Demetrious R. Frazier v. Luke A. Difulco, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-884

DEMETRIOUS R. FRAZIER

VERSUS

LUKE A. DIFULCO, JR., ET AL.

**********

APPEAL FROM THE
ALEXANDRIA CITY COURT
PARISH OF RAPIDES, NO. 127,110
HON. W. PEYTON CUNNINGHAM, JR., CITY COURT JUDGE PRO TEM. 1

**********

JIMMIE C. PETERS
JUDGE

**********

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and James T. Genovese,
Judges.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

Malcolm X. Larvadain
Law Offices of Malcom X. Larvadain
626 Eighth Street
Alexandria, LA 71301
(318) 445-3533
COUNSEL FOR PLAINTIFF/APPELLANT:
Demetrious R. Frazier
1
Judge W. Peyton Cunningham, Jr. presided in this litigation pursuant to appointment by
the Louisiana Supreme Court.

Paul M. Lafleur
Stafford, Stewart & Potter
P. O. Box 1711
Alexandria, LA 71309
(337) 487-4910
COUNSEL FOR DEFENDANTS/APPELLEES:
Luke A. Difulco, Jr.
Laura Mayeux Difulco
Daniel Difulco

PETERS, J.

The plaintiff, Demetrious R. Frazier, appeals the trial court’s denial of his

motion for a new trial and the granting of the motion to strike filed by the

defendants in this matter, Luke A. Difulco, Jr., Laura Mayeaux Difulco, and Daniel

Difulco. For the following reasons, we affirm the trial court’s judgment in all

respects.

DISCUSSION OF THE RECORD

On February 11, 2013, a dog owned by the defendants bit Mr. Frazier as he

was performing his duties as a meter reader for the City of Alexandria, Louisiana.

The incident occurred when Mr. Frazier entered a fenced yard at the defendants’

5213 Raphael Drive residence in Alexandria. 2 Mr. Frazier’s suit for damages

against the defendants went to trial on November 21, 2014, and after hearing the

evidence presented, the trial court issued oral reasons for judgment stating the

following:

[I]t is the holding of the Court that Demetrious R. Frazier assumed the
risk of whatever damage would be done to him by going into the gate
at such a time that it was dangerous for him to do so when in fact the
son, Mr. Daniel Difulco, had offered to eliminate the danger involved.

On December 4, 2014, the trial court executed a written judgment dismissing Mr.

Frazier’s demands against the defendants. Mr. Frazier requested that the trial court

issue written reasons for judgment. On December 22, 2014, in response to Mr.

Frazier’s request, the trial court filed the following written reasons:

This is a dog bite case emanating from an incident on February
11, 2013.

Plaintiff is a meter reader employed by the City of Alexandria
to read meters electronically with a hand held battery powered device
in residential neighborhoods in the city.

2
Luke A. Difulco, Jr. and his wife, Laura Mayeaux Difulco, own the property where Mr.
Frazier was bitten; and their adult son, Daniel Difulco, was at the residence visiting family on the
day of the incident.

Defendants are the owners and occupants of a home located in a
city neighborhood whose water and electrical meters plaintiff was
going to read, all within the scope of his employment. Plaintiff has
received [workers’] compensation and all medical bills have been paid.

Located at the far end of defendant’s [sic] paved driveway is a
chain link fence and gate which encloses the backyard, the meters in
question, and a separate dog pen kennel which is enclosed within the
backyard.

On the date in question, as plaintiff approached the closed gate
to the backyard he was met by the defendants[’] two Chesapeake [Bay]
Retriever dogs that were barking from the backyard. Inside the
residence, the 24 year old son of the defendant heard the noise and
went out the back door with a 2 year old niece to see what had caused
the barking dogs, described as playful family pets that had no history
of harming anyone. He saw the plaintiff on the street side of the gate
and talked with him from the backyard side of the gate.

At this time the plaintiff had three choices:

1. Not to go in the backyard and to use the electronic
reader in his hand to “code”, [sic] that is, to estimate the
amount of water and electricity used thereby reference to
an average of the defendant’s [sic] previous bills.

2. Not to go into the backyard until the owners[’] son
removed the dogs from the immediate area and secured
in the dog kennel, which he offered to do while plaintiff
still stood at his safe location on the opposite side of the
gate.

