Articles Posted in Animal/Dog Bites

tahoe-beetschen-1368685-unsplash-1024x683The bond between people and their dogs can be one as close as family. Whether they serve as pets, guides, or even co-workers, dogs can provide a type of comfort and comradeship that is completely unique. It is sometimes easy to forget that dogs are animals that can chase, scratch, and even bite on a moment’s notice. While most people don’t like to believe that their canine companions would hurt others, many dogs—even the most docile or trained—are capable of causing harm quickly, and it is important to know how to handle these situations. This issue was explored in a case appealed to the Louisiana First Circuit Court of Appeal after an incident at Louisiana State University.

On October 20, 2012, the Kiwanis Club Pancake Festival (“Pancake Festival”) was in full swing at the Louisiana State University Pete Maravich Assembly Center. Officers Matthew Hall and Johnny Sparks attended the event. Officer Hall brought and was in charge of his K-9, Sita, a Belgian Malinois. Officer Sparks brought a robot that the state police use for detecting explosives. The officers stayed outside of the Pancake Festival to educate the public about Sita and the purpose of the robot. During the event, patrons had permission to approach and pet Sita.

Fredericka Bradley, a 10-year-old child, attended the Pancake Festival with her mother, Hazel Bradley, her cousin, Preston Henderson, and two neighbor children, Bradisa White and Sade Townsend. After eating breakfast, Mrs. Bradley stayed inside while the children went outside. At this point, each party in the litigation has a different story as to how events unfolded. According to Officer Hall, Sita sat next to him—leashed—as patrons came up to them. Fredericka approached and asked pet Sita. She also tried to hug the dog, but Hall told her not to. Fredericka walked away, then returned to pet Sita again. Officer Hall was sitting with Sita, speaking to a man and two children when Fredericka came up a third time. Officer Hall claimed Fredericka tried to sit on Sita, so he pulled Fredericka away and reminded her only petting was allowed. While Officer Hall pet Sita’s neck, Fredericka came behind the dog and pet her head. Sita snapped at the child and bit her on the face, leaving a small puncture wound. Officer Hall stated Sita had not shown any aggression prior to the incident.

dog-1534524-1024x768Litigation between family members can be uncomfortable for everyone involved. But what happens when a plaintiff sues a relative, then passes away, and the relative then becomes the plaintiff? Louisiana’s Second Circuit Court of Appeal recently addressed this unusual situation in a case involving a vicious dog attack.

In May of 2011, Evelyn Goers, 89, was visiting her daughter Laureen Mayfield in Simsville, Louisiana. Goers was attacked and injured by four of Mayfield’s large Tibetan Mastiffs. In May 2012, Goers filed a lawsuit for damages against Mayfield and her homeowner’s insurance company, State Farm. Goers passed away in February 2015, after which Goers’s other daughter, Cheryl Goers, filed a petition to substitute herself as a plaintiff in the lawsuit against Mayfield. The next month, Mayfield made a motion to substitute herself as a plaintiff. The trial court granted both motions. State Farm then filed an exception based on the theory that there was no right of action because Mayfield was both plaintiff and a defendant, thus extinguishing the obligation by confusion. La. C.C. art. 1903. Cheryl Goers filed a response requesting that State Farm’s exception be sustained without a hearing but did not include a proposed judgment to that effect. State Farm then submitted a proposed order granting the exception. Cheryl Goers raised no objection to this action by State Farm. The trial court signed State Farm’s order, dismissing Goers from the lawsuit entirely as both defendant and plaintiff. Cheryl Goers then filed an appeal arguing that the trial court’s order was improper because it extinguished her right of action against Mayfield; an exception for no right of action, she argued, can dismiss a plaintiff, but not a defendant from an action.

Under Louisiana law, an appeal cannot be made by a party who voluntarily and unconditionally accepted without protest a judgment rendered against that party. La. C.C.P. art. 2085. State Farm conceded that under the Direct Action Statute, Cheryl Goers could still maintain a claim against State Farm. La. Rev. Stat. 22:1269 (2012), The Direct Action Statute requires that insurance policies issued in the state provide that the heirs or survivors of any claimant under the policy can maintain the claim. However, as for Cheryl Goers’s action against her sister, the Court of Appeal noted that she voluntarily and unconditionally accepted the trial court’s order without protest because she agreed with the exception and did not oppose the order when the trial court approved it. Therefore, reasoning that Cheryl Goers lacked a basis for the appeal, the Court of Appeal affirmed the trial court’s judgment.

on-patrol-1565455-1-1024x683Over the last few years, we have all seen the videos of police arrest that seem to involve excessive methods. These videos stoke controversy and encourage a discussion on what constitutes “excessive force” during an arrest. Even with video evidence, the actions of the police and the arrestee are subject to multiple interpretations. The search for the truth becomes even harder when the arrest is not videoed and the participants all give different testimony on those events. The following case out of Shreveport Louisiana demonstrates how the Civil court system handles differing testimony on allegations of excessive force during an arrest.

