I am absolutely astounded that this dog was able to terrorize the neighborhood for so long.
This being Texas, you assume firearms are issued to Texans at birth and that they're competent and self-assured in using them. Why didn't someone shoot this dog after the first attack, the second, the third? Did anyone bother to call Animal Control? Were they living in some remote area that didn't have Animal Control?
These are questions that go unanswered, but I can only think that because the dog is a Blue Heeler it was tolerated. On the other hand, the fact is that it's a smaller dog not known for causing deaths and amputations of victims' limbs so maybe it was this final attack by the Blue Heeler, which was the most damaging, that finally got something done about it?
Reading through this really long opinion (I edited most of it out, click the link below and you can see it in its entirety), I am shocked that one incident after another occurred without this dog being shot dead.
In The Court of Appeals
Sixth Appellate District of Texas at Texarkana
PAULA KAYE TURNER AND TIMOTHY RAY TURNER, Appellants
JENNIFER DUGGIN, Appellee
On Appeal from the 415th District Court
Parker County, Texas
Trial Court No. CV14-1551
O P I N I O N
Oscar was an eleven-year-old Blue Heeler mix canine owned by Timothy Ray Turner and his wife, Paula Kaye Turner. While the Turners were away on vacation, Oscar escaped their yard through a gate inadvertently left open by Paula’s teenage daughter, Makayela Fuller, and bit passerby Jennifer Duggin, causing her significant and irreparable injury.
Duggins brought suit wherein she alleged that the Turners were negligent in the supervision and confinement of the dog (including negligent entrustment of that responsibility to a child), in exercising ordinary care by allowing the dog to escape the Turners’ property, and in training the dog to be vicious and to attack people. They alleged that the Turners knew or should have known of the vicious propensities of the dog and were guilty of such gross negligence that they were strictly liable for the damages occasioned to Duggin by the attack.
After hearing evidence that Oscar had bitten several other people and regularly escaped the Turner’s yard, the jury found by clear and convincing evidence
that the Turners had been grossly negligent. The jury awarded a total of $570,000.00 in compensatory damages, $75,000.00 in exemplary damages against Timothy, and $50,000.00 in exemplary damages against Paula.
After overruling the Turners’ motion for new trial and motion for remittitur, the trial court entered a final judgment in accord with the jury’s verdict, adding an
award of $5,731.51 in prejudgment interest, for a total award of $700,731.51 to Duggin.
On appeal, the Turners question whether the evidence was legally and factually sufficient to support (1) the jury’s award of $350,000.00 for a line item that included both future pain and suffering and future mental anguish, (2) the jury’s finding of gross negligence, and (3) both the award of and the amount of the award of exemplary damages.
Because we find the evidence legally and factually sufficient to support all of the jury’s findings, we affirm the trial court’s judgment.
II. The Evidence at Trial
A. Oscar’s General Character and Training
Timothy adopted Oscar while he was married to his former wife, Stacey Santibanez.
Santibanez testified that Timothy trained Oscar “to bite on command” by using her son, Jason, and his daughter, Elizabeth, as the subjects of the attack. She informed the jury that even though Timothy had attempted to train Oscar to only put his mouth on people on command without actually biting them, Oscar would bite the children “every time” he attempted to train him in that fashion.
According to Santibanez, the children believed that Oscar was vicious and did not want to participate in training the dog. She testified that Elizabeth still had scars from a puncture wound created by Oscar’s bite. Yet, except for the one instance involving Elizabeth, Santibanez denied that Oscar drew blood when he bit the children.
Santibanez described Oscar as a threat to people he did not know. She testified that she was forced to instruct guests to stay away from Oscar because she was concerned for their safety.
According to Santibanez, even Paula said Oscar should have been put down a long time ago because of his tendency to bite people.
Cheryl Collins, the sixty-five year-old woman who lived across the street from the Turners, described Oscar as a mean alpha male animal. Collins testified that the Turners regularly allowed Oscar and their other two dogs to roam the neighborhood and that the dogs’ demeanor caused her to be afraid for her safety and that of her husband because the dogs had previously acted as if they were going to attack her. Collins and her husband were so afraid of Oscar that they each regularly carried a gun while going to their own mailbox.
According to Collins, for several weeks before the incident, Oscar and another dog would come to their yard daily with their heads down and their ears pinned back as they growled, showed their teeth, and dug at her fence in an attempt to attack her four small dogs.
