ACCEPTED
06-14-00094-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
3/19/2015 10:52:36 AM
DEBBIE AUTREY
CLERK
CASE NO. 06-14-00094-CV
_____________________________________________________________
FILED IN
6th COURT OF APPEALS
IN THE SIXTH COURT OF APPEALS TEXARKANA, TEXAS
TEXARKANA, TEXAS 3/19/2015 11:05:00 AM
DEBBIE AUTREY
_____________________________________________________________
Clerk
Nancy Elizabeth Bowman,
Appellant,
vs.
Jerry Davidson and
Diana Davidson,
Appellees.
____________________________________________________________
On Appeal from the 71st Judicial District
Harrison County, Texas
Cause No. 13-0618
The Honorable Brad Morin, Presiding
_____________________________________________________________
BRIEF OF APPELLANT
_____________________________________________________________
JACK M. SANDERS, JR.
State Bar No. 17592000
109 East Houston Street
P.O. Box 1387
Marshall, Texas 75671-1387
(903) 935-7172
(903) 938-8616 (Fax)
sanders.jack@sbcblobal.net
ATTORNEY FOR APPELLANT
ORAL ARGUMENT REQUESTED
Preamble
COMES NOW NANCY ELIZABETH BOWMAN, Appellant herein, who
hereby respectfully makes and files this, her Appellant’s Brief.
In the interest of clarity, Nancy Elizabeth Bowman will be referred to as
“Bowman,” while JERRY DAVIDSON, Appellee herein, will be referred to as
“Jerry”, and DIANA DAVIDSON, the other Appellee herein, will be referred to as
“Diana.” Collectively, the Appellees will be referred to as “the Davidsons.”
In this Brief, the Reporter’s Record will be cited by volume and page:line as
“___ RR ___:___”, the Reporter’s Supplemental Indexes will be cited as R. Supp.
R. Index, the Clerk’s Record will be cited by page as “CR _____,” the Clerk’s
Supplemental Records will be cited as “ C. Supp. R. ” and the plaintiff’s
exhibits will be cited by record volume and exhibit number as “4 RR P.Ex. ____.”
The Appendix will be referred to as “Appx. .”
ii
Identity of Parties and Counsel
Pursuant to Tex. R. App. P. 38.1(a), Bowman hereby submits a list of parties
and counsel interested in this case:
Appellant and her Appellate/Trial Counsel:
Nancy Elizabeth Bowman
c/o Jack M. Sanders, Jr.
State Bar No. 17592000
109 East Houston Street
P.O. Box 1387
Marshall, Texas 75671-1387
(903) 935-7172
(903) 938-8616 (Fax)
sanders.jack@sbcblobal.net
Appellees and their Trial Counsel:
Jerry and Diana Davidson
c/o Alan E. Brown
State Bar No. 03090500
Boyd & Brown, P.C.
1215 Pruitt Place
Tyler, Texas 75703
(903) 526-9000
(903) 526-9001 (Fax)
aebrown@suddenlinkmail.com
iii
Table of Contents
Preamble. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Standards of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Legal Sufficiency of the Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Factual Sufficiency of the Evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Bubba Bit a Long Time Friend of the Davidsons Prior to
Biting Bowman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. Bubba Had a History of Aggressive, Protective and Possessive
Behavior. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. Due to Bubba’s Behavior, the Davidsons Warned New Guests
At Their Home Not to Interact With Bubba. . . . . . . . . . . . . . . . . . . . 10
D. The Lawsuit and the Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
iv
Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
First Issue.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Bowman was entitled to affirmative jury findings as a matter of law
regarding the dangerous propensities of the Davidsons’ dog and the
Davidsons’ knowledge of the dog’s dangerous propensities, or in the
alternative, the jury’s findings was against the great weight and
preponderance of the evidence.
Arguments Relating to the First Issue
A. Strict Liability Claims Involving a Domestic Dog.. . . . . . . . . . . . . . 13
1. The Second Element of Dangerous Propensities. . . . . . . . . . . 14
2. The Third Element Requiring the Owner’s Knowledge. . . . . 16
B. The Record Contains Only Affirmative Evidence of Bubba’s
Dangerous Propensities and the Davidsons’ Knowledge
of the Dangerous Propensities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. There is No or Little Evidence to Support Bubba Did
Not Have Dangerous Propensities and Affirmative
Evidence to Support He Did.. . . . . . . . . . . . . . . . . . . . . . . . . . 18
2. No or Little Evidence to Support the Davidsons Did Not
Know or Did Not Have Reason to Know Bubba Had
Dangerous Propensities and Affirmative Evidence to
Support They Did Have Knowledge. . . . . . . . . . . . . . . . . . . . 25
C. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
v
Second Issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Bowman was entitled to an affirmative answer as a matter of law that the
dog’s dangerous propensities were the producing cause of Bowman’s
injuries, or in the alternative, a negative finding would have been against
the great weight and preponderance of the evidence.
Arguments Relating to the Second Issue
A. Strict Liability Requires Bowman to Prove the Dangerous
Propensities Were the Producing Cause of Bowman’s Injuries.. . . . 31
B. The Record Contains Only Affirmative Evidence in Support
of Bubba’s Dangerous Propensities As the Producing
Cause of the Bite.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
C. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
vi
Index of Authorities
Cases
Texas Supreme Court
Cain v. Bain,
709 S.W.2d 175 (Tex. 1986) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Collora v. Navarro,
574 S.W.2d 65 (Tex. 1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Croucher v. Croucher,
660 S.W.2d 55 (Tex. 1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Ford Motor Co. v. Ledesma,
242 S.W.3d 32 (Tex. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Holley v. Watts,
629 S.W.2d 694 (Tex. 1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Marshall v. Ranne,
511 S.W.2d 255 (Tex. 1974).. . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 16, 31
Traylor v. Goulding,
497 S.W.2d 944 (Tex. 1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Washington v. Reliable Life Ins. Co.,
581 S.W.2d 153 (Tex. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Texas Courts of Appeal
Allen ex rel. B.A. v. Albin,
97 S.W.3d 655 (Tex. App. — Waco 2002, no pet.). . . . . . . . . . . . . . . . . . 13
Beard v. Beard,
49 S.W.3d 40 (Tex. App. — Waco 2001, pet. denied).. . . . . . . . . . . . . . . . . 6
vii
Belger v. Sweeney,
836 S.W.2d 752 (Tex. App. — Houston [1st Dist.] 1992, writ denied).. . . 16
Carrasco v. Stewart,
224 S.W.3d 363 (Tex. App. — El Paso 2006, no pet.).. . . . . . . . . . . . . . . . . 5
Dunnings v. Castro,
881 S.W.2d 559 (Tex. App. — Houston [1st Dist.] 1994, writ denied).. . . 15
Farley v. M.M. Cattle Co.,
549 S.W.2d 453 (Tex. Civ. App. — Waco 1977, writ ref’d n.r.e.). . . . . . . 15
Machala v. Weems,
56 S.W.3d 748 (Tex. App. — Texarkana 2001, no pet.). . . . . . . . . . . . . . . . 6
Owens v. Coury,
614 S.W.2d 926 (Tex. App. — Amarillo 1981, no writ). . . . . . . . . . . . 13, 15
Plummer v. Estate of Plummer,
51 S.W.3d 840 (Tex. App. — Texarkana 2001, pet. denied). . . . . . . . . . . . . 6
Raw Hide Oil & Gas Co., Inc. v. Maxus Exploration Co.,
766 S.W.2d 264 (Tex. App. — Amarillo 1988, writ denied).. . . . . . . . . . 5, 6
Thompson v. Curtis,
127 S.W.3d 446 (Tex. App. — Dallas 2004, no pet.). . . . . . . . . . . . . . 13, 31
Villareal v. Elizondo,
831 S.W.2d 474 (Tex. App. — Corpus Christi 1992, no writ). . . . . . . . . . 15
Wells v. Burns,
480 S.W.2d 31 (Tex. Civ. App. —El Paso 1972, no writ). . . . . . . . . . . 13, 15
viii
Out of State Cases
Supreme Court
Poznanski ex rel Poznanski v. Horvath,
788 N.E.2d 1255 (Ind. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
Deardoff v. Burger,
606 A.2d 489 (Pa. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Robinson v. Marino,
3 Wash. 434, 28 P. 752 (1892). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Texas Rules of Appellate Procedure
Tex. R. App. Pro. 9.4(i)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Tex. R. App. Pro. 9.5(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Tex. R. App. Pro. 38.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Other Authorities
Restatement (Second) of Torts § 509. . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16, 19, 20
ix
Statement of the Case
Nature of the
Underlying Case: Suit for personal injuries due to the Davidsons’ dog attacking
Bowman. CR 11-16.
Trial Court: The 71st Judicial District Court, Harrison County, Texas, the
Honorable Brad Morin, Presiding.
