious and
and knowledge
knowledge or
or
constructive
constructive knowledge
knowledge of
of that
that fact
fact is
is shown
shown or brought home
or brought home to
to the
the owner.”
owner.” In
In other
other
words, if aa man
words, man knows
knows or should know
or Should know that his best
that his best friend has vicious
friend has Vicious tendencies,
tendencies,
that
that man
man cannot
cannot escape
escape liability
liability simply because his
simply because his dog
dog has
has not
not yet hurt someone.
yet hurt someone.
See Rodriguez v.
See Rodriguez Haddock, 2003
v. Haddock, 2003 WL
WL 1784923
1784923 at
at *2
*2 (Tex.App.—Fort
(Tex.App.—F011 Worth, April
Worth, April
3,
3, 2003,
2003, no pet.) (emphasis
no pet.) (emphasis added).
added).
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19.
19. As the
As the court recently recognized
court recently recognized in
in Stein
Stein v. Reger, 2016
v. Reger, 2016 Tex. App.
Tex. App.
st
LEXIS
LEXIS 5961,
5961, 2016
2016 WL
WL 3162589
3162589 (Tex. App.—Houston [1
(Tex. App—Houston [1St Dist.]
Dist] 2016),
2016), aa dog’s
dog’s
breed can
breed have aa direct
can have direct impact
impact on
on whether
Whether aa homeowner
homeowner is
is liable
liable for
for an
an attack.
attack. In
In
Stein,
Stein, as
as in
in this
this case,
case, the plaintiff was
the plaintiff was aa UPS.
U.P.S. worker
worker who
Who was
was attacked by aa German
attacked by German
Shepherd. Although the
Shepherd. Although the defendants
defendants kept
kept the
the German
German Shepherd
Shepherd in
in aa fenced
fenced area,
area, the
the
dog jumped the
dog jumped the fence
fence and
and attacked
attacked the
the plaintiff.
plaintiff. The
The defendants
defendants filed
filed aa Motion
Motion for
for
Summary
Summary Judgment,
Judgment, including
including affidavits
affidavits stating
stating that
that the
the dog never had
dog never bitten anyone
had bitten anyone
before, and
before, had not
and had not previously
previously attempted
attempted to jump the
to jump the fence.
fence. Based
Based in part on
in part on the
the
defendants’
defendants’ statements
statements that
that they
they “could
“could never
never have
have anticipated
anticipated that
that [the
[the dog]
dog] may
may
have been
have been able
able to jump the
to jump the fence,”
fence,” the
the court
court granted
granted the
the defendants’
defendants’ traditional
traditional and
and
no-evidence
no—evidence Motion
Motion for
for Summary
Summary Judgment.
Judgment.
20. Even
Even if
if aa dog
dog is
is not
not vicious,
Vicious, its
its owner
owner may
may be
be liable
liable for
for injuries
injuries the
the dog
dog
causes
causes “if the plaintiff can
the plaintiff prove the
can prove the owner's
owner's negligent
negligent handling
handling or
or keeping
keeping of
of the
the
animal
animal caused
caused the
the injury.” Labaj v.
injury.” Labaj v. VanHouten,
VanHouten, 322
322 S.W.3d
S.W.3d 416,
416, 420
420 (Tex.
(Tex. App.—
App.—
Amarillo 2010,
Amarillo no pet.);
2010, no pet); see Dunnings v.
see Dunnings v. Castro,
Castro, 881
881 S.W.2d
S.W.2d 559,
559, 563
563 (Tex. App.—
(Tex. App.—
Houston
Houston [1st
[lst Dist.]
Dist] 1994,
1994, writ
writ denied)
denied) (“an
(“an owner
owner of
of aa dog
dog may
may be
be liable
liable for
for injuries
injuries
caused by the
caused by the dog
dog even
even if the
the animal
animal is
is not
not vicious,
Vicious, if the
the plaintiff
plaintiff can
can prove
prove that
that the
the
owner's
owner's negligent
negligent handling
handling of
of the
the animal
animal caused
caused the
the animal
animal to
to injure
injure the
the plaintiff”).
plaintiff ’).
“Unlike
“Unlike strict
strict liability
liability claims,
claims, to prevail in
to prevail in aa negligence
negligence action
action the plaintiff does
the plaintiff does not
not
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have to prove that the animal was Vicious or dangerous.” Muela v. Gomez, 343
S.W.3d 491, 496 (Tex. App.—El Paso 2011, no pet); see Dunnings, 881 S.W.2d at
562 (although finding of Viciousness is necessary in strict-liability claim, it is not
necessary in negligence claim). To sustain such a claim, the Victim of the dog bite
must show: "( 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; (3) the defendant breached that duty; and (4) the defendant's breach
proximately caused the plaintiff‘s injury." M, 322 S.W.3d at 420-21.
21. Although the Stein court found the defendant did not breach a duty to
the plaintiff, its decision is instructive in this lawsuit. "The threshold inquiry in a
negligence case is duty." Mu_ela, 343 S.W.3d at 497. The status of the plaintiff who
was injured on the defendant's premises determines the scope of the defendant's
duty. My; 322 S.W.3d at 421. A mailman, like Stein, is an invitee and, thus, the
Regers had a duty to "exercise ordinary care to keep [their] premises in a reasonably
safe condition." 161.; see Dunnings, 881 S.W.2d at 563 (holding mailman is invitee in
dog—bite negligence case). The extent of the duty of “ordinary care” depends to a
certain degree “on proof of whether the risk of injury from a dog bite is foreseeable,
i. e. , the dog owner's actual or constructive knowledge of the danger presented by his
dog.” Labai, 322 S.W.3d at 421. To establish that a defendant breached their duty,
PLAINTIFF’S RESPONSE TO DEFENDANT’S SECOND PAGE 11
AMENDED MOTION FOR SUMMARY JUDGMENT
Page 292
the plaintiff “must
the plaintiff “must present
present evidence
evidence showing
showing [the
[the defendant]
defendant] did
did not
not act
act as
as a
a
‘reasonable prudent person’
‘reasonable prudent person’ would
would have
have acted
acted in
in the
the same
same or
or similar
similar circumstances
circumstances
in
in handling
handling the
the dog”:
dog”:
[The plaintiff] did
[The plaintiff] did not not proffer
proffer evidence
evidence that that the
the
[defendants]
[defendants] breached
breached any any duty
duty toto [the
[the plaintiff] by failing
plaintiff] by failing
to
to secure
secure [the
[the dog].
dog]. [The [The plaintiff]
plaintiff] diddid not
not identify
identify any
any
evidence
evidence thatthat the
the [defendants]
[defendants] did did not use ‘ordinary
not use ‘ordinary care’
care’
in
in securing
securing [their
[their dog]
dog] behind
behind an an iron-wrought
iron—wrought fence.fence. In In
response to
response to the
the motions,
motions, [the plaintiff] did
[the plaintiff] did not
not present
present anyany
evidence
evidence concerning
concerning the the height
height of of the
the fence,
fence, [the
[the dog’s]
dog’s]
size,
size, the
the typical
typical height
height a a German
German Shepherd
Shepherd can jump, or
can jump, or
that
that [the
[the dog]
dog] hadhad previously jumped the
previously jumped the fence.
fence. In In his
his
brief, he
brief, he makes
makes one, one, conclusory
conclusory statement
statement regarding
regarding
breach: that
breach: that the
the [defendants]
[defendants] breached
breached theirtheir duty
duty by
by failing
failing
‘to
‘to ensure
ensure that
that [their
[their dog],
dog], aa large
large German
German shepherd,
shepherd, waswas
properly secured
properly secured in in her
her enclosure.’
enclosure.’ This This conclusory
conclusory
statement
statement doesdoes notnot analyze
analyze howhow thethe [defendants] breached
[defendants] breached
their
their duty
duty or or how
how the the [defendants]
[defendants] shouldshould have
have secured
secured
[their
[their dog] beyond doing
dog] beyond doing what
What they
they hadhad already
already done,
done, that
that
is,
is, securing
securing her her inin aa fenced
fenced area.
area.
Stein,
Stein, 2016
2016 Tex.
Tex. App.
App. LEXIS
LEXIS 5961
5961 at p. 11,
at p. 11, citing Allen ex
citing Allen ex rel. B.A. v.
rel. B.A. Albin, 97
v. Albin, 97
S.W.3d
S.W.3d 655,
655, 666
666 (Tex. App.—Waco 2002,
(Tex. App—Waco no pet.).
2002, no pet).
22. Unlike
Unlike in
in Stein,
Stein, the
the Plaintiff
Plaintiff in
in this
this lawsuit has offered
lawsuit has offered summary
summary
judgment evidence
judgment regarding the
evidence regarding the well-known
well—known characteristics
characteristics of
of the
the dog
dog in
in question.
question.
The
The Attack
Attack Dog
Dog is
is aa mixed
mixed breed
breed dog
dog comprised
comprised primarily
primarily of
of German
German Shepherd
Shepherd and
and
Boxer.
Boxer. See DNA Analysis
See DNA Analysis (Exh. A). These
(Exh. A). These breeds
breeds are
are commonly
commonly known
known to be
to be
aggressive
aggressive and
and territorial.
territorial. In
In Forbes
Forbes Magazine,
Magazine, German
German Shepherds
Shepherds are
are ranked
ranked as
as the
the
PLAINTIFF’S R
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fourth
fourth most-dangerous
most—dangerous breed,
breed, and
and are
are described
described as
as “a
“a powerful
powerful dog
dog that
that is
is loyal
loyal when
when
well-trained but
well—trained but can
can be fierce.” Exh.
be fierce.” Exh. B.
B. Boxers
Boxers likewise
likewise made
made the
the list
list at
at Number
Number 8,
8,
and
and are
are described
described in
in Dogs
Dogs World
World as
as “Boxers
“Boxers are
are hunting
hunting dogs
dogs and
and they have been
they have been
used as
used as attack
attack and guard dogs
and guard dogs ever since being
ever Since being bred!
bred! They
They have
have aa powerful
powerful jaw
jaw and
and
bite –— which
bite which is perfect for
is perfect for protection!
protection!” Exh.
Exh. C.
”
C. These
These statements
statements certainly
certainly are not
are not
meant
meant to
to suggest
suggest that
that all
all German
German Shepherds
Shepherds and
and Boxers
Boxers are
are vicious.
Vicious.33 However,
However, aa
responsible pet
responsible pet owner
owner cannot
cannot ignore
ignore these
these in-bred
in-bred traits
traits when
when determining how to
determining how to
protect the
protect the public
public from
from these
these animals.
animals.
23. With
With the
the Attack
Attack Dog’s
Dog’s inbred
inbred characteristics
characteristics in
in mind,
mind, the
the Defendant’s
Defendant’s
negligence clearly
negligence clearly was
was aa cause
cause of
of the
the Attack.
Attack. The
The gate
gate to
to the
the Defendant’s
Defendant’s property
property
has large
has large openings
openings through
through which
which the Attack Dog
the Attack Dog could
could place
place its
its head.
head. T. Province
T Province
Depo at
Depo p. 33,
at p. 33, l.
1. 17
17 to p. 34,
to p. 34, l.
