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Click here for the full text of this decision FACTS: Dawn and Daniel Curtis owned a Keeshound and Chow mixed-breed dog that they kept fenced in the back yard. The dog, Shadow, had several times escaped, leading various neighbors or the Curtises to corral the dog. The Curtises’ next door neighbor, Elizabeth Thompson, had seen one neighbor grab Shadow by the collar and walk the dog home. Thompson’s husband had talked to the dog and led her home, but hadn’t touched her. Thompson herself had called Daniel Curtis on occasion and told him to get the dog. In June 1998, while gardening in her yard with her own dog in her front yard, Thompson saw Shadow come into her yard and rub up against her leg. Though she spoke to the dog, she didn’t touch her. Instead, she called Daniel Curtis, who said he could not get home for an hour to put Shadow back in his yard. Thompson inferred that Curtis was telling her to leave the dog alone. A neighbor’s 8-year-old daughter refused to put the dog back in the yard because she was afraid that the dog bit. Thompson went inside with her dog, but Shadow remained in the front yard. Eventually, she went outside to chain Shadow to a stake. Shadow came when called and stood by Thompson’s side. However, when Thompson reached down to fasten the leash on Shadow’s collar, the dog bit her hand twice. Thompson sued the Curtises for strict liability, alleging Shadow had vicious and dangerous characteristics. Alternatively, Thompson argued the Curtises were negligent. The Curtises’ moved for summary judgment. In response, Thompson submitted three affidavits that were objected to but were not ruled upon by the trial court. Instead, the trial court granted the Curtises’ motion and denied Thompson’s subsequent motion for new trial. HOLDING: Reversed and remanded. The court reviews the affidavits Thompson attempted to enter in response to the Curtises’ motion for summary judgment. The Curtises say the affidavits of Brenda Ibsen Alonso, Meredith Kuehn and Robert Nelson are conclusory. Alonso’s affidavit says that the Curtises made attempts to keep Shadow from escaping, that Shadow had growled and been aggressive when Alonso came to the fence before, and that she had advised her children to stay away from Shadow because the dog was unpredictable. Kuehn stated that the neighborhood knew Shadow to be aggressive, that Daniel had trained the dog to be an aggressive watchdog and that she was personally afraid of the dog. Nelson stated that Shadow had an aggressive attitude, though the dog had never gone after him. The court concludes that while Nelson’s affidavit is conclusory, Kuehn’s and Alonso’s affidavits state facts to support their conclusions about Shadow’s characteristics. They were, consequently, proper summary judgment evidence. The court also agrees that there was a fact issue as to causation. To recover on a claim of negligent handling of an animal, a plaintiff must prove: 1. the defendant was the owner or possessor of an animal; 2. the defendant owed a duty to exercise reasonable care to prevent the animal from injuring others; 3. the defendant breached that duty; and 4. the defendant’s breach proximately caused the plaintiff’s injury. In a strict liability claim, for injury by a dangerous domesticated animal, a plaintiff must prove: 1. the defendant was the owner of possessor of the animal; 2. the animal had dangerous propensities abnormal to its class; 3. the defendant knew or had reason to know the animal had dangerous propensities; and 4. those propensities were a producing cause of the plaintiff’s injury. The Curtises argue that Shadow being out of their back yard did nothing more than furnish the condition that gave rise to the injury, but that it was Thompson’s own attempt to grab Shadow’s collar that caused the injury. They note that 26 minutes elapsed between the time Shadow appeared in Thompson’s yard, and when the dog bit Thompson. Thompson presented evidence that the Curtises knew Shadow had bitten someone before; Dawn testified that Shadow could be aggressive when she felt threatened; Thompson’s husband testified, too, that Shadow could be vicious when she felt threatened.; and Kuehn’s and Alonso’s affidavits referred to Shadow’s aggressiveness. Furthermore, the Curtises knew Thompson had never before attempted to physically interact with Shadow. Instead, she would call Daniel to come get the dog, but on this occasion, Daniel refused to come home. Nor did he warn Thompson not to touch the dog or threaten her. “Thus, Dan Curtis’s conduct and omission were part of the”forces generated’ by Shadow’s escape that had not come to rest when Shadow bit Thompson and were substantial factors in bringing about Thompson’s injuries.” OPINION: Lang, J.; Moseley, FitzGerald and Lang, JJ.

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