3. Wait for instructions from his supervisor who was
available by radio.

When the son offered to secure the dogs in their enclosed
kennel the plaintiff, instead of responding, opened the gate and as he
stepped toward one of the animals bit him on the hand causing two
puncture wounds near the index and ring finger knuckles on the hand.

The Court finds that the plaintiff was grossly negligent in
leaving his place of safety and going thru [sic] the gate into the
backyard when it was obviously unsafe to do so; in not waiting in his
safe location until the dogs were kenneled; [i]n assuming by his
actions 100% of the risk of being bitten by the barking Chesapeake
[Bay] Retriever; which negligence acts as a bar to his request for
monetary damages from the defendants.

Plaintiff was covered by [workers’] compensation and all
related medical expenses have [been] paid, according to trial counsel.
Plaintiff’s claim here is dismissed at his costs.
2

On January 7, 2015, Mr. Frazier filed a motion for new trial wherein his sole

claim for relief was that “[p]ursuant to Louisiana Code of Civil Procedure Article

1972 (1) the plaintiff files this Motion for New Trial on the grounds that the judge

reached a verdict that is contrary to the law and evidence.” That same day, Mr.

Frazier also filed the memorandum in support of his motion for new trial with

attachments. On February 9, 2015, the defendants filed a motion to strike evidence

attached to the memorandum addressing an incident report and bench warrant

issued against Daniel Difulco in a totally unrelated matter.

The trial court held a hearing on both motions on February 19, 2015. At the

end of the hearing, the trial court granted the defendants’ motion to strike and took

the new trial motion under advisement. On March 3, 2015, the trial court issued

written reasons confirming the previous oral grant of the motion to strike and

rejecting the motion for new trial. In those reasons for judgment, the trial court

stated the following:

These motions were heard in open court on February 19, 2015.
The Motion to Strike was denied at that time and that ruling is
affirmed here.[3]

As to the Motion For New Trial, plaintiff argues that in the
initial trial the Court ruling that plaintiff assumed the risk of being
injured was legally incorrect. We now correct that.

This Court now sets that finding aside and finds that on a
comparative negligent basis the plaintiff is 100% negligent and the
defendants zero percent negligent.

The Court notes that plaintiff’s argument at these motions
deviates substantially from the true facts of this case in several
important aspects. To make sure that the record is correct, the Court
reiterates it’s [sic] findings of fact as follows:

Plaintiff, a city meter reader, approached a hurricane type fence
gate at the end of defendants[’] paved driveway. He was met there by
defendant’s [sic] two retriever dogs who were barking. These animals
were seven years old, family pets of good nature that had never been

3
Given the record as a whole, we construe this as a typographical error.
3

known to bite any one [sic] nor exhibit dangerous propensities.
Hearing the barking, a defendant family member and a two year old
child met plaintiff at the gate while plaintiff was still on the side
opposite the animals. The offer to put the dogs in their backyard
kennel prior to entering the yard was turned down. It is important to
note here that plaintiff had these choices:

1. Request directions on his radio from his supervisor.

2. Request help from his more experienced co-worker
who was present.

3. Leave the meter un-read and “code” it with the
electronic meter reading device he had in his hand.

4. Enter the backyard after the dogs had been placed in
the kennel.

5. Enter as he did.

The Motion For A New Trial is denied. All costs are assessed
to plaintiff.

The trial court executed a written judgment granting the motion to strike and

denying the motion for new trial on April 2, 2015, and Mr. Frazier perfected this

appeal thereafter. In his appeal, Mr. Frazier asserted the following three

assignments of error:

1. The Honorable Trial Court committed manifest error in failing
to grant appellant’s request for a new trial by rescinding its prior
ruling and issuing another ruling using the correct legal theory.

2. The Honorable Trial Court committed manifest error in finding
the appellant was solely responsible for his injuries under the theory
of comparative fault.

