Pablo Castrejon v. Andrew Horton and Cassy Horton
14-16-00520-CV
Tex. App.Oct 24, 2017Background
- On March 29, 2013, Pablo Castrejon (licensee) went with his girlfriend to the Hortons’ home; the Hortons were not present and the front door was unlocked.
- Heather (girlfriend) entered the unlocked house; Rusty, the Hortons’ 22‑month‑old Akita, came to the door and lunged through the threshold onto the porch, biting Castrejon.
- Castrejon underwent surgery and hospitalization; he later sued Andrew and Cassy Horton for negligent handling, strict liability for a dangerous domesticated animal, negligence per se (Tex. Health & Safety Code §822.042 and League City ordinance), and premises liability.
- The Hortons moved for no‑evidence summary judgment, challenging essential elements (dangerous propensities, owner knowledge, breach, proximate cause, statutory violation, gross negligence).
- The trial court granted the no‑evidence summary judgment and entered a take‑nothing judgment; Castrejon appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could grant summary judgment covering negligence per se theory added after motion | Castrejon: new ordinance‑based negligence per se claim was not specifically addressed in Hortons’ motion, so dismissal on that ground was improper | Hortons: their broad no‑evidence challenges to negligence and negligence per se encompassed the ordinance theory because it relied on the same facts | Court: motion was sufficiently broad; summary judgment properly covered the later‑added ordinance theory |
| Whether there was evidence of dangerous propensities (strict liability element) | Castrejon: breed materials, Hortons’ online posts about protectiveness, and injury severity show dangerous propensities and owner awareness | Hortons: no prior attacks or complaints; dog was inside the house and had a right to be there; no evidence they knew Rusty was dangerous | Court: no evidence Rusty had propensities abnormal to its class or that Hortons knew or should have known—no fact issue raised |
| Whether Hortons breached duty / negligence proximate cause (including foreseeability) | Castrejon: failure to secure house/door, no warning signs, breed‑specific evidence and statements show breach and foreseeability | Hortons: dog was confined inside home; Castrejon opened unlocked door uninvited; no knowledge of dangerous propensities, so no duty to warn or make safe | Court: proximate cause/foreseeability not shown; no evidence Hortons behaved differently than a reasonably prudent owner under circumstances—no fact issue raised |
| Whether gross/willful/wanton conduct or premises liability duty existed | Castrejon: Hortons’ conduct and lack of warnings amounted to higher culpability and premises liability as to a licensee | Hortons: absent knowledge of viciousness, no duty to warn licensee; no evidence of willful/gross negligence | Court: no evidence of willful, wanton, or gross negligence and no duty to warn given lack of owner knowledge—claims fail |
Key Cases Cited
- Marshall v. Renne, 511 S.W.2d 255 (Tex. 1974) (elements for strict liability for dangerous domesticated animal)
- Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002) (no‑evidence summary judgment standards)
- Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (defining when no‑evidence summary judgment is proper)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) ("less than a scintilla" standard explained)
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (affirmance allowed if any presented ground supports summary judgment)
- Dunnings v. Castro, 881 S.W.2d 559 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (owner liability depends on knowledge of vicious propensities)
- Searcy v. Brown, 607 S.W.2d 937 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ) (no duty to warn absence of owner knowledge of viciousness)
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (de novo review of summary judgment)