Marie M. Coburn v. Janis Dixon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1095

MARIE M. COBURN

VERSUS

JANIS DIXON, ET AL.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2014-0366-A
HONORABLE KERRY LYNDON SPRUILL, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED.

David R. Rabalais
The Dill Firm
P. O. Box 3324
Lafayette, LA 70505
(337) 261-1408
COUNSEL FOR DEFENDANTS-APPELLEES:
American Empire Surplus Lines Insurance Company
Janis Dixon
Elton J. Bernard

Jeffery F. Speer
Doucet-Speer, APLC
P. O. Drawer 4303
Lafayette, LA 70502-4303
(337) 232-0405
COUNSEL FOR PLAINTIFF-APPELLANT:
Marie M. Coburn

PICKETT, Judge.

Marie Coburn appeals the judgment of the trial court granting a motion for

summary judgment in favor of Elton J. Bernard and his insurer, American Empire

Surplus Lines Insurance Company (American Empire).

STATEMENT OF THE CASE

On April 24, 2013, Ms. Coburn suffered serious injuries when she was

attacked by a dog owned by Ms. Dixon, her neighbor. On April 8, 2014, Ms.

Coburn filed suit against Ms. Dixon and her landlord, Mr. Bernard, and his

insurance company, American Empire. Ms. Dixon also worked for Mr. Bernard at

his restaurant. In her petition, Ms. Coburn alleged that Mr. Bernard failed to warn

of the dangerous propensities of the dog, failed to eliminate the danger of the

animal on premises over which he had control, and failed to require his tenant to

restrain the dog.

Mr. Bernard and American Empire filed a motion for summary judgment in

August 2014. Attached to their motion was an affidavit from Ms. Dixon denying

that she owned any dog and a lease agreement clearly stating that no pets were

allowed on the leased property. Also attached was an affidavit from Mr. Bernard

stating that he did not allow his tenants to have animals on his property, and he did

not know to whom the dog that attacked Ms. Coburn belonged. Ms. Dixon

admitted at a deposition on September 17, 2014, that the dog belonged to her son

and was in fact kept on the property she leased from Mr. Bernard. As a result, Mr.

Bernard and American Empire abandoned their original motion for summary

judgment.

Mr. Bernard and American Empire filed a second motion for summary

judgment on May 18, 2015. In an affidavit attached to this motion, Mr. Bernard

stated that he did not know of the existence of the dog on the property he leased to

Ms. Dixon until he was told about her deposition testimony by his attorney. He

repeats his statement that he did not know there was a dog on the property at the

time of the attack on Ms. Coburn. He also stated that he did not know of the dog’s

dangerous propensities. The aforementioned lease agreement was also attached to

the motion for summary judgment.

In response to the second motion for summary judgment, Ms. Coburn argued

that the lease agreement allowed Mr. Bernard to inspect the leased premises, and,

if he had inspected the premises, he would have known the dog was on the

property. Ms. Coburn also alleges that Mr. Bernard had a relationship with the

police in Cottonport, and the police had been called multiple times by neighbors

complaining of vicious dogs around Ms. Dixon’s residence. Finally, Ms. Coburn

included an affidavit from Timothy Carl Guidry, a neighbor of Ms. Dixon, stating

that he had called the police multiple times complaining of two dogs at Ms.

Dixon’s residence either barking late at night or roaming the streets unrestrained.

The trial court held a hearing on the motion for summary judgment on July

13, 2015. The parties agreed that in order to prevail, Ms. Coburn must show that

Mr. Bernard knew of the existence of the dog and knew that the dog had dangerous

propensities. Mr. Bernard argued that his affidavit denying such knowledge

shifted the burden to Ms. Coburn to show that there is a genuine issue of material

fact about whether or not he knew about the dog. Counsel for Ms. Coburn argued

that he believed Mr. Bernard had inspected the property and knew about the dogs,

which he would be able to show if he was given an opportunity to depose Mr.

Bernard.

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The trial court found that Ms. Coburn had ample time to schedule the

deposition of Mr. Bernard. He further found that the evidence before the court

presented no genuine issue of material fact about Mr. Bernard’s knowledge about

the dog that attacked Ms. Coburn, and that Mr. Bernard was entitled to judgment as

a matter of law. Ms. Coburn now appeals.

