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Allen v. State Farm Fire and Casualty Co.9/18/2002
Michael Mark Allen filed suit for personal injuries after his hand was severely injured by a dog bite. Allen obtained a summary judgment on the issue of liability against the owners of the dog, John and Amy Slaton, and their homeowners insurer, State Farm, who now appeal. We affirm.
Procedural background
On April 18, 1999, Allen was visiting his girlfriend (now his wife), Robin Carr, at her home on Cherry Oak Lane in Haughton. Ms. Carr's next door neighbors were John and Amy Slaton. Separating the two yards was a wooden "privacy fence" consisting of vertical boards bound by three horizontal nailer boards. The Slatons were not at home, but one of their dogs, an American bulldog named "Walker," was in the backyard.
While Allen and Ms. Carr were barbecuing, Ms. Carr's dog, a miniature dachshund, ran to them with blood dripping from his lip. Allen noticed that one of the vertical boards was "warped out" into Mrs. Carr's yard and loose from the bottom nailer. He suspected that Walker may have poked his head through and bitten the dachshund. He fetched a hammer and nails to repair the fence and prevent further incidents.
As Allen reached down to hammer a nail into place, Walker thrust his head through the fence and clamped his teeth on Allen's left index and middle fingers. The dog tugged Allen's hand through the fence in a struggle that dislodged the loose board. When Allen pulled his hand back through the hole, the tip of his middle finger was missing and his index finger was deeply punctured.
Through the hole, Allen could see his severed fingertip lying in the Slatons' yard and wanted to retrieve it. Afraid that Walker would attack him again if he tried, he got a .357 revolver out of his truck and shot the dog three times. Police arrived and helped restrain the dog before Allen actually retrieved the finger. Doctors were, however, unable to reattach it. The end of his middle finger had to be amputated. The index finger healed without any problems.
Allen sued the Slatons and State Farm for the damage inflicted by the dog bite under La. C.C. art. 2321. The defendants answered, asserting that the injuries resulted solely from Allen's negligence in provoking the dogs, and in trespassing on and tampering with the Slatons' property.
Allen filed the instant motion for summary judgment on the issue of liability. In support he filed his own deposition, together with those of Ms. Carr and the Slatons. His own deposition related the facts outlined above, adding that he considered the bulldog "very aggressive." Allen testified he was always on Ms. Carr's side of the fence and unaware that the dog was directly across from him. He also testified that he never did anything to provoke the dog before it bit him. Ms. Carr corroborated Allen's account of the incident. Notably, she never saw him provoke the dog, and when it attacked him, he was on her side of the fence but had not yet started to repair it. The Slatons' depositions confirmed that they owned Walker and had taken no steps other than the privacy fence to restrain him. Mr. Slaton admitted that he had repaired boards on the fence in the past, but neither he nor his wife had noticed that this particular board was loose.
The defendants opposed the motion for summary judgment, citing summary judgment evidence and urging that genuine issues of material fact remained. These issues included whether the fence was defective, whether Allen provoked the dog, whether his injuries were actually caused by a dog bite, whether the dog had "dangerous propensities," and whether the damage to the fence was caused by the Slatons' dogs. The defendants also cited Ms. Carr's inability to reme
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