In July of 2012, Bobby Byrd filed a lawsuit as a result of what he alleged was the use of excessive force during an arrest against Roy Shore of the Bossier Police Department and W.W. Lindsey and Robert Gordon of the Shreveport Police Department. Mr. Byrd’s excessive force claims revolve around a police chase of Mr. Byrd.  It all started when Detective Gordon, believing that the vehicle that Mr. Byrd drove at the time matched a vehicle tied to a string of burglaries, attempted to pull over Mr. Byrd.  Instead of stopping, Mr. Byrd drove away from the police officer, crossing from Shreveport to Bossier.  Eventually, Mr. Byrd abandoned his vehicle at the Red River and proceeded on foot into the Red River.  The police, with a police canine in hand, continued after Mr. Byrd.  During this pursuit, the riverbank caved in, causing the police canine to fall into the river.  The officer holding the canine, Officer Yarborough of the Shreveport Police Department, released the canine’s leash.  The police canine, instead of listening to the Officer Yarborough’s order to return to the riverbank, pursued Mr. Byrd and bit him.  Mr. Byrd fought back, disorienting the police canine and causing the canine to retreat back to the riverbank.  The officers eventually retrieved Mr. Byrd from the river.

It is at this point that the stories of Mr. Byrd and the police officers diverge.  Mr. Byrd claims that after returning to the riverbank he fully complied with the officers’ requests and that after the police officers handcuffed him they proceeded to strike him.  In contrast, the police officers claim that Mr. Byrd did not comply with their instructions and that Mr. Byrd reached towards his waistband which was submerged underwater.  The officers, believing that Mr. Byrd could have a weapon in his waistband, deployed “distraction strikes” in order to subdue Mr. Byrd. Regardless of the stories, Mr. Byrd suffered multiple injuries: “a dog bite wound, wounds to the forearms, a broken nose, a broken orbital floor requiring surgical reconstruction with a titanium plate, kidney trauma, and abrasions to his ribs” because of this incident.

It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.

Under Louisiana law, there are very specific rules about how to properly serve someone, and one of the important aspects of service that an attorney has to get right is the timing of it. Furthermore, not only does the service have to be carried out in a timely manner, but it also has to be perfected properly.

This particular Supreme Court of Louisiana case dealt with service on a state entity, and it is important for your attorney to be aware of any differences that exist with regard to service requirements depending on who the other party is. According to the applicable state law, La. R.S. 13:850, “perfecting” a service request requires that the appropriate filing fees and transmission fees have been received by the clerk of the court and that the original signed document has been received by the clerk. All of this must be received within the proper timeframe. As stated in La. R.S. 13:850, the proper timeframe for perfection in this case is seven days.

In this case, the service request was received within the required ninety-day timeframe (ninety days since the filing of the petition), and the service request was perfected five days later once the requisite documents and fee payments were received by the clerk of the court. The question then is whether or not this counts as proper request for service: Was the request for service properly received within ninety days even though perfection of the request was outside of that ninety-day timeframe?

In a recent case, Johnson v. University Medical Center in Lafayette, the Louisiana Court of Appeal for the Third Circuit reversed a trial court decision to dismiss a plaintiff’s case for abandonment due to her failure to timely pay the costs of appeal. The plaintiff in the case, Lela Johnson, originally filed a medical malpractice action against both the University Medical Center in Lafayette and the Medical Center of Louisiana in New Orleans. The case has proceeded through courts since the original petition for damages was filed on March 15, 2006.

Both defendants, whose principal places of business correspond with the last word of their names, are operated by the State of Louisiana. After a dismissal of her original suit by the Supreme Court of Louisiana due to her failure to properly notify the defendants of the action because she had requested service of process on individuals who had not been individuals who were authorized to accept such information on behalf of the defendants, Ms. Johnson’s decided to re-file the original suit in trial court. Once again, Ms. Johnson’s service of process was held insufficient by the trial court and she moved to appeal that judgment.