Disposition: The Court entered Judgment for the Davidsons based on the
Jury’s findings. Appx. 1; 3A C. Supp. R. 4-5.
Statement Regarding Oral Argument
Bowman believes oral argument is called for in this case. There are not many
cases in Texas where strict liability has been found with regard to domestic animals.
But this case is unique and fits squarely within the common law requirements for
strict liability set out by the Texas Supreme Court years ago. Thus, this is an
important case with regard to future dog bite cases and to the jurisprudence of this
State.
Further, it is impossible to include all of the evidence presented during the
three day trial which supports strict liability into this Brief. Thus, Bowman requests
the opportunity to argue to the Court the main points of evidence which leave no
question that the jury made incorrect findings as to strict liability in this case.
1
Issues Presented
First Issue
Bowman was entitled to affirmative jury findings as a matter of law
regarding the dangerous propensities of the Davidsons’ dog and the
Davidsons’ knowledge of the dog’s dangerous propensities, or in the
alternative, the jury’s findings was against the great weight and
preponderance of the evidence.
Second Issue
Bowman was entitled to an affirmative answer as a matter of law that the
dog’s dangerous propensities were the producing cause of Bowman’s
injuries, or in the alternative, a negative finding would have been against
the great weight and preponderance of the evidence.
2
Summary of the Argument
Strict liability with regard to domestic animals is not a new concept in Texas.
The law has long been if a dog has dangerous propensities, the owners knew or had
reason to know about the dangerous propensities and the dog bites someone, as a
result of the dangerous propensities, then the owners are liable, period. That is the
law in Texas. The jury is charged with applying the facts of the specific case to the
law. If the preponderance of the evidence support the elements, then the jury must
enter the finding.
Here, the jury failed to follow the law, and thus, failed to enter the correct
findings. There was overwhelming evidence presented at trial in support of the
Davidsons’ dog having dangerous propensities in the form of the protectiveness and
aggression toward strangers. There was also overwhelming evidence at trial that the
Davidsons knew from early on that Bubba exhibited such behaviors. The Davidsons
even warned for safety of new guests to prevent a bite like what happened to
Bowman. The law does not require an actual prior bite to show dangerous
propensities. Yet, there is one in this case. Finally, there was overwhelming
evidence at trial that Bubba’s protectiveness and aggression toward strangers caused
Bubba to bite Bowman. Despite all of the overwhelming evidence, the jury chose not
to enter the correct finding. It may have been because they jury sympathized with the
3
Davidsons or disliked Bowman. The reason for the jury’s failure to follow the law
is irrelevant. Bowman is now entitled to seek this evidentiary review to correct the
wrong based on the record. Accordingly, Bowman asks this Court to review the
record in its entirety and reverse the jury’s finding to Question No. 1 as to either
Diana or Jerry and enter an affirmative finding as to Question No. 2.1 Then, remand
the cause back to the trial court for a determination as to damages alone.
1
The Court of Appeals can reverse the jury finding as to Diana or Jerry alone and send the
cause back to the trial court because either answer will lead to liability of a defendant.
4
Standards of Review
When a party having the burden of proof appeals from an adverse fact-finding
in the trial court, the point of error should be the matter was established as a matter
of law or that the jury’s finding was against the great weight and preponderance of
the evidence. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). The specific
standards as they relate to legal and factual sufficiency of the evidence are set forth
below.
A. Legal Sufficiency of the Evidence
Legal sufficiency points of error assert a complete lack of evidence on an issue.
Raw Hide Oil & Gas Co., Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex.
App. — Amarillo 1988, writ denied). Legal sufficiency points are designated as “no
evidence points” or “matter of law points,” depending upon whether the complaining
party had the burden of proof. Id. The appropriate legal sufficiency challenge here,
as Bowman had the burden of proof for her strict liability claim, is a matter of law
point. Carrasco v. Stewart, 224 S.W.3d 363, 367 (Tex. App. — El Paso 2006, no
pet.).
In reviewing a matter of law point, the Court of Appeals must examine the
entire record for evidence that supports the jury’s finding, ignoring any evidence to
the contrary. Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982). If no evidence to
5
support the finding is found, the Court of Appeals must then examine the entire
record again to determine if a contrary position is established as a matter of law. Id.;
Plummer v. Estate of Plummer, 51 S.W.3d 840, 841 (Tex. App. — Texarkana 2001,
pet. denied).
B. Factual Sufficiency of the Evidence
Factual sufficiency points of error concede conflicting evidence on an issue,
yet maintain that the evidence against the jury’s finding is so great as to make the
finding erroneous. Raw Hide Oil & Gas Co., Inc., 766 S.W.2d at 275. Factual
sufficiency points of error are designated as “insufficient evidence points” or “great
weight and preponderance points,” depending upon whether the complaining party
had the burden of proof. Id. The appropriate factual sufficiency challenge here as
Bowman had the burden of proof for her strict liability claim is a great weight and
preponderance point. Beard v. Beard, 49 S.W.3d 40, 55 (Tex. App. — Waco 2001,
pet. denied); Machala v. Weems, 56 S.W.3d 748, 754 (Tex. App. — Texarkana 2001,
no pet.). In reviewing a great weight and preponderance point, the Court of Appeals
must examine the entire record to determine if there is some evidence to support the
jury’s finding, and then determine whether, in light of the entire record, the finding
is manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam);
Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973).
6
Statement of Facts
This suit arises from the injuries Bowman suffered on the evening of June 24,
2012 as a result of Davidsons’ dog biting her in the face. The Davidsons own two
Australian Blue Heelers. 4 RR 87:19-24. Diana acquired the dogs, brother and sister,
when they were six weeks old. 4 RR 88:6-9. The dog that bit Bowman was her 11
year old male Blue Heeler named Bubba.
A. Bubba Bit a Long Time Friend of the Davidsons Prior to Biting Bowman
About a year before Bubba bit Bowman, he bit Billy Strong (“Strong”), a long
time family friend. Appx. 3; 1 R. Supp. R Index, Video Deposition of Billy Strong;2
8 RR P. Ex. 20. The incident occurred when a repairman left his bag of tools inside
the Davidsons’ home. Appx. 3; 1 R. Supp. R Index, Video Deposition of Billy
Strong. Diana asked Strong to take the bag of tools outside to the repairman before
he had a chance to leave. Id. After Strong grabbed the tool bag, he took off at a trot
towards the front door, and Bubba bit him on the back of the leg. Id. Bubba had a
hold of Strong’s leg and Diana had to holler at Bubba to turn Strong loose. 4 RR
99:24-100:3. Diana witnessed the entire event. 4 RR 99:16-19. She knew that
Bubba laid his teeth on Strong and that Bubba had left a red mark and bruise on the
2
For the Court of Appeals’ convenience, in addition to citing to the video deposition
included in the Reporter’s Record in the Supplemental Exhibit Index, Bowman has also attached
the line and page excerpt from Billy Strong’s deposition that Bowman is relying on and that was
included in the video shown the jury in the Appellant’s Appendix, Tab 3.
7
back of Strong’s leg. 4 RR 100:4-10; Appx. 3; 1 R. Supp. R. Index, Video
Deposition of Billy Strong. Although the Davidsons do not always describe the prior
incident with Strong as a “bite,” Strong certainly does. Appx. 3; 1 R. Supp. RR
Video Deposition of Billy Strong. He also thought the dog should have been put up
after the incident whenever anyone came over to the Davidsons so it would not
happen again. Appx. 3, 1 R. Supp. R. Index, Video Deposition of Billy Strong.
B. Bubba Had a History of Aggressive, Protective and Possessive Behavior
Bubba generally does not have a problem with people he knows. 4 RR 100:17-
20. However, he shows aggression toward strangers. 4 RR 100:21-22. Diana has
known this all of Bubba’s life. 4 RR 100:23-24. Both of the Davidsons admit Bubba
is aggressive, protective and possessive. 4 RR 94:17-19; 4 RR 138:20-22, 146:19-23.
Bubba is just not like other dogs. 4 RR 147:23-148:1. Diana frequently uses both
aggressive and protective when describing Bubba. 4 RR 93:22-94:16. Diana knows
Bubba is aggressive because he barks and jumps at the fence when people come to
their house. 4 RR 94:20-22. She has signs up saying beware of the dogs because she
wants people to beware of them and does not want to take the chance that Bubba will
hurt someone by biting them. 4 RR 94:23-95:5, 95:9-11. Bubba acts protectively
when anyone, including Jerry, gets between him and Diana. 4 RR 138:12-16, 138:24-
25. Bubba is showing his protectiveness and possessiveness when he barks and
pushes people away from Diana. 4 RR 139:5-7. Further, when Bubba gets between
8
Jerry and Diana, he is exhibiting a low level of aggression towards Jerry. 4 RR
138:12-15, 138:21-25; 5 RR 28:7-11. To have Bubba exhibiting such behavior
towards Jerry, someone Bubba has also bonded with, is a red flag for dangerous
behavior. 5 RR 28:12-18. The Davidsons put Bubba up when children come over
because the children might get bit, 4 RR 102:9:17, and they put Bubba up also when
there are a large number of people at their home that the dog does not know. 4 RR
103:18-24, 4 RR 140:18-24. There was a propensity for Bubba to be dangerous. 4
RR 147:6-22. The Davidsons’ friends would even warn new guests about interacting
with Bubba. 5 RR 24:24-25:7. Jerry testified that you never know what Bubba is
going to do at any time or when he is going to blow up. 4 RR 149:13-14, 150:3-5.
