APPELLANT S MOTION FOR REHEARING. Appellant, Jeanette B. Ringo, most respectfully moves the Honorable Court of Appeals to re-hear

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1 E-Filed Document Mar :40: CA COA Pages: 13 APPELLANT S MOTION FOR REHEARING Appellant, Jeanette B. Ringo, most respectfully moves the Honorable Court of Appeals to re-hear and re-consider it decision rendered on February 16, In support hereof, Appellant avers: Procedure. This motion is made and served in accordance with Rule 40 of the Mississippi Rules of Appellate POINTS OF FACT WHICH, IN THE OPINION OF MOVANT, THE COURT HAS OVERLOOKED OR MISAPPRENDED. (CHRONOLIGICAL ORDER) First Point: The majority, on the second and third lines on page two of its opinion, states: When Ringo arrived, neither Collins nor Wilson was at the house. This is incorrect. At page 45 of her deposition, (R-707) plaintiff testifies: Q. Sure. What happened after you fell, after you hit the ground? A.I remember the dog was barking. And I remember that I just remember Tela coming out. (Plaintiff s Depo. Page 45 lines 13 through 17) This assertion is not contradicted. Plaintiff testified similarly at pp. 55 through 57 of her deposition. Ms. Collins came out and she was, you know, saying his name. And she would say my name. and asked me if I was okay and came to help me. Plaintiff testified similarly on pp 126 through line 12 on page 128 of her deposition.. And by that time Ms. Collins came out. And then, she came, you know, as she got closer to me. And I guess she got to the dog first, I heard her saying Boo, Boo, you know and she came towards me. Thus it is clear and without question that, contrary to the Honorable Court of Appeals finding, at least the daughter, Tela Wilson Collins, plaintiff s former co-worker and friend, was home when this accident happened. Second Point: The majority, on the third and fourth lines on page two of its opinion, states: Their dog, however, was tied up outside of the house and began barking at Ringo. This is incorrect. The majority in 16 of its opinion stated: Further, during the incident, the dog remained tied up and could 1

2 only bark at Ringo. In their Motion for Summary Judgment, the defendants alleged that the dog was on a leash. In its order sustaining the Motion for Summary Judgment, the lower court found the dog was on a leash. The lower court modified this finding on Plaintiff s motion to the lower court for re-consideration of its order sustaining the motion for summary judgment. The lower court in so doing stated; On the issue of the dog, the only contention is whether the dog was on a leash. This maybe a controverted fact, but it is not a controverted material fact. There is no evidence that the dog was on a leash. Neither of the defendants was deposed. There were no affidavits attached to or submitted with the motion for summary judgments stating that the dog was on a leash. The only thing about the dog s being on a leash is the naked assertion in the Motion for Summary Judgment that the dog was on a leash. There is no evidence anywhere in the record to that effect, merely the statement of the drafter of the motion, the attorney for the defendants. There is no footnote or other supporting citation in the motion where defendants claim the dog was on a leash. The majority places great weight on its finding that the dog was on a leash. But even the court below found this to be a controverted fact. Summary judgment is not proper where there is a material, controverted fact. The majority lays great weight on its position that the dog was on a leash. Thus this controverted issue of fact is material or the majority would not have placed such great weight on this erroneous or at a minimum controverted issue of fact. Third Point: In holding that the 1 to 1.5 crack spanning the entire driveway (which as shown by the differences in color had been repaired) was not a dangerous condition, the majority failed to recognize that there is a difference in the case law between an intentionally designed feature, that is an architectural feature (present by intention) and an unintended feature, that is one caused by neglect, such as a crack all the way across a driveway. Following closely on this argument, is the fact that the pictures (Exhibits 6, 7 and 8 from plaintiff s deposition ((R-707)) of the driveway are not such that the court could or 2

3 should say whether the driveway is a dangerous condition. Is this not a question for the jury vice summary judgment. We reproduce the photographs below for the court s convenience. 3

