Parr v. Head
This text of 442 So. 2d 1234 (Parr v. Head) 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.
Opinion
Albert PARR, Individually and as Administrator of the Estate of Albert Parr, Jr.
v.
Claude HEAD, Robert Coppage and the Guaranty National Insurance Company.
Court of Appeal of Louisiana, Fifth Circuit.
Fernand L. Laudumiey, III, Rudman, Howard, Laudumiey & Mann, New Orleans, for plaintiffs/appellees.
Arthur W. Landry, Beinvenu, Foster, Ryan & O'Bannon, New Orleans, for defendants/appellants.
Before BOUTALL, BOWES and GRISBAUM, JJ.
BOWES, Judge.
From a judgment of the district court in favor of plaintiff, and against all defendants, Robert Coppage and his insurer, Guaranty National Insurance Company, appeal. Head has not appealed, nor answered this appeal, so his liability and that portion of the judgment against him is not at issue. We reverse that portion of the judgment insofar as it finds Coppage and Guaranty liable unto plaintiffs for damages.
Claude Head is the lessee of a house which was owned by Robert Coppage, now deceased. Robert Coppage had a policy of owners', landlords' and tenants' liability insurance for the premises, issued by Guaranty National. On May 7, 1980, Albert Parr, Jr., accompanied by a friend, Ronnie Raines, entered the yard of the premises occupied by Mr. Head. The two boys played miniature golf with Mr. Head's daughter for about 15 minutes. At that time, a dog owned by Mr. Head's daughter broke out of his enclosure and attacked Albert. The dog took a bite on the boy's calf, leaving a chunk missing out of his leg and a noticeable scar.
The landlord's liability was alleged to be founded on his: "Leasing premises to an *1235 individual who is the owner of an animal with known dangerous propensities." Coppage died prior to trial and his Estate was evidently substituted as a defendant, although no pleadings to this effect appear in the record.
In its reasons for judgment, the district judge based his finding of liability on the part of Coppage, the lessor, on the fact, established at trial, that he had not inspected his property for 10 years, and that "the strict liability ascribed to the dog owner also attaches to the landlord in this case, for there was negligence on the part of the property owner in not inspecting his property for 10 years, and this negligence, however slight, places him, the landowner, in a posture wherein he shares with the dog owner the liability for the damage inflicted on Albert Parr."
The trial judge, in this portion of his judgment, apparently states two different bases of liabilitystrict liability under Civil Code Article 2321, and under a negligence theory of Civil Code Articles 2315 or 2316. Plaintiff, on the other hand, offers a theory of liability premised on the allegation that the defendant Head, the lessee of Coppage, was in reality a "real estate manager" for the defendant Coppage and, as such, indemnified under the property owner's liability policy.[1] We shall address these issues separately.
Can the strict liability of the defendant-dog owner "attach" to the landlord? There is no basis in our jurisprudence which would lead us to so conclude. Our Supreme Court has interpreted the applicable Civil Code articles to mean that the liability of the animal owner is in the nature of strict liabilitythe master of the animal is presumed to be at fault. Holland v. Buckley, 305 So.2d 113 (La.1974). Liability arises solely from the legal relationship between the owner and the animal. The existence of this liability follows the animal into the custody of a third person. It is not necessary that the owner of an animal also have control or "garde" of the animal. Rozell v. Louisiana Animal Breeders Cooperative, et al., 434 So.2d 404 (La.1983).
The underlying reason for the owner's liability is that, as between him who created the risk of harm and the innocent victim thereby injured, the risk-creator should bear the loss. He maintains the animal for his own use or pleasure. Holland, supra
This reasoning alone relieves the landlord from liability to a third person for the injuries caused by his lessor's animal. The landlord obtains no profit or pleasure from the existence of the risk; in this case, the dog. While a landlord is strictly liable for injuries caused by vices or defects of the building[2], he enjoys the benefit of ownership of which this liability is a concomitant. There is no such benefit in the case of a non-owner for us to impose strict liability in the present case. To analogize the problem, where would there be equity in the imposition of strict liability upon a lessee for injuries to a third person caused by a defect in the occupied building? Barring creation of, or knowledge of the defect, which is an altogether different basis of liability, no social purpose is served, nor is there a balancing of interests. The strict liability of the animal owner under C.C. art. 2321 cannot be imputed to a non-owner.
There could, however, be a basis for a finding of negligence on the part of the landlord under Articles 2315 or 2316. The trial judge found that failure to inspect the premises for a period of 10 years was negligence, which was sufficient to hold the landlord liable. While the Civil Code states an obligation to repair and maintain leased premises, it does not require periodic inspections by the lessor. The duty is maintenance of the premises in a safe and habitable *1236 condition. We decline to create a duty to inspect, under the circumstances presented here, although it is clear that a property owner, encumbered with the strict liability of Civil Code article 2695, would exercise wise caution to conduct periodic inspections of his property.
However, the determination of whether the conduct complained of bears a causal connection in fact to the occurrence of the accident is properly made without reference to those policy considerations required when ascertaining liability by the duty-risk approach. Shelton v. Aetna Casualty and Surety Co., 334 So.2d 406 (La.1976). If the plaintiff can show that he probably would not have suffered the injury but for the defendant's conduct, he has carried his burden of proof relative to cause in fact.
We do not find that any inspection of the residence would have prevented plaintiff's injury. Had Mr. Coppage examined his property, he would have seen the animal and the enclosure built for the dog. According to the testimony, the enclosure was fence-high. The dog was kept in the enclosure when children played in the yard. There were apparently warning signs (these were originally posted to caution against dogs previously owned by the Heads, not the dog in question). Nevertheless, they were there and served to warn about this dog also.
In short, unless the dog was unusually large or displayed vicious propensities at the time of the inspection, Coppage would have seen only a family pet cared for with sufficient precautions. While such precautions do not exonerate the pet owner, they suffice to preclude a finding of negligence on the part of the lessor. There was no showing that Coppage had actual knowledge of the dog's existence, much less any dangerous tendencies. An inspection by the landlord would have revealed only the presence of the dog, and not its disposition. Thus we find that any failure to inspect on the part of Coppage was not causally related to the injury and is therefore not actionable. Shelton, supra.
Plaintiff argues most strenuously that Guaranty National Insurance Company should be held liable under the "real estate manager" clause, referred to hereinabove.
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442 So. 2d 1234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parr-v-head-lactapp-1983.