OPINION ON MOTION FOR REHEARING
We deny Melinda Jean Castro’s motion for rehearing, but withdraw our original opinion and substitute this in its stead. This is an appeal from a summary judgment for the defendant. We reverse and remand.
Fact Summary
Turhan Dunnings, a mailman, was injured as he was attempting to deliver mail to Melinda Jean Castro’s home and was frightened by her dog, Leo’s Blue Cousin Elmo (Elmo, for short). Elmo, a five-year-old, 85-pound male Weimaraner, was tethered on an 18-foot plastic-coated wire in the front of Castro’s house. As Dunnings walked up the driveway toward the house, Elmo, who was in the bushes, lunged at Dunnings and frightened him, сausing him to jump out of the way. Dunnings, trying to escape Elmo’s attack, took several steps backward, tripped and fell to the ground, hitting his head on the driveway. While he was on the ground, Dun-nings kicked at Elmo in an attempt to keep the dog from biting him, and yelled for help. Castro cаme out of the house and took Elmo inside. The dog did not bite Dunnings.
Dunnings suffered two herniated cervical discs and other injuries as a result of the March 22, 1991, fall. He sued Castro for negligence and strict liability. Castro filed a motion for summary judgment, which the trial court granted.
For a defendant tо be entitled to a summary judgment the defendant must disprove, as a matter of law, at least one essential element of each of the plaintiffs causes of action.
Lear Siegler, Inc. v. Perez,
Strict Liability
In point of error one, Dunnings argues the trial court erred in granting the motion for summary judgment because genuine fact issues precluded summary judgment on Castro’s strict liability claim.
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The strict liability standard involved in cases of dangerous domestic animals is expressed in
Marshall v. Ranne,
[A] possessor of a domestic animal that he has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another although he has exercised the utmost care to prevent it from doing harm.
(Emphasis added.)
Nothing in the summary judgment evidence suggests that Elmo has dangerous propensities that are abnormal when compared to other dogs. Castro stated in her deposition that she did not know of any vicious or aggressive tendencies of Elmо. She bought him as a pet, and he had never acted aggressively or attacked anyone.
In his response in opposition to Castro’s motion for summary judgment, Dun-nings points to Castro’s deposition to show there is some evidence she knew Elmo was dangerous. In her deposition, Castro stated she lives alone, that her car was stolen from outside her house in 1989, when she gets home from work it is dark, she has no alarm system, she feels safer at night knowing her dog is inside her house, she believes her dog would protect her if she were attacked by an intruder, аnd she knows her dog might scare strangers because of his size. In this recitation of evidence, Dunnings does not allege the dog has dangerous propensities abnormal to its class.
Dunnings also offers the affidavit of an expert in dog behavior, Dr. Erick Klingham-mer. Dr. Klinghammer stated that а reasonably prudent owner of a five-year-old Weim-araner would know that leaving the dog tied to a post on the owner’s property would increase the likelihood that the dog would react in an aggressive manner if confronted by a stranger on the owner’s рroperty. Dun-nings contends Klinghammer’s statement and Castro’s deposition provide evidence of the dog’s vicious and potentially aggressive nature that precludes summary judgment and needs to be presented to a jury. Again, nothing in Dr. Klinghammer’s statement suggests that the dog had dangеrous propensities abnormal to its class.
Dunnings contends this Court has held that the affidavit of an expert witness can create a fact issue sufficient to preclude summary judgment.
Haight v. Savoy Apts.,
We overrule point of error one.
Negligence
In point of error two, Dunnings argues the trial court erred in granting the motion for summary judgment because genuinе fact issues precluded summary judgment on Castro’s negligence claim.
Negligence is defined as conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm. Restatement (Second) of ToRts § 282 (1965). Negligent conduct is a proximate cause of harm to another if, in a natural and continuous sequence, the negligent conduct produces an event that causes the harm, and without the
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negligent conduct such event would not have occurred.
Lear Siegler, Inc.,
Dunnings contends it is not necessary to find an animal vicious to sustain a negligence action, but оnly that its owner was negligent in handling the animal. Dunnings bases his argument on Marshall, where the court stated that the possessor of a non-vicious animal may be liable for his negligent handling of an animal. We agree. In Marshall, the court said:
We do not hold that negligence ... can never be a correct theоry in a case which concerns animals. All animals are not vicious and a possessor of a non-vicious animal may be subject to liability for his negligent handling of such an animal. This was the situation in Dawkins v. Van Winkle,375 S.W.2d 341 (Tex.Civ.App.—Waco 1964), writ dism’d w.o.j.,377 S.W.2d 830 (Tex.1964). Accord, Restatement of Torts § 518 (1938); 2 F. Harper & F. James, The Law of Torts § 14.11, at 833-834 (1956); 3A C.J.S. Animals § 178 (1973).
