Vernon J. Tatum, Jr. v. William Peoples and Catina Peoples and Xyz Insurance Companies

• Court: Louisiana Court of Appeal
• Decided: August 19, 2024
• Docket: 2023-CA-0807
• Status: Published

Opinion

VERNON J. TATUM, JR. * NO. 2023-CA-0807

VERSUS * COURT OF APPEAL WILLIAM PEOPLES AND * CATINA PEOPLES AND XYZ FOURTH CIRCUIT INSURANCE COMPANIES * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-07658, DIVISION “N-8” Honorable Ethel Simms Julien, Judge ****** Judge Rachael D. Johnson ****** (Court composed of Chief Judge Terri F. Love, Judge Rachael D. Johnson, Judge Nakisha Ervin-Knott)

LOVE, C. J., CONCURS IN PART AND DISSENTS IN PART.

Vernon J. Tatum, Jr. 4450 Franklin Avenue Apartment 3 New Orleans, LA 70122

COUNSEL FOR PLAINTIFF/APPELLANT

Timothy G. Schafer SCHAFER & SCHAFER 328 Lafayette Street New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED; MOTION TO STRIKE GRANTED August 19, 2024 RDJ This appeal concerns a dog bite case wherein the court granted a motion for NEK summary judgment. Pro se appellant, Vernon J. Tatum, Jr. (“Mr. Tatum”), seeks

review of the district court’s October 12, 2023 judgment granting summary

judgment in favor of appellees William Peoples (“William”), Catina Peoples

(“Catina”), and XYZ Insurance Co. The district court granted William and Catina

Peoples’ (collectively referred to as “The Peoples”) motion for summary judgment

because Mr. Tatum failed to meet his burden of proof. For the following reasons,

we affirm the district court’s judgment.

FACTS AND PROCEDURAL HISTORY

On September 13, 2019, Mr. Tatum was walking near Demontluzin Street

and Gentilly Boulevard. While walking on the sidewalk in front of 3727 Gentilly

Boulevard, (“the Peoples’ residence”), Mr. Tatum was attacked and bitten on his

lower left leg by the Peoples’ dog. Shortly after the incident, the dog returned to an

unlocked gate at 3727 Gentilly Blvd. Mr. Tatum approached the home to notify the

residents of his injuries. He was greeted by Catina and was treated for his wounds

with hydrogen peroxide. On September 11, 2020, Mr. Tatum filed suit against the

Peoples for personal injuries.

1 On October 25, 2022, the Peoples filed a motion for summary judgment,

alleging that they are not liable to Mr. Tatum because he cannot meet his burden of

proof pursuant to La. C.C. art. 2321. On December 1, 2022, Mr. Tatum filed a

motion to continue the motion for summary judgment hearing and a motion to

compel a response to his request for production of documents and interrogatories.

On December 16, 2022, the district court granted Mr. Tatum’s motion to continue

and ordered the parties to select discovery deadlines. The court set the deadline for

discovery as May 31, 2023. After the discovery deadline had passed, the Peoples

filed two motions to reset the hearing for their motion for summary judgment. The

hearing for the Peoples’ motion for summary judgment was reset for September

22, 2023. On October 12, 2023, the district court granted the Peoples’ motion for

summary judgment, finding that Mr. Tatum was unable to establish that the

Peoples knew, or should have known, that their dog had a propensity to bite. This

timely appeal followed.

After review of Mr. Tatum’s brief, we deduce that his sole assignment of

error is that the trial court erred in granting the Peoples’ motion for summary

judgment.

STANDARD OF REVIEW

The appellate standard of review on a motion for summary judgment is a de

novo standard. Guilbeaux v. Lupo Enter., L.L.C., 21-0053, p. 4 (La. App. 4 Cir.

5/19/21), 321 So. 3d 447, 451. The Court in Guilbeaux stated:

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions,

2 answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.

Id. at pp. 4-5, 321 So. 3d 447, 451–52 (quoting Chatelain v. Fluor Daniel Const.

Co., 14-1312, p. 3 (La. App. 4 Cir. 11/10/15), 179 So. 3d 791, 793).

DISCUSSION

Motion to Strike

The Peoples assert that Mr. Tatum’s Appellant brief violates Rule 2-12.4 of

the Uniform Rules of Louisiana Courts of Appeal for various reasons. However,

we note that Mr. Tatum is over seventy years old and is appearing pro se.

Accordingly, this Court, in the interest of justice, shall exercise its judicial

discretion and consider Mr. Tatum’s Appellant brief. See Bank of Am., N.A. as Tr.

for Structured Asset Inv. Loan Tr., Mortg. Pass-Through Certificates, Series 2004-

4 v. Conerly, 23-0706, pp. 10-11 (La. App. 4 Cir. 5/10/24), ___ So. 3d ___, ___

2024 WL 2104505, at *5.

Before addressing Mr. Tatum’s argument, the Peoples request that Mr.