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5 Fourth Point: In 11 on page 4 of its opinion, the majority, in essence, states that plaintiff failed to prove that she fell on the crack in the driveway and could not identify what caused her to fall. This is incorrect and simply not factual. Mrs. Ringo s deposition is found at R-707. At line 2 on page 119 through line 10 on page 120, Mrs. Ringo testified: Q. Okay. You didn t see that. All right. Now, Ms. Ringo, Mr. Ingram asked you about what did Ms. Collins and Ms. Wilson do wrong. What actually did you fall over? Let me explain my question. You said that you tripped. What did you actually trip over? A. The concrete on the sidewalk I mean, at the driveway it was Q. Okay. Was it a level or an uneven area? A. It was an uneven area. Q. Was one portion of the concrete drive higher A. Yes. Q. than the other portion? A. Yes. Q. How much higher? A. That, I can t really approximate, you know, in inches. Q. Was that a dangerous condition? Mr. Ingram: Object to the form. 5

6 A. For me, it was. Q. Okay. Why do you say that? Why was it dangerous for you? A. It s my belief that it was directly related to causing my fall. Q. But, how; explain that to me. A. With me backing up and not being able to really see, you know, what was behind me, and just stepping backwards in the area where I was, it was fairly level. And I just started to step backwards. And with it being uneven, I think it caused my, caused me to lose my balance. (Plaintiff s Depo. Page 119, line 2 through line 10 on page 120) Fifth Point In 14 of its opinion, the majority rules that questions remain, however, whether this behavior rose to the level of a dangerous propensity.. in effect ruling that the evidence was not sufficiently in conflict to avoid summary judgment, that is to get to the jury on the issue of whether the dog had dangerous propensities. Two thoughts are brought to mind. The first is a) what is the definition (in the cases) of dangerous propensities and b) what evidence is there in the record that the dog exhibited dangerous propensities and that such was known to the defendants? On the first question, the definition of dangerous propensities, we must submit the definition, as one might think, is not terribly vicious, mean or evil spirited, but is much less. Our Supreme Court defined these words in Mongeon vs. A & V Enterprises, Inc., 733 So. 2d 170 (Miss. 1997) when it stated: 11. In Boosman v. Moudy, 488 S.W.2d 917 (Mo.App.1972), the Missouri Court of Appeals stated that [a]ny tendency of a dog to injure persons, whether the dog acts from a purpose to do bodily harm, from ill-temper, or only playfulness, is a dangerous propensity for which a keeper who has reason to know of such habit will be liable. Id. at 920 (citing Dansker v. Gelb, 352 S.W.2d 12, (Mo.1961)). Similarly, in Farrior v. Payton, 57 Haw. 620, 562 P.2d 779 (Haw.1977), the Supreme Court of Hawaii stated: [t]he terms vicious propensities' and dangerous propensities' have been defined as (a)ny propensity on the part of the dog, which is likely to cause injury under the circumstances in which the person controlling the dog places it... and a vicious propensity does not mean only the type of malignancy exhibited by a biting dog, that is, a propensity to attack human beings. Id. at 627, 562 P.2d at 785 (citing 3A C.J.S. Animals 199, at page 701 (1973)); Dansker v. Gelb, 352 S.W.2d at Under this standard, the Hawaii court found that the defendant's German shepherd dog, known to have run and barked on numerous occasions at all strangers coming near their property, exhibited vicious propensities, although there was no evidence that their dog had ever bitten anyone. Farrior v. Payton, 57 Haw. at 630, 562 P.2d 6

