216 So. 3d 934
La. Ct. App.2016Background
- On Nov. 30, 2010 Wardette Ducote was bitten on a sidewalk by a cat she and her sister identified as defendant Michael Boleware’s cat; she received ER care and began post‑exposure rabies treatment.
- Animal Control cited Boleware for failure to produce proof of current rabies vaccination and for allowing an animal at large; the cat was quarantined by the SPCA and cleared of rabies.
- Ducote sued Boleware and his homeowner’s insurer alleging negligence based on ordinance violations (allowing the cat to roam, failing to vaccinate and failing to produce proof of vaccination).
- Boleware moved for summary judgment, submitting evidence that the cat had no prior vicious propensities, that the SPCA observed the cat as friendly, and an expert affidavit opining the rabies treatment was medically unnecessary.
- The trial court granted summary judgment; the appellate majority affirmed, holding plaintiff failed to establish scienter (the “first bite”/dangerous‑propensity element) and that ordinance violations did not avoid the Article 2321 negligence standard or show legal causation for the medical treatment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ownership identification (was Boleware’s cat the biter) | Bordelon’s affidavit and witness identification show it was Boleware’s cat | No definitive evidence to identify the cat as Boleware’s in the record | Court declined to decide ownership; unnecessary to resolution of appeal |
| Applicability of scienter / “first bite” rule under La. C.C. art. 2321 | Ducote argued her claim rests on ordinance violations, not scienter | Boleware argued negligence for non‑dog animals requires proof of scienter (dangerous propensity) and he showed none | Court held Article 2321 requires scienter for animals other than dogs; Boleware met his initial burden and Ducote failed to rebut; summary judgment affirmed |
| Ordinance violations / negligence per se (failure to confine, vaccinate, or produce proof) | Ducote argued statutory/regulatory violations create civil liability and support negligence claim | Boleware argued the cited ordinances do not impose the duty Ducote claims (and city ordinance permits community cats); statutory violation is not negligence per se | Court held statutory violations are evidence only and do not supplant duty‑risk analysis; Ducote failed to show those violations created duty/causation sufficient to defeat summary judgment |
| Medical necessity and causation of rabies treatment damages | Ducote contends lack of proof of vaccination forced her to undergo costly, painful rabies prophylaxis | Boleware produced infectious‑disease expert saying treatment was unnecessary and showed cat was quarantined/cleared; Ducote produced no expert rebuttal | Court found Ducote failed to rebut expert; even if ordinance violation existed, she did not establish it legally caused her treatments; summary judgment affirmed |
Key Cases Cited
- Johnson v. Loyola Univ. of New Orleans, 98 So.3d 918 (La. App. 4 Cir. 2012) (summary judgment standard reviewed de novo)
- Mandina, Inc. v. O’Brien, 156 So.3d 99 (La. App. 4 Cir.) (procedural rules for summary judgment)
- Pepper v. Triplet, 864 So.2d 181 (La. 2004) (negligence standard for animal owners other than dogs)
- Holland v. Buckley, 305 So.2d 113 (La. 1974) (abrogated earlier first‑bite rule)
- Boyer v. Seal, 553 So.2d 827 (La. 1989) (courts treat cats more leniently than dogs; first‑bite concept applied)
- Smolinski v. Taulli, 276 So.2d 286 (La. 1973) (statutory violation not automatically determinative of civil liability)
- Faucheaux v. Terrebonne Consolidated Gov’t, 615 So.2d 289 (La. 1993) (statutory violation relevant only as part of duty‑risk/legal cause analysis)
- Lemann v. Essen Lane Daiquiris, Inc., 923 So.2d 627 (La. 2006) (elements of duty‑risk negligence analysis)