Tatum’s brief be stricken from the public domain because it violates Rule 2-

3 12.2(B) of the Uniform Rules of Louisiana Courts of Appeal. Rule 2-12.2(B) states

the following:

The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Subsection shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.

We agree. Mr. Tatum frequently uses insulting and slanderous language about the

district court judge presiding over his case, the attorney representing the Peoples,

and the court reporter. To remedy this, we will strike the portions of Mr. Tatum’s

brief that include the insulting language.1 See Trombettas v. Williams, 23-0250, pp.

16-18 (La. App. 1 Cir. 9/15/23), 372 So. 3d 360, 371-72. This language violates

Rule 2-12.2(B) of the Uniform Rules of Louisiana Courts of Appeal, and as such,

those portions of Mr. Tatum’s brief shall be stricken from the public domain. The

electronic and hard copy of Mr. Tatum’s brief shall reflect the redacted changes as

part of this Court’s record.

Motion for Summary Judgment

Mr. Tatum argues that the trial court erred in granting summary judgment

because the Peoples housing a German Shepherd behind an unsecured yard gate

was highly unreasonable. Thus, the Peoples are responsible for the injuries

1 The portions that relate to or include this language are on page 2, paragraph D; pages 3-4,

paragraph O; Page 4, paragraphs P and Q; pages 4-5, paragraph R; and page 5, Paragraph U and Section III titled “Conclusion”.

4 imposed by their dog. La. C.C. art. 2321(A) and (B)2 outlines the standard for

damage caused by animals as the following:

(A) The owner of an animal, including livestock, is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that the owner 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. (B) 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.

In order to establish strict liability and that the dog owner could have prevented

injuries to the plaintiff, the plaintiff must “show that the risk of injury outweighed

the dog's utility such that it posed an unreasonable risk of harm.” Pepper v. Triplet,

03-0619, p. 19 (La. 1/21/04), 864 So. 2d 181, 194. The Court in Pepper v. Triplet

further explained the unreasonable risk of harm standard by stating:

If the animal posed an unreasonable risk of harm, then the owner will be presumed to be at fault, because he failed to prevent an injury he could have prevented, and he will be held strictly liable for an injury caused by his dog, unless he can show that the injury was due solely to the fault of a third party unattributable to him or to a fortuitous event, or, as Article 2321 now provides, the plaintiff fails to establish that the injuries did not result from the injured person's provocation of the dog. Id. Further, the unreasonable risk of harm requirement is viewed as “a limitation …

upon the reach of strict liability, so the owner of an animal is not required to insure

against all risk or loss.” Id. at p. 20, 864 So. 2d at 195.

2 On May 23, 2024, the Legislature of Louisiana amended and reenacted Civil Code Article 2321

to include liability for damages caused by livestock.

5 If the plaintiff fails to establish that the defendant’s dog posed an

unreasonable risk of harm, the plaintiff can instead apply a negligence standard. Id.

at p. 26, 864 So. 2d at 198-199. To establish negligence, a traditional duty/risk

analysis is used, and the plaintiff must prove five elements. Id. at p. 27, 864 So. 2d

at 199. The five separate elements are the following:

(1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element). Id. (quoting Davis v. Witt, 02-3102, 02-3110, p. 11 (La. 7/2/03), 851 So. 2d 1119,

1127).

Mr. Tatum argues that the Peoples repairing the yard fence after the incident

occurred is evidence of a defect in their previous fence. Mr. Tatum further argues

that the Peoples’ dog is a German Shepherd and that they are seen as one of the

most aggressive dog breeds.3 Mr. Tatum concludes that because the German

Shepherd is one of the most aggressive dog breeds, along with the defect in the

fence at the time of the incident, the Peoples created an unreasonable risk of harm.

After reviewing the record, we find that this assignment of error is without merit.

Mr. Tatum’s assertion that the repaired yard fence is evidence of a defect in

the Peoples’ fence at the time of the incident is unpersuasive. According to La.

3 Mr. Tatum relies on an advice article posted on Goldberg & Loren law firm’s website for this

claim, in which German Shepherds, along with Rottweilers and Pit Bulls, account for nearly 75% of all bites reported in the United States each year. Notably, Goldberg & Loren do not practice in Louisiana.

6 C.E. art. 407, “when, after an event, measures are taken which, if taken previously,

would have made the event less likely to occur, evidence of the subsequent

measures is not admissible to prove negligence or culpable conduct in connection

with the event.” Based on La. C.E. art. 407, the Peoples repairing their fence after

the incident cannot be used as evidence to show that they created an unreasonable

risk of harm.

