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Nelson v. James12/14/2005
Before BROWN, CARAWAY and LOLLEY, JJ.
William Kenneth Nelson and Phyllis Nelson appeal the judgment of the First Judicial District Court for the Parish of Caddo, State of Louisiana which dismissed the Nelsons' claims against Freddie James Lakey and Allstate Insurance Company and which assessed fifty percent liability against co-defendant Norman Garner, along with fifty percent fault to Nelson. For the following reasons, we reverse in part, affirm in part as amended, and render.
FACTS
Norman Garner was the owner of Force K9, a dog training school in Shreveport, Louisiana. He offered services as a dog trainer in dog obedience, aggression, and bite training. On April 5, 2003, William Nelson and Freddie Lakey were both participants in Garner's dog-training class with their dogs. Nelson had his female Rhodesian Ridgeback, and Lakey had his male Akita, Cleo. During the class in question, Garner had the participants in a formation for a fellowship exercise that attempted to accustom the dogs to the presence of other dogs and/or humans. In the course of this exercise, one handler and his dog would circle a second, stationary handler and his dog. As noted by the trial court in its reasons for judgment, Nelson and his dog were circling Lakey and Cleo; Nelson and his dog encroached upon Lakey's "bubble" or space; and, at that point, Cleo bit Nelson on the arm. The trial court determined that Nelson had provoked Cleo by approaching Lakey from the rear, which was contrary to instructions.
Nelson and his wife, Phyllis, filed suit against Lakey, his insurer, Allstate, and Garner. The parties agreed to a bifurcated bench trial on the issue of liability only--reserving the issue of damages for a subsequent trial. At the close of the evidence, Lakey and Allstate moved for a dismissal of the Nelsons' claims pursuant to La. C.C.P. art. 1672(B), which the trial court deferred until the conclusion of the trial but ultimately granted. The trial court then rendered judgment finding that Nelson was 50% at fault and Garner was 50% at fault. This appeal by the Nelsons ensued. Garner does not appeal.
DISCUSSION
On appeal, the Nelsons bring one assignment of error which includes several issues. The gist of the Nelsons' argument is that the trial court erred in apportioning 50% fault to Nelson, 50% fault to Garner, and no fault to Lakey, the owner and custodian of the dog. For the following reasons, we agree.
Notably, this is not your simple, ordinary dog bite case. Here, we have the legal forces of strict liability and/or negligence of a dog owner weighed with the contractually imposed duty by the owner of the obedience school to his students, along with the voluntary participation and actions of another handler/student. These ingredients mix together creating a gumbo of legal issues to consider in determining eventual liability and the apportionment of fault in this case.
The particular issue in this appeal is what amount of fault Lakey, Nelson, and Garner had in the incident. The Nelsons argue that Lakey shared in that fault, and the trial court erred in not determining so. In considering the relationship between Lakey, owner of the biting dog, and Nelson, the person at the biting end of the dog, the trial court correctly considered the strict liability of the dog owner imposed by La. C.C. art. 2321. After concluding that Nelson provoked the dog, the trial court determined that Lakey was not strictly liable, which ended the trial court's analysis as to Lakey's fault. However, the trial court failed to consider Lakey's fault under an ordinary negligence analysis. After making a strict liability analysis, the trial court should go on to
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