1. 8.
8. The
The Defendant was aware
Defendant was aware of
of these
these openings. Id.
openings. Id.
The
The Defendant
Defendant could
could have
have covered
covered these
these openings
openings with
With chicken
chicken wire
Wire –
— which
which he
he did
did
for certain
for certain openings
openings – but did
— but did not
not cover
cover all
all openings
openings for
for the
the simple
simple fact
fact that
that he ran
he ran
out
out of wire. Id.
of Wire. Id. at
at p.
p. 28,
28, l.
1. 21
21 to p. 29,
to p. 29, l.
1. 8.
8. This
This allowed
allowed the Attack Dog
the Attack Dog to
to poke his
poke his
head outside
head outside the
the fence,
fence, and bite the
and bite the Plaintiff.
Plaintiff. The
The Defendant
Defendant should
should not be permitted
not be permitted
33
In the interest of candor, the undersigned counsel states
states that he
he personally owns a
a German Shepherd and a a
Pit
Pit Bull
Bull mix
mix (the
(the most
most “dangerous”
“dangerous” breed
breed on
on all
all three
three attached
attached lists).
lists). The undersigned counsel’s
The undersigned counsel’s These
These dogs
dogs are
are well-
well-
trained and well-behaved.
well-behaved. That said, the undersigned counsel certainly would not leave aa hole in his fence such that
the dogs could bite at passers-by.
passers-by. These dogs are simply too powerful and protective for their owner to take that kind
of
of aa chance
chance with
with someone
someone else’s
else’s life.
life.
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to
to excuse his carelessness
excuse his carelessness on
on the
the so-called
so—called “one bite rule,”
“one bite when he
rule,” when he knew
knew or
or should
should
have known
have known the Attack Dog
the Attack Dog might
might do
do exactly
exactly what
What it
it was bred to
was bred to do,
do, and he gave
and he gave
the Attack Dog
the Attack Dog the
the ability
ability to
to do
do so
so (by
(by knowingly
knowingly leaving
leaving an
an open
open gap
gap in
in the
the gate).
gate).
B. No
No Evidence
Evidence Motion
Motion for
for Summary
Summary Judgment.
Judgment.
24. In
In addition
addition to his traditional
to his traditional Motion
Motion for
for Summary
Summary Judgment,
Judgment, the
the
Defendant
Defendant seeks
seeks a
a no-evidence
no—evidence summary judgment. The
summary judgment. The evidence
evidence attached
attached to
to this
this
Response
Response (including
(including excerpts
excerpts from
from Defendant’s
Defendant’s deposition
deposition transcript)
transcript) establishes
establishes
that
that Defendant
Defendant owed
owed aa duty
duty to protect Plaintiff
to protect Plaintiff (as
(as an
an invitee)
invitee) from
from the Attack Dog’s
the Attack Dog ’s
dangerous
dangerous and
and in-bred
in—bred (i.e.
(Le. foreseeable)
foreseeable) tendencies.
tendencies. This
This evidence
evidence also
also establishes
establishes
that
that Defendant breached this
Defendant breached this duty
duty by
by failing
failing to
to cover
cover known
known openings
openings in
in the
the gate
gate
when he
when he easily
easily could
could have
have done
done so.
so. Finally,
Finally, this
this evidence
evidence establishes
establishes that
that
Defendant’s
Defendant’s breach
breach of
of his
his duty was aa proximate
duty was proximate cause
cause of
of Plaintiff’s
Plaintiff’s injuries.
injuries.
Therefore,
Therefore, for
for the
the same reasons that
same reasons that the
the Court
Court should
should deny
deny the
the traditional
traditional Motion
Motion
for
for Summary
Summary Judgment,
Judgment, it
it likewise
likewise should
should deny
deny the
the no-evidence
no—evidence Motion
Motion for
for
Summary
Summary Judgment.
Judgment.
WHEREFORE,
WHEREFORE, PREMISES
PREMISES CONSIDERED,
CONSIDERED, Plaintiff
Plaintiff requests
requests the
the Court
CouIT to
to
deny
deny the
the Second Amended Motion,
Second Amended Motion, and
and grant
grant Plaintiff
Plaintiff all relief to
all relief which she
to which she may
may be
be
entitled.
entitled.
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Respectfully submitted,
/S/ Mark D. Johnson
PAUL FLANNIGAN
State Bar No. 24012633
paul@flanniganlawfirm.com
MARK D. JOHNSON
State Bar No. 10770175
mark@flanniganlawflrm.com
FLANNIGAN & JOHNSON, P.L.L.C.
5600 Tennyson Parkway, Suite 330
Plano, Texas 75024
Phone: (972) 383—9377
Fax: (844) 287-8882
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was
served upon the following party via the means indicated on November 7, 2017:
Via E—mail and E—Service
J. Brantley Saunders
Brantlev@SaundersWalsh.com
Abigail K. Christmann
Abbv@SaundersWalsh.com
/s/ Mark D. Johnson
Mark D. Johnson
PLAINTIFF’S RESPONSE TO DEFENDANT’S SECOND PAGE 15
AMENDED MOTION FOR SUMMARY JUDGMENT
Page 296
CAUSE N O. CV—2016-00729
KAREN LINDSEY SMITH, § IN THE COUNTY COURT
§
Plaintiff, §
§
v. § NO. 2
§
TERRY P. PROVINCE, §
§
Defendant. § DENTON COUNTY, TEXAS
AFFIDAVIT OF MARK D. JOHNSON
BEFORE ME, the undersigned notary, on this day personally appeared Mark D. Johnson,
a person Whose identity is known to me. After I administered an oath to
affiant, affiant testified:
“My name is Mark D. Johnson. I am an attorney representing Plaintiff Karen Lindsey
Smith in this lawsuit. I am over the age of 18 years, competent in all respects to make this affidavit,
have personal knowledge of the facts stated herein, and everything stated herein is true and correct.
Attached to Plaintiff’s Response to Defendant’s Second Amended Motion for Summary
Judgment are the following exhibits:
0 Exhibit A: DNA Analysis;
0 Exhibit B: Excerpts from a Forbes Magazine on-line afiicle entitled “Most
Dangerous Dogs”;
0 Exhibit C: Excepts from an Inside Dogs World on-line article entitled “Top
10 Most Dangerous Dog Breeds in the World”;
0 Exhibit D: A Psychology Today on—line article entitled “14 Dog Breeds
Blacklisted by Insurance Companies”; and
0 Exhibit E: Photograph of Karen Lindsey Smith.
Exhibits B, C, and D are true and correct copies of articles, or portions of articles, I
downloaded from the internet from the websites for Forbes Magazine, Inside Dogs World, and
Psychology Today, respectively.
Exhibit A is a true and correct copy of a document produced by Defendant in this lawsuit.
Exhibit E is a true and correct copy of a photograph produced by Plaintiff in this lawsuit.”
AFFIDAVIT OF MARK D. JOHNSON PAGE 1
Page 297
Further sayeth affiant naught.
Wig/M 1.
Mérk D. Johnson
SWORN TO AND SUBSCRIBED TO before mehe'undersigned authority, by the said
Mark D. Johnson on the 7th day of November 2017.
BEATHXZ E LOPEZ
Notary|D#131257254
My Commission Expires
Augusm,2oz1
7’6 Z/
NOTARY PufiLIC IN AND FOR
THE STATE OF TEXAS
’2”O
AFFIDAVIT OF MARK D. JOHNSON PAGE 2
Page 298
EXHIBIT A
Page 299
ginsramf’am
§n81ghts
Wha+ breeds me up midi?
The Wisdom Panelm Insights compute! algorithm performed over seven million calculations using 1 1 different models
(from a single breed to complex combinations of breeds) to predict the most likely combination of pure and mixed
breed dogs‘In the last 3 ancestral generations that best fit the DNA marker pattern observed'In Heidi. The ancestry chart
depicting the best statistical result of this analysis‘IS shown in the picture below
33‘ e
‘wxagmnz’
'1 flmammal '4
Wamn/
r "I '
( ‘f v‘w’ J‘U fad 3? ,
”y ,
labrador Mixed Mixeq Mixed German German
Reuiever Breed' Erecd' Brecd’ Shephctd Dog Shepherd Dog
Gmat Grandparents
L__J ,
L__l
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A ‘ 'r'
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)
—-—- Grandparents
E
'
.
7
31": ““4
‘ ““50
BREED —— Grandparents
German
Baker/ Labvador 2
Collie Cross Retriever Mix Shepherd Dog
/' \
.‘
Parents
l
-
'Hl‘nm/
J‘fid
/
Boxer Collie / German Shepherd
LabradurRexriever Mix Dog Mix
Boxer/ Collie/ Labrador Retriever Mix crossed with German Shepherd Dog Mix
at n
MIXED any, / '
Mixed bleed Ancestor. See next page for more details...
_/
”Breed detected. however at a lower confidence. Such results are not included in accuracy calculations.
Page 300
Helght:
22 -26 in
Weight (Show):
48 - 89 lb
Weight (Pet):
48 - 97 1b
Ears:
The modem day German Shepherd breed is a cross between the long-haired, short-haired and wire-haired shepherd dogs
of the German regions of Wijrttemberg, Thuringia and Bavaria. Initially bred for herding. due to their strength, intelligence
and excellent temperament, they became popular as guard dogs, guide dogs, search and rescue dogs, police dogs and
military dogs. Max Emil Von Stephanitz sought to protect and refine the German Shepherd breed at the end of the
nineteenth Century. German Shepherds were used as German police and military clogs during World Wars | and II. Allied
soldiers during World War I took notice of the Shepherd’s use as messenger dogs or search and rescue dogs as they were
very good at locating wounded soldiers. Some soldiers introduced the breed to their home countries and the popularity
of the German Shepherd took off, making it one of the most popular breeds in the world today. The German Shepherd
Dog was recognized by the American Kennel Club in 1908.
German Shepherd Dogs are generally a combination of black and tan, though more or less black may be seen. There
is also a "gray' variant where the tip of the hair is black and the rest is tan. A black mask and a black "saddle" are both
common traits in this breed. Although not an AKC variant, a||~white German Shepherds exist as a separate FCI breed.
The coat comes in long and short varieties.
Do you recognize any of these German Shepherd Dog traits in HEIDI?
Personalities can vary from calm and Enjoy participating in dog sports such as agility,
watchful/observant to energetic
\ "
tracking, flyball. and competitive obedience.
There have been reported incidents of German
Eager to learn and respond well to reward-based
‘ t
'1 Shepherd Dogs being aggressive with other pets or
training.
people.
Page 301
Ewfic§ifihts
Height:
21 - 25 in
Weight (Show):
55 - 66 lb
Weigh! (Pet):
49 - 77 lb
Ears:
The history of the Boxer dates back to nineteenth century Germany. where they were used for hunting deer and boar.