7 at 786. The evidence of barking and chasing was deemed sufficient to present to a jury the issue of whether the owners of the dog were negligent and liable for the plaintiff's injuries which resulted from her attempt to escape from the defendant's dog. Id. at 632, 562 P.2d at 787. Mongeon v. A & V Enterprises, Inc., 697 So. 2d 1183, 1185 (Miss. 1997) As set forth on page 7 of plaintiff s brief in this court, the following was the evidence in the record of the dog s dangerous propensities and knowledge on part of the defendants thereof, to wit: 1) Several times, Ms. Collins told plaintiff that the dog was a guard dog; (Depo. Page 93) 2) That the dog was not a pet, that he was there to alert them to people for protection reasons. That you are not play with him or anything like that and he was always caged; (Depo. Page 94) 3) I never saw him without being controlled, either in a cage or a leash; (Depo. Page 94) 4) From the first time that I became aware of the dog s existence, Tela would talk about the dog as a guard dog; (Depo. Page 94) 5) When I would come into the home, he would be barking and he was so vicious and she would say he s not a pet; (Depo. Page 95) 6) She said she did not want children to play with him and didn t want people to get familiar with him; that you don t get close to Boo; (Depo. Page 95) 7) Most importantly Tela told plaintiff you know, he doesn t really care for you. ; (Depo. Page 95) 8) I fell directly because of the dog; if I had seen Boo I would not have gotten out of the car; (Depo. Page 96) 9) I feel that my accident was caused by his startling me and his starting to come toward me and my trying to get away; (Depo. Page 18) 10) The dog tried to run out and bite the young lawyer with defendants law firm and actually took a bite of his trousers; (Also see affidavit of Deronda Livingston, R-509) 11) The dog s barking was loud and vicious and I was scared; (Depo. Page 120). 12) Every time I was in the Collins house the dog would become really agitated and tried to get me in his cage; (Depo. Page 121) 13) I never tried to pet the dog and Ms. Collins told me the dog was not to be petted, that was not his purpose, he was not there as a pet; (Depo. Page 122) 14) Ms. Collins told me she did not allow children to pet the dog; (Depo. Page 123) 15) I have never been to Ms. Collins house when the dog was outside except when she was holding him by the collar, where he would be barking and trying to come forward; (Depo. Page 124) 16) I was scared because of my previous experience of his fully being aggressive toward me when he was in his cage; (Depo. Page 125) 17) When I visited the house with Ms. Collins not being there the dog acted the same way; (Depo. Page 128) 7

8 Surely the above is sufficient evidence to show a material issue of fact on the question of the dog s vicious propensities and knowledge thereof on part of the defendants. Sixth Point In 16 of its opinion, the majority states: Ringo stated the dog acted aggressively toward her on previous occasions, but she could not point to any indication that the dog would or did attack. This statement would seem to say that to hold a dog owner liable under the vicious propensities of a dog doctrines, it would be necessary that there be a bite or at least an attack. An extract of Plaintiff s testimony, beginning at p. 124 of her deposition (R707) and continuing on over to Page 127 is: Q. All right. Now, Ms. Ringo, again and I was distracted. I m sorry. But, what is the first knowledge you had that the dog, Boo, was out there? A. When he appeared and started to bark. Q. All right. Describe his barking. A. Loud, you know, just a yippee, yippee, you know, rough Q. How did you react or what effect on you did that barking have? A. I stopped instantly. Q. Why? A. And I was startled. Q. Why? A. Because I never had seen him outside unattended. Q. Okay. A. And I realized he was there and nobody was out there with him. Q. Was that disconcerting to you? A. Very. Q. Why? A. Because I, I was of my previous experience of him being aggressive toward me when he was in his cage. So, I was just automatically, I felt disarmed. I felt vulnerable. I felt that he was not going to be pleased with me being there. Q. All right. Now, what happened next? Now, you re stopped. The dog is barking. You realize he s there; you re frightened. What happened next? A. And I started to back up slowly. Q. Why didn t you just turn and run? A. Well, I just didn t think that would be the appropriate thing if he ran, then he would run after me and my back would be to him. I just wanted to not be threatening to him. And that if he would see me moving slowly back, you know, that I was getting out of his, his space. Q. Dogs are territorial animals, are they not? A. That s been my experience. Q. All right. Now, was the dog on a leash that day? A. I didn t instantly recognize him, you know, if he was on a leash or not. 8