Bowman also hired an expert to testify at trial in this case, Dr. Lore Haug (“Dr.
Haug”), who is Board Certified Veterinarian Behavior. 5 RR 8:21. She also received
additional training specifically in animal behavior. 5 RR 8:24-25. She works with
animals with various levels and styles of behavior disorders, 5 RR 9:7-8, including
dogs with aggressive tendencies. 5 RR 9:13-15. All of her opinions at trial were
offered based on her training, education and experience. 5 RR 9:24-10:1. Dr. Haug
testified that “protective” and ‘territorial” are words that owners use to describe types
of aggressive behavior. 5 RR 25:13-15. In the vast majority of cases, dogs only get
worse when the owners do not do anything to stop aggressive tendencies. 5 RR
25:16-22. A dog that is possessive and protective can be a danger, 5 RR 25:23-25,
9
especially if the owners do nothing to train the dog. 5 RR 27:18-21. The Davidsons
did nothing to properly train Bubba. 4 RR 89:14-15; 4 RR 130:17-18; 5 RR 27:18-
21. Further, this protective and aggressive behavior does not fall within the range of
a typical or normal companion dog. 5 RR 23:14-16. Moreover, Bubba biting Strong
was not appropriate even for cattle herding dogs. 5 RR 29:13-15. Well socialized
and trained dogs know the difference between a human being and cattle. 5 RR 38:10-
17. With Bubba’s past possessive and protective behaviors and the concern that
prompted the Davidsons warnings, it was only a matter of time before someone got
hurt. 5 RR 37:13-16. Dr. Haug is positive that the Davidsons recognized the risk
Bubba posed to new guests. 5 RR 39:13-21.
C. Due to Bubba’s Behavior, the Davidsons Warned New Guests At Their Home
Not to Interact With Bubba
Due to Bubba’s aggressive nature, the Davidsons would warn guests who were
strangers to the dog not to touch or look at the dog. 4 RR 93:19-25, 95:21-23, 4 RR
131:7-10. The warnings were given to protect people from a bite. 4 RR 95:24-96:4,
114:2-4, 4 RR 131:20-23. Jerry admitted they give the warnings about Bubba
because they knew there was a propensity there for Bubba to bite. 4 RR 140:10-13.
The Davidsons have been giving their warning about Bubba for a long period of time
prior to Bubba biting Bowman. 4 RR 101:10-15. Diana just did not know if and
when Bubba might act on his aggressive behavior. 4 RR 101:16-23. If in Bubba’s
10
mind Diana was in danger, Bubba would become aggressive. 4 RR139:20-140:5.
Diana had reason to know that Bubba may be dangerous because she had reason to
know Bubba may bite someone. 4 RR 101:24-102:2. The Davidsons warned people
that came to their home about Bubba because they were concerned that something
bad might happen. 5 RR 14:22-24. Every client Dr. Haug has ever had that have
given warnings to people about their dogs have done so because the owners have
some knowledge about the dog’s previous behavior that makes them concerned that
something bad is going to happen. 5 RR 17:3-7, 24:1-4. There is no other reason to
give warnings unless something similar has happened in the past. 5 RR 17:7-8,
23:18-24:4, 24:20-22. People that have normal dogs, without aggressive tendencies,
do not give warnings. 5 RR 17:9-12.
On the night of the occurrence, the Davidsons and their guests all sat down to
eat dinner at a table. Diana led Bowman to sit down at the table right next to her. 4
RR 29:14-21. There is no dispute as to where Diana and Bowman were sitting before
the attack. 4 RR 106:17-18. Bubba sat on the floor in between Diana and Bowman
during the dinner. 4 RR 30:11-13. Bubba always sat at the table next to Diana. 4 RR
106:19-22. The seating arrangement was cramped due to the number of guests and
everyone was sitting close together. 4 RR 30:25-31:14; 5 RR 34:9-18. It was noisy
in the room and Bowman leaned over towards Diana to tell her something. 4 RR
11
32:15-18; 4 RR 108:6-7, 110:13-16. At that point, Bubba jumped up and bit Bowman
in the face. 4 RR 33:6-9; 4 RR 108:4-7.
D. The Lawsuit and the Appeal
On August 5, 2013, Bowman filed suit against the Davidsons for strict liability
and negligence in order to recover for her significant injuries caused by Bubba’s bite.
CR 11-16. On September 30, 2013, the Davidsons filed an Original Answer. CR 59-
63. On August 19, 2014 the parties went to trial, 4 RR 6, and three days later the trial
concluded with the submission of the charge to the jury. 6 RR 42; CR 1198-1209.
On August 21, 2014, the jury returned their verdict answering “no” to the first
question regarding strict liability for both Jerry and Diana. Appx. 2; CR 1198-1209.
On August 28, 2014, a Judgment was entered by the Court. Appx. 1; 3A C. Supp. R.
4-5. On September 24, 2014, Bowman filed a Motion for New Trial or In the
Alternative, Motion for Judgment Non Obstante Verdicto. 2A C. Supp. R. 4-7. The
Trial Court held a hearing and denied Bowman’s Motion. CR 1430. On November
24, 2014, Bowman filed her Notice of Appeal. CR 1433-1434. Now, Bowman seeks
review with this Court of the jury’s findings regarding dangerous propensities and
producing cause.
12
Arguments and Authorities
First Issue
(Restated)
Bowman was entitled to affirmative jury findings as a matter of law
regarding the dangerous propensities of the Davidsons’ dog and the
Davidsons’ knowledge of the dog’s dangerous propensities, or in the
alternative, the jury’s findings were against the great weight and
preponderance of the evidence.
A. Strict Liability Claims Involving a Domestic Dog
In Texas, as in many states, it has long been established that actions for
damages caused by vicious domestic animals are governed by principles of strict
liability. Marshall v. Ranne, 511 S.W.2d 255, 258 (Tex. 1974). The elements of a
strict liability claim involving a dog are: (1) the defendant owned or possessed the
dog; (2) the dog had dangerous propensities abnormal to its class; (3) the owner knew
or had reason to know the dog had dangerous propensities; and (4) the dog’s
dangerous propensities were the producing cause of the plaintiff’s injuries. Id.;
Thompson v. Curtis, 127 S.W.3d 446, 451 (Tex. App. — Dallas 2004, no pet.); Allen
ex rel. B.A. v. Albin, 97 S.W.3d 655, 660 (Tex. App. — Waco 2002, no pet.); Owens
v. Coury, 614 S.W.2d 926, 928 (Tex. App. — Amarillo 1981, no writ); Wells v.
Burns, 480 S.W.2d 31, 33 (Tex. Civ. App. —El Paso 1972, no writ). The first
element of a strict liability claim was not at issue in this case in that the Davidsons
13
readily admit they own Bubba, the dog that bit Bowman. 4 RR 87:19-22; 4 RR
130:11-14.
1. The Second Element of Dangerous Propensities
With regard to the second element, the plaintiff must prove dangerous
propensities abnormal to other dogs. Despite the Texas Supreme Court’s long ago
recognition of strict liability as set forth in the Restatement, there are not many Texas
cases where the elements of strict liability are discussed. Thus, it is helpful to look
to other states Supreme Courts that adopted the Restatement elements for their
explanation as to the elements as well as the Texas cases that have discussed the
elements. Generally, all dogs, regardless of breed and size, are presumed to be
harmless domestic animals. Poznanski ex rel Poznanski v. Horvath, 788 N.E.2d
1255, 1258 (Ind. 2003); Appx. 5.3 The great majority of dogs are regarded as friends
and companions of man. Restatement (Second) of Torts § 509 cmt. f. (adopted by the
Texas Supreme Court in Marshall, 511 S.W.2d at 258); Appx. 8. They are harmless
and if a dog is in the possession of characteristics dangerous to mankind, it should be
regarded as abnormal. Id.
Although the majority of dogs are harmless, an owner has a right to keep a
vicious dog for the necessary protection of life and property, provided that the owner
3
The out of state cases are included in the Appellant’s Appendix for the Court of Appeal’s
convenience.
14
takes proper precautions to preclude that viciousness from exhibiting itself. Deardoff
v. Burger, 606 A.2d 489, 492 (Pa. 1992); Appx. 6.