The ancestors of the Boxer include the Bullenbeiszer and the Barenbeiszer, which are now both extinct. The crossing of
those breeds with the English Bulldogs of the 1830's resulted in the Boxer as we know it today. Boxers were bred to be
hunting dogs and they earned their name from the 'boxing' pose they are known to take when standing on their hind
legs. Later in the breed's development, it was made apparent that they were also well-suited for herding and the Boxer
was used in more than a few circus acts due to its ability to learn tricks quickIy and perform them on command. The
popularity of Boxers started to increase rapidly in the 1860’s when the German Boxer Klub was founded. At the turn of
the twentieth century the Boxer made its way to the United States and the American Kennel Club recognized the 80e
as a breed in 1904.
The AKC breed standard for boxers requires that they come only in fawn and brindle (black and brown stripes) with the
fawn ranging from a light tan to mahogany and restricts the amount of white seen on the dog. Accepted traits include
a black mask commonly seen in the breed. White boxers also have a following; though do not meet the breed standard.
Do you recognize any of these Boxer traits in HEIDI?
{1 Intelligent, hard working, and playful dogs, with a high
“ G'
Boxers seem to enjoy dog sports such as agility, flyball.
amount of energy. rally and competitive obedience.
I
, Eager to learn and respond well to reward-based .
.
Tendency tojump up on people, sometimes boxing
'
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Page 304
EXHIBIT B
Page 305
11/7/2017 4. German Shepherd (including mixes) - Most Dangerous Dogs
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Most Dangerous Dogs
4. German Shepherd (including mixes)
Germans developed this breed from herding and
hunting stock in the 19th century, producing a
powerful dog that is loyal when well-trained but can
be fierce.
Fatal attacks since 1982: 26 Maimings: 137
Forbes
© 2017 Forbes Media LLC. All Rights Reserved.
https://www.forbes.com/pictureslm|j45emjeg/4—german—shepherd-incl/#617c62f9259f 1/2
Page 306
11/7/2017 8. Boxer - Most Dangerous Dogs
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A member of the Molossian family named after an
ancient city In Albania, the Boxer was developed in
Germany in the 19th century from hunting breeds.
Fatal attacks since 1982: 10 Maimings: 45
httpszllwwwforbes.com/pictures/mlj45emjegl8—boxerl#550e81042167
1/2
Page 307
EXHIBIT C
Page 308
11/6/2017 Top 10 Most Dangerous Dog Breeds in the World - Inside Dogs World
HOME LATEST DOC BREEDS BREED C!
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TOP LISTS
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DOG TRAINING & BEHAVIOUR
To p 1 0 Essentials to Know of a Dog
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Top 10 Most liked
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12 Celebrities With Bull
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more prone to showmg
K9 Dog Dies After Rescuing
dangerous reactions and
cause fatalities! These breeds
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Page 309
l 1/6/2017 Top 10 Most Dangerous Dog Breeds in the World —
Inside Dogs World
,, 7
bBédriiérhEéfisro that they can We
happily in various households
and situations!
Although, aggressive traits are
in the nature of these dog
breeds, proper nurture can
play a huge role in turning
them into loving and loyal
companions!
10. GREAT DANE
TRENDING POSTS ON IDW
Source:
https://www.pinterest.com/pin/ 197032
Great Danes can be gentle
giants if properly trained and
cared for as they already
hnpzllwww.insidedogsworld.com/top10»most-dangerous-dog-breeds-in—theworld/ 2/14
Page 310
l1/6/2017 Top 10 Most Dangerous Dog Breeds in the World - Inside Dogs World
'
'Bfin’sTBut, if notrtirarinéd and
socialized from an early age,
they can become quite
dangerous and aggressive!
Considering their massive
body height and weight, they
can bring about fatalities!
Source:
https://www.pinterest.com/pin/361484
Boxers are hunting dogs and
they have been used as attack
and guard dogs ever since
being bred! They have a
powerful jaw and bite which —
is perfect for protection! But,
http://wwwjnsidedogsworldoom/lop l 0-most»dangerous-dog-breeds-in»theworld/ 3/14
Page 311
ll/6/2017 Top 10 Most Dangerous Dog Breeds in the World - Inside Dogs World
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keep in mind while training
Boxers is to avoid harsh
treatment and punishment as
these factors can make the
situation even worse!
7. ALASKAN
MALAM UTE
Source:
https://www.pinterest.com/pin/232076
http://www.insidedogsworld.com/topl 012 A. It's pretty -- I think it's shared pretty
13 evenly --
14 Q. Okay.
15 A. -- I mean, in my opinion.
16 Q. Well, I guess I'll --
17 A. I think it's shared.
18 Q. I guess I'll ask your wife about that --
19 A. It's shared pretty evenly.
20 Q. Did you -- I'm sorry. Now, the -- Heidi, she's
21 a mixed breed?
22 A. Yes.
23 Q. Do you know what breeds she's a mix of?
24 A. I don't. I take her to be -- I would call her
25 a black lab mix.
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Q. Okay. Do you know what she's mixed with?
A. No.
I'm just asking because I have a -- I have a
Q.
dog who's a mix and it's half lab and half pit, and
Heidi looks an awful lot like my dog. I didn't know if
you knew whether she was -- or what the black lab was
mixed with.
A. I don't know. I don't know.
Q Okay. Okay. Did you -- did you adopt her?
10 A I __
11 Q. Get her from a shelter?
12 A I got ——
no, we didn't get her from a shelter.
13 Q Did you buy her?
14 A No.
15 Q How did you come across Heidi?
16 A. My daughter saw Heidi in a road ditch, I
17 believe, near ——
18 Q. Okay.
19 A. -- the Denton airport, came home and told my
20 wife about it. They went back -- I don't know, so this
21 is --
22 Q. Sure.
23 A. -- my bad memory. They went back and the
24 result was we gained another dog. She was a little
25 black ball of fur.
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Q. Well, when —— when we got our most recent dog,
and we already have a German shepherd, my daughters --
when my daughter was in town, she decided that our
shepherd needed a buddy and that I needed another buddy.
So I got -- they came home with another dog for me, so I
know how that goes. The -- when y'all -- if it's just
you and your wife, when you're traveling, who takes care
of Heidi other dogs?
and your
A. The -- we usually try to take one or two or
10 three of them with us and leave two or three at home.
11 Q. Okay.
12 We usually take some with us and leave some at
13 home.
14 Q. Okay.
15 A. And we have -- they're able to get in the shop,
16 and we leave food and water for them.
17 Q. they're outdoor dogs primarily?
So
18 A. Two of them are indoor practically all the time
19 and then three of them are outdoor or in the shop.
20 Q. Oh, so you have five dogs?
21 A. Yes.
22 Q. Okay. Okay. Is Heidi an outdoor dog generally
23 or an indoor dog?
24 A. You mean indoor like in the house?
25 Q. Yes, sir.
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A. There are times when she's in the house, but
it's a minimal amount of time. Mostly, she's in the
shop building.
Q. Okay. So if
you're not at the -- at the house
and your wife's not at the house, generally no one's
looking after -- after the dogs? They can just kind
of ——
A. They're just on the property in the yard, yes.
Q. Okay. You don't have neighbors come by and
10 check in on them?
11 A. No.
12 Q. Okay.
13 A. We've never left them that long, no.
14 Q. long have you left them, like an
Okay. How
15 overnight thing or just a couple of days?
16 A. Maybe three days, two or three days.
17 Q. Okay. Have you -- have you ever boarded Heidi?
18 A. Not that I recall.
19 Q. Okay. But Heidi's been to the -- obviously,
20 she goes to the vet's?
21 A. Yes.
22 Q. Okay. And I saw that -- that
vet you had a
23 listed on your responses to the requests for disclosure
24 that was at a PetSmart, ban -- well, I forgot the name
25 of it, but it's a vet that's through PetSmart. Is that
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the principal vet that you use?
A. No. The principal vet has been Tim Hawkins.
He calls himself The Mobile Vet.
Q. He calls himself the what, sir?
The Mobile Vet.
5""9?’
Okay.
He has a motorhome and he will come to your
house and ——
Q. Oh.
10 A. —— do vet stuff.
11 Q. Makes house calls?
12 A. Yes.
13 Q. That's convenient.
14 A. Well, it's nice if
you have five dogs.
15 Q. Uh—huh.
16 A. And Randy Wunche and the Denton Animal Clinic.
17 Q. Okay. The it's stated in your
—— ——
by the
18 way, let's go ahead and it's ——
19 MR. JOHNSON: It's already part of the
20 record, so I don't
that we need to make
know an it
21 exhibit, but I'll
be referring to it. Unless you want
22 to make it
part of make an exhibit.
—— it
23 MR. SAUNDERS: We'll see.
24 MR. JOHNSON: Here's an extra copy for you.
25 MR. SAUNDERS: Thank you.
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Q. (By Mr. Johnson) Have you seen that -- that
document, sir?
A. Let me look at it for a minute.
Q Okay.
A. Yeah, I believe so.
Q In that -- in that -- and
Okay. just I'll
refer to that as the motion. In the motion, you -- you
mentioned that Heidi had received formal training from a
commercial dog trainer that made her obedient to basic
10 commands, come, sit, down, play, stay, off, quiet and
11 release. That's correct?
12 A. Yes.
13 Q. Who was it who trained her?
14 A. I think it was ——
you mean the company or the
15 individual?
16 Q. Just the company's fine.
17 A. Oh, gosh. I don't remember the name of the
18 company.
19 Q. Okay. Do you know when she was trained?
20 A. No, I don't remember the dates.
21 Q. Do you remember the year? I know it's been
22 awhile.
23 A. Well, right. And I'm horrible with dates.
24 Q. Was she a puppy at the time?
25 A. As I can prove, I'm horrible with dates. No,
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she wasn't. She wasn't a puppy. This would have been,
gosh, four or five years ago, I'm thinking. I mean, she
was young at the time, but she was not a puppy.
Q. Why did you take her in for training?
A. My wife likes them to go through the training
mostly to socialize them with other dogs and to
socialize them with other -- put them into the hands of
somebody else who's going to train them, not just us, in
other words.
10 Q. I
understand.
11 A. But they learn to be -- get along with other
12 people better because then they're in a situation ——
13 that's basically why.
14 Q. Okay. Did -- were the other dogs trained as
15 well?
16 A. I'm not sure what you mean. At that same
17 place?
18 Q. Had the other dogs -- and let's just focus on
19 the outdoor dogs for now. There -- as I understand it,
20 there are three dogs that are principally outdoor dogs.
21 A. Right.
22 Q. Were those other outdoor dogs also commercially
23 trained?
24 A. I guess I would have to go back and -- I don't
25 recall exactly, honestly. Frank, who's also an outdoor
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dog, I can tell you he definitely was not. He's blind.
Q. Okay.
A. he's -- I don't know how you'd go about
So
training him. It could be done, I suppose, but he's --
he is -- lives in his own blind dog world.
Q. Okay. Is he pretty calm?
A. Totally calm.
Q. Okay. Was -- was there something about Heidi
that made you seek training for her but not for -- you
10 said his name is Frank?
11 A. You mean something that was different about
12 Heidi ——
13 Q. Yeah.
14 in comparison to -- no. It was just -- I
——
15 mean, we have taken quite a few of our dogs -- not every
16 last one of them, but quite a few of them to training
17 just to socialize them with other dogs and to put them
18 in the hands of other people to -- so they get along
19 with other dogs and other people.