ASSIGNMENTS OF ERROR

Ms. Coburn asserts two assignments of error:

1. The trial court erred in granting the Motion for Summary
Judgment with regards to American Empire Surplus Lines Insurance
Company and Elton J. Bernard.

2. The trial court erred in its determination that there was no
genuine issue of material fact regarding the [Elton J. Bernard]’s
knowledge of the dogs on his property.

DISCUSSION

This court explained the standard of review applied by an appellate court

relative to a motion for summary judgment in Ravey v. Rockworks, LLC, 12-1305,

pp. 2-3 (La.App. 3 Cir. 4/10/13), 111 So.3d 1187, 1189-90:

When an appellate court reviews a district court’s judgment on
a motion for summary judgment, it applies the de novo standard of
review, “using the same criteria that govern the trial court’s
consideration of whether summary judgment is appropriate, i.e.,
whether there is a genuine issue of material fact and whether the
mover is entitled to judgment as a matter of law.” Supreme Serv. &
Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958
So.2d 634, 638.

A motion for summary judgment shall be granted when “the
pleadings, depositions, answers to interrogatories, and admission on
file, together with the affidavits, if any, show that there is no genuine
issue of material fact, and that the mover is entitled to judgment as a
matter of law.” La.Code Civ.P. art. 966. “[I]f reasonable persons
could only reach one conclusion, then there is no need for trial on that
issue and summary judgment is appropriate.” Hines v. Garrett, 04-
806, p. 1 (La.6/25/04), 876 So.2d 764, 765-66 (quoting Smith v. Our
Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d
730, 751). A fact is “material” when “its existence or nonexistence

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may be essential to plaintiff’s cause of action under the applicable
theory of recovery.” Smith, 639 So.2d at 751.

Louisiana Code of Civil Procedure Article 966(C)1 states:

(1) After adequate discovery or after a case is set for trial, a
motion which shows that there is no genuine issue as to material fact
and that the mover is entitled to judgment as a matter of law shall be
granted.

(2) The burden of proof remains with the movant. However, if
the movant will not bear the burden of proof at trial on the matter that
is before the court on the motion for summary judgment, the movant’s
burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense, but rather to
point out to the court that there is an absence of factual support for
one or more elements essential to the adverse party’s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual
support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of
material fact.

The supreme court expounded on the evidence required to rebut a motion for

summary judgment in Bufkin v. Felipe’s Louisiana, LLC, 14-288, p. 11 (La.

10/15/14), 171 So.3d 851, 858 (footnote omitted):

As stated by LSA-C.C.P. art. 967(B), when a motion for
summary judgment is made and supported, an adverse party may not
rest on the mere allegations or denials of his pleadings, but his
response, by affidavits or as otherwise, must set forth specific facts
showing that there is a genuine issue for trial. See Luther v. IOM
Company LLC, 13-0353 (La.10/15/13), 130 So.3d 817, 822;
Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 09-1633
(La.4/23/10), 35 So.3d 1053. Once a motion for summary judgment
has been properly supported by the moving party, the failure of the
non-moving party to produce evidence of a material factual dispute
mandates the granting of the motion. Dauzat v. Curnest Guillot
Logging Inc., 995 So.2d at 1187 (citing Babin v. Winn-Dixie
Louisiana, Inc., 00-0078 (La.6/30/00), 764 So.2d 37, 40). See also
Alexander v. Toyota Motor Sales, U.S.A., 13-0756 (La.9/27/13), 123
So.3d 712, 714 (“All elements must be proven to succeed on this
claim; therefore, a lack of factual support for just one element renders
summary judgment in favor of [the defendant] appropriate.”).

1
The language of La.Code Civ.P. art. 966 has been amended since the hearing in this
matter. We quote the statute as it appeared at the time of the hearing.

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Thus, we must first determine what Ms. Coburn will be required to prove at

trial to prevail on her claim against Mr. Bernard and his insurer. Liability of an

owner of a dog for damages caused by the animal is governed by Louisiana Civil

Code Article 2321:

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 his 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.