Texas courts have previously held “dangerous propensities” means the dog
must have had vicious, dangerous or mischievous propensities. Villareal v. Elizondo,
831 S.W.2d 474, 477 (Tex. App. — Corpus Christi 1992, no writ); Owens, 614
S.W.2d at 928; Wells, 480 S.W.2d at 33. This element addresses dogs that are vicious
as well as animals that are not vicious, but have a dangerous tendency that is unusual
and not necessary for the purposes for which such animals are usually kept.
Restatement (Second) of Torts § 509 cmt. c.; see also Farley v. M.M. Cattle Co., 549
S.W.2d 453, 456 (Tex. Civ. App. — Waco 1977, writ ref’d n.r.e.). Further, the
animal’s “class” is not limited to a specific breed of that animal. Dunnings v. Castro,
881 S.W.2d 559, 561 (Tex. App. — Houston [1st Dist.] 1994, writ denied) (no
evidence suggesting Weimaraner had dangerous propensities that were abnormal
compared to other dogs). Thus, behaviors that are not usual to dogs in general and
that cause a concern for the safety of others is a dangerous propensity.
Other states have given a little more guidance as to “dangerous tendencies.”
A dangerous tendency has been defined by the Indiana Supreme Court as “a tendency
of the animal to do any act that might endanger the safety of persons or property in
a given situation.” Poznanski, 788 N.E.2d at 1258; Appx. 5. A dog can even be
found to have dangerous propensities based on the bite that is the basis of the suit.
15
Id. An unprovoked, intentional bite that is not classified as a playful nibble, even if
it is the first bite, shows a dangerous propensity. Id. Barking and jumping at strangers
as well as a prior bite has been found sufficient in other states to show a dog has
vicious tendencies and to hold the defendant strictly liable. Robinson v. Marino, 3
Wash. 434, 28 P. 752, 753 (1892); Appx. 7.
2. The Third Element Requiring the Owner’s Knowledge
The third element requires the plaintiff to prove the owner knew or had reason
to know the dog had dangerous propensities. It is not necessary to the application of
strict liability for the owner of the dog to know of its abnormally dangerous
propensities. Restatement (Second) of Torts § 509 cmt. g; Appx. 8. It is enough that
he have reason to know thereof. Id. Thus, it is not even necessary for the owner to
know of a prior attack on humans. Id. A dog is no longer regarded as entitled to one
bite. Id. It is enough that the owner knows that the dog on other occasions exhibited
such a tendency to attack humans or other animals or otherwise do harm as should
apprise him of its dangerous character. Id. The knowledge element may be fulfilled
with evidence of either actual or constructive knowledge. See Belger v. Sweeney, 836
S.W.2d 752, 754 (Tex. App. — Houston [1st Dist.] 1992, writ denied). The term
“reason to know” means information from which a reasonably intelligent person
would infer that the animal has dangerous propensities. Marshall, 511 S.W.2d at
258-59.
16
B. The Record Contains Only Affirmative Evidence of Bubba’s Dangerous
Propensities and the Davidsons’ Knowledge of the Dangerous Propensities
A review of the record demonstrates that there is no evidence to support Bubba
did not have dangerous propensities nor is there evidence that the Davidsons did not
know or have reason to know of Bubba’s dangerous propensities. Further, the
converse is true, Bowman presented a great deal of evidence in support of Bubba’s
dangerous propensities and the Davidsons’ knowledge. The parties submitted the
second and third strict liability elements together in the following question and
instruction to the jury in the Court’s Charge:
Question No. 1
On the occasion in question, did the Davidsons know or have reason to
know that their dog had dangerous propensities not normal for a dog.
“Reason to know” means the actor has information from which a person
of reasonable intelligence would infer that the fact in question exists, or
that such person would govern his conduct under the assumption that
such fact exists.
It is enough that the possessor of the animal knows that it had on other
occasions exhibited such a tendency to attack human beings or other
animals or otherwise do harm as should apprise him of its dangerous
character. Thus, the fact that a dog has to his knowledge unsuccessfully
attempted to attack human beings or animals is sufficient to bring its
possessor within knowledge requirement. Sufficient also is any form of
ill temper displayed in the presence of man or beast which would apprise
a reasonable man that animal if uncontrolled would make such an attack.
“Dangerous propensities” means vicious or aggressive tendencies that
are not normal for a dog.
17
Answer “Yes” or “No”.
Answer: Jerry Davidson
Answer: Diana Davidson
Appx. 2; CR 1201. The jury answered “No” to both Jerry and Diana. Id.
1. There is No or Little Evidence to Support Bubba Did Not Have
Dangerous Propensities and Affirmative Evidence to Support He Did
A review of the entire record demonstrates that there was no evidence to
support the jury’s findings. The Davidsons offered no evidence to prove Bubba’s
protectiveness was normal to all dogs, that Bubba was not unusual with regard to his
behavior around strangers or Diana, or that when Bubba attacked Bowman it was not
an aggressive or dangerous behavior.
Further, a second review of the record reveals significant evidence to show
Bubba had dangerous propensities. There are no Texas cases that hold the bite at
issue can not be considered to determine whether the animal has dangerous
propensities. Bubba exhibited a dangerous propensity by viciously attacking
Bowman without any provocation causing her severe injuries to her face. 4 RR
32:11-22. Bubba made no noise or warning before he jumped up and attacked
Bowman. 4 RR 32:24-33:6. The Davidsons do not deny the attack nor do they deny
the bite caused Bowman severe injuries. Diana witnessed the attack. 4 RR 33:13-24.
18
Further, the Davidsons did not try to explain the bite as playful or something other
than a vicious attack meant to injure Bowman.
Additionally, both Diana and Jerry described dangerous propensities in Bubba
at trial. A “dangerous propensity” would include a prior bite of a human being. See
Restatement (Second) of Torts § 509 cmt. c. Billy Strong described the prior incident
to the jury through his deposition testimony as a bite.
Billy Strong:
Q: Had Bubba bitten people, anybody before [Bowman] that you were
aware of?
A: Yes.
Q: Who?
A: Me.
Appx. 3; 1 Sup. RR Video Deposition of Billy Strong. Further, Diana and Jerry
admitted that they knew Bubba bit Strong a year before the attack on Bowman.
Diana Davidson:
Q: And I believe when Billy Strong got bit that you saw the bite. When Billy
Strong got bit did you see the incident?
A: I did.
4 RR 99:16-19.
Q: So he had a hold of him at the pants leg?
A: Yes.
Q: And you know that it left a bruises?
A: Yes.
Q:So you agree that the dog laid teeth on Mr. Strong, a human being?
A: I do know this, yes.
19
Q: And you saw it?
A: I did.
4 RR 100:2-10. Jerry also admitted knowing that Bubba caused a red mark on
Strong’s leg. 4 RR 146:19-23. Even with cattle dog instincts, Blue Heelers should
know the difference between a cow and a human being. 5 RR 38:10-17. There are
no Texas cases affirming a finding of no strict liability when there was an admission
of a prior bite.
If Bubba’s bite that is at issue in this case or his prior bite were not enough,
then Diana and Jerry’s testimony regarding his protectiveness of Diana and
aggressiveness towards strangers demonstrated dangerous propensities. “Dangerous
propensities” also mean dangerous tendencies that are unusual and not necessary for
the purposes for which dogs are usually kept. See Restatement (Second) of Torts, §
509 cmt. c; Appx. 8. The Davidsons admit Bubba had a dangerous tendency to be
aggressive, protective and possessive that was not like other dogs. 4 RR 94:17-19,
146:11-18. He was protective of Diana, 4 RR 93:22-25, and Bubba had a problem
with strangers all of his life. 4 RR 100:21-24.
Diana Davidson:
Q: And did you also tell her [Bowman] that the dog was aggressive?
A: I think, I don’t know whether I said aggressive or protective. He is
very protective of me.
4 RR 93:22-25
20
Q: I asked you a question right here on Line 20. My question was, okay,
what do you mean by aware of dogs. What was your answer?
A: The dog is aggressive, you know, if he doesn’t know someone.
4 RR 94:7-11
Q: You said was protective also?
A: He is.
Q: So we have aggressive, protective, and possessive; is that correct?
A: Yes.
4 RR 94:15-19. When Bowman’s counsel asked Diana why she described Bubba as
aggressive, she said:
A: He is very verbal when strangers come up. He barks, jumps at the fence, he
gives us the indication that, you know, he tells us that someone is there and all.
So I have signs out saying beware of the dogs, because I want them to be aware
of them. He has never bitten anybody, but I just didn’t want to take the chance,
because he does bark and jump at the fence when some stranger comes up.
Q: What chance don’t you want to take?
A:I don’t want to take any chances of any of our animals hurting anybody.
4 RR 94:21-95:5.
Q: Is it fair to say you didn’t want to take the chance of the dog biting
somebody?