20 Q. Okay.
21 A. I
that's the primary.
mean,
22 Q. Now, other than -- how close do you live to
23 your neighbors? You're out in the country, aren't you?
24 A. Yes. Our closest neighbor to the north is
25 probably close to a mile away.
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Q. Okay.
A. Other -- our closest neighbor to the west would
be over a thousand feet.
Q. Okay.
A. Three city blocks. the closest neighbor to
So
the east would be a couple hundred feet, and to the
south would be close to half a mile.
Q. Okay. Do any of your neighbors interact with
your dogs?
10 A. No.
11 Q. So if -- if there's anybody who's going to know
12 whether Heidi was -- about Heidi's behavior and
13 background, it would be you and your wife?
14 A. Yes.
15 Q. Okay. Now, on the -- prior to the date when
16 Heidi had a run-in with Karen Smith, had Heidi ever --
17 ever bit anyone or tried to bite anyone?
18 A. No.
19 Q. Had any of the other dogs?
20 A. No.
21 Q. Okay. Had they ever tried to, you know, tear a
22 package or try to get to a package?
23 A. Never.
24 Q. Okay. That's one thing I was -- I was a little
25 confused about, because in your motion you mention
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that -- that you had instructed or your wife had
instructed delivery services not to come on the
property --
A. Yes.
Q. —— when making deliveries; is that correct?
A. Absolutely.
Q. Now, why didn't you want people coming on the
property to make deliveries?
A. I don't want anybody coming on my property --
10 Fair enough.
Q.
11 A. -- to deliver or just come and knock on the
12 door. That's me. I'm old well, when we lived in
——
13 Irving, I hated the fact that people could walk up to my
14 front door.
15 Q. Okay.
16 A. That's me.
17 Q. Well ——
18 A. And, I mean, I understand your wondering about
19 that.
20 Did you want to have --
Q. if
somebody came and
21 was dropping off a package, did you have a problem with
22 them opening up the gate and dropping off the package
23 and doing that?
24 A. Yeah, I don't want them to do that. Where I
25 come from, that's -- you don't do that. You don't open
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somebody's gate. your horn and you wait and
You honk
see if
they come out. If
they don't, then you leave
maybe a, you know, message on the mailbox or something.
You don't open somebody's gate and just go in their
yard. That's just me.
Q. Well, where's your mailbox? Is it outside your
gate?
A. mailbox is on the shoulder of the road.
The
It's outside of the fence.
10 Q. Okay. The -- did the presence of the dogs have
11 any bearing on why you didn't want people coming into
12 the -- onto your yard?
13 A. Well, there's some concern especially with
14 Frank. If he gets out, he can't find his way back home.
15 He can't see. In his brain, he has that yard --
16 Q. Yeah.
17 A. -- but in the rest of the world, he has
18 absolutely no idea.
19 Q. Okay. part of your concern, then, was
So you
20 didn't want Frank and the other dogs getting out?
21 A. Exactly.
22 Q. Okay.
23 A. I don't want them to get out, because that
24 would be -- no, I don't want them to get out.
25 Q. Then why would it have been -- because I notice
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that in the -- oh, and I'd have to find in your it
motion, but one of the things that you said that you
didn't want delivery services to do was leaving a
package -- dropping off a package over the gate onto the
ground inside the gate, inside the fence.
A. Yeah.
Q. Why would that be an issue?
A. Well, for me, it's —— if you tell them, okay,
yeah, drop it
over the fence, then, to me, that's --
10 there's only a semantic difference between telling them
11 to come over the fence. I don't want them on my
12 property either reaching over my fence or opening the
13 gate and coming on my property. Maybe, you know, that's
14 me. I'm ——
15 Q. Would you have -- I'm sorry. I interrupted. I
16 apologize.
17 A. Oh, no. That's a good place to interpret.
18 Q. Would you have had a problem with them putting
19 a package through the gate, assuming the package would
20 fit, of course, through the gate and onto your property?
21 A. Well, they've done that. They've tied --
22 they've tied packages in plastic bags to the gate and
23 hung it over the inside of the gate and stuff like that,
24 but why they do that, I don't know, but I don't want
25 them to do that.
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Q. Okay. Did you -- did you or, to your
knowledge, your wife tell UPS, Do not put packages
inside the -- inside the fence?
A. I've told them and she's told them, yes.
Q. Okay. Did you tell them to put the package
outside your fence?
A. Yes.
Q. Did you tell them to not put the package up
against the fence?
10 A. I believe that I told them to leave packages by
11 the mailbox, which would be 20 feet from the fence.
12 Q. Okay. Why would you want the package left by
13 the mailbox as opposed to by your fence?
14 A. Several. Because we would come home at the end
15 of the day, get the mail and pick packages up from the
16 same location. I'm honestly not any more worried about
17 somebody passing by and stealing a package that's by the
18 mailbox any more than I'm worried about them passing by
19 and stealing one that's hanging from the gate or one
20 that's just inside the fence.
21 Q. Okay.
22 A. I'd be equally concerned.
23 Q. Okay. The --
24 A. So that's not a --
25 Q. In the —- in the motion, it states -- and this
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is on Page 2. It says, Plaintiff was told by her fellow
employees to not enter Defendant's property but just set
the package outside the front gate because Defendants
preferred it
that way. Is that correct?
A. Yeah.
Q. Okay.
A. I would --
Q. And then it
to say, She was not
goes on
specifically instructed to get so close to the gate that
10 she could lean the package against the gatepost, but
11 admits she might have leaned it. Was -- is that --
12 well, was that something that you did not want her to
13 do, to lean packages against the post?
14 Well, I
A. no, I wouldn't want her to lean
——
15 packages against the post.
16 Q. Why not?
17 A. not -- I mean, it's -- it's not necessary.
It's
18 I wanted them to leave packages by the -- near the
19 mailbox or -- it's not an issue. It has never been an
20 issue.
21 Q. Okay.
22 A. I mean --
23 Q. So you never instructed her -- or instructed
24 UPS, Don't put packages by the gate? You instructed
25 them that you'd like them over by the mailbox?
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A. Yeah. Or -- yeah. Pretty much on the
ground --
Q. Okay.
A. —— in the driveway,
and yeah.
Q. Did you think there was a problem leaving
packages -- other
than your convenience, did you think
that it presented a problem to put a package that close
to the gate?
A. Probably not.
10 Q. Okay. Were you at all concerned that if
11 someone came up with a package close to the gate, that
12 one of the dogs might snap at them?
13 A. I would never have expected that to happen.
14 Q. In the motion, and
Okay. have to find it, I'll
15 and this is on Page 6, you state that, The dog that bit
16 Plaintiff, and I'm assuming that was Heidi, was on
17 Defendant's own property in a place had a right to it
18 be. Just so we can get the record clear, was -- at the
19 time that Heidi bit Ms. Smith, was Heidi outside the
20 fence?
21 A. No.
22 Q. Was Heidi's mouth outside the fence?
23 A. -- I mean, if what the Plaintiff said
Her
24 happened, her -- her mouth would have had to have been
25 outside the vertical plane, I guess you'd call it, of
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the gate.
Q. Okay.
A. It inside of the vertical plane of the
was
fence, which I believe is also the property line by a
foot.
Q. Okay. But the dog's nose or its snout was
through the fence --
A. No.
Q. -- to your knowledge?
10 A. No, it was not through the fence. It was
11 through the gate.
12 Q. Correct. I'm sorry.
13 A. And the gate is inside of the fence by about a
14 foot.
15 Q. The -- there's no fence immediately to the --
16 immediately outside of the gate?
17 A. No.
18 Q. The gate basically serves as a connector
19 between the fences; fence on one side, fence on the
20 other side and the gate in the middle?
21 A. Well, if
you can visualize, the fence is a
22 vertical plane that, as far as I know, is right on the
23 property line.
24 Q. Okay.
25 A. The gate is set inside of that about a foot --
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Okay.
—— is what I'm trying to tell you.
wowo
How do you --
So --
Q. How do you know that the fence is on the
property line?
A. Because when I
getting ready to build the
was
fence, the surveyors or the phone company, I think it
was I think
—— it
was Centel, I'm not positive. There
10 was a fairly large survey crew out there and they
11 were -- they surveyed pretty much the whole area --
12 Q. Okay.
13 A. for putting in telephone poles. I went out
——
14 there and I thought I would capitalize on surveyors
15 being there and find out where my property line is and
16 where I could build the fence, because there were
17 different versions of, you know, talking to ranchers and
18 other people around there where you could build a fence.
19 So I went out and I asked -- the guy who I think was the
20 supervisor told me, When we're done, your property line
21 will be about 12 inches from the south side of our
22 telephone pole. You go there, you're good. You'll be
23 on the property. And that's what I did, basically. I
24 measured with a ruler and got about a foot -- I
25 believe -- I don't know, but I believe that I'm within
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inches.
Q. And that was my point. Your -- so any
statements about --
about, you know, where the fence was
in connection with the property line, that was based on
something you had heard from somebody else?
A. Yes.
Q. Okay. You didn't do an independent survey on
that?
A. I have not, no.
10 Q. Okay. When -- in that same paragraph, it
11 states, Plaintiff,
being Ms. Smith, was bitten because
12 in a rush to make a delivery to Defendant's properly and
13 heedless of the risk involved, she ran toward the gate
14 where Defendant's dogs were already barking. What is
15 that statement based on?
16 A. It's based on the video --
17 Q Okay.
18 A. of what happened at the estate.
——
19 Q Does that video have sound?
20 A No, it
doesn't have sound. I didn't -- it
21 could possibly, but I didn't set it
up for sound.
22 Q. Okay. So when you say that the dogs were
23 already barking, that would have been based on whether
24 you could see the dog's mouths going up and down?
25 A. Right.
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Q. Okay. It then says -- but there's -- going
back to that, that previous statement, other than the
video, there's -- you don't have any evidence that --
that would show that that was what happened?
A. No. I wasn't there.
Q. Okay. And your wife wasn't there as well,
correct?
A. Correct.
Q. -- it goes on to say that -- that,
The
10 Plaintiff failed to notice that Defendant's gate had
11 openings in it large enough for a dog that felt
12 threatened. Now, I'd like you to -- on the motion --
13 let's go to the back. And I'm going to in particular
14 point to a -- it's Exhibit 5 and it looks like it's
15 probably, oh, eight or nine pages from the back.
16 A. Okay.
17 Q The —— this is your gate, correct?
18 A. Yes.
19 Q. And the dog that's shown there, is that Heidi?
20 A Yes.
21 Q. Okay. And was -- the package that's there, do
22 you know, was that the package that was left by
23 Ms. Smith or do you know?
24 A. It looks exactly like it.
25 Q. Okay.
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A. I don't -- I don't know if that picture in this
N photograph is it. I don't know.
Q. Sir, in that package?
what was
A. Let me think about that for a minute. I'm not
absolutely positive, but I believe it was ink cartridges
for a printer, a colored printer.
Q. But you don't know for sure?
A. I'm not absolutely positive.
Q. And that's fine.
10 A. Pretty sure, not absolutely positive.
11 Q. That's fine. The -- I'm looking at this gate.
12 And it appears that -- the fence that goes around your
13 property is a wire fence, correct?