James Kendall Harrison, who also lived next door to the Turners, testified that he was not surprised to hear of Oscar’s attack on Duggin. He testified that the Turners’ dogs were vicious and that they made him afraid because they seemed as if they wanted to attack. Harrison said that he became nervous when the dogs escaped the Turners’ yard, mostly fearing for the safety of his
three children, believing that the dogs were a threat to the safety of the entire community.
Harrison’s wife, Krystal, also testified that the Turners’ dogs would come to her yard three or four times a week. Krystal was afraid for her children’s safety because the dogs would bark, growl, and would “have evil in their eyes.”
Krystal also believed that the dogs stood ready to attack.
Caleb Toles, a friend of Paula’s children, Makayela Fuller and Dustin Fuller, testified that Oscar was vicious toward strangers and had bitten his wife, Jenna Toles. Caleb told the jury that he believed that he had also come close to getting bitten by Oscar, but that Oscar obeyed a command from Timothy to not attack. Caleb and Jenna both testified that they heard Timothy bragging about having trained Oscar to assist him in bar fights.
Elizabeth denied that Oscar had been trained to attack, stated that she did not hate Oscar, and claimed that she was only nipped by Oscar twice during horseplay with her brother. Elizabeth clarified that she did not bleed when Oscar nipped her and stated that she had no scars from the incident.
[The Turnes' teenage daughter] Makayela Fuller testified that Oscar caught her pant leg once when she was play-fighting with Dustin. Although she heard that Oscar had bitten others and had attacked a man named Cole Thomason, Makayela
Paula Turner also described the dog as “laid back and easy going” and testified that she had never heard him growl. Timothy Turner denied that he trained the dog to attack to assist him in bar fights.
B. Prior Incidents Involving Oscar
The jury heard that Oscar had bitten several non-family members prior to his attack on Duggin, including Jenna, Thomason, Kelly Wilfong, and Geno Santibanez.
Jenna testified that Oscar was aggressive towards strangers. She testified that the first time she was around Oscar, she was reaching for the Turners’ door when Oscar lunged towards her and sank his teeth into her skin.
Jenna’s grandmother, Gaile Comeau, and Caleb both testified that Jenna still had a scar from the deep puncture wound. Comeau testified that Paula was made aware of the wound inflicted by Oscar, being the person who cleaned the wound.
It was also undisputed that Oscar had attacked Thomason. Santibanez described Thomason as an elderly man who was bitten when he was walking on the road of an RV park in New Braunfels. Timothy testified that Oscar bit Thomason because Thomason was walking just outside the front door of an RV owned by Timothy. Oscar was quarantined by Comal County as a result of the attack and was released to Timothy after seven days in quarantine.
Paula Turner and Timothy Turner also admitted that Oscar had likewise bitten Paula’s friend, Wilfong, on or about October 29, 2013. Paula testified that Wilfong required medical treatment as a result of the wound created by Oscar and that Oscar was once again quarantined as a result of the attack.
According to Paula Turner, Wilfong was returning the Turners’ other two dogs to the Turners’ backyard (from which they had escaped) when Oscar bit her.
Santibanez testified that Oscar had attacked and bitten her friend’s children as they were getting out of a car and that he had twice bitten her husband, Geno Santibanez (who is a longtime friend of Timothy Turner). On one occasion, Santibanez said that Oscar bit Geno on the leg when he was helping to take out the trash.
On the second occasion, Santibanez said that Geno was in the Fast Lane Bar when Oscar was present. Geno reached to pet Oscar and was bitten on his arm even though Timothy had not directed Oscar to attack, this bite being sufficiently serious to cause him to bleed.
Timothy admitted that Oscar bit someone in a bar once. However, when asked about the incident involving Geno, Timothy claimed that Geno had bitten Oscar prior to the attack.
According to Santibanez, Geno bit Oscar only after the incident to teach him a lesson. Elizabeth also testified that she heard that Oscar bit Geno first.
There was also testimony that Oscar had bitten family members. According to Caleb, Timothy became intoxicated a few times and would sometimes sic the dog on Dustin. Caleb testified that Oscar ripped through Dustin’s jeans on one occasion, drawing blood.
According to Jenna, Oscar had also bitten Makayela when she intervened in the dog’s attack of her boyfriend. Jenna testified that Oscar could potentially be a threat to a stranger if he was left outside.
