Thibodeaux v. Krouse

991 So. 2d 1126, 2008 WL 2329740
CourtLouisiana Court of Appeal
DecidedJune 6, 2008
Docket2007 CA 2557
StatusPublished
Cited by13 cases

This text of 991 So. 2d 1126 (Thibodeaux v. Krouse) 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
Thibodeaux v. Krouse, 991 So. 2d 1126, 2008 WL 2329740 (La. Ct. App. 2008).

Opinion

991 So.2d 1126 (2008)

Whitni THIBODEAUX
v.
Gary KROUSE and Shelter Mutual Insurance Company.

No. 2007 CA 2557.

Court of Appeal of Louisiana, First Circuit.

June 6, 2008.

*1127 Mark D. Plaisance, Baker, LA, for Plaintiff/Appellee, Whitni Thibodeaux.

Brent E. Kinchen, Eric M. Barrilleaux, Baton Rouge, LA, for Defendants/Appellants, Gary Krouse and Shelter Mutual Insurance Company.

Before WHIPPLE, GUIDRY, and HUGHES, JJ.

GUIDRY, J.

A dog owner appeals a judgment in favor of a worker who was bitten by the family dog while performing work at the dog owner's home.

FACTS AND PROCEDURAL HISTORY

Sometime in late March or early April 2005, Gary Krouse contacted a company called Alumashield to construct a metal structure in his backyard to cover a recreational vehicle (RV). Alumashield, in turn, subcontracted the work to Arnold Enterprises, a company owned by Norman Arnold. On Friday, April 8, 2005, Mr. Arnold and a crew of workers that included his sister, Whitni Thibodeaux, began constructing a metal RV cover in Mr. Krouse's backyard. On that first day of construction, the workers set the poles for the frame of the RV cover in concrete and let the concrete solidify. A week later on the following Friday, the workers returned to put on the roof and began attaching walls to the structure. The next day, Saturday, April 16, 2005, the workers completed the structure.

The backyard where Mr. Krouse had the RV cover constructed was completely enclosed by fencing, consisting of chain link around one half of the yard and wood privacy fencing around the other half of the yard. The entrance gate to the fenced-in area was also composed of wood fencing. It was within the fenced backyard that Mr. Krouse kept the family pet, a dog named Jack.

On Saturday, April 16, 2005, the workers' last day of work, Ms. Thibodeaux arrived at the Krouse residence shortly after seven o'clock in the morning to help complete the work on the RV cover. On arriving at the house, Ms. Thibodeaux and another crew member, who was waiting in his vehicle in front of the Krouse residence when Ms. Thibodeaux arrived, walked straight to the backyard to begin work and found the gate to the backyard closed. Ms. Thibodeaux was bitten on the wrist by Jack, who was roaming free in the backyard, when she either opened the gate or *1128 entered the backyard. Mr. and Mrs. Krouse helped to clean and dress Ms. Thibodeaux's wounded wrist, and later they brought her to the Lake After Hours Clinic to receive further medical treatment.

As a consequence of the injury sustained, Ms. Thibodeaux filed a petition for damages against Mr. Krouse and his homeowner's insurer, Shelter Mutual Insurance Company (Defendants). The defendants denied all liability, and the matter proceeded to trial. Following a bench trial on the merits, the trial court rendered judgment in favor of Ms. Thibodeaux finding the defendants liable. The trial court found Ms. Thibodeaux to be comparatively at fault in causing her injuries and apportioned 20 percent fault to her and 80 percent fault to Mr. Krouse. The trial court also awarded Ms. Thibodeaux medical specials, subject to a credit for amounts already paid by the defendants, and $40,000.00 in general damages. The defendants suspensively appealed the judgment of the trial court.

ASSIGNMENTS OF ERROR

Appellants seek review of the trial court's judgment relative to the following alleged errors:

I. The trial court committed legal error in failing to require the Plaintiff to prove that Mr. Krouse's dog, enclosed within a secure fence, posed an unreasonable risk of harm to the Plaintiff.
II. The trial court erred in finding that the Plaintiff carried her burden of proving that Mr. Krouse's conduct was negligent under LSA-C.C. art. 2321.
III. The trial court erred in awarding Plaintiff forty thousand dollars ($40,000.00) in general damages given the medical evidence contained in the record and the lack of credibility with regard to the Plaintiff's testimony.

DISCUSSION

In their first assignment of error, defendants contend that the trial court erred in finding that the plaintiff established that Jack posed an unreasonable risk of harm. The law governing claims for damages caused by animals is La. C.C. art. 2321, which provides:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal's behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person's provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. [Emphasis added.]

In addressing the requirements of establishing liability under this article, the Louisiana Supreme Court in Pepper v. Triplet, 03-0619, pp. 1-2 (La.1/21/04), 864 So.2d 181, 184, held:

[T]o establish a claim in strict liability against a dog owner under La. Civ.Code art. 2321 as amended in 1996, the plaintiff must prove that his person or property was damaged by the owner's dog, that the injuries could have been prevented by the owner, and that the injuries did not result from the injured person's provocation of the dog. We hold that, to establish that the owner could *1129 have prevented the injuries under Article 2321, the plaintiff must show the dog presented an unreasonable risk of harm.

The criterion for determining whether a defendant has created or maintained an unreasonable risk of harm is a balancing of claims and interest, a weighing of the risk and gravity of harm, and a consideration of individual and societal rights and obligations. Pepper, 03-0619 at 21, 864 So.2d at 195-196. In deciding whether a risk is unreasonable, a judge is called upon to decide questions of social utility that require him to consider the particular case in terms of moral, social and economic considerations, in the same way that the legislator finds the standards or patterns of utility and morals in the life of the community. Pepper, 03-0619 at 21, 864 So.2d at 196.

In the Pepper case, which involved a man entering his neighbor's fenced backyard where the neighbor's dog was allowed to roam free, the Court found that "until the plaintiff intentionally and knowingly entered the defendant's backyard without authority, the defendant's dog did not present an unreasonable risk of harm to the plaintiff or the public." Pepper, 03-0619 at 24, 864 So.2d at 197 (emphasis added). In that case, the Court found that the plaintiffs act of entering the neighbor's yard without the neighbors' permission and while the neighbors were away from home amounted to an act of civil trespass, defined as "the unlawful physical invasion of the property or possession of another." Moreover, the plaintiff could be considered a "trespasser," defined as "one who goes upon the property of another without the other's consent." Pepper, 03-0619 at 23, 864 So.2d at 197.

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Cite This Page — Counsel Stack

Bluebook (online)
991 So. 2d 1126, 2008 WL 2329740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibodeaux-v-krouse-lactapp-2008.