14 A. Yes.
15 Q. And that same wire appears to go across the
16 front of the gate, a portion of it; is that correct?
17 A. Yes.
18 Q. Now, can you tell me why between the first
19 slat, the slat that's closest to the ground and the next
20 slat there is no wire? Why is that?
21 A. I didn't have wire to go down there at the
22 time. Primarily, the we have different sizes of
——
23 dogs --
24 Q. Uh-huh.
25 A. -- and -- that have come and gone over the
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years. The chicken wire at the -- that goes from the
bar hanging below the bottom of the gate up to just
above the second slat --
Q. Uh-huh.
A. -- that is to keep a couple of very small
Dachshunds in the yard.
Q. Okay.
A. If to the right side of the gate
you look
between the gate and the telephone pole, there's a
10 two-by-four vertically there.
11 Q. Yes, sir.
12 A. That's to keep another dog from squeezing
13 between the gate and the telephone pole.
14 Q. Okay.
15 A. larger wire going up, it's also to keep him
The
16 from going through —- that same dog from going between
17 the second rail or whatever you call it
of the fence and
18 the third one, because he would squeeze himself over
19 there.
20 Q. Okay. So the -- so the purpose of this wire on
21 the gate --
22 A. To keep the dogs in the yard.
23 Q
-- is to keep the dogs inside?
24 A. Yeah.
25 Q If the wire had been -- had extended down
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|-'
between the first horizontal slat and the second one,
N could Heidi have gotten through -- gotten her nose
through that area?
A. You mean at the bottom or at the top?
Q At the bottom.
A. I'm not sure I understand your question.
Q. Well, I'm going to point to it.
A Okay.
Q. I'll see if I can describe it. From the
10 ground, you have the first horizontal slat.
11 A. Right.
12 Q. horizontal slat and
Then you have the second
13 the wire starts at the top of the second horizontal slat
14 and runs up.
15 A. Yes .
16 Q. Between the first and second slat, there's no
17 wire.
18 There's chicken wire.
A.
19 Q. I don't see any wire there, sir.
20 A. That's chicken wire, definitely.
21 Q. That's chicken wire?
22 A. Yeah. There's chicken wire that goes down to
23 the —— that bar that runs along the bottom of the gate.
24 Q. Oh, okay.
25 A. And then it goes up to just above -- well, it
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goes up to about halfway between the second rail of the
gate and the third.
Q. Okay.
A. that just happened to be -- I mean,
Because
there's no reason for it
to -- I mean, that's just how
much wire I had at the time.
Q. Okay.
A. It's a -- it's a patchwork wire job.
Q. I understand. the -- If
10 A. But the wire -- sorry to interrupt.
11 Q. Please.
12 A. But the chicken wire is there to keep small
13 dogs, and the bar on the right is to keep -- it's to
14 keep dogs in the yard, all of it.
15 Q. Okay. If
there had been chicken wire and ——
16 this gate, is that the only -- the only entranceway to
17 your property?
18 A. For everybody else in the world, yes.
19 Q. Who is everyone other -—
20 A. You mean for visitors or ——
21 Q. Yes, for visitors.
22 A. Yes.
23 Q. Okay. So anybody who's going to visit your
24 property is going to go to that gate?
25 A. Yes.
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Q. Is there a hell on there they can ring or ——
A. No.
Q. They just have to call you or yell in there to
tell you --
Generally speaking,
A. we know if they're coming
or they honk their horn.
Q. Okay. If somebody were leaving something for
you, and let's say it was not someone with UPS or some
delivery service ——
10 A. Uh-huh.
11 Q. -- to leave that package by the
and they wanted
12 gate for you, would they have been subject to the same
13 risk as Ms. Smith of getting hit by a dog?
14 A. No.
15 MR. SAUNDERS: Objection, form. You can
16 answer.
17 THE WITNESS: What?
18 Q. (By Mr. Johnson) You can answer. He just --
19 if I say something that's not -- that he has an
20 objection to, he has to say to put it
on the record, it
21 but you can answer.
22 A. I had no expectation for anybody to be at any
23 risk. I mean, I'd have to say no. I mean --
24 Q. Well, sir, I'm I'm a little confused, then,
——
25 because in -- in -- this is, once again, under the
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arguments section of your motion. It says that -- and
it's at the end of that paragraph, that, Ms. Smith
failed to notice that Defendant's gate had openings in
it large enough for a dog that felt threatened, like the
one that hit her, to stick its nose through or unlike at
least one prior occasion when she had made a delivery to
Defendant's property without mishap. This time she
simply bent down too close to the gate without leaving
the package to be delivered, failing to keep a proper
10 lookout for her own safety. If the dogs didn't present
11 a risk, then how was how was
—— it
that Ms. Smith failed
12 to keep a proper lookout for her own safety?
13 A. I think that it
-- she changed the dynamic of
14 everything by running toward the gate.
15 Q. Okay. And that's -- that's based on the video?
16 A. Based on the video and her own statements.
17 Q. Had anyone ever run up to your gate?
18 A. Not to the best of my knowledge.
19 Q. Are there kids in the neighborhood?
20 A. There are, and they never run up to the gate.
21 Q. Do you ever have, like, a kid on a bike or just
22 running run past the front of your property?
23 A. Yeah.
24 Q. Do the dogs go crazy?
25 A. If they have another dog with them, they'll run
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along the fence and bark at the dog.
Q. What if
they don't have a dog with them?
A. Generally, they ignore them.
Q. Do you know why, then, Heidi wouldn't have
ignored Ms. Smith?
A. The truck, and the fact that she
truck, the UPS
ran at the gate. I mean, the trucks get attention from
all the dogs I've ever had. So that's like a big noise
and a big truck. The dogs come to look.
10 Q. Okay.
11 A. And she's running from the truck to the gate, I
12 think.
13 Q. People have left packages at that gate before,
14 haven't they?
15 A. Not like that, no. They leave them on the
16 ground a couple feet from the gate. I'm at a loss as to
17 why you would leave it
like that, frankly.
18 Q. So is it
your position that Mrs. Smith or ——
19 Ms. Smith was -- because she jogged up to the gate and
20 put down the package, it's your position that that's why
21 she got hit?
22 A. I think it definitely contributed. I don't
23 think it's I think it definitely contributed, yes.
——
24 Q. Okay. Do you have any -- and I'm -- I don't
25 mean to be a smart aleck about this, it's just a
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question. Are you in any way trained in animal
psychology?
A. No.
Q. So you don't know what was going on in your
dog's mind at the time that she hit Ms. Smith?
A. No, I don't.
Q. Did there anything that prohibited you
—— was
from having -- other than simply not having the wire,
from having chicken wire run up the full extent of the
10 gate?
11 A. I that anything like that
had no expectation
12 was needed. There was -- I had no cause, in other
13 words, to make me think it
was needed. And that -- I
14 mean, to me, the logical extension of that would be to
15 cover not only the gate but the entire perimeter of the
16 property with chicken wire.
17 Well, sir, the only place where someone was
Q.
18 going to enter or leave your property was at the gate,
19 correct?
20 A. Or approach the property, yeah, I mean, at or
21 around the gate.
22 Q. Okay. So the only place where the person —— if
23 someone was coming onto your property or leaving
24 something right outside your property, the only place
25 that they would come into contact, potentially, with
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your dogs was at the gate?
A. Yeah.
Q. Did you know that, as stated in the
Okay.
argument section of the motion, that the gate had
openings in it large enough for a dog that felt
threatened, like the one that bit Ms. Smith, to stick
its nose through?
A. Yes.
Q. Okay. Had anyone ever come -- well, let me
10 rephrase that. Do you know whether your dogs act
11 differently when you're at home as opposed to when
12 you're not at home?
13 A. I'm not sure I understand.
14 Q. Do you have -- and I understand that if —— if
15 you and your wife aren't home, you're not going to have
16 firsthand knowledge of how the dogs are acting.
17 A. Yes.
18 Q.But do you -- do you have any videos or have
19 you reviewed any videos or spoken to any of your
20 neighbors who have said that the dogs will act more
21 aggressively when you're not home as opposed to when you
22 are home?
23 A. No.
24 Q. Okay.
25 A. I mean, could -- sorry to interrupt you. The
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video -- I mean, now that you mention it, I have looked
at videos of the dogs' behavior, I mean, incidentally
in, you know, curiosity about other things. I've looked
at videos and the dogs almost seem less active when
we're not there. Frankly, I've wondered where the dogs
are.
Q. When were those videos taken?
A. Up over a period of time before and after the
incident.
10 Q. Okay. Were they taken at the time of
11 deliveries?
12 A. There are videos of delivery times, yes.
13 Q. Okay. At the time of the previous deliveries,
14 did the dogs bark?
15 A. Yes.
16 Q. Did they run to the fence?
17 A. Sometimes, yes.
18 Q. Okay. they were running to the fence,
When
19 were they acting aggressively towards the person who was
20 coming to make the delivery?
21 A. Not in my opinion. They were acting like dogs
22 in their yard.
23 Q. Okay. Now, at no time during those deliveries
24 did —— well, I'll ask you: During those deliveries, did
25 Heidi ever go up to the fence and stick her nose through
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the -- through the wire?
A. Not that I saw, no.
Q. Just a second. Sir, you produced a
Okay.
video of -- of the -- what you say is the incident and
some previous deliveries, correct?
A. And I think some subsequent --
Q. You're familiar with that video?
A. Yes.
Q. That video was taken by a camera located on
10 your property; is that correct?
11 A. Yes.
12 Q. The dates on the video are wrong.
13 A. Yes.
14 Q. Correct? The -- how do you know that the
15 incident that's shown on the video was the same as when
16 Heidi bit Ms. Smith?
17 A. Well, because it -- I to find the
mean,
18 incident, literally, I went from the end of the video
19 and went back in 24-hour increments --
20 Q. Okay.
21 A. -- just counting back days.
22 Q. Okay.
23 Disregard the date because it's wrong.
A.
24 Q. So you knew when the last date was and then you
25 just counted back from there?
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A. Yes.
Q. Okay.
A. And ended up at the incident.
Q. Okay. And that's how you determined what --
what you believe the dates to be of the different --
A. Yes.
-- things that are shown? In that video, you
Q.
state that -- or in your motion, you state that the
video shows prior deliveries by Ms. Smith.
10 A. Yes.
11 Q. I've looked at the video and I couldn't tell
12 who it was. did you know
How was Ms. Smith? it
13 A. Because I believe -- I don't know absolutely
14 for a fact, but I believe that she was the only female
15 working during that period of time in that area. And I
16 could tell that it
was a female in the video.
17 Q. How do you know she was the only only female ——
18 working?
19 A. I believe she said that. I'm not positive.
20 Q. Okay. So she said it
in her deposition.
21 That's what your statement would have been based on?
22 A. Yes.
23 Q. Okay. Just one second, please. What are your
24 dogs -- do they have toys that they play with, chew
25 toys?
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A. toys.
They do have
Q. Okay. What kind of toys are they generally?
A. Well, Shooter doesn't play with toys. He's
never been interested in toys. I don't know.