3. The Honorable Trial Court committed manifest error in
discounting the testimony of appellant.

OPINION

The testimony surrounding the incident is in conflict. Mr. Frazier testified

that on the morning of February 11, 2013, he was assigned an unfamiliar route, and

4

was informed by his supervisor that he would be training a new employee.4 He

testified that he approached the fenced area at the defendants’ home; he observed

no dogs, tracks, bowls, or other evidence of a dog being present, and opened the

gate and walked into the driveway toward the electricity meter. 5 According to Mr.

Frazier, as he reached the meter, a large black dog came on the scene and ran at

him. A second dog appeared on the scene, thereby impeding his escape route to

the gate, and before he could exit the fenced area, one of the dogs bit him on the

right hand. Mr. Frazier testified that only after he had been bitten by the dog did

Daniel Difulco exit the house and gain control over the dogs. Mr. Difulco then

administered first aid to Mr. Frazier’s wound.

Luke Difulco testified that the dogs involved in the February 11, 2013

incident were a ten-year-old black lab and a seven-year-old Chesapeake Bay

Retriever. Both dogs had been with the family since their birth, and there were no

biting incidents involving either dog before the incident with Mr. Frazier. He did

not consider either dog to be aggressive, and they were perfectly comfortable

around company. Still, he acknowledged that both dogs would bark when a

stranger came through the gate into the yard. He testified that he had a covered

kennel in the yard where he would place the dogs while food was being consumed

in the yard, or when the weather was bad. Mr. Difulco had no dog warning signs

because he felt them unnecessary. Only Daniel, Natalie, the Difulcos’ daughter,

and Natalie’s minor daughter were present at the residence on the date of the

incident.

Daniel Difulco (hereinafter referred to as “Daniel” to differentiate him from

his father) testified that at approximately 10:00 a.m. on February 11, 2013, he
4
The trainee, who did not testify at trial, was identified in the record as “Clifford Lee.”
5
Mr. Frazier testified that as he entered the fence to read the electricity meter, Mr. Lee
went to the edge of the street outside the fence to read the water meter.
5

heard the dogs barking. When he went to investigate, he entered the fenced-in

yard through the back door of the residence and observed a man outside the gate.

Daniel testified that he asked the man if he was there to read the meter and whether

it was necessary to “put the dogs up.” According to Daniel, the man responded he

was not going past the gate and that it would not be necessary to do anything with

the dogs. Daniel testified that he then returned to the back of the house with the

dogs closely following him. After he entered the garage area and started to open

the back door to the residence, he heard a man scream and he turned to see the

dogs barking and growling at Mr. Frazier. Daniel screamed at the dogs, and when

he observed that Mr. Frazier had been bitten, he administered first aid to the wound.

When questioned concerning why he offered to lock the dogs up in the first

place, Daniel responded that “if you have two barking dogs sometimes it makes a

man uncomfortable to go into their territory.” He stated that he was not, at the

time, concerned for the man’s safety, but merely his comfort level. In fact, this

was the first time the dogs exhibited the behavior toward even a stranger entering

the yard.

In resolving these two versions of what occurred on February 11, 2013, the

trial court stated the following at trial:

I accept the testimony of Daniel Difulco as being reliable, trustworthy
and worthy of belief. I also accept the testimony of Mr. Luke Difulco
that he had never had these dogs attack anybody, they were used to
barking when somebody intruded into their area and I can’t explain
why Mr. Frazier or the second employee would tell Daniel Difulco
that they weren’t, not gonna come into the backyard through the gate
to read the gas and electric meter and then to do so.

Assignment of Error Number I

In his motion for new trial, Mr. Frazier relied solely on La.Code Civ.P. art.

1972(1) which provides that “[a] new trial shall be granted . . . [w]hen the verdict

or judgment appears clearly contrary to the law and the evidence.” At the hearing
6

on the motion, Mr. Frazier argued that the trial court used an incorrect legal theory

(assumption of the risk) in rendering its judgment. Specifically, Mr. Frazier noted

that the doctrine of assumption of the risk has been replaced by the doctrine of

comparative fault. The trial court responded to this argument in its March 3, 2015

written reasons for judgment rejecting the motion for new trial, by stating the

following:

As to the Motion For New Trial, plaintiff argues that in the
initial trial the Court ruling that plaintiff assumed the risk of being
injured was legally incorrect. We now correct that.

This Court now sets that finding aside and finds that on a
comparative negligent basis the plaintiff is 100% negligent and the
defendants zero percent negligent.

