HOUSTON – A Texas appeals court has upheld a trial court’s dismissal of a negligence and strict liability case surrounding the gruesome mauling and death of an in-home caregiver by feral hogs on her patients’ property, finding that submitted evidence didn’t show that dogs on the premises attacked the decedent first.
On Aug. 13, Fourteenth Court of Appeals justices Ken Wise, Jerry Zimmerer and Margaret Poissant unanimously upheld the 344th District Court of Chambers County, Texas’s ruling, in the case of Lasonthia Sandles (Individually and as the Personal Representative of the Estate of Christine Rollins) versus Deanna Louise Laskoskie (as Administrator of the Estates Of George Delbert Laskoskie Sr. and Louise Clymer Laskoskie).
Wise wrote the Court’s opinion in this action.
“Rollins was an in-home care giver for George and Louise. She worked daily at the home for about two years. One day she arrived at George and Louise’s home and upon exiting her car, she was attacked by an animal or animals. Rollins suffered a fatal injury during the attack and died. It is undisputed by the parties that feral hogs fed on Rollins’s body and mutilated her legs and much of her body. There were no witnesses to the attack. George discovered Rollins’s body outside of the home in the general area of the front lawn and the driveway. Rollins’s daughter, Sandles, filed a suit against the property owners, George and Louise alleging strict liability, negligent handling and premises liability. In her original petition, Sandles alleged that wild feral hogs attacked Rollins, knocked her to the ground and killed her. After appellee filed a motion for summary judgment arguing that the doctrine of ferae naturae barred Sandles’s claims, Sandles amended her petition to allege that George and Louise’s Labrador, Lucky and possibly four other smaller dogs, attacked Rollins when she arrived at the house that morning. Sandles alleged that the dog or dogs knocked Rollins to the ground and, as a result, Rollins was either killed or severely injured. Sandles then alleged that while Rollins was on the ground that feral hogs fed on her body. Sandles retained the same causes of action in the amended petition – strict liability, negligent handling, and premises liability,” Wise said.
“Appellee then filed an amended motion for summary judgment and a no evidence motion for summary judgment. In the no evidence summary judgment motion, appellee attacked every element of Rollins’s claims and argued that there was no evidence to support them. In her response, Sandles attached the sheriff’s records of the investigation and the opinion of her expert. The sheriff’s records include written reports from officers that were on the scene the day of the attack, written opinions from wildlife specialists opining on the cause of the extensive wounds to Rollins’s body, the medical examiner’s autopsy report and photographs from Rollins’s autopsy. Prior to the hearing, appellee filed a ‘Supplemental Reply’ to address issues with Sandles’s summary judgment evidence. Regarding the expert report, appellee argued that the report is speculative and conclusory, the expert is not qualified to opine about Rollins’s cause of death, Sandles failed to designate the expert timely, and that the expert’s opinions are not clear, positive, direct or reliable. Appellee argued that the expert’s methodology for determining that two of the bites were purportedly from the Labrador, Lucky, instead of from a hog was ‘unscientific’ because she based her conclusion on her review of images of Lucky and measuring her own rottweilers’ bite widths.”
Wise recounted that at the hearing on appellee’s motion for traditional and no evidence summary judgment, the trial court listened to arguments from counsel regarding the expert report.
Ultimately, the trial court judge concluded at the hearing that it “made a reading of [the expert report] and has a question about whether that would even be admissible, and therefore, I guess, I didn’t consider [the] expert’s testimony in making my ruling, even though you presented it.”
The trial court rendered a final judgment granting the no evidence motion for summary judgment on all of Sandles’s claims, leading her to appeal.
The Fourteenth Court of Appeals began its analysis by examining Sandles’s expert report, which postulated that upon her arrival to the home, Rollins was “startled by a pack of dogs coming at her as she walked around her car, on her way to the front door of the house, and she dropped her personal items and tried to run.”
The report said that this action “would only serve to add to the dogs’ excitement and frenzy in the dawn twilight…as she attempted to get to the front door, she was knocked down by the dogs, by their biting at her legs and/or jumping up on her. Being in a prone position would certainly account for the shoulder bite.”
The report continued that “for some unknown reason, the dogs left the body and the feral pigs approached…swine are known to have an excellent sense of smell, and the combination of a prone animal (food) and the smell of blood (food) would be attractive…[and] that any wounds on the legs committed by the dog(s) would have been obliterated by the foraging pigs.”
