SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAUSE NO CA-01313

E-Filed Document Mar 6 2015 13:31:21 2014-CA-01313 Pages: 33 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAUSE NO. 2014-CA-01313 JEANETTE B. RINGO APPELLANT VS. LELA WILSON AND TELA WISON COLLINS APPELLEES APPEAL FROM CIRCUIT COURT OF MONTGOMERY COUNTY, MISSISSIPPI APPELLANT S BRIEF ATTORNEYS FOR THE APPELLANT Robert G. Johnston State Bar No. 3174 John Marshall Alexander State Bar No. 1321 Alexander, Johnston & Alexander, P.A. 112 North Pearman Avenue P. O. Box 1737 Cleveland, MS 38732-1737 662-843-3631 FAX 662 843 3638 E-mail alexjohn@cableone.net ORAL ARGUMENT REQUESTED

SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAUSE NO. 2014-CA-01313 JEANETTE B. RINGO APPELLANT VS. LELA WILSON AND TELA WISON COLLINS APPELLEES CERTIFICATE OF INTERESTED PERSONS COMES NOW Robert G. Johnston, one of the undersigned counsel of record for appellant, Jeanette B. Ringo, who certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Honorable Justices of the above Supreme Court and\or the Honorable Judges of Court of Appeals may evaluate possible disqualification or recusal: 1. Jeanette B. Ringo, appellant and plaintiff below, 624 Mabel Street, Winona, Mississippi, 38967; 2. Lela Wilson, appellee and one of the defendants below, 617 Campbell Street, Winona, Mississippi, 38967; 3. Tela Wilson Collins, appellee and one of the defendants below, 617 Campbell Street, Winona, Mississippi, 38967; 4. David Lee Gladden, Jr, (MB#100839) Blayne T. Ingram (MB #100709) Matthew A. Taylor (MB99689 Attorneys at Law P.O. Box 2970 Madison, MS 39130-2970 5. The Honorable Clarence E. Morgan, III Montgomery Co. Circuit Judge (Judge of the Court appealed from) P.O. Box 721 Kosciusko, Mississippi, 39090-0721 i.

Respectfully submitted and SO CERTIFIED on this the 6 th day of March 2015. Robert G. Johnston Robert G. Johnston Mississippi Bar No. 3174 Alexander, Johnston & Alexander, P.A. P. O. Box 1737 112 North Pearman Avenue Cleveland, MS 38732-1737 662-843-3631 Fax 662 843 3638 E-Mail: alexjohn@cableone.net ii.

TABLE OF CONTENTS Certificate of Interested Persons Table of Contents Table of cases, statutes, and other authorities i iii iv Statement of the Issues 1 Statement of the Case 1 Statement of Facts Relevant to the Issues 3 Summary of the Argument 4 Argument 6 Conclusion 28 Certificate of Service 28 iii.

TABLE OF CASES, STATUTES AND OTHER AUTHORITIES CASES: Bond v. City of Long Beach, 908 So. 2d 879 (Miss. App 2005) 22 Brice vs. Bauer, 63 Sickels, 428, 108 N.Y. 428, 15 N.E. 695, (NY APP 1888) 9, 10, 14 City of Biloxi v. Schambach, 157 So. 2d 386 (Miss. 1963).24 City of Greenville v. Loury, 159 So. 2d (sic) 121(Miss.1935).. 24 First Nat l Bank v. Cutrer, 214 So. 2d 465 (Miss. 1968)....22 Fraizer v. Stone, 515 S.W. 2d 766 (Mo. App. 1974).6 McGovern v. Scarborough, 566 So. 2d 1225 (Miss. 1990)..22 Medina v. Ferreira, 41 Conn. L. Rptr. 165 (Sup. Ct.2006) 25 Mongeon vs. A & V Enterprises, Inc., 733 So. 2d 170 (Miss. 1997)... 6, 7, 17 Olier v. Bailey, ---So. 3d---2014 WL 7084509 (Miss. Dec. 11, 2014)...25, 26, 27 Penton v. Boss Hog s Catfish Cabin, LLC, 32 So. 3d 1208, (Miss. App 2010)..22 Rowe v. City of Winona, 159 So. 2d 282... 23 Stanley v. Morgan & Lindsey, Inc., 203 So. 2d 473 (Miss. 1967)... 22 Tharp v. Bunge Corp., 611 So. 2d 20 (Miss. 1994)..23 Thompson v. Chick-Fil-A, Inc., 923 So. 2d 1029 (Miss. App 2006)... 21 Tucker vs. Scalfini & Sons, Inc., 200 N.Y.S. 2d 778 (NY Sup Ct 1960) 10 STATUTES: NONE OTHER AUTHORITIES: 4 Am. Jur. 2d Animals 137.9 iv.