A: That is right.
4 RR 95:9-11. Although Jerry testified that Bubba was not dangerous, the question
is dangerous propensities or tendencies. In other words, a propensity or natural
inclination to act dangerous. Jerry stated the following at trial in support of Bubba
having “dangerous propensities”:
21
Jerry Davidson:
Q: So, I realize your position is that the dog is not dangerous, correct?
A: Right.
Q: But you can’t say that all your, your warnings all were there for there
was this propensity for danger, correct? That is different from being
dangerous.
A: Right.
Q: There was a propensity there; correct?
A: Correct.
4 RR 147:6-14. Further, Jerry testified that Bubba was very protective of Diana, 4
RR 130:22-131:6, 138:21-25, and had a clear dislike of strangers. 4 RR 136:16-20.
Jerry admitted Bubba would bark and push him away from Diana when they danced
and Bubba would do the same to anyone else that tried to get between the dog and
Diana. 4 RR 138:21-25, 139:5-7. Jerry even admits someone leaning in toward
Diana would be a threat to the dog. 4 RR 140:3-5. Dr. Haug testified that barking,
jumping and pushing between Jerry and Diana is a low level aggression that is a red
flag. 5 RR 28:7-18. If Bubba would act that way towards Jerry, Bubba would not
hesitate to be more aggressive with a stranger. Further, Jerry admits that Bubba was
different in that way from other dogs, 4 RR 147:23-148:1.
Lastly, whether you use the word protective, possessive or aggressive, Bubba
exhibited dangerous behaviors that caused the Davidsons to warn all new guests not
to interact with Bubba for fear that he would be protective of Diana and bite them.
22
4 RR 95:13-14, 95:21-25; 4 RR 131:12-15, 131:20-23. The Davidsons had been
giving the warning about Bubba for a long time before Bubba bit Bowman. 4 RR
101:6-15. Further, not only did the Davidsons warn people, but their friends would
even warn new guests about Bubba. 5 RR 24:24-25:7. Jerry admits that Bubba was
protective in that he would stand his ground with Diana and that is also why Diana
gave the warnings. 4 RR 130:22-131:10. Protective and possessive behavior
generally just gets worse and worse over time if not formally corrected. 5 RR 25:16-
22. So, if not corrected, protectiveness and possessiveness becomes dangerous. 5 RR
25:23-25. The Davidsons did not ever correct Bubba’s behavior. 4 RR 89:14-15;
4RR 130:17-18; 5 RR 27:18-21. Bubba’s behavior did not fit within the behavior of
what is acceptable of a typical or normal dog. 5 RR 23:14-16. Diana herself admitted
she had reason to know the dog might bite somebody and that was reason to know he
[Bubba] might be dangerous. 4 RR 101:24-102:2. The Davidsons also testified as
follows:
Diana Davidson:
Q: Is it fair to say you didn’t want to take a chance of the dog biting
somebody?
A: That is right.
Q: That is why you warn them?
A: I warned them, yes, because he is very protective of me and he does
- - he, if he doesn’t know someone he barks at them.
4 RR 95:9-15.
23
Q: So the cause of your warnings is him being aggressive?
A: Yes
Q: Your wanting to avoid a bite; correct?
A: Yes.
4 RR 95:21-25.
Jerry Davidson:
Q: Do you believe he would be aggressive if he, the dog, thought Diana
was in danger?
Y: Yes.
4 RR 139:20-22.
Q: Okay. Well, that is why you give the warnings is because you knew
the propensity was there for it [the bite] to happen?
A: Yes, that is the reason that they give the warning.
4 RR 140:10-13.
Q: There was a propensity there; correct?
A: Correct.
Q: Okay. And you knew that?
A: Well, like I say, I didn’t give the warning?
Q: That was the reason, that was the reason for the warning?
A: That was the reason my wife gave the warning.
Q: Because of the propensity for danger?
A: Right.
4 RR 147:13-22. Accordingly, the Davidsons’ own testimony demonstrates that they
gave the warnings to new guests because of Bubba’s protective and aggressive
24
tendencies and because they were afraid Bubba would bite someone if they did
interact with the dog.
2. No or Little Evidence to Support the Davidsons Did Not Know or Did
Not Have Reason to Know Bubba Had Dangerous Propensities and
Affirmative Evidence to Support They Did Have Knowledge
Next, the record reveals that the Davidsons clearly knew or had reason to know
of Bubba’s dangerous propensities. First, the Davidsons were aware of Bubba’s prior
bite. Diana witnessed Bubba bite Strong. 4 RR 99:24-100:3. She had to call the dog
off Strong to get him to let go of Strong’s leg. 4 RR 99:24-100:3. Diana knew that
Bubba bit or nipped Strong and left a bruise on his leg. 4 RR 100:4-10. Jerry also
knew about the prior bite. 4 RR 146:19-23.
Second, both Diana and Jerry admit they warned new people to stay away from
Bubba because they were afraid Bubba would bite someone. 4 RR 95:21-25, 101:24-
102:2, 114:2-4; 4 RR 131:12-15, 131:20-23. Dr. Haug testified that every client she
has had that gave warnings about their dog did so because they had some knowledge
about the dog’s previous behavior that made them concerned that something bad was
going to happen. 5 RR 17:3-7. People give warnings about their dogs because the
dog’s behavior concerns them. 5 RR 17-12-14. Dr. Haug was positive that the
Davidsons recognized the risk Bubba posed. 5 RR 39:10-21. Again, the Davidsons
did not refute or contradict Dr. Haug’s testimony.
25
Third, both Diana and Jerry describe Bubba as protective of Diana and as
disliking strangers. Both Diana and Jerry repeatedly describe Bubba as aggressive,
protective and possessive at different points during their trial testimony. 4 RR 94:17-
19; 4 RR 138:20-22. Diana admits Bubba was that way all of his life. 4 RR 100-23-
24. Further, Jerry admits that Bubba acts aggressive by barking and pushing anyone
that gets too close to Diana. 4 RR 138: 12-15, 21-25. He had known about this
behavior for a long time. 4 RR 139:1-4. Further, he understood the behavior was a
part of Bubba being protective of Diana. 4 RR 139: 5-7. Diana herself admitted she
had reason to know the dog might bite somebody and that was reason to know he
[Bubba] might be dangerous. 4 RR 101:24-102:2.
A prior bite is not required to show dangerous propensities. The Davidsons’
testimony at trial seemed to suggest that when Bubba bit Strong it was a playful bite.
4 RR 96:13-21. Therefore, the prior bite does not count and is irrelevant. But even
if the Court believes this to be true, it does not change the Davidsons own testimony
regarding Bubba’s aggressiveness toward strangers and protectiveness of Diana. 4
RR 95:9-13;4 RR 130:22-131:6, 136:16-20, 138:21-25, 139:1-7. These are
dangerous propensities and the Davidsons were well aware of them prior to Bubba
biting Bowman.
Most, if not all, of the Davidsons’ testimony evidencing knowledge of Bubba’s
dangerous propensities was solicited during Bowman’s case in chief when the
26
Davidsons were called as adverse witnesses. If their testimony had been anything
other than concise, clear and conclusive, they could have corrected their own
testimony during the Davidsons’ case in chief. However, in Davidsons’ case in chief,
only Diana testified (Jerry did not). In fact, the only question asked of Diana when
she testified in her own case in chief by Bowman’s counsel was:
Diana Davidson:
Q: Mrs. Davidson, are you recanting any of your testimony from
yesterday?
A: I don’t think so.
4 RR 157:21-23. In Collora v. Navarro, the Texas Supreme Court held a directed
verdict may be based on the uncontroverted testimony of a party to the lawsuit when
the testimony is clear, direct, positive and uncontradicted, is devoid of inconsistencies
and is uncontradicted. Collora, 574 S.W.2d 65, 69 (Tex. 1978); see also Washington
v. Reliable Life Ins. Co., 581 S.W.2d 153, 159 (Tex. 1979) (holding the jury must
believe an interested witness as a matter of law if their testimony is the only
testimony on an issue and it is clear, direct and positive and is uncontradicted).
Clearly, if the jury has to believe a plaintiff’s clear and concise testimony when
the plaintiff has the burden of proof, the jury would certainly have to take the
defendants, in this case the Davidsons’ testimony, during Bowman’s case in chief as
true, without being able to pass on its credibility. This is especially true since the
Davidsons had an opportunity to recant or rebut the testimony in their own case in
27
chief, but failed to do so. The Davidsons called no expert witnesses. Further, the
knowledge of the other witnesses called by the Davidsons is not at issue in this case.
The Davidsons’ knowledge of their own dog’s propensities to be dangerous is the
question for the jury. The other lay witnesses cannot be said to have contradicted the
Davidsons’ own admissions to their knowledge of Bubba’s dangerous propensities.
