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White v. Smith5/19/2005
Background
This is a dog bite case. Plaintiffs filed this lawsuit against Defendants, whom they claim owned a "large dog, which was of a ferocious, vicious and mischievous disposition." According to the complaint, on February 4, 1999, Ms. White was walking past Defendants' house when she was attacked by Defendants' dog. Plaintiffs alleged that Defendants were aware of their dog's disposition but, nevertheless, "allowed the dog to go at large without being properly restrained, guarded or enclosed in any protective fencing." Plaintiffs claimed Defendants were liable to Ms. White for compensatory damages as a result of their negligence, negligence per se, and/or gross negligence. Mr. White brought a claim for loss of consortium.
The negligence per se claim was based on an alleged violation of Tenn. Code Ann. § 44-8-408, which was originally enacted in 1901. Excluding various exceptions not applicable here, this statute provides:
Dogs not allowed at large - Exception. - It is unlawful for any person to allow a dog belonging to or under the control of such person, or that may be habitually found on premises occupied by the person, or immediately under the control of such person, to go upon the premises of another, or upon a highway or upon a public road or street ....
Pursuant to Tenn. Code Ann. § 44-8-409, a violation of the foregoing statute is punishable as a Class C misdemeanor.
Defendants answered the complaint and generally denied any liability to the Whites. Defendants denied their dog had a vicious or ferocious propensity or that it was at large on the day Ms. White claims to have been attacked. Defendants further alleged that if Ms. White was in fact attacked by an animal, "she was guilty of comparative fault and/or negligence which was the sole and proximate cause of any injuries she sustained."
After Defendants' motion for summary judgment was denied by the Trial Court, the non-jury case proceeded to trial with Ms. White being the first witness. Ms. White testified that she usually goes for a walk five days a week after returning home from work. Whenever she walked by Defendants' house in the past, Defendants' dog was inside a fence. "Otherwise, I wouldn't have been walking by there." Ms. White claimed, however, that on the day she was attacked Defendants' dog was outside the fence and with another dog. According to Ms. White, "the two dogs came and they followed me, just maybe a step or two when they got to me, and one dog bit me. And that was [Defendants'] dog." Using a photograph that was taken a couple of days after the incident, Ms. White identified Defendants' dog and stated that was the dog that bit her. Ms. White also identified a picture of Defendants' gate and a sign on that gate which reads "Beware of Dog". Ms. White testified that even though the dog was fenced in when she walked by Defendants' house on previous occasions, the dog would "run the fence... cted viciously, like it wanted to jump the fence and attack." Ms. White claimed the only reason she was "brave" enough to continue walking by Defendants' house was because the gate always had been closed.
Ms. White testified that she was bitten on her private parts between her rectum and vagina. Ms. White explained that she was unable to go anywhere, including work, for five full weeks after she was attacked. She also had to go to the doctor two or three times each week. At the time of trial, Ms. White still was experiencing pain from the dog bite and had difficulty sitting for long periods of time. Ms. White is employed as a package engineering technician for Schering- Plough. Ms. White was working full-time and earning approximately $588 per we
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