STATEMENT OF ISSUES Whether there was sufficient question of material fact on the combined issues of premises liability and knowledge of dangerous propensity of a dog to prevent summary judgment (which was granted to the defendants) and to allow the case to proceed to trial before a jury. STATEMENT OF THE CASE On April 11, 2012, Appellant, (hereinafter plaintiff ) Jeanette B. Ringo, filed a complaint (R- 00001) against the Appellees (hereinafter defendants ) in the Circuit Court of Montgomery County, Mississippi, alleging that on August 6, 2010, plaintiff went to the residence of the defendants, a mother and daughter, to bring to the defendant daughter, Tela Wilson Collins, a cardboard box for use of both defendants in mailing certain items to another daughter/sister in the State of Illinois. (Resp. Req.Adm 6,7,8,9 &10) R-00489) Plaintiff alleged that she and defendant, Tela Wilson Collins, had formerly been co-employees and had been good friends. Plaintiff further alleged that Tela Wilson Collins, on several occasions, requested that plaintiff bring to Tela a box used for packaging of reams of letter-paper and which box had been discarded at plaintiff s place of employment and which was formerly Tela s place of employment. (Resp. Req.Adm 6,7,8,9 &10) R-00489) Plaintiff claimed that, as she proceeded up the defendant s driveway, the defendants dog, which was for protection and not a pet, rushed and charged plaintiff, vociferously barking and startling plaintiff and frightening her. (Comp. 18 & 19 R-00005) Plaintiff claimed that as she stepped backwards down the driveway, away from the dog, she tripped and fell in a large, uneven crack, caused by settling of the concrete and running completely across the driveway with one edge of the crack one inch lower than the other. (Comp. 20 R-00005-6) It was obvious that the crack had not

only been there a long time, but also had been repaired, ineffectively, as there was different colored concrete running all the way across the driveway alongside the crack. (Comp. 20 R-0000 5&6) When the plaintiff so fell, she fractured her wrist, had surgery, and incurred $37,088.56 in direct, out-of-pocket expenses. (Comp. 29-51 R-00008-11) Plaintiff s theory against defendants IS VERY UNIQUE in that plaintiff alleged two separate theories of negligence, which said acts of negligence combined and came together to form the basis of liability for defendants. (Comp. 27 R-00007) One of these theories was that defendants had knowledge of the dangerous propensities of the dog. (Comp. 25 R-00007) The dog was kept for protection and on numerous occasions had barked vociferously and lunged at plaintiff when she visited the defendants. The defendants told her not to pet the dog and the defendants kept the dog caged inside the house, or at least, on a leash, when plaintiff would visit. The defendant Tela told plaintiff that the dog did not like the plaintiff. (Comp 26, R-00007 and PL. Depo. Pp 93,94,95,96,122,123,124 & 125 R-00707) Plaintiff claimed that the crack or settling separation in the driveway, it s being old, large and completely across the driveway, constituted a dangerous condition on defendant s premises. The crack had obviously been repaired as is shown by different color concrete running the width of the driveway, imputing constructive and actual notice to defendants. (See photographs R-00452, 453, 454, 455, 456.) In short, plaintiff claimed that these two separate and distinct theories of liability combined and came together, (Comp. 27 R-00007) imposing liability upon the defendants for plaintiff s very serious injury and specials of over $37,000.00. (Comp. 51 R-00011) After more than modest discovery, including a deposition of plaintiff s treating physician, and on December 30, 2013, the defendants jointly filed their Motion for Summary Judgment, contending