9 Q. Okay. All right. Did you all right. Now, you re backing up? A. Yes. Q. What is the dog doing at this point? A. He s still coming toward me. Q. Okay. A. He s advancing on me. Q. At what rate of speed was he advancing on you? A. Enough that it made me very concerned. He was it was slow but then it seemed to, you know, pick up. Q. Increase in speed? A. Increase. Q. Were you scared? A. Yeah. Yes, I was. Q. All right. Now, what happened next? You re backing up; the dog is coming on you more rapidly? A. Yes. Q. Is he still barking? A. He s barking very loudly, viciously. Q. Was he raising, H so to speak? A. That too. (emphasis added) Seventh Point: At the bottom of 14 of its opinion, the majority states: Questions remain, however, whether this behavior rose to the level of a dangerous propensity or whether Wilson and Collins should have reasonably foreseen that the dog could attack another person. When we use the language Questions remain, in the context of an appeal from the granting of a summary judgment motion, do we not almost admit that the question was for the jury, that is that there was a question of substantial fact which made summary judgment improper and erroneous. Were these questions remain for the Circuit Judge to decide? Are they for the Court of Appeals to decide or, under our law, were they not absolutely for the jury to decide? In this case plaintiff got no opportunity to let the jury decide this controverted question of fact for there was summary judgment granted. Eighth Point Again in 14, page 5, of its opinion the majority states: Questions remaining, however, whether this behavior rose to a level of a dangerous propensity In making this re-hearing 9

10 motion and at the risk of being facetious, the majority at nowhere considered that the dog involved, that is what is supposedly a small, peekapoo dog actually charged, barked at and nipped at the pant leg of one of the attorneys for the defense when the inspection/photographing of the premises took place. This just has to have some merit, at least by implication, in the implied finding of the majority that the dog didn t have dangerous propensities, that is that there was not enough evidence of the question of the dog s dangerous propensities to survive summary judgment. Can it not be said that it is at least minimally anomalous and not totally without humor that the defense attorney argues that the dog in question did not have vicious tendencies and that yet the self-same dog barked at, lunged at, snipped at the heels of the attorney (or other attorney in his firm) and actually took a mouthful of his pant leg? POINTS OF LAW WHICH, IN THE OPINION OF MOVANT, THE COURT HAS OVERLOOKED OR MISAPPRENDED. First Point In 17 of its opinion, the majority states that Plaintiff argued that the presence of the dog rendered the premises dangerous. Plaintiff never, never argued or contended such. Our contentions were that there were two completely separate theories of liability, the first per se (due to the crack in the driveway) dangerous condition of the premises and, secondly, a dog with known dangerous propensities and that these two separate theories combined and came together to be the proximate cause of the accident. Second Point In 17 of its opinion, the majority cites Penny Pinchers v. Outlaw, 61 So. 3d 245, 248 ( 10) (Miss. Ct. App. 2011) for the proposition that the particular dog involved did not render the premises dangerous. However plaintiff never, never contended or argued that the defendants keeping the dog in question rendered the premises dangerous but that the dangerous premises resulted from the crack in the driveway and that the dangerous propensities of the dog, well known to the defendants, was a separate and distinct tort, the combing together of the two separate and distinct torts being the proximate cause of the accident. 10