Q. I'm sorry. That dog's name again?
A. Shooter, the little Red Healer/Dachshund --
Q. Oh, okay.
A. -- mix dog, whatever that is. Frank is blind.
He doesn't know what a toy is except that he gets hit
10 with them once in awhile. Heidi loves to play ball, so
11 the large tennis balls.
12 Q. Okay.
13 A. I guess that's what they are. I think they're
14 called Kong balls or something like that. And she likes
15 for you to throw them and she brings it back and gives
16 it to you and you can throw it again.
17 Q. Okay.
18 A. She likes to get the ball.
19 Q. When --
you're throwing to Heidi -- and I
when
20 know with my dogs, if
I don't throw quick enough, it
21 they'll come up and try to -- try to take out of my it
22 hand. Does that ever happen with Heidi?
23 A. Well, she has been trained. And we tell her to
24 sit, and we throw the ball and she goes.
25 Q. Okay. If you don't say sit, will she come to
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you?
A. She -- if -- you mean come after the ball --
Q. Yeah.
A. —— in your hand?
Q. Yeah. Yes.
A. stays back a couple feet and watches, I
She
mean, anxiously for you to -- you know, what are you
going to do with the ball.
Q. Okay.
10 A. When possession, it's my ball.
its in my
11 That's our -- the understanding. I mean, she doesn't
12 grab it
back out of my hand.
13 Q. Okay. Do you think it's
possible that Heidi ——
14 at the time that she hit Ms. Smith, that she was simply
15 trying to get what was in Ms. Smith's hand?
16 MR. SAUNDERS: Objection, form. You can
17 answer.
18 A. No.
19 Q. (By Mr. Johnson) Why not?
20 A. I think that she was -- I think that -- well,
21 again, I'm ——
22 Q. I understand that you're not --
23 A. I'm not qualified to speculate. So, I mean,
24 what I would speculate on it would probably be --
25 Q. And the only reason I'm asking is because in
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the motion, you do speculate as to what was that it
caused this. So I'm asking you: Is —— is it it
possible that she was simply going for whatever was
in —— in Ms. Smith's hand or was she --
A. No.
Q. -- going for Ms. Smith?
MR. SAUNDERS: Objection, form.
A. I don't think it was either.
Q. (By Mr. Johnson) Do you have any opinion as to
10 why she attacked?
11 MR. Objection, form.
SAUNDERS:
12 A. I disagree with the term attack.
13 Q. (By Mr. Johnson) You're saying Heidi did not
14 attack Ms. Smith?
15 A. I'm saying that in my opinion, probably what
16 happened was there was a collision between
17 Ms. Smith's -- an extremely regrettable collision
18 between Ms. Smith's neck and Heidi's nose/mouth.
19 Q. Okay.
20 A. Like I said, it was a horrible event and I wish
21 it would never have happened. I wish nothing like this
22 on anybody ever at all. Heidi's has been a great,
23 wonderful dog .
24 Q. And since this event, there's been nothing ——
25 no additional problems with Heidi?
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A. No.
Q. In your motion, you state that,
Okay.
Plaintiff was bitten because in a rush to make a
delivery to Defendant's property, and heedless of the
risk involved, she ran towards the gate where the dogs
were already barking. What risk are you talking about?
A. Well, I guess if
-- frankly, I personally if
composed this, I wouldn't have put that statement in
there. I think that on the other hand --
10 MR. SAUNDERS: Let me stop you real quick
11 because I'm confused. The statement -- are we talking
12 about something the lawyer wrote in argument or have we
13 gotten to him and his affidavit? I don't see that
14 statement in the affidavit.
15 MR. I haven't
JOHNSON: gone to the
16 affidavit yet, but this was --
17 Q. (By Mr. Johnson) But you had said that you
18 read -- you had read that motion.
19 MR. SAUNDERS: I just object to the term
20 that it's his statement. It's the argument that the
21 lawyer made. I thought you were referring to -- sorry.
22 I thought you were referring to his affidavit here. I
23 didn't see that there.
24 THE WITNESS: Page 6, I think.
25 MR. SAUNDERS: Got you. You can rephrase
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it and I'll withdraw my objection.
MR. JOHNSON: Okay.
Q. (By Mr. Johnson) Do you agree with that
statement that's contained -- that I just read that's
contained in the motion?
A. I would probably -- like I said, I would
probably modify the part that says, Heedless of risk
involved. I'm not sure what I would modify to, but it
that's --
10 Q.Well, are you saying that Heidi did not present
11 any risk to Ms. Smith?
12 A. Gosh, I've got to tell you that the fence
13 probably and the fence posts and the wasps that have a
14 nest built into the telephone pole right there presented
15 a risk. But, in my mind, I had never conceived of or
16 considered that the dogs were a risk. I mean, that's if
17 the -- that would be one way to read that statement, was
18 that the risk was purely of the dogs. And I would
19 disagree with reading it
that way, is what I'm saying ——
20 Q. Okay.
21 A. -- frankly.
22 MR. JOHNSON: Go off the record for a
23 second.
24 (Recess from 11:09 a.m. to 11:11 a.m.)
25 MR. JOHNSON: Back on the record.
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Q. Sir, since the time of the
(By Mr. Johnson)
incident, we'll just call it that, with Ms. Smith and
Heidi, have you made any changes to the gate?
A. No.
Q. You haven't put chicken wire all the way up?
A. No.
Q. So if someone came to the gate and dropped down
a package again, this same thing -- Heidi could bite
that person again?
10 A. I —— I have no expectation that that would
11 happen at all.
12 Q. But it would be possible?
13 A. It would be, in
opinion, monumentally
my
14 improbable, but not impossible.
15 Q. Okay. Because the hole in the gate where
16 the -- between where the wire is is still there?
17 A. Yeah. It has not changed.
18 Q. Okay.
19 MR. JOHNSON: Passthe witness.
20 MR. SAUNDERS: We'll reserve ours until
21 trial.
22 (Deposition concluded at 11:17 a.m.)
23
24
25
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CHANGES AND SIGNATURE
WITNESS NAME: TERRY P. PROVINCE
DEPOSITION DATE: SEPTEMBER 15, 2017
PAGE LINE CHANGE REASON
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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I, TERRY P. PROVINCE, have read the foregoing
deposition and hereby affix my signature that same is
true and correct, except as noted above.
TERRY P. PROVINCE
THE STATE OF )
COUNTY OF )
Before me, on ,
10 this day personally appeared TERRY P. PROVINCE, known to
me (or proved to me under oath or through
11 ) (description of identity
card or other document) to be the person whose name is
12 subscribed to the foregoing instrument and acknowledged
to me that they executed the same for the purposes and
13 consideration therein expressed.
14 Given under my hand and seal of office this
day of I
15
16
17
NOTARY PUBLIC IN AND FOR
18 THE STATE OF
19
20
21
22
23
24
25
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CAUSE NO. CV-2016-00729
KAREN LINDSEY SMITH ) IN THE COUNTY COURT
Plaintiff, ;
VS. ; NO. 2
TERRY P. PROVINCE ;
Defendant. ; DENTON COUNTY, TEXAS
REPORTER'S CERTIFICATION
DEPOSITION OF TERRY P. PROVINCE
SEPTEMBER 15, 2017
10
11 I,Chrissa K. Hollingsworth, Certified Shorthand
12 Reporter in and for the State of Texas, hereby certify
13 to the following:
14 That the witness, TERRY P. PROVINCE, was duly sworn
15 by the officer and that the transcript of the oral
16 deposition is a true record of the testimony given by
17 the witness;
18 That the deposition transcript was submitted on
19 to the witness or to the attorney for the
20 witness for examination, signature and return to me by
21
22 That the amount of time used by each party at the
23 deposition is as follows:
24
MR. MARK D. JOHNSON .......
01 HOUR(S):03 MINUTE(S)
25 MR. J. BRANTLEY SAUNDERS..00 HOUR(S):00 MINUTE(S)
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That pursuant to information given to the
deposition officer at the time said testimony was taken,
the following includes counsel for all parties of
record:
FOR THE PLAINTIFF:
MR. MARK D. JOHNSON
FLANNIGAN & JOHNSON, PLLC
5600 Tennyson Parkway
Suite 330
Plano, Texas 75024
972.383.9377
mark@f1anniganlawfirm.com
FOR THE DEFENDANT:
MR. J. BRANTLEY SAUNDERS
10 SAUNDERS, WALSH & BEARD
Craig Ranch Professional Plaza
11 6850 TPC Drive
Suite 210
12 McKinney, Texas 75070
214.919.3555
13 brantley@saunderswalsh.com
14
15
16
17
18 I further certify that I am neither counsel for,
19 related to, nor employed by any of the parties or
20 attorneys in the action in which this proceeding was
21 taken, and further that I am not financially or
22 otherwise interested in the outcome of the action.
23 Further certification requirements pursuant to Rule
24 203 of TRCP will be certified to after they have
25 occurred.
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Certified to by me this 29th day of September,
2017.
Chrissa K. Hollingsworth
Texas CSR No. 8269
Expiration Date: 12/31/17
Gwendolyn Parker & Associates
Firm Registration No. 244
4144 North Central Expressway
Suite 600
Dallas, Texas 75204
1.877.747.8007
10 gwenparker@gwenparkerinc.com
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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FURTHER CERTIFICATION UNDER RULE 203 TRCP
The original deposition was/was not returned to the
deposition officer on ;
If returned, the attached Changes and Signature
page contains any changes and the reasons therefor;
If returned, the original deposition was delivered
to Mr. Mark D. Johnson, Custodial Attorney;
That $ is the deposition officer's
10 charges to the Plaintiff for preparing the original
11 deposition transcript and any copies of exhibits;
12 That the deposition was delivered in accordance
13 with Rule 203.3, and that a copy of this certificate was
14 served on all parties shown herein on and
15 filed with the Clerk.
16 Certified to by me this day of
17
, 2017.
18
19
20 Chrissa K. Hollingsworth
Texas CSR No. 8269
21 Expiration Date: 12/31/17
Gwendolyn Parker & Associates
22 Firm Registration No. 244
4144 North Central Expressway
23 Suite 600
Dallas, Texas 75204
24 1.877.747.8007
gwenparker@gwenparkerinc.com
25
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Filed:
Filed: 11/10/2017 12:10 PM
11/10/201712210
Juli Luke
Denton County,
County, County Clerk
By:
By: Alexa Hagenbucher,
Hagenbucher, Deputy
Cause No. CV-2016-00729
KAREN LINDSEY SMITH, §§ IN THE COUNTY COURT
Plaintiff, §§
§§
v.
V. §§ NO. 22
§§
TERRY P. PROVINCE §§
Defendant. §§ DENTON COUNTY, TEXAS
DEFENDANT’S REPLY
REPLY TO
w
TO PLAINTIFF’S RESPONSE
RESPONSE TO
DEFENDANT’S SECOND AMENDED MOTION FOR SUMMARY
JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
TO
COMES NOW Defendant, Terry
Terry Province
Province (hereinafter
(hereinafter “Province”),
“Province”), and
and
files and serves this his Reply
makes, files Reply to
to Plaintiff’s
Plaintiff’s Response
Response to
to Defendant’s
Defendant’s
Second Amended Motion for Summary Judgment pursuant to Texas Rule of
of Civil
Procedure Rule 166a,
166a, and in support thereof would respectfully show this
Honorable Court the following:
I.