C. The Neighbors Complain About Oscar to the Turners
According to Jenna, both Makayela and Caleb informed Paula that the neighbors were complaining about Oscar. Other evidence at trial demonstrated that the Turners were aware of the neighbors’ complaints.
Collins testified that Oscar was in her yard every day for several weeks before Duggin was bitten, regardless of whether the Turners’ gate was open or closed. Collins stated that her husband called Paula to inform her of their dogs’ behavior and that Paula’s response was simply, “[O]h, the kids probably left the gate open again.”
According to Collins, when she offered to show Paula the hole in the fence from which the dogs were escaping, Paula declined the offer as if she did not seem to care. Collins testified that she did not stress the issue further because she did not think Paula would act. Collins based this belief on the fact that she had informed Paula about the issue many previous times, but the dogs returned every day.
Collins testified that she was so frustrated at the continued presence of the Turners’ unfriendly dogs in her yard that she expended $16,000.00 to construct a fence to keep them out.
Harrison testified that he saw the Turners’ dogs outside the Turners’ yard “at least every other day” for “at least a week or two” prior to the incident involving Duggin. On two separate occasions, the dogs had gotten into Harrison’s cow pasture. Harrison testified that he ran the dogs back into the hole in the Turners’ fence after the dogs mauled the nose of a sick cow.
According to Harrison, his uncle, Ralph Walker, had spoken to Paula about the hole in the fence that allowed the dogs to escape. Nevertheless, Harrison testified that he continued to see the dogs outside of the Turners’ property “[p]retty regularly.” Krystal also testified that the dogs would escape the
fence, which was occasionally left open.
Because Caleb was often at the Turners’ home, he testified that he overheard the Turners’ expressions of frustration about the dogs escaping the fence. Caleb even assisted Dustin in placing dirt in a hole the dogs had created. He testified that the Turners were certainly aware of their neighbors’ complaints. Makayela also testified that she knew of the neighbors’ complaints and
confirmed that the dogs had escaped from an open gate “just prior” to the incident involving Duggin.
Paula confirmed that she was aware that the dogs had dug underneath the fence in order to escape the backyard and labeled one of the dogs as the digger. Although she claimed that Collins never called her, she testified that other neighbors (the Coles) complained to her about the dogs running around loose in the neighborhood. Paula testified that she made repairs to the fence
because there was a potential for the dogs to escape, but admitted that she did not build an electric fence, use shock collars, chain the dogs, or keep them in an escape-proof enclosure.
Timothy denied any knowledge that Oscar was escaping the fence. He said that he did not make any repairs to the fence because he relied on Paula to take care of the situation.
At trial, when asked, “You don’t think that [Oscar] had any dangerous propensities to people that it didn’t know, do you,” Paula Turner responded, “I never said that. He protects us.”
Although Paula admitted that Oscar had bitten people, she justified the matter by claiming that Oscar had only bitten people on their property.
In spite of the incident involving Thomason and Geno, Paula told the jury that she was unaware of anyone accusing Oscar of getting off of the property and
biting anyone except for the incident when Duggin had been bitten. Paula denied any claim that the dogs were terrorizing the neighborhood.
D. Oscar Bites Duggin
On June 3, 2014, the day Oscar bit Duggin, [Paula Turner and Tim Turner's teenage daughter] Makayela Turner testified that although she knew Oscar had bitten people before, she left the gate open because she was “frazzled” in her hurry to attend a church function celebrating her upcoming graduation. This oversight provided the opportunity for Oscar to escape the Turners’ enclosure and bite Duggin as she was walking with her friend and neighbor, Roxanne Raymond.
Raymond recalled the incident, stating, “We were talking and just all of a sudden these three dogs come running at us, barking and growling, and literally surrounded us.”
Raymond testified that although neither she nor Duggin said or did anything to provoke the dogs, Oscar sank his teeth into Duggin’s leg and then ran back to the Turners’ yard with the other dogs in tow.
Duggin testified that Oscar bit into her calf and left a puncture wound so deep that she felt she could stick her thumb through it.
Raymond examined Duggin’s bleeding leg and noticed tissue protruding from a very deep wound, one which caused her leg to swell immediately. Raymond, who is a nurse, was concerned about the injury and believed Duggin needed to go to the emergency room for medical treatment.
