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Nelson v. James12/14/2005
nd (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. McElroy v. Wilhite, 39,393 (La. App. 2d Cir. 05/18/05), 903 So. 2d 627, citing Watson v. State Farm Fire & Cas. Ins. Co., 469 So. 2d 967 (La. 1985).
Our consideration of these factors and the facts at hand lead to the conclusion that the trial court correctly assessed Garner with 50% of the fault in this case. We agree with the reasons set forth by the trial court in reaching that determination, and particularly recognize the following:
* Garner's duty as the owner of a dog aggression school to adequately inform and protect his customers from the inherent dangers;
* Garner was negligent in spacing the dogs and handlers and not ensuring that there was enough space to prevent encoachment of their "bubble" and potential provocation;
* Garner failed to adequately inform Nelson of Cleo's aggressive propensity and recent history; and
* Garner negligently placed unexperienced handlers/dogs in a class with experienced handlers/dogs without providing apparent and sufficient guidelines to the class newcomers.
Furthermore, for the reasons discussed herein regarding Lakey's negligence, we assign 40% of the fault in this accident to him. Notably, Lakey admitted that he should have been able to maintain control of Cleo, which he failed to do.
Finally, Nelson is left with 10% of the fault for his part in the incident. As we discussed, although his action was unintentional, he did to some extent provoke Cleo's actions by coming too close to Lakey and Cleo. However, although such action might have been negligent, compared to the duties and actions of Garner and Lakey, Nelson's negligence is minimal, especially when you consider the following facts:
* Nelson was a newcomer to the class, which included both beginning and experienced participants;
* Nelson, a virtual beginner in such dog aggression training, lacked instruction and guidance by Garner;
* He lacked knowledge regarding the aggressiveness of Cleo (particularly of the biting incident the class before); and
* He lacked knowledge regarding the response Cleo would have to his raising his arm in defense.
Considering those facts, Nelson clearly bears only a minimal amount of fault for the incident.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is reversed as it pertains to the comparative negligence of Freddie James Lakey, who we conclude to be 40% at fault; the judgment is amended in part as it pertains to William Nelson, who we conclude to be 10% at fault; and, it is affirmed in part as it pertains to Norman Garner, who we conclude to be 50% at fault. Costs of this appeal are assessed to Lakey and Allstate Insurance Company.
REVERSED IN PART; AFFIRMED IN PART AND AMENDED.
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