there was no issue of material fact, on either of the two combining theories of liability. After the plaintiff s response and briefing and on July 18, 2014, the court heard thorough argument on the summary judgment motion. The court granted the summary judgment motion on August 15, 2014, and on September 9, 2014, denied plaintiff s motion for reconsideration. This appeal resulted. STATEMENT OF FACTS RELEVANT TO THE ISSUES PRESENTED FOR REVIEW Much of the facts in this case are\were admitted, either in defendants answer or in defendants response to plaintiff s discovery. Firstly, plaintiff s complaint is found at R-1 and defendant s answer is found at R-221. Defendants Response to plaintiff s Request for Admissions is found at R-00488. Plaintiff and defendant, Tela Wilson Collins, were and are good friends, their having worked together for several years at Central Mississippi, Incorporated, at Winona. Prior to August 6, 2010, on at least three occasions, Tela asked plaintiff to bring her, Tela, an empty and discarded pasteboard box received by Central Mississippi and containing several reams of stationery. In point of fact, a night or so before August 6, 2010, plaintiff and Tela traveled to and attended a church service in Eupora, en-route to which Tela repeated the request. The box was to be used by Tela and her mother, Lela, to mail certain items to Tela s sister (and Lela s daughter) in Elgin, Illinois. Resp. Req. Ad m, No d 1, 7,8,9,10,11 and 12 (R-00489, 490) On August 6, 2010, plaintiff, during her lunch hour, went to the residence of the defendants located at 617 Campbell in Winona to deliver such a pasteboard box to Tela. Resp. Req. Adm, No d 5 and 7 (R-00489) On the question of plaintiff s status, i.e. invitee, licensee or trespasser, Request for Admission No. 66 and defendants response is as follows, to wit: 66. That at the time plaintiff fell on defendants premises on August 6, 2010,

defendant occupied the status of a business invitee toward the plaintiff; RESPONSE: Admitted. (R-00501) Thus there is no question but that the plaintiff was an invitee when she entered upon the defendants property. As plaintiff was walking up the defendants driveway, the defendants dog, loose from its leash 1, charged and lunged at plaintiff barking vociferously which startled and frightened plaintiff. Plaintiff was holding the pasteboard box on an open, face up palm, with the other palm, face down, on top of the box. Plaintiff, to avoid the dog, took a step or two backward and tripped over a large crack, obviously caused by settling, all the way across the driveway, one side of which was about an inch lower than the other. The crack, as evidenced from the different colored concrete, had been repaired, ineffectively, making knowledge, or at least constructive knowledge, of the crack on the part of the defendants a certainty. (Depo. Plaintiff) While the nature and extent of plaintiff s damages were not reached by the trial court, it should be noted that plaintiff claimed she broke her left wrist when she fell, necessitating surgery and had incurred direct, out-of-pocket specials of $37,088.56. SUMMARY OF THE ARGUMENT As a matter of law, persons who keep a dog caged, chained or otherwise restrained, and/or, who keep a dog for protection, are liable for injuries done by the dog under the theory that if the dog were not vicious it would not be kept as a guard dog or kept for protection. Even had the subject dog not been kept for protection, i.e. as a guard dog, there were questions of fact, so as to prevent summary judgment, as to whether the dog was vicious and dangerous and 1 In their summary judgment motion, defendants claimed that the dog was secured on a leash. This contention and the court s finding of such was demonstrated to be a question of fact in plaintiff s Motion for Reconsideration. See page 2 to middle of page 4 in Motion for Reconsideration, which motion is found at R-000701.

whether the defendants were on notice of such tendencies. The facts giving rise to such questions of fact are: 1) several times defendant told plaintiff that the dog was a guard dog, used for protection and to alert defendants to people; 2) defendant told plaintiff that the dog was not a pet, that children should not attempt to pet him and that plaintiff was not to pet the dog; 3) plaintiff, when visiting defendants home, never saw the dog unless he was controlled, either in cage, on a leash or in a pen; 4) defendant told plaintiff she did not want people to get familiar with the dog; 5) defendant told plaintiff you know he (the dog) really doesn t care for you; 6) every time plaintiff visited in the defendants home, the dog would become agitated and try to get plaintiff even thought he was in his cage; 7) every time plaintiff was in the house, the dog would act vicious toward plaintiff from his wire cage; 8) plaintiff was always frightened by the dog when she visited the defendants; 9) the dog acted viciously toward plaintiff on at least 10 occasions when plaintiff was visiting; 10) when plaintiff saw the dog outside he would be barking and coming at plaintiff and was always restrained by a leash or by being held by his collar, and 11) the dog was always caged. Depo. Pp 93, 94, 95, 96 &, 108 Plaintiff, dually, summarizes her argument on defective condition of the premises by saying that the pictures (hereinafter reproduced) of the crack, admitted by defendants to be one inch in height, Resp. Req Adm No. 22, R-000491) clearly show a dangerous condition on the premises, and, secondly, that the cases holding defects and uneven elevations in driveways and walkways not to amount to a defective condition apply to architecturally designed conditions, that is those constructed, and not to those that arise through accident, neglect, settling or misuse. Lastly, as set forth in the case of Olier v. Bailey, ---So.3d--- 2014 WL 7084509 (Miss. Dec. 11, 2014) the trend in dog bite cases is away from knowledge of dangerous propensities and toward foreseeability.

