Opinion
No. 05-15-00666-CV
04-14-2016
ADELMIRA GARZA, Appellant v. JAMIE MARIE SANCEN, Appellee
On Appeal from the 401st Judicial District Court Collin County, Texas
Trial Court Cause No. 401-02995-2014
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Francis
Adelmira Garza appeals the trial court's judgment in favor of Jamie Sancen. In four issues, Garza claims the trial court erred by granting Sancen's motion for summary judgment and denying Garza's motion for partial summary judgment. We affirm.
Garza and her two Chihuahua dogs, Albino and Chance, passed the Sancen house during a walk in her Frisco neighborhood. Chance was leashed, but Albino was not. The Sancens have a two-year-old Rhodesian Ridgeback named Aari, and an eight-year-old Dachshund, Katy. That day, Sancen, her son, and her husband were using a wheelbarrow to move wood from the property across the street into their fenced backyard. The family made one trip through the gate and back without incident.
Garza and her two dogs were across the street from the Sancen house when the family began their second trip for wood. Sancen opened the gate to allow her son and husband to pass through with the wheelbarrow when Aari saw Garza and her dogs. Aari ran out of the fenced backyard toward Garza who, fearing an attack, reached down to pick up the unleashed Albino. Aari knocked Garza to the ground causing Garza to drop Albino. Sancen and her son ran across the street to help, and Albino ran off in the direction of Garza's house. Garza injured her shoulder when she fell.
Garza sued Sancen for negligence and negligence per se. In support of her negligence per se claim, Garza cited section 8 of the Frisco city ordinance number 08-01-06 which states:
It shall be unlawful for any Owner, Custodian, or harborer to allow any Domestic Dog or other Animal possessed, kept, or harbored, to roam At Large as defined in Section 3(8) of this Ordinance.Section 3(8) provides:
At Large: An Animal, including fowl or livestock, not in a Secure Enclosure or not completely confined by a building, wall, pen, or fence of sufficient strength of construction, to physically restrain the Animal on the premises behind the front building line of the Owner or Custodian, or an Animal that is not under the physical restraint of the Owner or Custodian or any other person authorized by the Owner to care for the Animal by leash, cord, chain, or rope.
After Sancen filed an answer, Garza filed a motion for a traditional and no-evidence partial summary judgment on liability. Sancen in turn filed a motion for traditional summary judgment. The trial court granted Sancen's motion and denied Garza's. This appeal followed.
In her first two issues, Garza contends the trial court erred by granting Sancen's motion on Garza's claims for common-law negligence and negligence per se.
We review the granting of a motion for summary judgment de novo. Shell Oil Co. v. Writt, 464 S.W.3d 650, 654 (Tex. 2015). For a defendant to prevail on a traditional motion for summary judgment, she must either disprove at least one element of each of the plaintiff's claims as a matter of law or conclusively establish all elements of an affirmative defense to the claims. Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex. 1996). If the defendant's motion and evidence facially establish her right to judgment as a matter of law, the burden then shifts to the nonmovant to raise a genuine issue of material fact sufficient to defeat the summary judgment. Santiago v. Novastar Mortg., Inc., 443 S.W.3d 462, 467 (Tex. App.—Dallas 2014, pet. denied). When reviewing a motion for summary judgment, we take the nonmovant's evidence as true, indulge every reasonable inference in favor of the nonmovant, and resolve all doubts in her favor. Neely v. Wilson, 418 S.W.3d 52, 59-60 (Tex. 2013).
In a negligence case, a plaintiff must prove the defendant owed a legal duty to the plaintiff, the defendant breached that duty, and the breach proximately caused plaintiff's injuries. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Proximate cause consists of cause in fact and foreseeability. Sw. Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). "These elements cannot be established by mere conjecture, guess, or speculation." W. Invs., Inc., 162 S.W.3d at 551. The test for cause in fact is whether the negligent act was a substantial factor in bringing about the injury, without which the harm would not have occurred. See Sw. Key Program, Inc., 81 S.W.3d at 274. The test for foreseeability is whether a person of ordinary intelligence should have anticipated the danger created by the negligent act. Id. Foreseeability requires more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defendant's conduct brings about the injury. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d at 477.
Negligence per se is a common-law tort concept in which a statute defines the standard of conduct. Johnson v. Enriquez, 460 S.W.3d 669, 673 (Tex. App.—El Paso 2015, no pet.). It is not a separate claim independent of a common-law negligence claim and is instead one method for proving duty, an element of any negligence claim. Williams v. Sable 2011 WL 238288, at *3 (Tex. App—Houston [14th Dist.] 2011, no pet.) (mem. op.). To establish negligence per se, the plaintiff must show the defendant violated a statute or ordinance setting an applicable standard of care, the breach proximately caused the injury, and the statute or ordinance was designed to prevent an injury to that class of persons to which the plaintiff belongs. Johnson, 460 S.W.3d at 673-74. The plaintiff still must show the defendant's act or omission proximately caused the injury. See Rudes v. Gottschalk, 324 S.W.2d 201, 204-05 (Tex. 1959).