There is no question to the jury as to what others observed or believed. The
Davidsons’ testimony must be relied upon as credible. According to the Texas
Supreme Court, the jury cannot disregard the Davidsons’ testimony for any reason
and must take it as true. Thus, the jury had no option, but to find the Davidsons
strictly liable as a matter of law, period.
If the Court finds some evidence in the record to support the jury’s finding, a
factual sufficiency review of the evidence reveals the jury’s findings as to Question
No. 1 for both Jerry and Diana were against the great weight and preponderance of
the evidence. Thus, although there may be some conflicting evidence on the issue,
the evidence against the jury’s findings to Question No. 1 is so great as to make the
jury’s findings erroneous and subject to reversal. Accordingly, Bowman asks the
Court of Appeals to reverse the jury’s findings of “no” to Question No. 1 as to Diana
and/or Jerry and enter findings of “yes.” Because there is legally and factually
insufficient evidence in support of the jury’s findings, the jury’s findings should be
reversed.
28
C. Conclusion
The Davidsons clearly wanted Bubba to be protective and possessive of Diana
so she would be protected when Jerry was out of town with work. 4 RR 139:8-16.
Bowman is not claiming the Davidsons were wrong to want or even encourage
protectiveness in their dog. But as Dr. Haug testified, protectiveness is a behavior
that can have a tendency or propensity toward danger. 5 RR 25:16-25, 26:2-3. Thus,
it is the dog owner’s responsibility to train a dog with regard to when to be protective
and with whom. 5 RR 27:1-17. Further, if the owners do not properly train their dog,
then they have the responsibility to remove the dog from situations where the dog
may act protectively in inappropriate situations. 5 RR 25:23-27:17. The Davidsons
had the ability and knowledge to know when a dog had dangerous propensities and
to protect guests because they had a dog named, Maggie, before Bubba and always
kept her up when people came over. 5 RR 31:16-32:2; 5 RR 150:4-18.
The Davidsons knew gatherings involving strangers in their home were
situations when the dog would act protectively or the Davidsons would not have
warned all new guests about the dog, 4 RR 95:13-14, 95:21-25, 4 RR 130:22-131:10,
or put the dog up when there was a large gathering. 4 RR 103:18-24. It was only a
matter of time before someone got hurt. 5 RR 37:13-16. Yet the Davidsons did not
train the dog, 4 RR 89:14-15; 4 RR 130:17-18; 5 RR 27:18-21, nor did they always
put the dog up. In order to satisfy the elements of strict liability with domestic dogs
29
all Bowman had to prove was dangerous propensity and knowledge. She did so
through the Davidsons’ own testimony at trial. The fact that the jury answered “No”
to Question No. 1 may reflect the jury’s dissatisfaction with the law, but it was not
within their power to chose to follow the law or not. The evidence in the record
fulfills the second and third elements of the claim as a matter of law or the evidence
is so overwhelmingly in support of affirmative findings as to justify reversal.
Accordingly, Bowman asks the Court to follow the law and reverse the jury’s findings
as to both Jerry and Diana for Question No. 1.
30
Second Issue
(Restated)
Bowman was entitled to an affirmative answer as a matter of law that the
dog’s dangerous propensities were the producing cause of Bowman’s
injuries, or in the alternative, a negative finding would have been against
the great weight and preponderance of the evidence.
A. Strict Liability Requires Bowman to Prove the Dangerous Propensities Were
the Producing Cause of Bowman’s Injuries
Bowman is also entitled to a finding that Bubba’s dangerous propensities were
the producing cause of her injuries. With regard to the last element, Bowman has
conclusive evidence to prove Bubba’s dangerous propensities were the producing
cause of her injuries. Marshall, 511 S.W.2d at 258. A “producing cause” is a
substantial factor in bringing about an injury, and without which the injury would not
have occurred. Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007). This
definition includes the essential elements of producing cause: (1) the cause must be
a substantial cause of the event at issue and (2) it must be a but-for cause, namely
without which the event would not have occurred. Id. Proof of producing cause
involves a lower burden than proof of proximate cause, because proof of producing
cause does not require a showing of foreseeability. Thompson, 127 S.W.3d at 451.
B. The Record Contains Only Affirmative Evidence in Support of Bubba’s
Dangerous Propensities As the Producing Cause of the Bite
Although the jury did not answer Question No. 2 regarding producing cause
in the Court’s Charge, the evidence in the record, either as a matter of law or because
31
the great weight and preponderance of the evidence supports it, entitles Bowman to
an affirmative answer to the question of whether Bubba’s dangerous propensities
were the producing cause of Bowman’s injuries. As set forth above, the Davidsons
admit Bubba was aggressive, protective and possessive. 4 RR 94:17-19; 4 RR
146:11-18. Bubba was very protective of Diana, 4 RR 93:22-25, and had a clear
dislike of strangers. 4 RR 100:21-24. These dangerous tendencies were the
producing cause of Bubba’s bite. On the night of the occurrence, Bowman sat next
to Diana at the dinner table. 4 RR 29:14-21; 4 RR 106:17-18. She was leaning
toward Diana when Bubba bit her in the face. 4 RR 32:15-18; 4 RR 108:6-7, 110:13-
16. Further, Dr. Kenneth W. Sanders, Bowman’s medical expert, testified that in his
opinion, based on reasonable medical probability, all of the problems Bowman has
experienced with her lips and mouth were a result of the dog attack on June 24, 2012.
Appx. 4; 1 R. Supp. R. Index, Video Deposition of Dr. Kenneth W. Sanders.4
The aggressive, protective, and possessive behaviors previously exhibited by
Bubba led to this bite. 5 RR 87:14-25. Bubba was protecting Diana from the stranger
of the group, Bowman. If Bubba would push Jerry away from Diana demonstrating
4
For the Court of Appeals’ convenience, in addition to citing to the video deposition
included in the Reporter’s Record in the Supplemental Exhibit Index, Bowman has also attached
the line and page excerpt from Dr. Kenneth Sanders’ deposition that Bowman is relying on and
that was included in the video shown the jury in the Appellant’s Appendix, Tab 4.
32
a low level of aggression, 5 RR 28:7-18, what would he do to someone he did not
know who was leaning toward Diana: the answer is protect Diana by biting them.
Jerry Davidson:
Q: and the mere fact of somebody leaning toward Diana, as far as we
know, that could set the dog off?
A: Right.
4 RR 140:3-5. Further, Bubba bit her on the right side of the face which is consistent
with Bowman leaning over to speak with Diana. 4 RR 33:2-10. Bubba’s dangerous
propensities were a substantial factor in bringing about the bite and without which the
bite would not have occurred. Accordingly, the evidence supports a finding of “yes”
as to whether Bubba’s dangerous propensities were the producing cause of Bowman’s
injury.
C. Conclusion
It is clear from the record that Bubba had dangerous tendencies in that he was
very protective of Diana and distrusting of new people. The circumstances of the
night in question had Bowman, a newly introduced person to Bubba, sitting close to
Diana at the dinner table with Bubba sitting directly in between them. Jerry testified
that Bubba does not like anyone, including Jerry, to get too close to Diana. 4 RR
138:12-25, 139:5-7. Further, Bubba will stand his ground when he feels a threat to
Diana. 4 RR 130:22-131:6. When Bowman leaned in toward Diana, Bubba saw
Bowman trying to get close to Diana. Thus, the only evidence in the record to
33
explain the attack was Bubba’s dangerous propensity for protectiveness and
aggression toward strangers. Even the Judge of the trial court believed that Bubba’s
dangerous propensities were the producing cause of Bowman’s injuries. 7 RR 9:11-
15. Accordingly, if the Court finds the answer to Question No. 1 should be reversed,
the record demonstrates the only acceptable answer to Question No. 2 is “yes.”
Therefore, Bowman asks the Court to enter such finding.
WHEREFORE, PREMISES CONSIDERED, Bowman prays the judgment be
in all respects REVERSED with regard to dangerous propensities as to either or both
the Davidsons and producing cause, and the cause be REMANDED back to the trial
court for a determination of damages, for the reasons set forth herein.
In the alternative, Bowman prays the judgment be REVERSED as to either or
both the Davidsons as to dangerous propensities and the cause be REMANDED back
to the trial court for further proceedings, as the Court sees fit, for the reasons set forth
herein.
Further and in the alternative, Bowman prays for the cause to be REMANDED
back to the trial court for a new trial, if necessary.
34
Bowman prays for such other and further relief, general or special, in law or
in equity, to which she may show herself to be justly entitled.
Respectfully submitted,
/s/Jack M. Sanders, Jr.
JACK M. SANDERS, JR.
109 East Houston Street
P.O. Box 1387
Marshall, Texas 75671-1387
(903) 935-7172
(903) 938-8616 (Fax)
sanders.jack@sbcblobal.net
ATTORNEY FOR APPELLANT
Certificate of Compliance
Pursuant to Tex. R. App. Pro. 9.4(i)(3), the undersigns hereby certifies that
according to the word count function of the computer program used to generate the
document, the portions of the Appellant’s Brief subject to the rule contain 7,574
words total and that the text thereof is in 14 point Times New Roman font.