ARGUMENT 1 ST ISSUE: WAS THERE A SUFFICENT QUESTION OF FACT ON THE ISSUE OF DEFNDANTS KNOWLEDGE OF THE DANGEROUS PROPENSITY OF THE DOG SO THAT SUMMARY JUDGMENT WAS NOT WARRANTED? Sub Issue No. 1: Does the one-bite rule mandate that there have been, earlier, an actual biting by the dog? The case of Frazier vs. Stone, 515 S.W.2d 766 (Mo. App. 1974) holds: Of course, the injury complained of must result from the exercise of the dangerous propensity.... It is not necessary for the dog to have bitten someone before if the dog has demonstrated a vicious propensity for biting. Frazier v. Stone, 515 S.W.2d 766, 768 (Mo. Ct. App. 1974) Sub Issue No. 2: What is the definition of dangerous and vicious propensities? Plaintiff argues that, based on the authorities, the words dangerous and vicious propensities are not, ipso facto, defined as mean-spirited or evil motivated. They can even mean mere playfulness. Our Supreme Court defined these words in Mongeon vs. A & V Enterprises, Inc., 733 So. 2d 170 (Miss. 1997) (further of Mongeon infra) 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, 16-17 (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 16-17. 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 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) The next question is whether there is a question of fact as to whether the defendants had notice of the dog s dangerous propensities (as those words are defined above). Plaintiff s deposition is found at R-707. We quote here from that deposition: 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) Plaintiff submits that the above gives rise to a question of fact as to whether the defendants had knowledge of the dangerous propensities of the dog. A remark about the dog s biting the pant leg of one of defendants attorneys is in order. In the above item No. 10, from plaintiff s deposition, it is remarked that the dog ran out and bit the pant leg of the lawyer for the defendants. On May 3, 2012, plaintiff filed a Request for Entry Upon Land (R-259) to which defendants responded on June 11, 2012, (R-273), in which defendants agreed to allow plaintiff to enter on the subject real property and photograph the same and to photograph the dog involved. The inspection (both of the premises and the dog) took place on June 14, 2012. Please see Affidavit of Deronda K. Livingston (R-509-510) in which Mrs. Livingston stated: 3. I did as instructed and went to said residence in Winona, Mississippi, where I was met by an attorney in the Gladden, Ingram & Taylor law firm of Madison, Mississippi. As best as I can recall the attorney was Mr. Blayne Ingram. 4. When I reached the home of the defendants, I parked and walked up the driveway to the back door of the house. And about this time Mr. Ingram, or whomever the attorney was, came out, followed by Mrs. Collins, with the dog on a leash. The dog was barking and lunging at the young attorney, snipped at his heels, and actually bit and took a mouthful of the young man s trousers in its mouth. Further at page 65, lines 1-15 of plaintiff s deposition (R-707) counsel opposite (and the presumed author of the brief to be filed in reply hereto) stipulated: Mr. Johnston: Wait a minute. May we have a stipulation, that the witness when she says she met a lawyer with Deronda from here, was referring to the date that we entered upon the premises for photographs. Mr. Ingram: Sure. Mr. Johnston: And that I could not come due to my wife being ill, and that I sent my paralegal. And the lawyer was the young lawyer from your office. Mr. Ingram: Sure. Mr. Johnston: Among the counsel for the defense. Mr. Ingram: Right. That s perfectly fine.