Mr. Frazier now argues that it was manifest error to correct the theory of the case

without granting a new trial.

We find that Mr. Frazier’s argument on this point ignores the difference

between reasons for a judgment and the judgment itself. Louisiana Code of Civil

Procedure Article 1951 addresses the amendment of a final judgment and provides:

On motion of the court or any party, a final judgment may be
amended at any time to alter the phraseology of the judgment, but not
its substance, or to correct errors of calculation. The judgment may be
amended only after a hearing with notice to all parties, except that a
hearing is not required if all parties consent or if the court or the party
submitting the amended judgment certifies that it was provided to all
parties at least five days before the amendment and that no opposition
has been received.

In this case, the trial court did not alter the phraseology of the judgment or

correct any errors of calculation. Instead, it amended its reasons for judgment.

Louisiana Code of Civil Procedure Article 1918 makes it clear that reasons for

judgment and a final judgment are separate documents. Additionally, the supreme

court held in Bellard v. American Central Insurance Co., 07-1335, 07-1399, p. 25

(La. 4/18/08), 980 So.2d 654, 671, that a “district court’s oral or written reasons for

7

judgment form no part of the judgment, and that appellate courts review judgments,

not reasons for judgment.” Further, the supreme court stated in Greater New

Orleans Expressway Commission v. Olivier, 02-2795, p. 3 (La. 11/18/03), 860

So.2d 22, 24, that “[a]ppeals are taken from the judgment, not the written reasons

for judgment.” And finally, in Wooley v. Lucksinger, 09-571, 09-584, 09-585, 09-

586, pp. 77-78 (La. 4/1/11), 61 So.3d 507, 572, the supreme court stated:

Judgments are often upheld on appeal for reasons different than those
assigned by the district judges. “The written reasons for judgment are
merely an explication of the trial court’s determinations. They do not
alter, amend, or affect the final judgment being appealed....” State in
the Interest of Mason, 356 So.2d 530, 532 (La.App. 1 Cir.1977).

We find no merit in Mr. Frazier’s argument that the trial court’s change of

the theory of the judgment mandates a new trial. Thus, we find no merit in this

assignment of error.

Assignments of Error Numbers II and III

In his second assignment of error, Mr. Frazier argues that the trial court

committed manifest error in finding him solely responsible for his injuries and in

not assessing any comparative fault to the defendants. In his third and final

assignment of error, Mr. Frazier argues that the trial court committed manifest

error in finding Daniel’s testimony more credible than his own. Because these

assignments of error overlap, we will consider them together.

Although Mr. Frazier’s appeal addresses the validity of the judgment on the

motion for new trial, his arguments amount to an appeal of the judgment on the

merits. This court has addressed such a situation in Dietz v. Superior Oil Co., 13-

657, pp. 3-4 (La.App. 3 Cir. 12/11/13), 129 So.3d 836, 839-40, and in doing so,

stated the following:

A trial court’s decision to deny a motion for new trial is an
interlocutory judgment subject to appeal for abuse of discretion only
upon a showing of irreparable harm. Dural v. City of Morgan City,
8

449 So.2d 1047 (La.App. 1 Cir.1984). However, “where a motion for
appeal refers by date to the judgment denying a motion for new trial,
but the circumstances indicate that the appellant actually intended to
appeal from the final judgment on the merits, the appeal should be
maintained as being taken from the judgment on the merits” Id. at
1048 (citing Smith v. Hartford Accident and Indemnity Company, 254
La. 341, 223 So.2d 826 1969); Fruehauf Trailer Company v. Baillio, 252 La. 181, 210 So.2d 312 (1968); Kirkeby–Natus Corporation v.
Campbell, 250 La. 868, 199 So.2d 904 (1967)).

Based on Mr. Frazier’s memorandum to this court and the record before us, we

will treat these assignments of error as though they were an appeal of the judgment

on the merits.