In order to establish the strict liability of a dog owner, the supreme court in

Pepper v. Triplet, 03-619, p. 19 (La. 1/21/04), 864 So.2d 181, 194, stated:

[T]he plaintiff, in order to establish a claim in strict liability, [must]
show that the risk of injury outweighed the dog’s utility such that it
posed an unreasonable risk of harm. If the animal posed an
unreasonable risk of harm, then the owner will be presumed to be at
fault, because he failed to prevent an injury he could have prevented,
and he will be held strictly liable for an injury caused by his dog,
unless he can show that the injury was due solely to the fault of a third
party unattributable to him or to a fortuitous event, or, as Article 2321
now provides, the plaintiff fails to establish that the injuries did not
result from the injured person’s provocation of the dog.

The owner of a building is liable for any “vice or defect” in the building

which causes damages if “he knew or, in the exercise of reasonable care, should

have known” of the condition. La.Civ.Code art. 2322. This court has held that

“[t]he mere presence of dogs belonging to a tenant do[es] not constitute “vices and

defects” of the leased premises so as to make the owner liable to others for injuries

caused by the tenant’s dogs.” Boettger v. Early Am. Ins. Co., 469 So.2d 495, 498

(La.App. 3 Cir. 1985). The Louisiana Fifth Circuit Court of Appeal has held that

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the strict liability imputed to a dog owner under La.Civ.Code art. 2321 cannot be

imputed to a non-owner, including a landlord. Murillo v. Hernandez, 00-1065

(La.App. 5 Cir. 10/31/00), 772 So.2d 868. The landlord could still be liable to the

damaged party for negligence under La.Civ.Code arts. 2315 and 2316. Id. That

court has held that to successfully make a claim against a landlord for damages

caused by a tenant’s dog, the plaintiff must show that the landlord had actual

knowledge of the dog’s vicious propensity. Compagno v. Monson, 580 So.2d 962

(La.App. 5 Cir. 1991).

In the instant case, there is no evidence to support a finding that Mr. Bernard

had knowledge of any dogs on the property leased by Ms. Dixon, or that he knew

of the animal’s dangerous propensities. Ms. Coburn argues that certain evidence

suggests Mr. Bernard should have known that there were dogs on the property.

First, she point to a clause in the lease document which allowed Mr. Bernard to

inspect the leased premises. There is no evidence in the record, though, to show

that Mr. Bernard ever actually inspected the premises, or that he had a duty to

inspect the premises. Second, she claims that at least four different Cottonport

Police Department officers were called to the premises on eight to twelve separate

occasions because of complaints about dogs barking or running loose. She argues

that because Mr. Bernard owned a restaurant in Cottonport that these officers

frequented, Mr. Bernard must have known that these officers had been called to

property that he owned about these complaints. This is mere conjecture,

unsupported by any facts in the record.

At the hearing on this matter, and again at oral argument, counsel for Ms.

Coburn argued that a decision on the motion for summary judgment should be

delayed until she has had the opportunity to take the deposition of Mr. Bernard. In

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Prime Income Asset Management, Inc. v. Tauzin, 07-1380, pp. 13-14 (La.App. 3

Cir. 4/30/08), 981 So.2d 897, 905-06, this court held:

The provision for adequate discovery does not grant a party an
absolute right to delay a decision on a motion for summary judgment
until all discovery is complete. West v. Watson, 35,278 (La.App. 2
Cir. 10/31/01), 799 So.2d 1189, writ denied, 01-3179 (La.2/8/02), 809
So.2d 140. Unless the party opposing the motion for summary
judgment shows a probable injustice, a suit should not be delayed
pending discovery when it appears at an early stage that there are no
genuine issues of fact. Advance Products & Systems, Inc. v. Simon,
06-609 (La.App. 3 Cir. 12/6/06), 944 So.2d 788, writ denied, 07-26
(La.3/9/07), 949 So.2d 444. The abuse of discretion standard is used
to determine if the trial court allowed adequate time for discovery. Id.

In this case, the hearing on the motion for summary judgment was held

fifteen months after the suit was originally filed, and eight weeks after the motion

for summary judgment was filed. Ms. Coburn had ample opportunity to schedule

the deposition of Mr. Bernard or move to continue the case. We find no abuse of

discretion in the trial court’s refusal to delay ruling on the motion for summary

judgment.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of Mr.

Bernard and American Surplus is affirmed. Costs of this appeal are assessed to

Ms. Coburn.

AFFIRMED.

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