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? Sub Issue No. 3: Is there a difference in the liability of an owner of a guard dog and the owner of a pet? 4 Am. Jur. 2d Animals 137 in pertinent part holds: The owner of a vicious dog may be charged with knowledge of its dangerous character by proof of such circumstances as the fact that the dog was kept for protection and as a watchdog, that the owner was accustomed to keep the dog tied during the daytime,... The treatise footnotes two cases as authority for the above statement. One of these is Brice vs. Bauer, 63 Sickels 428, 108 N.Y. 428, 15 N.E. 695, (NY APP 1888) which holds: I think the evidence actually in the case tends to establish that the dog complained of was the defendant's dog, and that the dog was of a ferocious and vicious disposition. Does it also tend to establish knowledge of that disposition on the part of the defendant? In Baldwin v. Casella (7 Ct. of Ex. [[[L. R.], 325), it is said all dogs may be mischievous and therefore a man who keeps a dog is bound either to have it under his own observation and inspection, or if not, to appoint some one under whose observation and inspection it may be, and that person's knowledge is the knowledge of the owner. In the case before us Robinson was one of the servants to whose care the dog was entrusted, and Robinson was himself bitten by him before the plaintiff suffered. It is not material that the fact was not communicated to the master. Again, if the dog was the defendant's dog, the very purpose for which the defendant kept him charges him with knowledge of his character, and he is therefore chargeable with negligently keeping him, although it had not appeared that he had actually bitten another person before he bit the plaintiff. (Worth v. Gilling, 2 Com. Pl. [L. R.] 1.) In

that case the court say, the defendants admitted that the dog was purchased for the protection of their premises. Unless of a fierce nature he would hardly have been useful for that purpose. In Buckley v. Leonard (4 Denio, 500), an action for damages for injuries inflicted by a dog, it appeared among other things that for the most part the defendant had kept his dog chained up in the day time and in his store nights, and the defendant having had a verdict it was reversed, the court saying, aside from proof that the defendant had notice of the dog's disposition, the fact that he usually in the day time kept him confined, and in the night kept him in his *433 store, is strong evidence that he was fully aware that the safety of his neighbors would be endangered by allowing him to go at large. Brice v. Bauer, 108 N.Y. 428, 432-33, 15 N.E. 695 (1888) The second of the cases so footnoted is Tucker vs. Scalfini & Sons, Inc., 200 N.Y.S 2d 778 (NY Sup Ct 1960) which holds: When a person keeps a dog for the purpose of guarding his property against trespassers or criminals, it is not unreasonable to infer knowledge on his part of the propensities of the dog to attack and bite mankind, and negligence in allowing him to be at large. Tucker v. Sclafani & Sons, Inc., 200 N.Y.S.2d 778, 779 (Sup. Ct. 1960) It is clear from the above authorities that harboring a dog for guard protection and keeping a dog chained are sufficient evidence to make out a case (i.e. avoid a motion for summary judgment) of knowledge on the part of the owner of the vicious propensities of the dog. Is it not incumbent now to look to the record and see if there is a material issue of fact as to whether the subject dog was kept for protection and/or was kept chained or otherwise restrained? The following is a lengthy excerpt from line 2, p 119 through line 12, p 237 of plaintiff s deposition found at R-707. 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. 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. Q. Do you have eyes in the back of your head? A. I do not. Q. Okay. When you were backing up, which direction were you looking, back over your shoulder or straight ahead? A. I was looking straight ahead. Q. Why? A. Because the dog was there and he was barking. Q. Describe that barking for me? A. It was rather vicious. He was loud. Q. Were you frightened of the dog? A. Yes. I was frightened and startled until my previous encounters. Q. Had the dog every startled you or frightened you before? A. In the house, whenever I would pass by him, he would become really agitated and, you know, in his cage try to get at me. Q. How many times, when you say in the house, whose house are you talking about? A. Ms. Wilson and Ms. Collins home. Q. How many times had you been in their home when that dog acted viciously towards you? A. On every occasion that I was there he acted that way. But, it was at least ten times, I would say a minimum of ten times. Q. Were you frightened by the dog on these ten times? A. I was frightened if he were to get out, you know, more so. Q. Would it be a fair statement that the dogs barking at you was somewhat unnerving? A. It was very unnerving and unsettling. Q. What kind of danger; describe the cage. A. It s made of wire, just wire where he s standing on, you know, it s like wire, a wire cage like fencing. Just a wire cage, you know, where you can see through it, you know, all of the way around. Q. Could you get your hand through it? A. Yes. Q. Did you ever stick your hand in there to pet the dog?

