McCoy v. Lucius

839 So. 2d 1050, 2003 WL 729876
CourtLouisiana Court of Appeal
DecidedMarch 5, 2003
Docket36,894-CA
StatusPublished
Cited by6 cases

This text of 839 So. 2d 1050 (McCoy v. Lucius) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCoy v. Lucius, 839 So. 2d 1050, 2003 WL 729876 (La. Ct. App. 2003).

Opinion

839 So.2d 1050 (2003)

Kerry McCOY and Theresa McCoy, Plaintiffs-Appellees,
v.
Ronnie LUCIUS and Mildred Lucius, Defendants-Appellants.

No. 36,894-CA.

Court of Appeal of Louisiana, Second Circuit.

March 5, 2003.
Rehearing Denied April 3, 2003.

*1051 Lavalle B. Salomon, Monroe, Counsel for Appellants.

William H. Hallack, Jr., Monroe, Counsel for Appellees.

Before GASKINS, CARAWAY and MOORE, JJ.

GASKINS, J.

The defendants, Ronnie and Mildred Lucius, appeal from a judgment awarding damages to the plaintiffs, Kerry and Theresa McCoy, as a result of injuries sustained by the McCoys' dog. For the following reasons, we reverse.

FACTS

The plaintiffs and the defendants are neighbors in West Monroe, and this lawsuit concerns injuries suffered by the McCoys' dog in a fight with two dogs kept by the Luciuses.

The McCoys own a 10-pound Maltese dog named Jody. The dog is approximately 12 years old. Although Jody was a small dog, she had a reputation in the neighborhood for aggressiveness. Mr. McCoy described Jody as "one of those little yapping dogs." On previous occasions while running free, Jody had bitten several neighborhood residents. One resident testified that Jody had charged her and her dog, causing her to fall, break her arm and knock her tooth loose; she said that she did not tell the McCoys that this had occurred because her insurance paid her medical bills. Mrs. Lucius said that she first met the McCoys after Jody bit one of the Luciuses' grandchildren. After another biting incident where the victim required medical attention, the McCoys decided to keep Jody leashed in their yard when outside, along with their other dog, Max.

The Luciuses were caretakers of two dogs that belonged to their grandchildren. One of these dogs was a weimaraner named Trunks that at the time of this incident was between six and nine months old, two feet tall and weighed about 60 pounds. The other dog was a boxer *1052 named "Prince Vegeta" that was slightly older than Trunks. Mrs. Lucius said that for a time these dogs were kept inside the house and were occasionally allowed outside to play; other neighbors said that the dogs routinely ran loose in the neighborhood and overturned trash cans.

Mr. McCoy said that on January 1, 2001, he broke up a fight between the Luciuses' boxer and another neighborhood dog near his property. Both dogs had apparently been wandering loose; Mr. McCoy said that the boxer was very aggressive toward the other dog. Mrs. Lucius did not recall this incident even though Mr. McCoy said that he had brought the injured dog and the boxer to the Luciuses' house and told Mrs. Lucius about the fight. Mr. Lucius said that he vaguely remembered the incident.

In another incident shortly after Easter in 2001, a neighbor saw the Luciuses' boxer carrying a dead rabbit in its mouth on the McCoys' property. The rabbit had been one of at least two rabbits that were Easter presents from the McCoys to their young daughters. The McCoys discovered that the rabbits' cage had been destroyed and that the cage was full of dog hair. The Luciuses offered to pay for the damages, but nothing further was said about the incident and no payment was made. The boxer may also have killed rabbits belonging to another neighbor earlier in the year. Shortly after the incidents with the rabbits, the dogs were picked up and placed in the pound. After being informed of that fact by their veterinarian's office, the defendants picked up the dogs.

By May 2001, Mrs. Lucius was keeping the dogs in a pen in her yard. She also said that the dogs had been to obedience school. At that time, no fence separated the property of the McCoys and the Luciuses. On May 9, 2001, Mrs. Lucius was in her yard exercising the weimaraner and boxer; she said that the dogs were on leashes. She described the ensuing events:

A: I was putting my dogs up in their port-a-pen beside Ronnie's garage and their dogs (sic) ran up the hill right there. It's kind of sloped there and the dog ran up charging us. And when it did, these two jumped on it. I could not hold them.
Q: Did your dogs get loose from their leash?
A: Yes, they did, out of my hand.
Q: And what happened when they got loose from the leash?
A: Then they started ... that dog was still coming and they ran that a way and the dog was still barking and then it turned and run because they were nipping at it then. And it started running and they caught it right down there around Ronnie's shop, right behind his shop.... The dog ... one had one end and one had the other and the dog just... I thought they had killed the dog....

Mrs. Lucius was the only witness to the dog fight. She said that she did "nothing" when the dogs attacked the little dog. Mrs. Lucius said that she had the dogs in her sight the entire time of the incident and at no time did they go onto the McCoy's property. Mr. Lucius said that he came out to put the boxer and weimaraner in their pen and saw Jody lying on his property.

The McCoys' other dog, Max, was leashed to the McCoys' tree during the entire incident. Mr. McCoy said:

A: Both my dogs were on those ["screw-type deals (with a) chain (and) a cable."] And when I got outside, what I saw was the screw was in the ground, the cables are there and there's a leash and the leash is not broken, the leash is hooked together like it always is and there's hair about and it looks like to *1053 me, that the dog was just pulled through its own collar.

[Objection by defense counsel.]

A: Well, with hair there and, you know, what was left there, it looked that way to me. So—
Q: Did you see hair anywhere else?
A: Yeah, about 10 or 15 further down towards the lake, on my property there was a whole bundle of hair. I would say a foot radius or so.

Madge Smith, who lives across the street from the Luciuses and McCoys, said that she was standing in her driveway on May 9, 2001 when she saw the Luciuses, along with their daughter Cindy and her husband Doug, walking from their house towards the McCoys' house. Ms. Smith said that one of them was carrying an empty folded black plastic bag. She said that the group walked "to the backyard behind the house, behind the McCoys' house, in their backyard" to a point where she could no longer see them. She said that the group returned a few minutes later carrying the bag "with something in it."

Doug Haynes, the Luciuses son-in-law, said that he and his wife, Cindy, came to the Luciuses' house after being called and found Jody lying behind the carport on the Luciuses' property. Believing that the dog was dead, Doug put the dog in a bag. Cindy Haynes said that Jody was lying on the Luciuses' property and that she carried the bag containing Jody and put the bag in the back of her car.

Mrs. Lucius called Mrs. McCoy who then came over and got her dog. Some harsh words were passed among the parties. Mrs. Lucius testified that she overheard Mrs. McCoy telephone someone and say "Jody is dead and it's all my fault and I don't guess I put his collar on tight enough." Soon thereafter, Mrs. McCoy discovered that the dog was alive. Mrs. McCoy took the dog to the veterinarian. Jody was treated for 12 days and released; the veterinarian's bill was for $462.58. The dog made a full recovery from her injuries.

The McCoys sued the Luciuses for Jody's veterinary bill, as well as for damages for the loss of their rabbits and cage.

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Bluebook (online)
839 So. 2d 1050, 2003 WL 729876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccoy-v-lucius-lactapp-2003.