Nancy Elizabeth Bowman v. Jerry Davidson and Diana Davidson

Citation: Not availableDocket: 06-14-00094-CV

Court: Court of Appeals of Texas; May 19, 2015; Texas; State Appellate Court

Original Court Document: View Document

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Nancy Elizabeth Bowman, the Appellant, submits a Reply Brief in the case against Appellees Jerry and Diana Davidson, concerning a strict liability claim related to a dog named Bubba. The brief, filed in the Sixth Court of Appeals in Texarkana, Texas, argues that the Davidsons' uncontroverted admissions about Bubba's dangerous tendencies substantiate Bowman's claim. It outlines key components of the argument, including the evidence of the Davidsons' knowledge of Bubba's prior aggressive behavior and their warnings to others. 

Bowman contends that the lack of contradiction from the Davidsons' side supports her position, asserting that their suggestion of needing a prior incident to establish liability is incorrect. The brief emphasizes that testimony from both Bowman and the Davidsons’ friends is irrelevant to the Davidsons' awareness of Bubba's dangerous nature. The Reply Brief is organized with a preamble, summary of the argument, detailed arguments with supporting evidence, and concludes with a prayer for relief. Additionally, it includes a comprehensive index of authorities cited throughout the document.

The Davidsons argue that the trial evidence overwhelmingly supports the jury's verdict. However, their brief misapplies relevant standards and cites irrelevant evidence, failing to address their own admissions regarding their knowledge of their dog, Bubba's, dangerous tendencies prior to the incident. Even if some evidence suggests Bubba's behavior did not indicate danger, his prior biting incident and evident hostility towards strangers indicated to the Davidsons that he posed a risk. The argument contends that the evidence strongly supports holding the Davidsons strictly liable for the dog attack, warranting a reversal of the jury's verdict and a remand for damages determination.

Strict liability in this context aims to protect consumers from dangerously defective products, which parallels the responsibility of dog owners for their pets. Under Texas law, individuals who own a known vicious or inherently dangerous animal introduce an uncommon risk to the community. The Davidsons were aware that Bubba was not friendly and were therefore obligated to mitigate risk by securing him during social events. The legal standard requires proving either that the Davidsons knew of Bubba's dangerous propensities or had reasonable grounds to infer such dangers. The jury was instructed that evidence of prior aggressive behavior from Bubba was sufficient for establishing strict liability. Thus, any display of aggression that would alert a reasonable person to the risk of an attack is adequate to hold the owners liable. "Dangerous propensities" are defined as aggressive behaviors not typical for dogs.

Clear, direct, and uncontradicted testimony supports the argument for reversing the jury's verdict on strict liability. According to the Texas Supreme Court in Collora v. Navarro, a directed verdict is warranted when testimony is consistent, direct, and uncontested. Texas courts recognize that uncontroverted testimony can constitute a judicial admission, which is binding on the admitting party and alleviates the opposing party's burden of proof on that fact. Key criteria for a statement to qualify as a judicial admission include being made during a judicial proceeding, contradicting an essential fact in the case, being deliberate and clear, aligning with public policy, and not undermining the opposing party’s case.

In this case, the Davidsons' statements about their dog, Bubba, demonstrate uncontradicted knowledge of his aggressive behavior. Diana Davidson provided consistent testimony regarding Bubba's aggressive tendencies toward strangers, asserting that he was protective, possessive, and aggressive. She acknowledged her awareness of his aggression throughout his life, indicating that while she could not predict an attack, she had reason to believe it could occur. In contrast, Jerry Davidson characterized Bubba as more protective than aggressive and appreciated this trait, yet acknowledged Bubba's dislike for strangers.

Overall, the Davidsons' factual statements about Bubba's behavior serve as judicial admissions, justifying a reversal of the jury's decision on strict liability.