However, Wise found this report speculative, and lacking in concrete proof that the events actually took place as posited by the expert’s report.
“The expert report contends that ‘fatal attacks by packs of dogs are not uncommon…and share several common elements’ such as (1) the attack will occur on or nearby the dogs’ property; (2) the dogs are outside dogs; (3) the dogs are unsupervised and allowed to roam freely; (4) the dogs work as predatory unit; (5) the dogs have a prior history of aggression; (6) the dogs will attack even if not hungry or for nutrition. We agree with appellee that these statements are conclusory. The expert did not provide any basis for these statements and did not cite to any research to support her statement other than from her ‘bibliography for supporting research studies’ – a list of 15 articles that were not attached to the report. The expert did not summarize the contents of these articles, provide the articles, or cite to any studies supporting her statements. In short, the expert provided a blanket statement of what she alleges is ‘common’ in dog attacks without showing her work,” Wise said.
“Similarly, the expert summarily concludes that the bite on the buttocks is noteworthy because dogs ‘biting at the legs and buttocks is a common tactic’ and ‘shedding and removal of clothing, including shoes, is common in fatal dog pack attacks.’ These statements, without more, are also conclusory. The expert does not state what facts she relies on to come to these conclusions, the observations she has personally made in her training and experience with dogs, or what studies she has reviewed or completed to show the frequency with which such behavior occurs in fatal dog pack attacks on persons. The expert identified two wounds that appeared to be ‘dog-like,’ one on the shoulder and the other on the buttocks. These bite marks are smaller than the other bite marks measured on Rollins’s body, measuring approximately 2.86 and 3.0 centimeters. The other reports also noted these smaller bite markings but concluded they were those of smaller or young wild hogs. The expert’s conclusion that these bite marks are ‘dog-like’ based on their apparent size is conclusory. Setting aside the questionable methodology the expert used to arrive at Lucky’s apparent ‘intercanine width,’ there is no analysis of the possible differences between these smaller bite marks that are ‘dog-like’ and the other bite markings indisputably made by feral hogs.”
Wise added that “even assuming the expert is qualified in dog bite investigations and dog behavior, because her testimony lacks objective, evidence-based support for its conclusions, it is legally insufficient to support the causation element of Sandles’s claims.”
As to Sandles’s strict liability, negligent handling and premises liability claims, Wise found that the trial court properly dismissed them, due to there being “not more than a scintilla of evidence supporting the element of causation for any of Sandles’s claims.”
Wise found previous reports of aggressive behavior from the appellees’ Labrador dog, Lucky, and Rollins’ fear of him – so much so that she was looking for alternate employment – not germane to the burden of proof placed upon the appellant.
“There is abundant evidence that wild hogs caused Rollins’s injuries. There are bite marks and tusk marks all over her body. Whereas the only evidence directly tying any of the dogs to the attack is the blood on a small dog’s nose, and that the dogs were around Rollins’s body when George discovered her. When George discovered Rollins’s body, she was already deceased. It is not reasonable to infer that a small amount of blood on a dog’s nose and the dogs standing around Rollins’s body, without more, means that those same dogs caused Rollins’s death. The circumstantial evidence pointed to also does not support a reasonable inference that the dogs were involved in the attack. That Lucky had previously bitten another individual on the property and that George would lock him up whenever there were visitors may support an inference that Lucky has dangerous propensities, but does not support an inference that Lucky attacked Rollins on the morning of her death,” Wise stated.
“Dogs barking at an unknown police officer entering their property is not unusual or even indicative that the dogs were involved in the attack. The fact that an unprovoked attack by a feral hog is extremely rare does not mean such an attack did not occur here, particularly considering all of the evidence of a wild hog attack. That Lucky had previously attacked a contractor on the property and that Rollins was scared of Lucky, thought George did not have control over Lucky, and that she was looking for another job also does not support a reasonable inference that Lucky attacked Rollins on the morning of her death. Because there is no evidence that the dogs were a cause in fact of Rollins’s death, we overrule Sandles’s issues on appeal. Having concluded the trial court properly granted summary judgment on all Sandles’s claims, we affirm the judgment of the trial court.”
Fourteenth Court of Appeals for the State of Texas case 14-22-00879-CV
344th District Court, Chambers County, Texas case 20-DCV0416
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com