11 Third Point In 14 of its opinion, the majority admittedly, but very cursorily, mentions that plaintiff contended that the dog in question was a guard dog; however at no point did the majority rebut, discuss or even mention the authorities that plaintiff cited that the rules of law are different for a guard dog. As set forth on page 9 (carrying over to of page 10) of our brief, the authorities are different for a guard dog in that the keeping of a dog for protection (and there is no evidence contra to our assertions ((See subparagraphs 1), 2), 4), and 13) on page 4 above)) is, ipso facto, sufficient to charge the owner of the dog with knowledge of the dog s dangerous propensities. We most respectively invite the court s attention to these authorities, 4 Am. Jur. 2d Animals 137, Brice vs. Bauer, 63 Sickels 428, 108 N.Y. 428, 15 N.E. 695, (NY APP 1888) and Tucker vs. Scalfini & Sons, Inc., 200 N.Y.S 2d 778 (NY Sup Ct 1960). Fourth Point In 15 of its opinion the majority cited Mongeon v. A & V Enterprises, Inc., 733 So. 2d, 170, 172 ( 12) (Miss 1997): 12. Following these standards, a reasonable jury could have found that the incident in which Brown's dogs growled at Donna Nelson near the washateria constituted an exhibition of a dangerous or vicious propensity by Brian Brown's black Labrador retrievers. Considering the evidence in the light most favorable to Mongeon, there is credible evidence from which the jury may have drawn a reasonable inference supporting its verdict. The trial court's grant of A & V Enterprises's motion for a judgment notwithstanding the *173 verdict was unwarranted and must be reversed. Mongeon v. A & V Enterprises, Inc., 733 So. 2d 170, (Miss. 1997) Mongeon holds that there must be, firstly, proof that the dog has exhibit dangerous propensity or disposition and, secondly, that the owner knew or reasonably should have known that the animal was likely to attack someone. How can it be said, in this case, that the dog had not exhibited dangerous propensities when it tried to get out of its cage and lunged at and barked at plaintiff on at least 10 times she visited in the defendants home. Surely, if plaintiff were visiting in defendants home, the defendants would have been present and would have seen and known of such. This clearly is sufficient evidence of dangerous propensity and knowledge on the part of defendants to get to the jury. Mongeon held that the 11

12 fact that the dogs involved growled at the plaintiff was sufficient exhibition of dangerous or vicious propensities. Oiler v. Bailey, 164 So. 3d 982 (Miss 2015) holds: [10] 36. In this case, foreseeability is the fulcrum upon which liability turns. This Court first promulgated the propensity rule in Poy, holding that there had to have been some proof that the animal had exhibited some dangerous propensity prior to the attack complained of, and the owner had actual or constructive knowledge of that dangerous propensity. Poy, 273 So.2d at 494. The rationale underpinning such a rule is that the courts will not hold a defendant liable for the injuries caused by his or her animal that were not reasonably foreseeable. 9 And in Mongeon, this Court held that an actual physical attack was not necessary to put an owner on notice of his or her animal's dangerous propensities, but instead held that evidence of barking, growling, and chasing can be sufficient to put an animal's owner on notice of the animal's dangerous propensity. Mongeon, 733 So.2d at 172 ( 12). Olier v. Bailey, 164 So. 3d 982, 993 (Miss. 2015) Surely the proof in the case at bar was much great than the proof in Mongeon. Mongeon held that an actual physical attack was not necessary and evidence of barking, growling and chasing can be sufficient to put an animal s owner on notice CONCLUSION The writer appreciates the fact that the majority was sitting In Banc but, with utmost respect and deference to the majority, it would appear that Judge James dissent evinces a more thorough review/study of the record and briefs and a more thorough reading of the record and the majority s attention is respectfully invited to the dissent with the most sincere request that it be adopted as the majority opinion in this matter. Respectfully submitted this the 11 th day of March Jeanette B. Ringo, Plaintiff By: /s/robert G. Johnston ROBERT G. JOHNSTON State Bar No

13 John Marshall Alexander State Bar No Alexander, Johnston & Alexander, P.A. 112 North Pearman Avenue P. O. Box 1737 Cleveland, MS FAX CERTIFICATE OF SERVICE The undersigned, Robert G. Johnston, one of the attorneys for the above named Appellant in the above cause, does hereby certify that he has served the above and foregoing: APPELLANT S MOTION FOR REHEARING by electronically filing the same with the Supreme Court s EFT system and by mailing, postage prepaid mail, a true and correct copy thereof to: 1. David Lee Gladden, Jr, (MB#100839) Blayne T. Ingram (MB #100709) (now deceased) Matthew A. Taylor (MB99689 Attorneys at Law P.O. Box 2970 Madison, MS The Honorable Clarence E. Morgan, III Montgomery Co. Circuit Judge (Judge of the Court appealed from) P.O. Box 721 Kosciusko, Mississippi, This the 11 th day of March /s/ Robert G. Johnston Robert G. Johnston 13