/s/Jack M. Sanders, Jr.
Jack M. Sanders, Jr.
35
Certificate of Service
The undersigned hereby certifies that, pursuant to Tex. R. App. Pro. 9.5(a), a
true and correct copy of the foregoing Appellant’s Brief has been sent to the
following counsel of record through the Court’s on-line filing system, on this, the
19th day of March, 2015:
Alan E. Brown
Boyd & Brown, P.C.
1215 Pruitt Place
Tyler, Texas 75703
Counsel for the Appellees
/s/Jack M. Sanders, Jr.
Jack M. Sanders, Jr.
36
CASE NO. 06-14-00094-CV
_____________________________________________________________
IN THE SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
_____________________________________________________________
Nancy Elizabeth Bowman,
Appellant,
vs.
Jerry Davidson and
Diana Davidson,
Appellees.
______________________________________________________________
On Appeal from the 71st Judicial District
Harrison County, Texas
Cause No. 13-0618
The Honorable Brad Morin, Presiding
______________________________________________________________
APPENDIX
______________________________________________________________
JACK M. SANDERS, JR.
109 East Houston Street
P.O. Box 1387
Marshall, Texas 75671-1387
(903) 935-7172
(903) 938-8616 (Fax)
sanders.jack@sbcblobal.net
ATTORNEY FOR APPELLANT
37
APPENDIX TABLE OF CONTENTS
DOCUMENTS TAB
Judgment entered August 14, 2008. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Court’s Charge.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Transcript Excerpts from the Video Deposition of Billy Strong . . . . . . . . . . . . . . . 3
Transcript Excerpts from the Video Deposition of Dr. Kenneth Sanders. . . . . . . . 4
Poznanski ex rel Poznanski v. Horvath, 788 N.E.2d 1255 (Ind. 2003). . . . . . . . . . 5
Deardoff v. Burger, 606 A.2d 489 (Pa. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Robinson v. Marino, 3 Wash. 434, 28 P. 752 (1892). . . . . . . . . . . . . . . . . . . . . . . . 7
Restatement (Second) of Torts § 509. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
38
08/~/2614 15:28 BOYD- PAGE 05/06
0 flLElHOUteORD +'~
HARRISON, COUNTY, lWS . ,
CLERK DISTRICT COURT .;
CAUSE NO. 13-0618
NANCY ELIZABETH BOWMAN § IN TirE DISTRICT COuRBv
§ ---t""Ei£!!:::,....;..:.-
v. § 71"'" JUDICIAL DISTRICT
§
JERRY DAVIDSON and §
DIANA DAVIDSON § HARRISON COUNTY, TEXAS
JtiDGMENT
On August 18, 2014, this cause came on to be heard in this court. PlaintiffNancy Elizabeth
Bowman appeared in person and by her attorney of record, Jack Sanders, and announced ready for
trial. Defendants Jerry Davidson and Diana Davidson appeared in person and by his attorney of
record, Alan E. Brown, and announced ready for trial. A jury having been previously dexnanded, a
jury consisting oftwelve qualified jurors was duly impaneled and sworn, and the case proceeded to
trial. At the conclusion of the evidence, the Court submitted the questions of fact to the jury. The
charge ofthe.court and verdict of the jury are inco!'POrated for all purposes herein by reference.
Because it appears to the court that the verdict of the jmy was for Defendants and against Plaintiff,
judgment should be rendet:ed on the verdict in favor of Defendants and against Plaintiff
The court, after hearing the evidence and arguments of counsel, is of the opinion that
Plaintiff should take nothing by this suit.
ITISTHEREFOREORDEREDBYTHECOURTthatPlaintifftakenothingbythissuitand
that ail costs of court be taxed against Plaintiff.
Judgment ]>age 1
4
08/25/2~14 15:28 903525'=0 BOVDBFDWN PAGE 06/06
Q
All other reliefnot expressly granted in this Judgment is denied.
Signed this ...zL of_.,_A'-'-~-J---->' ~·
day 1014
JUDG~
APPROVED AS TO FORM:
AlllliE. Bro
State Bar No~.~9lJ,l.oo"..
Attomey for Defendants
Pagel
5
F I L E D . ~n 1:1
R
CAUSE NO. 13-0618
NANCY ELIZABETH BOWMAN § IN THE DISTRICT COURT
§
v. § 71 ST JUDICIAL DISTRICT
§
JERRY DAVIDSON AND §
DIANA DAVIDSON § HARRISON COUNTY, TEXAS
COURT'S CHARGE
LADIES AND GENTLEMEN OF THE JURY:
This case is submitted to you by asking questions about the facts, which you must decide
from the evidence you have heard in this trial. You are the sole judges of the credibility of the
witnesses and the weight to be given their testimony, but in matters of Jaw, you must be governed by
the instructions in this charge. In discharging your responsibility on this jury, you will observe all the
instructions which have previously been given you. I shall now give you additional instructions
which you should carefully and strictly follow during your deliberations.
1. Do not let bias, prejudice or sympathy play any part in your deliberations.
2. In arriving at your answers, consider only the evidence introduced here under oath and
such exhibits, if any, as have been introduced for your consideration under the rulings of
the Court, that is, what you have seen and heard in this courtroom, together with the law
as given you by the Court. In your deliberations, you will not consider or discuss
anything that is not represented by the evidence in this case.
3. Since every answer that is required by the charge is important, no juror should state or
consider that any required answer is not important.
~·
1198
4. You must not decide who you think should win, and then try to answer the questions
accordingly. Simply answer the questions, and do not discuss nor concern yourselves
with the effect of your answers.
5. You will not decide an issue by lot orby drawing straws, or by any other method of
chance. Do not return a quotient verdict. A quotient verdict means that the jurors agree to
abide by the result to be reached by adding together each juror's figures and dividing by
the number of jurors to get an average. Do not do any trading on your answers; that is,
one juror should not agree to answer a certain question one way if others will agree to
answer another question another way.
6. You may render your verdict upon the vote of ten or more members of the jury. The same
ten or more of you must agree upon all of the answers made and to the entire verdict. You
will not, therefore, enter into an agreement to be bound by a majority or any other vote of
less than ten jurors. If the verdict and all of the answers therein are reached by unanimous
agreement, the presiding juror shall sign the verdict for the entire jury. If any juror
disagrees as to any answer made by the verdict, those jurors who agree to all findings
shall each sign the verdict.
These instructions are given you because your conduct is subject to review the same as that
of the witnesses, parties, attorneys and the judge. If it should be found that you have disregarded any
of these instructions, it will be jury misconduct and it may require another trial by another jury; then
all of our time will have been wasted.
The presiding juror or any other juror who observes a violation of the Court's instructions
shall immediately warn the one who is violating the same and caution the juror not to do so again.
1199
When words are used in this charge in a sense which varies from the meaning commonly
understood, you are given a proper legal definition, which you are bound to accept in place of any
other definition or meaning.
Answer "Yes" or "No" to all questions unless otherwise instructed. A "Yes" answer must be
based on a preponderance ofthe evidence. If you do not find that a preponderance ofthe evidence
supports a "Yes" answer, then answer "No". The tenn "preponderance of the evidence" means the
greater weight and degree of credible testimony or evidence introduced before you and admitted in
this case. Whenever a question requires other than a "Yes" or "No" answer, your answer must be
based on a preponderance of the evidence.
"Bowman" shall mean Nancy Elizabeth Bowman, plaintiff herein.
"Defendants" shall refer collectively to Jerry Davidson and Diana Davidson, defendants
herein.
The "dog" shall mean and refer to Bubba, the male dog owned or possessed by Jerry
Davidson and Diana Davidson.
The "occurrence in question" means the incident on June 24, 2012 when Bowman was bitten
by the dog owned by Jerry Davidson and Diana Davidson.
f""- • .. 1 ~: • ~ "
:~~~·· qr~t,
·-.. _.... ..a. . ~
1200
QUESTION NO. 1
On the occasion in question, did the Davidsons know or have reason to know that their dog
had dangerous propensities not nonnal for a dog.
"Reason to know" means the actor has information from which a person of reasonable
intelligence would infer that the fact in question exists, or that such person would govern his conduct
under the assumption that such fact exists.
It is enough that the possessor of the animal knows that it has on other occasions exhibited
such a tendency to attack human beings or other animals or otherwise to do harm as should apprise
him of its dangerous character. Thus, the fact that a dog has to his knowledge unsuccessfully
attempted to attack human beings or other animals is sufficient to bring its possessor within
knowledge requirement. Sufficient also is any form of ill temper displayed in the presence of man or
beast which would apprise a reasonable man that the animal if uncontrolled would make such an
attack.