A. No. Q. Did you ever at any time pet that dog? A. No. Q. Did you ever at any time want ask to pet that dog? A. No. Q. What did Ms. Collins tell you about petting that dog? A. That he was not to be petted. That was not his purpose. He was not there as a pet. Q. Did she ever use the term guard dog? Let me ask you this: What did Ms. Collins tell you was the purpose of the dog? A. To protect and alert she and her mother from intruders or people coming on the property and just to give them a sense of security. Q. What, if anything, did Ms. Collins tell you about children petting the dog? A. That she did not allow children to pet the dog specifically. Q. Okay. All right. Mr. Johnston: Deronda, find me the photographs that you took that day. Q. All right. Now, prior to August 6, 2010, how many times had you been to Ms. Collins when the dog was outside? A. Not many; never outside alone. I had seen him on the outside maybe once or twice, but he was in her presence and she was restraining him by the collar, holding him. Q. What do you mean by the word restraining? A. He would be barking and, you know, kind of try to come forward. And she would be holding the top of his collar, you know, restraining him. Q. All right. Now, did how many times prior to the date you fell, did you go to Ms. Wilson I mean, Ms. Collins house and the dog be outside and she was trying to, she was having to restrain him? A. Maybe, maybe twice that I can recall. And 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. 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. Plaintiff has taken the liberty of highlighting those portions of plaintiff s testimony that show the dog was kept a) for protection and b) restrained (chained) within the meaning of Brice vs. Bauer, supra, and Tucker vs. Scalfini & Sons, Inc., supra. Further at page 53 of her deposition plaintiff testified as follows:

Q. Can you describe for me generally where Boo stays at the house the times that you ve been there? A. Yes. He would be when you entered, entered the home from that, from the back. He would be right there sitting - - he would be in a cage right there at the door when you came to the door. He would be immediately to your right in a cage right there. Q. In his kennel, his bed? A. Yes. Q. Is in that kennel - - A. That wire - - Q. Wire cage Again and at page 57 of her deposition plaintiff testified as follows: By Mr. Ingram: Q. Ms. Ringo, before we took our break we were talking about Boo, the dog. And I was asking you some questions about him, the date of the accident. And I want to ask you just a couple of more questions about the dog. Before the accident, when you were, when you were inside Lela and Tela s house, was Boo in that crate? A. Yes. Q. In that cage? A. Yes. Q. Okay. Before the date of your accident, did you have - - had you seen him outside the house before? A. As I stated earlier, the only time I had seen him outside he was with Ms. Collins. Q. And was he on a leash or on a run tied? A. Yes, I believe he was. He was being retained in some manner. Again and at page 93 of her deposition plaintiff testified as follows: Q. Ms. Ringo, in your complaint that you filed in this matter, and I m specifically referring for the record to paragraph 26. You make reference in that paragraph of your complaint that Ms. Collins had on several occasions told you that her dog was a guard dog. Is that the case? A. Yeah. Q. What did she tell you? A. That he was not a pet. That he was there to, you know, to alert them to people, you know, you know, I guess entering their home and for protection reasons, you know. What she - - the way she described him and described Boo, that he was not a pet, not to, you know, play with him or anything like that. And he was always caged. And whenever, you know, I saw him except when she would have him, she always - - you know, he was never left - - I never saw him without being - - controlled either in a cage or on a leash where she kept him close by, what you have you. Q. When did she tell you that Boo was a guard dog? A. From the first time that, you know, I became aware of his existence, you know, she would talk about him in that way; that he was not a pet. And he was not, you know,