Plaintiff’s Response Fails to Raise a Genuine Issue of Material Fact
21
This Reply is filed
filed solely to point out how and why Plaintiff’s Response
why Plaintifl’s Response to
Defendant’s Second
Defendant’s Amended Motion
Second Amended Motion for
for Summary Judgment (“Plaintiff’s
Summary Judgment (”Plaintifl’s
Response”),
Response ”), even
even when viewed in the light most favorable
favorable to Plaintiff, fails
Plaintiff fails to raise
a genuine issue of
of material fact. Plaintiff’s creative
fact. Plaintifl’s creative use
use of
of terms such as
terms such as “the
”the
attack
attack dog” and
and “vicious
“vicious attack”
attack” does
does not change the fact
fact that She
she has not
DEFENDANT’S
DEFENDANT’S REPLY
REPLY TO
TO PLAINTIFF’S
PLAINTIFF’S RESPONSE
RESPONSE TO
TO DEFENDANT’S
DEFENDANT’S SECOND AMENDED
MOTION FOR SUMMARY JUDGMENT PAGE 11
Page 375
produced any
produced any credible evidence to create a fact issue.
a fact issue. The facts of
The facts of this case simply
do not merit putting
putting Mr.
Mr. Province through trial.
trial.
II.
Plaintiff Fails to Raise a
21 of Material Fact
IssuIeI.0f
Genuine Issue Fact as
as to
to all
all of
of Plaintiff’s
Plaintiff’s
Claims Against Defendant
Plaintiff’s – whether
Plaintiff’s claims all revolve around the same issue — Whether Heidi sticking
part of her snout between the slats of
of the gate and biting Plaintiff was foreseeable.
foreseeable.
E
See Labaj v. VanHouten, 322 S.W.3d 416, 421 (Tex. App—Amarillo
v. VanHouten, 322 App.—Amarillo 2010, no
416, 421 2010,
pet.) (the
pet.) (the extent
extent of
of aa dog
dog owner’s
owner’s duty
duty depends
depends “on
“on proof
proof of whether the
of Whether the risk
risk of
of
foreseeable, i.e.
injury from aa dog bite is foreseeable, i.e. the
the dog
dog owner’s
owner’s actual or constructive
knowledge of
of the
the danger presented by
danger presented by his
his dog”)
dog”) (emphasis
(emphasis added).
added). This incident,
involving this dog,
dog, which had no prior violence-related
Violence—related issues,
issues, ever,
ever, was not
foreseeable and Plaintiff has
has failed to provide any
any proof to the contrary, as
as no such
evidence exists.
exists.
Province has owned Heidi since she was aa puppy
puppy and had no reason to think
that Heidi had any
any vicious E
Defendant’s Motion
propensities. See Defendant’s
Vicious propensities. Motion for
for Summary
Summary
Judgment, Exhibit A. Heidi had never bitten anyone prior to the incident and is
normally aa well—behaved E
well-behaved dog. See id.
id. Province cannot be liable for injuries caused
by Heidi in aa place she had the right to be
by – inside the Provinces’
be — Provinces” yard – because
yard —
he did not know that Heidi had any
any vicious E
Vicious propensities. See Rodriguez v.
v.
*2 (Tex. App—F011
Haddock, 2003 Tex. App. LEXIS 2940 at *2 App.—Fort Worth, April 3,
3,
DEFENDANT’S
DEFENDANT’S REPLY
REPLY TO
TO PLAINTIFF’S
PLAINTIFF’S RESPONSE
RESPONSE TO
TO DEFENDANT’S
DEFENDANT’S SECOND AMENDED
MOTION FOR SUMMARY JUDGMENT PAGE 22
Page 376
2003). In fact, prior to that day,
day, Heidi had no vicious
Vicious propensities, and that is Why
why
Plaintiff cannot produce any
any evidence on this point.
point.
A. Plaintifir
A. Plaintiff Fails to Produce Any Evidence that Heidi was a Vicious Dog.
Vicious Dog.
Plaintiff’s
Plaintiff’s assertion that Heidi’s
Heidi’s alleged “inbred
“inbred characteristics”
characteristics” somehow
somehow
automatically mean that Heidi may
may have vicious
Vicious characteristics is not only without
Without
merit, it would create new law that simply does not, and should not ever, exist. In
Plaintiff’s
Plaintiff’s Response,
Response, Plaintiff
Plaintiff asserts
asserts that Heidi is primarily German Shephard and
E Plaintiff’s Response.
Boxer. See Plaintifl’s Response. However, the DNA test Plaintiff relies on for this
assertion indicates that Heidi is aa mix of Boxer, Collie, Labrador Retriever,
German Shephard, and other unknown mixed breeds. E
Plaintiff’s Response,
breeds. See Plaintifl’s Response,
Exhibit A.
Additionally, Plaintiff produced several articles listing and describing
Additionally,
dangerous dog breeds, including German Shephard and Boxer. E
Plaintiff’s
Boxer. See Plaintifl’s
Response. However, these articles are all inadmissible hearsay and Province
Response.
objects to them on this basis. Furthermore, regardless of their credibility, the
articles do not establish that Heidi, specifically,
specifically, had any
any vicious propensities.
Vicious propensities.
Plaintiff acknowledges
acknowledges that
that these
these articles
articles “do[]
“d0[] not mean that aa particular dog of
these breeds may be vicious.” E
Vicious.” See id. Province agrees. Even if they were
admissible, they have no value in this case.
case. The articles Plaintiff relies on simply
cannot and do not establish that Heidi had any
any vicious
Vicious tendencies because they are
DEFENDANT’S
DEFENDANT’S REPLY
REPLY TO
TO PLAINTIFF’S
PLAINTIFF’S RESPONSE
RESPONSE TO
TO DEFENDANT’S
DEFENDANT’S SECOND AMENDED
MOTION FOR SUMMARY JUDGMENT PAGE 33
Page 377
inadmissible hearsay
hearsay and are wholly unrelated to whether
are Wholly Whether Heidi, specifically, was
specifically, was
dangerous.
dangerous.
Plaintiff also relies on her self-serving, uncorroborated deposition testimony
in an
an attempt to imply that Heidi was a Vicious dog. However,
a vicious However, Plaintiff’s
Plaintiff” s testimony
testimony
that
that “[Heidi]
“[Heidi] obviously
obviously wanted
wanted the package or
the package wanted some
or wanted some type
type of
of toy
toy or
or
something.
something. It
It was
was aa little bit aggressive
little bit aggressive more
more than
than the
the norm” cannot and does not
establish that Heidi had any
any vicious
Vicious tendencies. E
Plaintiff’s Response.
tendencies. See Plaintifl’s Response. It is
simply
simply Plaintiff’s
Plaintiff’s opinion
opinion as
as an
an interested
interested party based on one unfortunate
party based
With Heidi and
encounter with and Province
Province objects
objects to
to the
the use
use of
of Plaintiff’s
Plaintiff’s deposition
deposition
testimony to prove that Heidi was
was vicious.
Vicious.
Furthermore, regardless of Plaintiff’s
Plaintiff’s objections
objections as
as to
to the
the Provinces’
Provinces”
affidavits,
affidavits, it
it is
is not
not Province’s job to
Province’s job to produce
produce evidence
evidence that
that Heidi
Heidi is
is not
not vicious.
Vicious. To
To
the contrary, it
it is Plaintiff’s burden
is Plaintifl’s burden to produce evidence
to produce evidence that Heidi had
that Heidi had vicious
vicious
tendencies of
of which Province knew or Should
should have known.
known. However, no such
evidence exists. Plaintiff has failed to produce any
any credible evidence and,
and,
therefore, has
has failed to meet her burden on the issue of whether
Whether Heidi had any
any
vicious
Vicious tendencies and, so, Province’s
and, if so, Province’s knowledge
knowledge thereof.
thereof. Simply put, Plaintiff
has not
has raised aa fact issue whether
Whether Heidi had any
any vicious
Vicious tendencies.
tendencies.
DEFENDANT’S
DEFENDANT’S REPLY
REPLY TO
TO PLAINTIFF’S
PLAINTIFF’S RESPONSE
RESPONSE TO
TO DEFENDANT’S
DEFENDANT’S SECOND AMENDED
MOTION FOR SUMMARY JUDGMENT PAGE 44
Page 378
B. PlaintWHas
B. Plaintiff Has Presented No Evidence that Province Knew or
0r Should Have
Known that Heidi had Vicious Propensities.
Vicious Propensities.
None of the evidence cited by
by Plaintiff creates aa fact issue as
as to whether
Whether
Province knew or should
Should have known that Heidi might present aa danger because no
such evidence exists.
Again, Plaintiff attempts to rely on various articles about dangerous dog
breeds as
breeds as some
some “evidence well-known characteristics
“evidence regarding the well—known characteristics of
of [Heidi].”
[Heidi].”
E Plaintiff’s Response. However, as asserted above, these articles are nothing
See Plaintifl’s Response. as asserted above, these are
hearsay and
more than hearsay and are
are not
not in
in any way credible
any way credible evidence
evidence of
of Heidi’s
Heidi’s specific
specific
characteristics and propensities.
propensities. Province objects to the use of these articles as
as
summary judgment evidence on this basis.
Plaintiff also claims that because
because of
of Heidi’s
Heidi’s genetic
genetic makeup,
makeup, Province
“knew
“knew or
or should
should have
have known
known [Heidi]
[Heidi] might
might do
do exactly
exactly what
What [she]
[she] was bred to
do…”
do...” However, this statement is conclusory and completely unsubstantiated by
by
any
any credible evidence. In fact, Province testified
testified to the contrary:
Deposition of Terry Province, Page 42, Lines 10-19
10—19 (emphasis added)
Q.
Q. Well, are youyou saying that Heidi did not present anyany risk to Ms.
Smith?
A. Gosh,
Gosh, I’ve got got to
to tell you that
tell you that the
the fence probably and
fence probably and the
the fence
fence
posts and the wasps that have aa nest built into the telephone
pole right there presented aa risk. But, in mymy mind, I had never
conceived of 0f or considered that the dogs were aa risk. I mean,
mean,
if that’s
that’s the
the – that would be
— be one way
way to read
read that statement, was
that the risk was purely of the dogs. And I would disagree with With
reading it
reading it that
that way,
way, is
is what
What I’m saying
saying –
—
DEFENDANT’S
DEFENDANT’S REPLY
REPLY TO
TO PLAINTIFF’S
PLAINTIFF’S RESPONSE
RESPONSE TO
TO DEFENDANT’S
DEFENDANT’S SECOND AMENDED
MOTION FOR SUMMARY JUDGMENT PAGE 55
Page 379
E
See Plaintifl’s
Plaintiff’s Response, Exhibit F
Response, F
In an apparent attempt to establish that Province breached any
any alleged duty
owed,
owed, Plaintiff
Plaintiff relies
relies on
on Province’s
Province’s actions prior to
actions prior to the
the incident,
incident, arguing
arguing that
that
Province’s
Province’s failure
failure to
to put
put chicken wire all
chicken Wire all the
the way up the
way up the gate
gate means
means that
that Province
Province
was indifferent to public safety. However, as
was has already been established and as
as has as
Province has
has testified,
testified, he was not aware of
of any
any risk associated with not putting
chicken Wire
wire all the way up the gate:
Deposition of Terry Province, Page 33,
33, Lines 7-16
7—16 (emphasis added)
Q.