Service of process is a legal term of art which essentially describes the process in which plaintiffs notify defendants of a pending suit. When the plaintiff files a complaint with a court, any defendant in the case must be given notice of the pending case and an opportunity to be heard and defend themselves against the complaint. This requirement is a basic constitutional right conferred upon everyone who has been accused of some wrongdoing and it is the accuser’s responsibility to ensure that the constitutional right of the accused is protected. The importance of service of process to our legal system and the rights of defendants makes it necessary for trial courts to dismiss actions, without regard to the merits of the plaintiff’s claims, if service of process is deficient in some way or another.

In general, owners are responsible for any damage caused by the things that they own. Animals are no exception. For example, if you own a cow and it wanders into the road and a car hits it, then you are likely responsible for the damages related to that accident. Damages caused by household animals, such as dogs, are similar. Louisiana Code art. 2317.1 provides that “the owner or custodian of a thing is answerable for damage.” While owner is a relatively simple concept, custodian may not be.

The classic example of a custodian is someone who is watching a household pet while you are away. It is likely that if your dog bites someone while a caretaker is walking him, both you and the caretaker may be liable for the damage caused by the bite. In a recent case arising from the Parish of Jefferson involving a dog bite, the court explained the caretaker concept in a little more depth.

In that case, a family was visiting their father in a hospice and their dog accompanied them. The dog bit another visitor when the visitor attempted to pet him. The bitten individual has a permanent scar and lost feeling in his finger. All of the parties admitted that it did seem odd that the dog bit because he had never bitten anyone before and was not acting aggressive. In fact, the dog was sitting in the owner’s lap at the time of the incident. The dog had no history of aggressiveness, and all of its shots were up to date.

The Court of Appeal of Louisiana, Third Circuit, recently ruled in the summer of 2012 on an issue coming out of the Parish of Lafayette involving a variety of legal questions. In the case of Theresa St. Julien v. Julie Walters Landry, Julien was allegedly injured by her neighbor’s dog when it came free from her neighbor’s yard and knocked her down while on her own property. Immediately there are negligence and strict liability issues when it comes to this event: Who owned the animal? Who secured the animal? Who was in charge of the animal at the time of the accident?

The St. Julien case is a perfect example of how a mishap in filing documents, leading to admitted facts, can result in the downfall of a defendant who assumes responsibility by not denying it. After failing to answer the plaintiff’s complaint on time, Landry admitted to being the owner of the dog and that it was being kept on her property under her control. The court found that there were genuine issues on multiple material facts and for that reason reversed the decision of the lower court in favor of St. Julien, which will result in a trial. The larger issue for the public is whether it even mattered if Landry was determined to be the dog’s owner.

Dogs are one of the most commonly owned domestic animals and also result in a large number of injuries throughout the state of Louisiana but also across the country. Many times these injuries occur to complete strangers but, nevertheless, owners of inherently dangerous animals need to be responsible for injuries resulting from the actions of those animals. The harder question is what is to be done when the animal injures another while in the care of someone who is not the owner. This is why the courts of this nation have adopted the theory of strict liability.

The law has a wide variety of rules in place to force a clean route to evidence, especially from authorities on the topic, like people present or involved with the case’s topic. Hearsay is a statement, other than one made by the person themself while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. Article 802 of the Louisiana Code of Evidence states “Hearsay is not admissible except as otherwise provided by this Code or other legislation.”

Understanding Legal Terms

Assertive Conduct:

You have probably heard the phrase “accidents happen.” But if you are in an accident, the first thing that you want to ask is who is at fault. With all of the chaos that can be part of an accident, sometimes the answer to this question isn’t always clear. This is when comparative fault, also known as comparative negligence, comes into play. In general, negligence refers to conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. Comparative negligence is different from ordinary negligence in that ordinary negligence is a failure to exercise the care that a reasonable person would exercise in similar circumstances whereas comparative negligence describes conduct that creates an unreasonable risk to one’s self.

In 1979, Louisiana Civil Code Article 2323 was amended to provide for a pure comparative negligence regime where a plaintiff’s own contributing negligence did not bar the recovery of damages, but merely reduced it by his or her own portion of fault. The Louisiana Legislature, in 1996, further amended the Code, making Louisiana a “true” comparative fault jurisdiction and the language of that amendment provided:

In an action for damages where a person suffers injury … the degree or percentage of fault of all persons causing or contributing to the injury … shall be determined, regardless of whether the person is a party to the action, and regardless of such person’s insolvency, ability to pay, immunity by statute …