Duggin testified that she could not walk due to the excruciating pain and the amount of blood squirting out from the wound. She took several photographs of her bloody calf, which the jury saw, and went to the emergency room.
Paula Turner testified that Collins called her on the telephone to inform her that Oscar had bitten Duggin. Duggin also spoke to Paula, who was away on vacation at the time, but stated that one of her children must have left the gate open.
According to Duggin, the Turners initially agreed to pay her medical bills, but later recanted the offer and hung up on her during a telephone conversation in which Paula clarified they did not have the money to pay Duggin’s medical bills.
Duggin testified that she continued to see the Turners’ dogs roaming outside the Turners’ fence even after she had been bitten.
Raymond testified that she also saw the dogs outside of the Turners’ yard on several occasions prior to Oscar’s attack on Duggin. In describing the demeanor of the Turners’ dogs, Raymond said that they snarled and acted like they would attack even when they were enclosed by the Turners’ fence.
E. Evidence of Duggin’s Injuries
Duggin did not recover as expected after she was released from the emergency room. She testified that the puncture wound was not healing and that the pain and swelling were not alleviated by the medication given to her so she returned to Dr. David L. Reeve several weeks after she had been bitten. After noticing swelling, tenderness, and veins on her calf that were “bulging out,”
Reeve was concerned that Duggin may have a blood clot and referred her to surgeon Scott Walker. Dr. Walker informed Duggin that she had sustained damage to her veins, which compromised her circulatory system and caused necrosis in the calf. Dr. Walker explained that he became alarmed when Duggin was still having difficulty walking three months after Oscar’s bite.
Duggin testified that she underwent one out-patient procedure and one vascular ablation surgery, during which she was required to remain awake, even though anesthesia was not administered. The surgery remedied the damaged veins, but other blood vessels began to bulge in an effort to re-route blood that was pooling at her foot and was not circulating properly.
After visiting five doctors in the span of two years, Duggin was told that there was no more medically viable treatment that could assist her.
At trial, Walker explained to the jury that Duggin (who was forty-two years old when Oscar bit her) suffered what proved to be a persistent life-long problem as a result of Oscar’s bite. He informed the jury that the pain and swelling of her leg as a result of walking or standing would remain constantly, would not likely improve, but could possibly get worse as Duggin aged.
Dr. Walker testified that there was no cure for Duggin and that her condition could also lead to future infection and ulceration of the skin. Dr. Walker explained that someone with Duggin’s medical condition could reasonably experience emotional distress as a result of the life-long injury.
F. The Effect of Duggin’s Injuries on Her Life
Duggin testified that she deals with pain every day and that her entire family has experienced strain as a result of her injuries. She described the means by which the injuries she sustained in Oscar’s attack had impacted her in her roles as a special education teacher, a serious competitive equestrian, and a mother to her children, Tye (a fourteen-year-old boy) and Kensie (a
Duggin testified that her job as a special education teacher is emotionally and physically strenuous. In order to effectively perform her job, she is required to sit on the floor with the children and to walk with them if they have a breakdown. Duggin testified that she goes up and down stairs with the class, stands and walks while teaching, and described herself as always on the
move while at work.
Duggin’s mother, Jane Trierweiler, who is also a teacher at Duggin’s school,
testified that she regularly sees her daughter elevate and massage her leg during the lunch hour as a result of swelling.
Justin Brown, who has trained and shown horses for twenty-one years, testified that Duggin grew up in the horse industry and has won many competitive awards. The jury viewed photographs of Duggin demonstrating that she had loved horses since she was a child, had shown horses at
competitions, and had been a competing equestrian for her entire life. Duggin testified that she had won a number of national and world titles in equestrian competition. She had been offered a full scholarship to the University of Florida due to her equestrian skills and hoped to pass on her success to her children.
Duggin testified that before the incident, she rode horses with her children three to five times per week and that her children had carried on her love of and success in equestrian competitions. Duggin testified that not only did her leg injury prevent her from riding or showing horses, it also barred her from the endeavors of the family in the raising and showing of swine and sheep. Duggin displayed awards she had won at prior livestock shows, but testified that as a result of injuries sustained in the dog’s attack, she was unable to shear sheep and exercise or clip pigs in preparation for the most recent livestock show.
Dr. Walker confirmed that it would be painful for Duggin to ride horses and Brown, Trierweiler, and Raymond all confirmed that Duggin was unable to do so. Brown, who was still training Kensie, testified that he personally witnessed how deeply the injury had emotionally affected Duggin, bringing her to tears.