Danny Alexander testified that Diana could not control her dog, Bubba, when he was aggressive, suggesting that Bubba should have been confined. Bubba exhibited protective and possessive behavior toward Diana, barking and pushing others away from her, which Jerry corroborated by acknowledging Bubba’s potential aggression if he perceived Diana was threatened. The Davidsons were aware of Bubba's aggressive tendencies towards strangers and failed to discourage this behavior. Additionally, they admitted that Bubba had previously bitten a friend, Billy Strong, which caused a mark and bruise, although they referred to it as a "nip." This incident indicated Bubba's capacity to bite humans without provocation, which should have alerted the Davidsons to his dangerous propensities. The Davidsons did not provide evidence to dispute that they warned new guests about Bubba to prevent potential bites, confirming their awareness of the risk he posed. Diana acknowledged in court that the purpose of these warnings was to avoid danger.

Warnings were issued by the Davidsons regarding their dog, Bubba, specifically to prevent potential bites, based on the dog's known aggressive tendencies. Testimonies indicated that the warnings were given due to Bubba's protectiveness and dislike of strangers, which are part of his behavioral history. The Davidsons attempted to argue that the warnings were general for all their dogs, but evidence pointed out that the warnings were primarily due to Bubba's specific behavior, which was not typical for dogs. Diana Davidson acknowledged that her warnings were motivated by Bubba's aggressiveness, confirming that the intention was to avoid a bite.

Dr. Haug opined that the years of warnings about Bubba indicated the Davidsons were aware of his potential for dangerous behavior, supporting the argument for strict liability. The Davidsons countered that there were no prior incidents to indicate Bubba's dangerous propensities; however, the argument was made that a prior incident is not necessary for establishing strict liability. Instead, tendencies and behaviors alone can suffice to indicate a dog's potential for aggression. The case highlighted that even without a previous bite, the Davidsons should have recognized Bubba’s aggressive tendencies, especially following incidents like the Strong "nip."

Bubba’s previous aggressive incidents, including pushing Jerry away from Diana and his behavior towards strangers, indicated to the Davidsons that he could be dangerous if a stranger got too close to Diana. The Davidsons’ reliance on testimony from Bowman and their friends regarding Bubba's behavior is flawed, as it does not reflect what the Davidsons knew about his tendencies. Testimony suggests that dogs behave differently with familiar individuals compared to strangers, and the Davidsons acknowledged Bubba's issues specifically with strangers. Their friends' positive remarks about Bubba don’t counter the Davidsons’ own admissions of his past behavior. Furthermore, their friends, while generally supportive, expressed concerns about Bubba's potential danger. Anitta Scott, a neighbor, takes precautions around Bubba, and Strong, a longtime friend, acknowledged his belief that Bubba could be dangerous and had previously shown concerning behavior. Danny Alexander also confirmed that the dog retained its aggressive nature even in the absence of Ms. Davidson, suggesting that Bubba should have been secured when she was not present. The testimony indicates that even the Davidsons' close friends recognized Bubba's volatile nature, contradicting the image the Davidsons attempted to convey.

The Davidsons misinterpret Dr. Haug’s testimony to argue that their dog, Bubba, lacked dangerous tendencies and that they were unaware of any risks. However, Dr. Haug indicated that based on the Davidsons’ own deposition, they had sufficient knowledge to anticipate potential harm, evidenced by their long-standing warnings to visitors. Normal dog owners do not feel the need to warn guests about their pets, and the Davidsons’ actions—such as putting Bubba away when children visited—suggest they were aware of possible dangers. While the Davidsons assert that Dr. Haug acknowledged nipping as typical behavior for herding dogs, she clarified that Blue heelers are bred for herding cattle, not people, and can differentiate between the two. The Davidsons claim Dr. Haug only indicated a possibility of harm, but her testimony actually supports the argument that they recognized the risk of something bad occurring, even if they did not predict the severity of a bite. The distinction between negligence and strict liability is crucial; the jury was tasked with determining whether the Davidsons knew or should have known about Bubba’s dangerous tendencies, rather than whether a severe bite was foreseeable. The strict liability standard does not require a reasonable probability of a bite but focuses on the owner’s knowledge of their pet’s behavior. The responsibility lies with the pet owner to manage potentially dangerous animals, not with guests. Consequently, the Davidsons did not provide sufficient evidence to counter their own admissions, which justifies the reversal of the jury’s verdict in favor of Bowman on the strict liability claim.

