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Allen v. State Farm Fire and Casualty Co.9/18/2002
a genuine issue of material fact.
The final element is provocation. The affidavits and depositions of Allen and Ms. Carr establish that Allen did not provoke the dog. The defendants cite the deposition of Mrs. Slaton, who felt that Allen must have done "something" to her dogs because it was "not their nature" to bite. The defendants also cite the deposition of Dr. Townsend, who described Walker as having a "good" disposition. Again, neither of these witnesses had first-hand knowledge of the incident and provide nothing more than speculation to refute Allen's and Ms. Carr's positive testimony. This does not create a genuine issue of material fact. Babin v. Winn-Dixie La., supra.
In sum, Allen presented evidence showing no genuine issue of material fact as to any element of a dog bite claim under La. C.C. art. 2321, and that he was entitled to judgment as a matter of law. The defendants failed to adduce any evidence based on first-hand knowledge to refute Allen's showing. We therefore affirm the summary judgment.
Conclusion
For the reasons expressed, the summary judgment in favor of Michael Allen and against the defendants is affirmed at the defendants' cost. The case is remanded for further proceedings.
AFFIRMED.
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