The disputes set forth in these assignments of error are factual in nature, and

the standard of review of a trial court’s findings of fact has remained the same

since the supreme court enunciated that standard in Rosell v. ESCO, 549 So.2d 840,

844-45 (La.1989) (footnote omitted) (citations omitted), which stated:

It is well settled that a court of appeal may not set aside a trial
court’s or a jury’s finding of fact in the absence of “manifest error” or
unless it is “clearly wrong,” and where there is conflict in the
testimony, reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review, even though
the appellate court may feel that its own evaluations and inferences
are as reasonable. The appellate review of fact is not completed by
reading only so much of the record as will reveal a reasonable factual
basis for the finding in the trial court, but if the trial court or jury
findings are reasonable in light of the record reviewed in its entirety,
the court of appeal may not reverse even though convinced that had it
been sitting as the trier of fact, it would have weighed the evidence
differently. Where there are two permissible views of the evidence,
the factfinder’s choice between them cannot be manifestly erroneous
or clearly wrong. In applying the manifestly erroneous-clearly wrong
standard to the findings below, appellate courts must constantly have
in mind that their initial review function is not to decide factual issues
de novo.

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. Where documents or objective evidence so contradict
the witness’s story, or the story itself is so internally inconsistent or
implausible on its face, that a reasonable fact finder would not credit
9

the witness’s story, the court of appeal may well find manifest error or
clear wrongness even in a finding purportedly based upon a credibility
determination. But where such factors are not present, and a
factfinder’s finding is based on its decision to credit the testimony of
one of two or more witnesses, that finding can virtually never be
manifestly erroneous or clearly wrong.

With regard to the liability imposed on the owner of a dog who causes

damages to another, La.Civ.Code art. 2321 provides:

The owner of an animal is answerable for the damage caused by
the animal. However, he is answerable for the damage only upon a
showing that he knew or, in the exercise of reasonable care, should
have known that the animal’s behavior would cause damage, that the
damage could have been prevented by the exercise of reasonable care,
and that he failed to exercise such reasonable care. Nonetheless, 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. Nothing in this Article shall preclude the court from the
application of the doctrine of res ipsa loquitur in an appropriate case.

Mr. Frazier recognizes the manifest error/clearly wrong standard as

applicable to the factual determinations of the trial court, but argues that the trial

court failed to apply the burden of proof laid out by the supreme court in Pepper v.

Triplet, 03-619 (La. 1/21/04), 864 So.2d 181. In Pepper, the supreme court stated

the following:

[T]o establish a claim in strict liability against a dog owner under La.
Civ.Code art. 2321 as amended in 1996, the plaintiff must prove that
his person or property was damaged by the owner’s dog, that the
injuries could have been prevented by the owner, and that the injuries
did not result from the injured person’s provocation of the dog. We
hold that, to establish that the owner could have prevented the injuries
under Article 2321, the plaintiff must show the dog presented an
unreasonable risk of harm.

Id. at 184.

In the matter before us, it is undisputed that Mr. Frazier sustained an injury

caused by the defendants’ dog, and there is no evidence that he provoked the dog.

What the trial court found missing was proof that the defendants could have

prevented Mr. Frazier’s injuries. The trial court reached this conclusion by
10

assessing the credibility of the witnesses and finding Daniel’s testimony credible,

implicitly finding Mr. Frazier’s testimony not credible.

In accepting Daniel’s version of the events of February 11, 2013, the trial

court factually concluded that Mr. Frazier informed Daniel that he was not going to

enter the yard and, therefore, it was unnecessary for Daniel to place the dogs in the

kennel. The trial court factually concluded that Mr. Frazier’s action in going into

the yard after his conversation with Daniel, and without Daniel’s knowledge,

constituted the sole cause of Mr. Frazier’s injuries. This finding is supported by

the record, and we do not find it to be manifestly erroneous or clearly wrong.

We find no merit in either of Mr. Frazier’s final two assignments of error.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the trial court

dismissing the claims of the plaintiff, Demetrious R. Frazier, against the

defendants, Luke A. Difulco, Jr., Laura Mayeaux Difulco, and Daniel Difulco. We

assess all costs of this appeal to Demetrious R. Frazier.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

11

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-884

DEMETRIOUS R. FRAZIER

VERSUS

LUKE A. DIFULCO, JR., ET AL.

COOKS, J., dissenting.