Q. Did –— was there anything that prohibited you from having — –
other than simply not having the Wire,wire, from having chicken
wire run up the full extent of the gate?
Wire gate?
A. I had no expectation that anything like that was needed.
There was –— I had no cause,
cause, in other words, to make me think it
was needed.
was needed. And that — – I mean,
mean, to me,
me, the logical extension of
of
that would be to cover not only the gate but the entire perimeter
of
of the property with
With chicken Wire.
wire.
E
See Plaintifl’s
Plaintiff’s Response, Exhibit F
Response, F
Province had no obligation to do any
any more than he did with the gate and
fence
fence around his yard.
around his yard. Province’s
Province’s only
only duty
duty was
was to
to act
act as
as a reasonable prudent
a reasonable pmdent
person under
person under the
the same
same circumstances
circumstances “regarding
“regarding any
any reasonably foreseeable
fiAllen
risk.” See Allen v.
ri_sk.” v. Albin, 97
97 S.W.3d 655,
655, 666 (Tex. App—Waco
App.—Waco 2002) (emphasis
added). Plaintiff’s
added). Plaintiff’s argument
argument would
would create
create new
new Texas
Texas law
law requiring
requiring what
What amounts
amounts
non—Vicious dogs. Plaintiff’s
to strict liability for owners of non-vicious Plaintiff’s attempt
attempt to
to argue
argue that
that
Province was under aa heightened duty to put chicken wire
Wire all the way up the gate,
gate,
DEFENDANT’S
DEFENDANT’S REPLY
REPLY TO
TO PLAINTIFF’S
PLAINTIFF’S RESPONSE
RESPONSE TO
TO DEFENDANT’S
DEFENDANT’S SECOND AMENDED
MOTION FOR SUMMARY JUDGMENT PAGE 66
Page 380
despite the fact that Plaintiff has produced no credible evidence that Province was
was
aware that Heidi posed aa danger to anyone on the other side of the gate,
gate, is not
Texas law.
v. Reger for
Additionally, Plaintiff relies on Stein v.
Additionally, for her
her assertion
assertion that
that aa dog’s
dog’s
breed can
breed can impact
impact the
the owner’s
owner’s liability
liability for
for aa dog
dog bite. EPlaintiff’s Response.
bite. See Plaintifl’s Response.
However, the court in Stein does not hold, as
as Plaintiff
Plaintiff asserts,
asserts, that
that “a
“a dog’s
dog’s breed
breed
can have aa direct
can have direct impact
impact on
on whether
Whether aa homeowner
homeowner is
is liable
liable for
for an
an attack.”
attack.” See E
Plaintiff’s Response;
Plaintifl’s Response; Stein v. Reger, 2016 Tex. App. LEXIS 5961, 2016 WL
v. Reger,
3162589 (Tex.
(Tex. App.—Houston
App—Houston [1st
[lst Dist.]
Dist] 2016).
2016). Instead, the court in Stein held
because the
that because the plaintiff
plaintiff “d[id] not present
“d[id] not present any
any evidence
evidence of
of foreseeability,”
foreseeability,”
summary judgment was
was appropriate. E
appropriate. See Stein, 2016 Tex. App. LEXIS 5961
5961 at
*13. The same analysis is applicable here as
as Plaintiff has failed to produce any
any
credible evidence that the incident at issue was foreseeable.
The defendants in Stein testified
testified that the dog at issue had never attacked
anyone else and that they
they “could
“could never have anticipated
never have anticipated that
that [the
[the dog]
dog] may
may have
have
been jump over
been able to jump over the
the fence.” E
fence.” See id.
id. at *12.
*12. As in Stein,
Stein, Province has attested
(flDefendant’s Motion
to the fact that Heidi has never bitten anyone else (see Defendant’s Motion for
for
Summary Judgment, Exhibit A) and testified
testified that he could not have anticipated that
any
any of the dogs,
dogs, including Heidi, would snap at someone close to the gate:
DEFENDANT’S
DEFENDANT’S REPLY
REPLY TO
TO PLAINTIFF’S
PLAINTIFF’S RESPONSE
RESPONSE TO
TO DEFENDANT’S
DEFENDANT’S SECOND AMENDED
MOTION FOR SUMMARY JUDGMENT PAGE 77
Page 381
Deposition of Terry Province, Page 21, Lines 10-13
10—13 (emphasis added)
Q.
Q. Okay. Were you
you at all concerned that if someone came up with
aa package close to the gate,
gate, that one of the dogs might snap at
them?
A. I would never have expected that to happen.
E
See Plaintifl’s
Plaintiff’s Response, Exhibit F
Response, F
The bottom line is that Province did not know and had no reason to know
that Heidi presented any
any danger and,
and, therefore, the incident was most certainly not
foreseeable. Plaintiff has produced no evidence to dispute this fact. The fact that
Province neither knew nor should have known that Heidi presented aa danger to
Plaintiff is enough, on its own, to defeat Plaintiff’s claims. Therefore, Defendant
requests the Court grant Defendant’s
Defendant’s Motion for Summary Judgment in its entirety.
entirety.
C. Plaintiff’s Argument
C. Plaintiff’s Argument that Province Acted
that Province Acted with Indifference to
with Indijflrence t0 the Public’s
the Public ’s
Safety is Without Merit.
Without Merit.
Because Plaintiff has
has not produced credible evidence that Province was
was
negligent, she
she cannot succeed on a E
a gross negligence claim. See In re J.H.
J.H. Walker,
Walker,
(App—Dallas Jan.
Inc., 2016 Tex. App. LEXIS 483 (App.—Dallas Jan. 15,
15, 2016)
2016) (“the
(“the existence
existence of
of
negligent conduct is aa prerequisite to
to the
the establishment
establishment of
of gross negligence.”).
gross negligence.”).
Regardless, in order to establish gross negligence, Plaintiff is required to prove that
Province had actual, subjective
subiective awareness of the risk but proceeded with
E
conscience indifference. See Mobil Oil Corp v.
v. Ellender, 968 S.W.2d 917,
917, 921
921
(Tex.
(Tex. 1998).
1998). Plaintiff, however, has
has not produced any
any evidence on this issue.
DEFENDANT’S
DEFENDANT’S REPLY
REPLY TO
TO PLAINTIFF’S
PLAINTIFF’S RESPONSE
RESPONSE TO
TO DEFENDANT’S
DEFENDANT’S SECOND AMENDED
MOTION FOR SUMMARY JUDGMENT PAGE 88
Page 382
Furthermore,
Furthermore, gross negligence requires
gross negligence requires that
that Province’s
Province’s conduct
conduct “create[d]
“create[d] an
an
extreme
extreme degree
degree of
of risk
risk of
of harming
harming others.”
others.” Columbia Med.
Med. Ctr.
Ctr. v. Hogue, 271
v. Hague, 271
S.W.3d 238, 248 (Tex. 2008).
2008). An extreme degree of risk is more than aa remote
possibility of injury or even aa high probability of minor harm; it is the likelihood of
E M
serious injury to the plaintiff. See Ellender, 968 S.W.2d at 921. Plaintiff cannot
establish that Province’s
Province’s failure
failure to put chicken
to put wire all the way up the gate (before
chicken Wire
or after the incident) creates the likelihood of serious injury because Province did
not have actual knowledge of any
any extreme risk. As has
has been established, Province
did not know that Heidi posed aa danger to anyone on the other side of the gate and,
and,
therefore, did not consciously disregard any
any extreme risk. Plaintiff has produced no
evidence to the contrary. Therefore,
Therefore, Plaintiff’s
Plaintiff’s gross
gross negligence
negligence claim
claim must
must fail
fail
and summary judgment is proper.
proper.
II.
No Evidence Summary Judgment is Appropriate
Province
Province moved
moved for
for summary judgment on
summary judgment on Plaintiff’s
Plaintiff’s claims
claims on
on the
the grounds
grounds
that there is insufficient
insufficient or no evidence of any
any essential elements of those claims.
Plaintiff failed to produce summary judgment evidence raising aa genuine issue of
material fact for any
any elements of any
any claim against Province.
Province. Further, Plaintiff
failed to provide actual, proper summary judgment evidence in her response.
response. The
exhibits provided by
by Plaintiff were hearsay,
hearsay, speculative deposition testimony,
and/or not evidence of each and every element of the causes
causes of action as required.
as required.
DEFENDANT’S
DEFENDANT’S REPLY
REPLY TO
TO PLAINTIFF’S
PLAINTIFF’S RESPONSE
RESPONSE TO
TO DEFENDANT’S
DEFENDANT’S SECOND AMENDED
MOTION FOR SUMMARY JUDGMENT PAGE 9
Page 383
Therefore, the granting of Defendant’s no—evidence motion for summary judgment
is requested and proper.
WHEREFORE, Defendant, Terry Province, prays that this Court GRANT
his Second Amended Motion for Summary Judgment in all respects. Further,
Defendant prays for all other relief, both general and special, in law or equity, to
which he has proved itself justly entitled.
Respectfully submitted,
(\1 Q QLxHLgl’VVM
fig C~vl\( K Ox \»\ xv
J. Brafitley Saunders
State Bar No. 17681500
Abigail K. Christmann
State Bar No. 24097523
SAUNDERS, WALSH & BEARD
Craig Ranch Professional Plaza
6850 TPC Drive, Suite 210
McKinney, Texas 75070
(214) 919—3555 Telephone
(214) 615-9019 Telecopier
Brantlev@ SaundersWalsh.c0m
Abby@SaundersWalsh.c0m
Attorneys for Defendant Terry Province
DEFENDANT’S REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S SECOND AMENDED
MOTION FOR SUMMARY JUDGMENT PAGE 10
Page 384
CERTIFICATE OF SERVICE
This is to certify that aa true
tme and correct copy
copy of
of the foregoing document,
Defendant’s
Defendant’s Reply
Reply to
to Plaintiff’s
Plaintiff’s Response to Defendant’s Second Amended
Motion for Summary Judgment, was served upon all counsel of
of record on this
th
the 10
10th day
day of November, 2017, pursuant to Texas Rules of Civil Procedure 21
21
and 21a.
M‘u‘x (‘s K. C Q'vklbfli'Vu 0x, \ \ \ U
_____________________________
}
DEFENDANT’S
DEFENDANT’S REPLY
REPLY TO
TO PLAINTIFF’S
PLAINTIFF’S RESPONSE
RESPONSE TO
TO DEFENDANT’S
DEFENDANT’S SECOND AMENDED
MOTION FOR SUMMARY JUDGMENT PAGE 11
Page 385