In her motion for summary judgment, Sancen asserted negligence per se does not apply, Sancen did not owe Garza a common law duty, and any breach of duty was not a proximate cause of the occurrence or of Garza's injuries because it was not foreseeable that Aari would run out of the yard and harm someone. In support of her motion, Sancen relied on "evidence on file, including but not limited to" attached excerpts from Sancen's and Garza's depositions.
The issue of foreseeability is dispositive of both the negligence and negligence per se claims. In her deposition, Sancen testified about the events that day, including the trips made across the street for wood, and Aari's deportment history. During the first trip, Sancen opened the gate and her husband and son exited with the wheelbarrow and walked across the street. After loading the wood in the wheelbarrow, they returned to the backyard through the gate. The unleashed Aari did not leave the backyard. As the family began the second trip, Garza and her two dogs were walking across the street. Sancen opened the gate to allow her husband and son to walk through with the wheelbarrow. When the gate opened, Aari saw Garza and her dogs and ran through the gate and across the street toward them. Sancen testified Aari had not run out of their yard or gotten loose before. She believed Aari ran out because one of Garza's dogs was off-leash.
Sancen's deposition testimony addresses the common element of foreseeability and facially establishes her right to summary judgment. Thus, the burden shifted to Garza to raise a genuine issue of material fact to defeat summary judgment, specifically raising a fact issue that a person of ordinary intelligence should have anticipated that Aari would run out of the backyard.
In her response to the summary judgment motion, Garza argued "it was foreseeable that leaving the gate open and not restraining the dog could lead to the dog getting out of the backyard unleashed." She did not, however, attach summary judgment evidence in support of these statements, and the statements themselves do not constitute summary judgment evidence. See Ellis v. Renaissance on Turtle Creek Condo. Ass'n, Inc., 426 S.W.3d 843, 855 (Tex. App.—Dallas 2014, pet. denied). Garza also argued the Frisco city ordinance is "ample evidence of foreseeability of damage and injury when dog owners do not leash their animals." Although Garza attached a copy of the Frisco ordinance, the ordinance is not evidence of whether a person of ordinary intelligence should have anticipated that Aari would escape the fenced backyard or would injure a person once he did escape. See Trujillo v. Carrasco, 318 S.W.3d 455, 460 (Tex. App.—El Paso 2010, no pet.) (mere fact dog had previously escaped pen was insufficient to show foreseeability of injuries to plaintiff's fowl; plaintiff offered no evidence that dog in question would cause harm to any place, thing, animal, or human upon escape).
Finally, Garza contends the fact Sancen kept Aari in a fenced backyard and walked him on a leash is evidence that "the attack in this case was foreseeable generally . . . and specifically foreseeable to Appellee." We disagree. That Sancen complied with the Frisco city ordinance by walking her dog on a leash and keeping the dog in a fenced backyard is evidence that Sancen complied or attempted to comply with the city ordinance; it is not evidence that Aari would escape an open gate and knock someone over. See Petry v. Gasca, 1994 WL 132772, at *3 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (not designated for publication) (evidence that dog was taken outside on leash has no probative value on whether dog was dangerous, especially in light of fact most counties and municipalities have "leash laws;" likewise, evidence that family put dog in room when people visited is not proof that family had knowledge dog was vicious); see also Trujillo, 318 S.W.3d at 460 (incumbent on plaintiff to present evidence of "dangerous propensities of escaped labradors" or at very least, ask court to take judicial notice of dog's characteristics).
By failing to raise a fact issue on foreseeability, Garza did not meet her summary judgment burden. We conclude the trial court did not err and overrule Garza's first two issues. In light of this, we need not address Garza's third and fourth issues. See TEX. R. APP. P. 47.1.
We affirm the trial court's summary judgment in favor of Sancen.
/Molly Francis/
MOLLY FRANCIS
JUSTICE 150666F.P05
JUDGMENT
On Appeal from the 401st Judicial District Court, Collin County, Texas
Trial Court Cause No. 401-02995-2014.
Opinion delivered by Justice Francis, Justices Lang-Miers and Myers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that JAMIE MARIE SANCEN recover her costs of this appeal from ADELMIRA GARZA. Judgment entered April 14, 2016.