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
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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"
_
89'48’26" W
_ 208.87'
208.87’
w (N
(N 89"58'40"
895340" EE 984.70')
N 8g950'36•
*N 89'50’36' EE
984-70')
983.99'
983.99’
SEE
SEE DETAIL
D/LETAIL
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89"50'41"
89'50’41" EE
311.47'
311.47’

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H. LIVELY
H. UVELY ROAD (POSTED)
ROAD (POSTED) 11n
éurzgs
«3°
LOT
LOT 24,
24,
\\ $6
p' 38* z m“
21.5' ASPHALT SURFACE
21.5' ASPHALT O§7°7<—‘ A BLOCK
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PAUL PROVINCE AND
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IIhave
have this
Block
this date
Block 1,
Plat
1, of
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
s:2�
‘5:
:,Jo
� -I•
No2 0
O

:2:
WRIZ. SCALE
IORIZ. SCALE IN FEET
IN FEET
�
1 300'
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

•0 IRF = IRON
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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
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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.

PLAINTIFF’S R
PLAINTIFF’S RESPONSE TO D
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DEFENDANT’S ECOND
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OTION FOR UMMARY J
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Page 283
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

PLAINTIFF’S R
PLAINTIFF’S RESPONSE TO D
ESPONSE TO EFENDANT’S S
DEFENDANT’S ECOND
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A MENDED M
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OTION FOR UMMARY J
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Page 284
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

PLAINTIFF’S R
PLAINTIFF’S RESPONSE TO D
ESPONSE TO EFENDANT’S S
DEFENDANT’S ECOND
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Page 285
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

PLAINTIFF’S R
PLAINTIFF’S RESPONSE TO D
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DEFENDANT’S ECOND
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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.

PLAINTIFF’S R
PLAINTIFF’S RESPONSE TO D
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DEFENDANT’S ECOND
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Page 287
 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.

PLAINTIFF’S R
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Page 288
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.

PLAINTIFF’S R
PLAINTIFF’S RESPONSE TO D
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DEFENDANT’S ECOND
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Page 289
 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).

PLAINTIFF’S R
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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

PLAINTIFF’S R
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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
PLAINTIFF’S RESPONSE TO D
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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.

PLAINTIFF’S R
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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.

PLAINTIFF’S R
PLAINTIFF’S RESPONSE TO D
ESPONSE TO EFENDANT’S S
DEFENDANT’S ECOND
SECOND PAGE 14
PAGE 14
A MENDED M
AMENDED MOTION FOR S
OTION FOR UMMARY J
SUMMARY UDGMENT
JUDGMENT

Page 295
 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

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at n
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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
'
training using treats and favorite toys. with their front feet when doing so.

Page 302
 -
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This certifies the authenticityof Heidi's canine genetic background
as determined followlng careful analysis of more than 300 .
genetic

Page 303
m'arkers using Wisdom Panel Insights. The purebred dog
breed
sighature matches included in this analysis are those that were Plum: Pm
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detected in the last three generations of Heidi's ancestry using the l

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proprietan/ breed detection algorithm at Mars Veterinary.
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3 notifying you that your dog's report is available for downbad.
: To chedubestatus ofyourdog's repornhroughoutthe
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process, visit our status link at: WisdomPanellnsig hts.com.

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

V

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or a rainy day. Let’s change that.
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..

Most Dangerous Dogs 4 of 11 LIVE

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!
Q f

TOP LISTS
—
EDITOR'S PICK
DOG TRAINING & BEHAVIOUR

To p 1 0 Essentials to Know of a Dog
Play

M ost
Dan ge ro u:

”w
TOP LISTS
Top 10 Most liked

Dog "
..
Doberman Photos &
Captions On Facebook
o
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LATEST ON IDW
M .

the World ‘Lixgizzizzassszm
friends of babies

>
LATEST ON IDW

20 Secrets Why Dogs Make
Us Happy

LATEST ON IDW

Top 10 Most Liked Bull
Terrier Photos and Captions
On Facebook!

fywaw]
SHARL IWLLI SHARLLVIAIL
,~,_
TOP LISTS

12 Celebrities With Bull
Terriers
Almost all dogs can cause
unimaginable damage and
danger, but certain breeds are
. STORIES
more prone to showmg
K9 Dog Dies After Rescuing
dangerous reactions and
cause fatalities! These breeds
7 People From Earthquake
/\
‘1" TM

http://www.insidedogsworld .com/lop l 0-most-dangerous»dog-breeds-in»theworld/
1/ 14

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

' '
a ¥é¢kérélAhBtEér tHihé t6
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 0