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White v. Smith5/19/2005
Bell, 460 S.W.2d at 851.
We agree with the reasoning of Bell. Here, Ms. White was using the street to go for a walk. Defendants claim Ms. White should be apportioned some degree of fault because she continued walking down the street once she noticed Jake was loose. While the record is unclear exactly how far away Jake was from Ms. White at that particular time, we are unwilling to hold that a pedestrian who is exercising her legal right to walk down a public street and is doing so in a lawful and reasonable manner is required to forfeit that right simply because others have not fulfilled their statutory duty by allowing their dog to run at large. Further, we conclude that the record contains absolutely no evidence from which it reasonably could be concluded that Ms. White had engaged in any negligent conduct. Therefore, we affirm the Trial Court's judgment insofar as no comparative fault was assigned to Ms. White.
Conclusion
The Judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court for collection of the costs below. Costs on appeal are assessed against the Appellants, Tucker and Lisa Smith, and their surety.
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