The jury was tasked with determining whether the Davidsons were aware or had reason to believe that their dog, Bubba, possessed dangerous tendencies atypical of dogs. The Davidsons had warned guests to avoid Bubba, which suggests they recognized potential risks associated with the dog's behavior. This warning serves as an implicit acknowledgment of the dog's dangerous propensities, thereby supporting a claim for strict liability. The evidence overwhelmingly favors a finding of strict liability against the Davidsons, entitling Bowman to a reversal of the jury's verdict on this matter. Bowman requests that the court either reverse the judgment regarding the Davidsons’ liability and remand for a damages assessment or, alternatively, remand for a new trial if necessary, along with any other appropriate legal relief. 

The document concludes with a certification of compliance regarding word count and a certificate of service confirming that the Reply Brief has been sent to the opposing counsel. The case is identified as Case No. 06-14-00094-CV, with Bowman as the appellant against the Davidsons as appellees in the Sixth Court of Appeals in Texarkana, Texas.

The document records a deposition involving a plaintiff who describes an incident where a dog named Bubba nipped them on the back of the leg while they were carrying a bag of tools. The plaintiff confirms that the nip did not break the skin but left a bruise, and they did not seek medical attention. They recall that Diana, presumably the dog's owner, reacted by scolding Bubba after the incident. The plaintiff had no prior knowledge of Bubba exhibiting aggressive behavior or biting anyone before this event. Additionally, the plaintiff believes Bubba could be considered a dangerous dog, acknowledging that he had bitten them. The deposition is signed electronically by Terri Lynn Smith and includes contact information for the involved attorneys.

Concerns were raised regarding a dog named Bubba's behavior, specifically his tendency to nip, which had previously occurred about a year prior to another incident. The witness confirmed that the nipping incident was the only significant concern, and no further incidents had occurred during that time. The witness also noted that Diana, presumably a caretaker, had not expressed any increased concern after the nipping incident. Bubba responds to commands from both Diana and Jerry, although the witness could not determine if he responded more to one than the other. The document includes a certification of a deposition taken on November 18, 2012, by Terri Lynn Smith, indicating that the testimony was recorded and that the witness waived his right to sign the transcript. The deposition charges and the parties involved in the case are also detailed, confirming that the certifying officer is impartial and not connected to any party involved in the legal action.

The document outlines the details of an oral and videotaped deposition of Danny Alexander, conducted on November 19, 2013, in a legal case (Cause No. 13-0618) involving plaintiff Nancy Elizabeth Bowman's claims against defendants Jerry Davidson and Diana Davidson in the 71st Judicial District of Harrison County, Texas. The deposition occurred from 3:05 p.m. to 3:49 p.m., facilitated by court reporter Terri Lynn Smith, and took place at the office of Mr. Jack Sanders in Marshall, Texas.

Representatives for both parties are listed, with Mr. Jack Sanders, Jr. serving as counsel for the plaintiff and Mr. Alan E. Brown for the defendants. The presence of a videographer and additional parties, including Ms. Nancy Elizabeth Bowman, is noted.

During the deposition, Danny Alexander was questioned primarily by Mr. Brown, with Mr. Sanders also conducting examinations. Key discussion points included the behavior of a dog owned by the Davison family, particularly its aggressive nature when the owner, Mrs. Davidson, is not present. Alexander agreed that the dog should be secured when not directly supervised to prevent potential aggression towards strangers.

Exhibits referenced include printed copies or photographs relevant to the case, and the deposition concluded with Mr. Sanders passing the witness after his examination. The report includes a notation on the use of quotation marks for clarification purposes.

Danny Alexander acknowledged that while he initially thought it was unnecessary to put a particular dog up that night, he reconsidered due to the dog's previous aggressive behavior towards another individual, Billy. He expressed concern that, with a new person present, the dog might bite. Alexander confirmed that he did not communicate any concerns to his associates, Dianna or Jerry, regarding the necessity of putting the dog up. The deposition was officially recorded by Terri Lynn Smith, a Certified Shorthand Reporter, on November 19, 2013, and includes certifications of the witnesses' testimony and time spent by each attorney during the deposition. Smith confirmed her neutrality in the case and outlined the process for returning the deposition transcript.