Duggin testified that before she was bitten by the dog, she (in addition to riding horses) was on a swimming and diving team and regularly used her treadmill at home. She also practiced sports with Tye and Kensie, who both played basketball and softball. Raymond testified that before the dog bite, Duggin and her husband often walked around the neighborhood together but
that Duggin’s pain from the injury now prohibited her from doing so.
Duggin and Trierweiler both testified that Duggin could no longer play with her children.
Duggin explained that the pain of her leg was so severe that she was now forced to become sedentary, that she had no option but to elevate her leg when she got home, and that she had gained weight as a result of her forced inactivity. Duggin indicated that she experienced no relief from the throbbing pain in her leg and that the disfigurement to her leg occasioned by the dog bite
(including bulging veins) distressed her.
Duggin lifted her pant leg for the jury to see the veins and scars, which she described as ugly, and she revealed it had caused her to refrain from wearing
shorts. Because she was concerned about her leg’s physical appearance, Duggin visited a plastic surgeon, who told her that plastic surgery would not alleviate the situation.
Duggin’s husband, Tim Duggin, testified that the whole family had been affected by Duggin’s injuries and that he had heard his wife crying in the shower at times. He said that Duggin took more breaks at school due to leg pain and that she could no longer use the treadmill or be with their animals because she had to rest and ice her leg every day.
Duggin testified that if Tim
accidentally bumped her leg at night while they were in bed, the resulting pain caused her to lose sleep. Tim and Duggin both testified that they were concerned about future health problems which could be caused as a result of the injury.
III. Award for Future Physical Pain and Mental Anguish Is Supported by the Evidence
The jury was given a single blank to determine what amount, if any, would fairly and reasonably compensate Duggin for future physical pain and mental anguish. The jury answered with a figure of $350,000.00.
The Turners argue that this award must be overturned because there was no evidence that Duggin would suffer mental anguish in the future. We apply the same standards of review to legal and factual sufficiency challenges to the evidence supporting a jury’s damage award as we do to legal and factual sufficiency challenges on a jury’s liability findings.
See Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 549 (Tex. App.—Fort Worth 2006, pet. denied).
Since the Turners lodged no objection to the lack of segregation in the jury charge of the mental anguish damages from the question pertaining to physical pain damages, we cannot now differentiate between the award of one kind of damage from the other.
Here, there is no real dispute that Duggin established the existence of physical pain. The question is whether the jury awarded too much for the combined line item of future physical pain and mental anguish.
The nature, duration, and severity of Duggin’s injuries and their impact on her life were well established by the record and a reiteration of those things already described would be redundant.
“Texas has authorized recovery of mental anguish damages in virtually all personal injury actions.”
Based on the nature, severity, and duration of Duggin’s injuries and due to the testimony of the medical personnel, the jury was free to determine that the mental anguish suffered by Duggin in the past would not subside in the future.
Thus, on the record presented here, we find that the evidence was both legally and factually sufficient to establish that Duggin would suffer mental anguish in the future.
Because (1) Oscar was a vicious dog and (2) the Turners failed to contain him, (3) even though they knew he had bitten others, and (4) was escaping from their yard, we conclude that the jury’s finding of gross negligence was supported by clear and convincing evidence and was not contrary to the great
weight and preponderance of the evidence.
Timothy has additional culpability because the evidence shows that he encouraged the viciousness of the dog by training him or encouraging him to bite humans.
Given the jury’s finding that the Turners knew of Oscar’s vicious propensities, a
reasonable jury could determine, by clear and convincing evidence, that failing to ensure that the dog was secured in the yard by chaining or enclosing him (especially when the Turners were out of town) posed a likelihood of serious injury to others, even when viewed objectively from Turners’ standpoint.
A jury could certainly reasonably conclude that Paula and Timothy were both
negligent in entrusting the monitoring of the vicious animal to a mere child—who eventually left open the gate, allowing the animal to roam free in the neighborhood. Thus, the evidence supports the objective component of gross negligence.
...the evidence shows (1) that Timothy encouraged the vicious propensity
of the dog for his own benefit and (2) that the Turners knew about the peril of their vicious dog escaping and biting others, but did not care.
We affirm the trial court’s judgment.
(Justia.com - March 31, 2017)