In
Dawkins,
cited by the Supreme Court in
Marshall
and by the plaintiff in this case, the plaintiff sought recovery on a negligence theory for the death of her husband, who was killed in a ranch accident involving a bull.
Dawkins,
The Restatement (Second) of ToRTS § 518 addresses the liability for harm caused by domestic animals that are not abnormally dangerous. The comment to that section states:
Animals dangerous under particular circumstances. One who keeрs a domestic animal that possesses only those dangerous propensities that are normal to its class is required to know its normal habits and tendencies. He is therefore required to realize that even ordinary gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm_ So, too, the keeper of an ordinary gentle bitch or cat is required to know that while earing for her puppies or kittens she is likely to attack other animals and human beings.
Restatement (Second) of Torts § 518(h).
In 3 HaepeR & James, The Law of Torts § 14.11, at 268-69 (1986), it states:
If notice of viciousness is present the owner of animals is liable irrespective of negligence or care on his part in keeping the animal, although the mere keeping the animal is not regarded as culpable. If there is not notice of the ferocious nature of the animal, the owner may, of course, still be liable for negligent keeping, but the basis of liability in the two cases must be sharply distinguished.
Finally, in 3A C.J.S. Animals § 178 (1973), it states:
The gist of an action brought to recover for injuries caused by a domestic animal, resulting from other than known vicious propensitiés, is usually negligence of the owner or keeper in the keeping or handling of the animal.
In
Owens v. Coury,
We acknowledge that in Marshall v. Ranne,511 S.W.2d 255 , 258 (Tex.1974), the Court stated “that suits for damages caused by vicious animals should be governed by principles of strict liability,” and further determined, inter alia, that contributory negligence is not a defense to the strict liability action. However, we do not construe Marshall to preclude nеgligence actions as independent grounds for recovery. Id. at 259. Accordingly, the jury’s unchallenged answers to the negligence and proximate cause issues render immaterial the jury’s answers to the strict liability issues. Thus, any error regarding the submission of, or the jury’s answers to, speсial issues one and two is not reversible error.
Owens,
In
Belger v. Sweeney,
We hold, in accord with Marshall, the Restatement of Torts, Harper & James, Corpus Juris Secundum, and other authorities, that an owner of a dog may be liable for injuries caused by the dog even if the аnimal is not vicious, if the plaintiff can prove that the owner’s negligent handling of the animal caused the animal to injure the plaintiff.
We acknowledge that in
Searcy v. Brown,
The owner of a domestic animal is not liable for injuries caused by it in a place where it has a right to be unless the animal is of known vicious propensities or the owner should know of the vicious or unruly nature of the animal.
In Searcy, the defendant posted his property with notices that warned the public not to enter, and to “beware of dog.” The plaintiff, who went to inquire about a for sаle sign, did not see the warning signs and was attacked when he stepped onto the property. Id. at 939. The plaintiff in Searcy was a licensee, to whom the defendant owed the duty not to injure him willfully, wantonly, or through gross negligence. Id. at 941.
The duties owed by a landowner depend upon the role of the pеrson injured on the premises.
Rosas v. Buddies Food Store,
By the very nature of his job, Dunnings was required to enter Castro’s premises to deliver mail every work day. Castro depended on Dunnings performing his job and delivering her mail. After this incident, when the post office stopped delivering her mail, she made a trip to the post office to make arrangements to have the delivery continued. Castro knew that Dunnings or some other employee of the post office would enter her front yard every work day to deliver mail. Castro had a duty to protect whoever delivered her mail from an unreasonable risk of harm. Dunnings contends a jury should decide if it was unreasonable for Castro to tether an 85-pound dog in the front of her house and leave it unattended. In her deрosition, Castro admitted that when she heard Elmo barking, she ran outside because “Elmo was a big dog and might scare someone.” That is exactly what happened.
We note that in
Gill v. Rosas,
Viewing the evidence in the light most favorable to the non-movant, we find an issue of material fact to preclude the granting of summary judgment on the negligence claim.
We sustain point of error two and remand the cause to the trial court.