A particular dog breed being seen as “aggressive” is not a factor that is

considered when evaluating whether a dog owner created an unreasonable risk of

harm. Past cases, instead, considered factors such as whether the dog owner

could’ve prevented the injury, whether the dog was restrained or completely

enclosed in the property, whether the dog was provoked, and whether the dog

aggressively approached strangers or showed aggressive tendencies to strangers in

the past. See Becker v. Keasler, 05-1479, pp. 6-7 (La. App. 4 Cir. 1/17/07), 950 So.

2d 92, 95-96. In the case sub judice, Mr. Tatum failed to point to any of these

factors in his brief or during the September 22, 2023 hearing for the Peoples’

motion for summary judgment. Mr. Tatum himself admitted that the dog has never

shown aggressive tendencies in the past when he walked in front of the Peoples’

yard. During the September 22, 2023 hearing, Mr. Tatum stated “I've never heard

the dog bark. Matter of fact, I didn't even know there was a dog on the property.

‘Cause I had walked in front of this property numerous amount of times from

where I lived at going to the Wal-Mart store.” In their affidavit, the Peoples attest

that their dog has no history of aggression, doesn’t regularly bark at people, has

never bitten anyone before, and has shown to be docile by playing with the

Peoples’ kids and their friends in the past. The Peoples had no reason to believe

7 that their dog would bite anyone, and Mr. Tatum did not introduce evidence to the

contrary.

We note that a review of the record reveals that Mr. Tatum did not file an

opposition to the motion for summary judgment. Instead, he filed a motion to

compel discovery and argued that the Peoples were not entitled to summary

judgment because they had failed to comply with the discovery rules. At the

hearing on the motion, Mr. Tatum admitted that he had been mistaken and had, in

fact, received the requested discovery responses. Despite this, he still failed to file

a formal opposition to the Peoples’ motion for summary judgment. We

acknowledge that Mr. Tatum is representing himself and may not have formal

knowledge of the law. Pro se plaintiffs are generally given more latitude than those

represented by counsel. In re Medical Review Panel Claim of Scott, 16-0145, pp.

14-15 (La. App. 4 Cir. 12/14/16), 206 So. 3d 1049, 1058. However, “a pro se

litigant assumes responsibility for [his] lack of knowledge of the law” and must

still meet the requisite burden of proof in his case. Id. at p. 15, 206 So. 3d at 1058.

To support their motion, the Peoples’ attached their affidavits attesting that

their dog did not have a history of aggression and Mr. Tatum’s deposition wherein

he admits he didn’t know whether the dog had a history of aggression. As such, the

Peoples’ met their requisite burden of proof, and the burden shifted to Mr. Tatum

to show that a genuine issue remained.

As we explained In the Matter of Sherman, “the trial court must grant a

motion for summary judgment if, after the parties had an opportunity for adequate

discovery, the mover proves that there are no genuine issues of material fact to be

resolved.” 24-0010, p. 2 (La. App. 4 Cir. 5/08/24), __ So. 3d ___, ___, 2024 WL

8 2044800 (citing La. C.C.P. art. 966(A)(3)). Furthermore, “[i]f the mover meets his

burden, then the burden shifts to the non-moving party to bring forth evidence

showing that a genuine issue of material fact remains.” Id. (citing La. C.C.P. art.

966(D)(1); Babin v. Winn-Dixie Louisiana, Inc., 00-0078, p. 4 (La. 6/30/00), 764

So. 2d 37, 39-40). However, “[i]f the non-moving party fails to produce evidence

of such, the court is required to grant summary judgment.” Id. at p. 3, __ So. 3d

at___, 2024 WL 2044800 (citations omitted) (emphasis added). In reaching its

determination “[t]he trial court can only consider the documents filed in support or

opposition to the motion for summary judgment. Id. (citing La. C.C.P. art.

966(D)(2)). In this case, Mr. Tatum did not file an opposition nor submit evidence

to oppose the Peoples’ summary judgment motion, even after being given the

chance to conduct discovery. The only evidence the trial court had to consider

were the uncontested affidavits and deposition attached to the Peoples’ motion for

summary judgment. As Mr. Tatum had failed to meet his burden, the trial court

properly granted the motion for summary judgment.

Mr. Tatum failed to establish that the Peoples created an unreasonable risk

of harm or that the Peoples were negligent for the dog bite. As a result, there was

no genuine issue of material fact, and we find that the district court did not err in

granting the Peoples’ motion for summary judgment.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed. The

Peoples’ motion to strike Mr. Tatum’s Appellant brief is granted as to paragraphs

D, O, P, Q, R, U, and Section III titled “Conclusion”. The electronic and hard copy

9 of Mr. Tatum’s brief shall reflect the redacted changes as part of this Court’s

record.

AFFIRMED; MOTION TO STRIKE GRANTED