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Torts No. 01-02-00543-CV, 4/24/2003. Click here for the full text of this decision FACTS: The appellant, Dinesh Batra, appeals a verdict finding him negligent and awarding damages to appellee, Tammy Clark, individually and as next friend of Clarissa Ewell. Ewell, a 9-year-old girl, was attacked by a pit bull at a house located in Baytown. Batra was the owner and landlord of the rental house, and Martha Torres was the tenant. The pit bull belonged to Torres’ son, who was not a resident of the rental property, but Torres sometimes kept the dog at the house. The lease agreement signed by Batra and Torres contained a clause prohibiting pets on the premises of the rental property without the written consent of Batra. The clause also provided that Batra could remove any unauthorized animal and give custody of the animal to local authorities. Ewell went over to the Torres’ house to play with Torres’ daughter, Georgina. The house was surrounded by a fence, with gate openings in the front and on the back side. Although the dog was typically chained on the side of the house, it was not chained on the day Ewell was attacked. As Ewell stood on the sidewalk outside the fence of the Torres’ house, she was told by Georgina to “agitate” the dog to distract it so that Georgina could leave the house and exit through the gate at the back side of the house. Ewell distracted the dog by running back and forth up and down the fence line. The dog broke through the fence and attacked Ewell, biting her numerous times on the legs. Ewell required medical treatment and stitches as a result of the attack. Clark sued Batra and Torres for negligence. During trial, Batra moved for a directed verdict, arguing that he owed no duty to Ewell because he was an out-of-possession landlord who had no control over the dog or the rental property. After a bench trial, the trial court found Batra and Torres each 50 percent liable for Ewell’s injuries. Batra moved for a new trial under the same grounds as his motion for directed verdict. HOLDING: The court reverses that portion of the judgment allocating 50 percent of the liability for the damages to Batra and order that Clark take nothing from Batra. Batra contends that the trial court erred by overruling his motion for directed verdict and motion for new trial because he did not owe a duty to Ewell. Batra argues that, as an out-of-possession landlord who allegedly did not retain any control of the premises, he had no duty to exercise reasonable care to prevent the attack of the dog owned by the son of his tenant. Both parties cite Baker v. Pennock Props. Ltd., 874 S.W.2d 274 (Tex. App. – Houston [14th Dist.] 1994, no writ), to support their arguments. Bakeris distinguishable because it involved a landlord in possession with control over the common areas, whereas this case involves a landlord out of possession with arguably no, or limited, control over the premises. Moreover, the Bakercourt expressly refused to decide the issue of whether an out-of-possession landlord may be liable for harm caused by a tenant’s dog to third parties. Several other jurisdictions have imposed liability on out-of-possession landlords for dog attacks against third parties on the landlords’ single-dwelling premises. The majority of cases have held that a landlord will be liable for injuries caused by the attack of a tenant’s dog only when the landlord 1. had actual knowledge of the dog’s presence on the leased premises, actual knowledge of the dog’s dangerous propensities, and the ability to control the leased premises, either by the terms of the lease or by trailer park or subdivision regulations; and 2. failed to exercise that ability to control. The court agrees with the majority of cases that liability should be imposed on an out-of-possession landlord only when he has actual knowledge, rather than imputed knowledge, of the presence of a vicious animal on the leased premises. The court holds that if a landlord has actual knowledge of an animal’s dangerous propensities and presence on the leased property and has the ability to control the premises, he owes a duty of ordinary care to third parties who are injured by this animal. OPINION: Taft, J.; Taft, Keyes and Higley, JJ.

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