Betty Jurado Versus Elizabeth Phillips

BETTY JURADO NO. 23-CA-373

VERSUS FIFTH CIRCUIT

ELIZABETH PHILLIPS COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 812-217, DIVISION "F"
HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING

March 28, 2024

TIMOTHY S. MARCEL
JUDGE

Panel composed of Judges Stephen J. Windhorst,
Scott U. Schlegel, and Timothy S. Marcel

AFFIRMED
TSM
SJW
SUS

COUNSEL FOR PLAINTIFF/APPELLEE,
BETTY JURADO
Stephanie A. Fratello

COUNSEL FOR DEFENDANT/APPELLANT,
ELIZABETH PHILLIPS
Evan J. Bergeron
Samuel H. Winston
Jeigh L. Britton

MARCEL, J.

In this case arising from damages caused by a dog bite, defendant Elizabeth

Phillips appeals a final judgment of the trial court rendered in favor of plaintiff

Betty Jurado. For the following reasons, we affirm the judgment of the trial court.

BACKGROUND

On March 31, 2020, at approximately 7:00 p.m., Dr. Phillips and her friend

Brittanie Fowler were walking their three dogs on leashes on the sidewalk along

Pink Street next to Ms. Jurado's fenced in yard. Dr. Phillips was walking her dog

Coco, an approximately two year old terrier and American pit bull mixed breed.

Ms. Jurado's dog, Avery, a German Shepard mixed breed, was at that time outside

in Ms. Jurado's fenced in back yard. A brief altercation arose between Coco and

Avery through a small opening in Ms. Jurado's fence. Coco bit Avery's snout. Ms.

Jurado came outside to the site of the altercation and tried to pull Avery away. The

dogs were separated. Ms. Jurado suffered a small laceration on her hand that

required treatment at a nearby emergency room. Ms. Jurado testified that the

injury led to multiple surgical interventions and caused residual functioning

impairments to her finger.

Ms. Jurado filed a petition for damages wherein she claimed Coco bit her

hand and caused her injuries. Dr. Phillips denied Coco bit plaintiff, and argued

instead that Ms. Jurado's injury came from either a nail in the fence or a bite from

Avery or Ms. Jurado's other dog, Sergeant. Dr. Phillips also alleged Ms. Jurado

was negligent in maintaining her fence.

The case proceeded to a bench trial on the merits on August 9, 2022. Ms.

Jurado testified on her own behalf and called two witnesses: her wife and her

neighbor. Neither of the two witnesses observed the altercation between the dogs.

Dr. Phillips testified on her behalf and called as a witness her friend Ms. Fowler

who was walking the dogs with her at the time of the altercation. The witnesses to

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the altercation offered differing testimony as to how it began, but there is no

dispute that an altercation occurred between Coco and Avery through Ms. Jurado’s

fence. At the conclusion of the trial, the matter was held open so that the record

could be supplemented with the testimony of Ms. Jurado's treating physician. This

was ultimately never placed in the record.

Judgment was rendered on April 25, 2023 in favor of Ms. Jurado against Dr.

Phillips in the amount of $44,095.90. The trial court found a causal relation

between plaintiff's injuries and the fault of Dr. Phillips and her dog Coco. Ms.

Jurado was awarded special damages amounting to $33,493.17 and general

damages of $40,000.00. The court also found Ms. Jurado to be negligent and that

her negligence contributed to damages. The court allocated 40% fault to Ms.

Jurado and 60% fault to Dr. Phillips and applied these percentages to the damages

award to reach the final award.

On appeal, Dr. Phillips argues that the trial court manifestly erred in finding

that Coco bit Ms. Jurado and erred in finding that Coco presented an unreasonable

risk of harm to Ms. Jurado. We consider these assignments of error in our

discussion below.

DISCUSSION

The owner of an animal is answerable for the damage caused by the animal.