I respectfully dissent from the majority’s decision to affirm the judgment of

the Alexandria City Court in this matter. As set forth in the majority opinion, there

is no dispute that Plaintiff, while in the performance of his job duties as a meter

reader for the City of Alexandria, was bitten by Defendant, Luke Difulco’s dog.

After correcting its erroneous reliance on “assumption of risk,” the city court

eventually concluded Plaintiff was 100% at fault in causing the accident. In doing

so, the city court found the testimony of Defendant’s son, Daniel Difulco, more

credible than that of Plaintiff. This evaluation was made despite several

inconsistencies and omissions in Daniel’s testimony that make his credibility

dubious at best.

Daniel testified on the date of the incident, he heard the dogs barking. When

he went into the yard to investigate, he saw a man outside the gate. According to

Daniel, he testified that he asked the man if he was there to read the meter and

whether it was necessary to “put the dogs up.” Daniel stated the man told him it

would not be necessary to do anything as he was not going past the gate. Daniel

then testified he went back into the house, and did not return until hearing a man

scream. He then helped administer aid to the victim of the dog bite.

Despite allegedly speaking with Defendant, and then helping treat his

wound, Daniel was unable at trial to clearly establish or deny that he spoke with

Defendant. His testimony was as follows:

Q. Okay, and you contend [Plaintiff] told you that he was not going
to read the meter or wasn’t gonna go around the gate?

BY MR. LAFLEUR (Defendant’s attorney): Objection Your
Honor. I do not believe that Mr. Difulco identified who told
him that.

BY MR. LARVADAIN (Plaintiff’s attorney): Okay.

BY THE COURT: Objection sustained.

Q. Okay, who told you that they were not gonna go past the gate?

A. One of the gentleman who was in the front yard.

Q. The gentleman who is to my left, was he the one who told you
that?

A. I cannot, I cannot answer that to tell you the truth. I can’t, I can’t
tell you if that was him of Mr. Lee who he was training on that day. I
can’t honestly answer if it was him or it was Mr. Lee that said it.

It strains the bounds of reasonableness to conclude that Daniel would have been

unable to remember if the man he was treating for a wound to his hand, was the

man he had just allegedly spoken to only a few minutes prior. This glaring

omission, to my view, calls into question his entire testimony.

Further, Daniel’s testimony was contradicted by Plaintiff who testified that

he never spoke with anyone prior to entering the backyard. Daniel maintained he

was assured that no one would need to enter the yard to read the meter. I find it

implausible to conclude that Plaintiff would have assured Daniel he did not need to

enter in to the backyard, and then enter anyway after refusing Daniel’s offer to

secure the dogs. Likewise, it is equally implausible that Mr. Lee, who was training

with Plaintiff, would have told Mr. Difulco it was not necessary to enter into the

yard, but not convey that fact to Plaintiff. The fact is the meter, which both

workers needed to gain access to, was located in the backyard behind the gate.

The city court judge specifically noted he “accept[ed] the testimony of

Daniel Difulco as being reliable, trustworthy and worthy of belief.” Considering

the inconsistencies in Daniel’s testimony, as set forth above, I find this credibility

determination to be manifestly erroneous.

Under Pepper v. Triplet, 03-619 (La. 1/21/04), 864 So.2d 181, 184, the

supreme court stated to “establish a claim in strict liability against a dog owner . . .,

the plaintiff must prove that his person or property was damages by the owner’s

dog, that the injuries could have been prevented by the owner, and that the injuries

did not result from the injured person’s provocation of the dog.” The majority

correctly notes it was undisputed that Plaintiff sustained an injury caused by

Defendants’ dog and there was no evidence that he provoked the dog. The

majority, however, concludes the trial court found there was no proof that

Defendants could have prevented Plaintiff’s injuries, and acknowledges as the

basis for this conclusion that it found Daniel’s testimony credible. For the reasons

set forth above, I disagree. Moreover, I also find there were measures that could

have been taken by Defendants that could have prevented Plaintiff’s injuries.

Defendants testified they had no “Beware of Dog” signs on the fence or any kennel

on the property in which to house the dogs. Defendants had exclusive control over

the property and chose to erect a fence that enclosed the meter box.

For the above reasons, I find the lower court manifestly erred in finding

Plaintiff solely at fault for the injuries he incurred.