Turner v. Duggin

532 S.W.3d 473
CourtCourt of Appeals of Texas
DecidedMarch 31, 2017
DocketNo. 06-16-00046-CV
StatusPublished
Cited by10 cases

This text of 532 S.W.3d 473 (Turner v. Duggin) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turner v. Duggin, 532 S.W.3d 473 (Tex. Ct. App. 2017).

Opinion

OPINION

Opinion by

Justice Moseley

Oscar was an eleven-year-old blue heeler mix canine owned by Timothy Ray Turner áñd 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 ' teenaged 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,1 the Turners question whether the evidence was legally and factually sufficient to support (1) the jury’s award of [478]*478$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.2

1. Standard of Review

In determining legal sufficiency, the appellate court examines “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In looking at the evidence, we credit favorable evidence if a reasonable jury could and disregard contrary evidence unless a reasonable jury could not. Id. The evidence is legally insufficient if

(1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.

Chesser v. LifeCare Mgmt. Servs., L.L.C., 356 S.W.3d 613, 618-19 (Tex. App.—Fort Worth 2011, pet. denied) (citing Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998)); see Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010).

More than a scintilla of evidence exists when the evidence reaches a level enabling reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Hamer, 953 S.W.2d 706, 711 (Tex. 1997). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

When reviewing a jury verdict for factual sufficiency of the evidence, we consider and weigh all the evidence and only set aside the verdict if “we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered.” Chesser, 356 S.W.3d at 619 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)); see Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

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 [479]*479Oscar 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.

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532 S.W.3d 473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-duggin-texapp-2017.