La. C.C. art. 2321. The owner is answerable for the damage only upon a showing

that she knew or, in the exercise of reasonable care, should have known that her

animal's behavior would cause damage, that the damage could have been prevented

by the exercise of reasonable care, and that she failed to exercise such reasonable

care. Id. Additionally, the owner of a dog is strictly liable for damages for injuries

to persons or property caused by the dog and which the owner could have

prevented and which did not result from the injured person's provocation of the

dog. Id. The Supreme Court has held that this strict liability standard for injuries

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caused by dogs requires plaintiffs to show that the dog posed an unreasonable risk

of harm. Pepper v. Triplet, 03-0619, (La. 1/21/04), 864 So.2d 181, 195. The

process involved in deciding whether a risk is unreasonable is similar to that

employed in determining whether a risk is unreasonable in a traditional negligence

problem, and in deciding the scope of duty or legal cause under the duty risk

analysis. Id.

A determination of negligence or fault is a factual determination. Mann v.

Louisiana-1 Gaming, 21-83, (La. App. 5 Cir. 12/15/21), 334 So.3d 894, 898.

Appellate courts review the findings of fact under the manifest error standard of

review. Id. Setting aside a trial court's findings of fact requires a determination

that the findings are clearly wrong in light of the record viewed in its entirety. Id.

Thus, the issue before the appellate court is not whether the trier of fact was right

or wrong, but whether the factfinder's conclusion was a reasonable one. Jones v.

Mkt. Basket Stores, Inc., 22-00841, (La. 3/17/23), 359 So.3d 452, 463.

The appellate court must not reweigh the evidence or substitute its own

factual findings because it would have decided the case differently. Id. When

findings are based on determinations regarding the credibility of witnesses, the

manifest error-clearly wrong standard demands great deference to the trier of fact's

findings; for only the factfinder can be aware of the variations in demeanor and

tone of voice that bear so heavily on the listener's understanding and belief in what

is said. Rosell v. ESCO, 549 So.2d 840, 845 (La.1989). Where the factfinder's

determination is based on its decision to credit the testimony of one or two or more

witnesses, that finding can virtually never be manifestly erroneous. Id.

As part of her assignments of error, defendant argues that there is no

evidentiary support for the trial court's finding that Coco bit Ms. Jurado.

Defendant also claims that the evidence is uncontested that Avery "provoked"

Coco. We disagree with this characterization of the evidence. Ms. Jurado testified

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that Coco bit her during the altercation between Coco and Avery. Dr. Phillips

provided evidence to the contrary, including her own testimony that Coco did not

bite Ms. Jurado.

The trial court elected to credit Ms. Jurado's testimony over that of Dr.

Phillips. Similarly, the evidence regarding how the altercation between the dogs

began is mixed. Ms. Jurado admitted that she did not see the initiation of the

altercation. The trial court again evaluated the testimony of Dr. Phillips and her

witness as to whether Avery “provoked” Coco and made a credibility

determination. Though the evidence presented is conflicting, the trial court drew a

reasonable conclusion from that evidence that Coco was not provoked by Avery.

As for appellant’s second assignment of error, it is unclear from the record

whether the trial court made a specific finding that Coco presented an unreasonable

risk of harm. However, as noted above, such a finding is not required under the

negligence provisions of La. C.C. art. 2321. The trial court specifically found that

Dr. Phillips (and Ms. Jurado) failed to exercise reasonable care in failing to control

their dogs. The evidence in the record is sufficient to support the trial court’s ruling

under the negligence standard.

Upon review of the entire record, including the complete testimony of the

multiple witnesses, we find no manifest error in the trial court's factual

determinations. Accordingly, the decision of the trial court is affirmed.

AFFIRMED

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 28, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-373
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE MICHAEL P. MENTZ (DISTRICT JUDGE)
STEPHANIE A. FRATELLO (APPELLEE) EVAN J. BERGERON (APPELLANT) JEIGH L. BRITTON (APPELLANT)
SAMUEL H. WINSTON (APPELLANT)

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