"Dangerous propensities" means vicious or aggressive tendencies that are not nonnal for a
dog.
Answer "Yes" or "No".
Answer: Jerry Davidson No
Diana Davidson
. [A.
1201 --- -:: . UL . . -=--
.•......
If you have answered "Yes" to Question No. 1, then answer Question No.2 otherwise, do not
answer Question No.2
QUESTION NO.2
Was the animal's dangerous propensities the producing cause of the plaintiffs injury?
You are instructed that "PRODUCING CAUSE" means a cause that was a substantial factor
in bringing about the injury, and without which the injury would not have occurred. There may be
more than one producing cause.
Answer "Yes" or "No":
Answer: - - - - -
u ____ _
< •• ("~ ·i
1202
QUESTION NO. 3
If you answered "no" to Question 1, please answer the following question. Otherwise, do not
answer the following question.
Did the negligence, if any, of Jerry Davidson or Diana Davidson in handling the dog
proximately cause Bowman's injuries?
"Negligence" means failure to use ordinary care, that is, failing to do that which a person of
ordinary prudence would have done under the same or similar circumstances or doing that which a
person of ordinary prudence would not have done under the same or similar circumstances.
"Negligence" with regard to handling a dog, may include one who keeps a dog which
possesses only those dangerous propensities which are normal to other dogs is required to know its
normal habits and tendencies. He is, therefore, required to realize that even ordinarily gentle dogs are
likely to be dangerous under particular circumstances and to exercise reasonable care to prevent
foreseeable harm.
"Ordinary care" means that degree of care that would be used by a person of ordinary
prudence under the same or similar circumstances.
"Proximate cause" means that cause which, in a natural and continuous sequence, produces
an event, and without which cause such event would not have occurred. In order to be a proximate
cause, the act or omission complained of must be such that a person using ordinary care would have
foreseen that the event, or some similar event, might reasonably result therefrom. There may be more
than one proximate cause of an event.
l
• ..I'
1203
In order for Bowman to be negligent, Defendants had to adequately warn Bowman.
An "adequate warning" is a warning that catches the attention of a person and conveys a fair
indication of the nature and extent of the danger being warned against in the mind of a reasonably
prudent person.
Answer "Yes" or "No".
Jerry Davidson No
Diana Davidson Nv
Bowman
1204
QUESTION NO. 4:
If you answered "yes" to Jerry Davidson or Diana Davidson and Bowman in Question No.3,
please answer the following question. Otherwise, do not answer the following question.
Assign percentages of responsibility only to those you found caused or contributed to cause
the injury. The percentage you find must total I 00 percent. The percentages must be expressed in
whole numbers. The percentage of responsibility attributable to a person is not necessarily measured
by the number of acts or omissions found. The percentage attributable to any one need not be the
same percentage attributed to that one in answering another question.
For each person you found that caused or contributed to cause the injury, find the percentage
of responsibility attributable to each:
a. Jerry Davidson
----------------------%
b. Diana Davidson
----------------------%
c. Bowman
-----------------------%
Total 100 %
--------~~-------
- - - ~-
1205
QUESTION NO. 5
If you answered Questions No. 1 and No.2 with "yes", please answer the following
question. If you answered Question 3 with "yes" as to Jerry or Diana Davidson and with "no"
as to Bowman or answered 50 percent or less as to Bowman in Question No. 4, then please
answer the following question. Otherwise, do not answer the following question.
What sum of money, if paid now in cash, would fairly and reasonably compensate
Bowman for her injuries, if any, that resulted from the occurrence in question?
Consider the elements of damages listed below and none other. Consider each
element separately. Do not award any sum of money on any element if you have otherwise,
under some other element, awarded a sum of money for the same loss. That is, do not
compensate twice for the same loss, if any. Do not include interest on any amount of
damages you find.
Answer separately, in dollars and cents, for damages, if any.
a. Medical care expenses that, in reasonable probability, Bowman will incur in the
future.
Answer:- - - -
b. Physical pain and mental anguish sustained in the past.
Answer:- - - -
c. Physical pain and mental anguish that, in reasonable probability, Bowman will
sustain in the future.
Answer: - - - -
1206
d. Disfigurement sustained in the past.
Answer:- - - -
e. Disfigurement that, in reasonable probability, Bowman will sustain in the future.
Answer:- - - -
f. Physical impairment sustained in the past.
Answer:- - - -
g. Physical impairment that, in reasonable probability, Bowman will sustain in the
future.
Answer:- - - -
h. Loss of earning capacity sustained in the past.
Answer: - - - -
1207
.
After you retire to the jury room, you will select your own presiding juror. The first thing the
presiding juror will do is to have this complete charge read aloud and then you will deliberate upon
your answers to the questions asked.
It is the duty of the presiding juror:
1. To preside during your deliberations;
2. To see that your deliberations are conducted in an orderly manner and in accordance with
the instructions in this charge;
3. To write out and hand to the bailiff any communications concerning the case which you
desire to have delivered to the judge;
4. To vote on the issues;
5. To write your answers to the issues in the spaces provided; and
6. To certify to your verdict in the space provided for the presiding juror's signature or to
obtain the signatures of all the jurors who agree with the verdict if your verdict is less
than unanimous.
You should not discuss the case with anyone, not even with other members of the jury, unless
all of you are present and assembled in the jury room. Should anyone attempt to talk to you about the
case before the verdict is returned, whether at the courthouse, at your home, or elsewhere, please
inform the judge of this fact.
When you have answered all of the questions which you are required to answer under the
instructions ofthe judge, and your presiding juror has placed your answers in the spaces provided
and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at the
door of the jury room that you have reached a verdict, and then you will return into Court with your
verdict.
JUDGE PRESIDING
.. r"""AA--
1208
We, the jury, have answered the above and foregoing questions as herein indicated, and
herewith return same into court as our verdict.
(To be signed by the presiding juror if unanimous.)
Presiding Juror
(To be signed by those rendering verdict if not unanimous.)
~~~~6vJ0\7E:V1BEF. 1.8, 2013
11 \]OLUI\]E l OE' J.
Ll **************************************** **************
13
14
15 produced as a wi~ness at the instance of the De
M and duly sworn, was taken in the above-styled and
18 4:34 p.m. to 5:43 p.rn., before rerri
19 in and fer the s~ate of Texas, reported by computerized
m stenotype machine, at the offices of Mr. Jack Sanders,
21 Jr., 109 East Houston Street, Marshall, Texas, pursuant
ll to the Texas Rules of Civil Procedure and the provisions
n stated on che record or attached hereto.
24
25
Deposition Resources, 1nc.
800.295.4 l 09
Eiectronica!iy signed by Terri Lynn Smith (501-237-608-4107) 16a5ed0f-8516-4c02-81 cc-9c82S8f78b4c
Page2
1 A ~ P E A R A N 2 E S
2
:!LR" ,_T.ACI< SPJ'1DERS I ~TR.
3 fl.TTORNEY AT L~,W
109 East Houston S~reet
4 Marshall, Texas 75671
{903) 935-7.172
- . , ...,
l:"acsimi1e: (903) 938-8616
5
6 COUNSEL FOR PLAINTIFF: Nancy Elizabeth Bowman
7
8 MR. AU\N E. BROWN
BOYD & BROWN, P.C.
9 1215 Pruitt Place
Tyler, Texas 75703
10 Telep.'.rtorte: 903 ::;26-9JCO
Facsim.i le: 903 5?6-9CiCl
11
COUNSEL FOR DEFENDANTS: Jerry Davi
12
13
14
15
~ ALSO PRESENT: Mr Sart Leigh, videographer
Ms. Nancy Elizabeth Bowman
17
18
19
20
21
22
23
24
25
Deposition Resources, Inc.
800.295 .4109
Electronically signed by Terri Lynn Smith (601-237-608-4107) 16a5ed0f-8516-4c02-81 cc-9c8298f78b4c
Page 28
:I
3
the fac:e,
Q.
I-1e j:irn.pe?
25 A. Me.
Deposition Resources. Inc.
800.295 .4109
Electronically signed by Terri Lynn Smith (601-237-608-4107) 16a5ed0f-8516-4c02-81 cc-9c8298f78b4c
Paoc
b
30
1 Q. Okay" .
2 A. Okay. Tha~'s when I signed it.
3 Q. So so you told Jack or someone in nis
4 office
5 Yes .
6 Q. -- a.bout \-Vha t t1apperled., a.nd. sornebody '-";rote ~ +-
7 out and then you signed it saying, Yeah, that's --
8 A.. Yes.
9 -- that's what happened?
10 l-\ .. Yes .
11 Q. Okay. Okay. Now, when it says that -- what
12 does it say? It says, I was bitten or the dog bit me.
13 What's the language there?
14 "Niooed me on the back of my leg. 0
Okay. De yol1 rernerr~be:c the occasion., sc