he was there for a specific reason. You know, there with her mother, her and her mother in her mother s home. Q. And what were the circumstances surrounding that conversation? What brought that up? A. Like when, like said - - when I would come into the home and he would be barking and, you know, that type of thing. And, you know, and she would just, you know, just comment. I would say, he s so, you know, he s so vicious like. You know, he always barking and that type of thing. And she d say, you know, well, that s because he s not a pet. And we don t have him for that reason. And I remember a conversation where she said that s why she don t, you know, she don t want children to play with him, and want people to get, you know, to have that type of familiarity with him and everything. Just on different occasions as you would - - we would just have conversations, you know. You know and a couple of times, you know, she would, you know, just say well, you know, don t get close to Boo. You know, he doesn t really care for you. You know, that type of thing, just in conversations. Further at page 98 of plaintiff s deposition there is found: You know, I understood, you know, that they had him was because he was sort of like to protect. And he was to keep people, you know, away and not allow people, you know, too close within the property. So, I was just trying to back away, you know, and remove myself from the property and get back to my car. This leads us to the next question, which is: Was there sufficient question of fact on the issue of knowledge (actual) of the dog s vicious propensities on part of the defendants to avoid summary judgment? For emphasis and at the risk of re-iteration, we reproduce below certain portions of the plaintiff s deposition which impart knowledge of the dog s vicious and dangerous propensities on the part of the defendants, to wit: Q. Had the dog every startled you or frightened you before? A. In the house, whenever I would pass by him, he would become really agitated and, you know, in his cage try to get at me. Q. How many times had you been in their home when that dog acted viciously towards you? A. On every occasion that I was there he acted that way. But, it was at least ten times, I would say a minimum of ten times. Q. What did Ms. Collins tell you about petting that dog? A. That he was not to be petted. That was not his purpose. He was not there as a

pet. Q. Did she ever use the term guard dog? Let me ask you this: What did Ms. Collins tell you was the purpose of the dog? A. To protect and alert she and her mother from intruders or people coming on the property and just to give them a sense of security. Q. What, if anything, did Ms. Collins tell you about children petting the dog? A. That she did not allow children to pet the dog specifically. A. Not many; never outside alone. I had seen him on the outside maybe once or twice, but he was in her presence and she was restraining him by the collar, holding him. Q. What do you mean by the word restraining? A. He would be barking and, you know, kind of try to come forward. And she would be holding the top of his collar, you know, restraining him. Q. All right. Now, did how many times prior to the date you fell, did you go to Ms. Wilson I mean, Ms. Collins house and the dog be outside and she was trying to, she was having to restrain him? A. Maybe, maybe twice that I can recall. The case of Mongeon vs. A & V Enterprises, Inc., supra, was a case, in which our Supreme Court overruled both the Circuit Court and our Court of Appeals and found there was sufficient evidence on the part of the appellee defendant of two Labrador retrievers vicious propensities. The suit was against both the owner of the dogs and the landlord whose tenant the owner was. The evidence was that a witness, Donna Nelson, testified that she informed the resident manager of the trailer park, as well as the manager and a minority stockholder, of an incident involving dogs which growled at her near a washeteria area and another incident in which three dogs approached her little dog. These facts, as minimal as they were, were held sufficient for a jury to find prior knowledge of the dangerous propensities of the dog. 2nd ISSUE: WAS THERE A SUFFICENT QUESTION OF FACT ON THE ISSUE OF DANGEROUS CONDITION OF THE PREMISES SO THAT SUMMARY JUDGMENT WAS NOT WARRANTED? In line with the old adage that the proof of the pudding is in the eating, plaintiff herewith reproduces 4 color photographs (R-453 through R-456) of the crack across the driveway, as follows:

Next, the cases, to the effect that differences in elevations in sidewalks and driveways are not dangerous conditions upon which the defendants relied to convince the court to grant summary judgment, are concerned with features that are built in, constructed that way, man-made that is of architectural design, not those that arise from misuse, age, settling of concrete, etc. In this regard, the defense cited Thompson v. Chick-Fil-A, Inc., 923 So. 2d 1029 (Miss. App 2006), a case in which a woman fell off of a sidewalk curb. There simply is no comparison between a sidewalk curb and the defendants driveway. A curb is an intended, architectural feature. There is nothing intended or architectural about the condition of the defendant s driveway as shown in the above photographs.

Next, the defense cites McGovern v. Scarborough, 566 So. 2d 1225 (Miss. 1990). This was a case in which the plaintiff slipped over the threshold of the front door of the defendant s barbeque place. Again, a threshold is an intended, architectural feature. The defense also cites Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss. 1967) This was a case from one of the coast counties where a woman stepped off of a sidewalk onto the parking lot and fell. Again, a step down from a sidewalk onto a parking lot is an intentionally designed, architectural feature. The defense cited Penton v. Boss Hog s Catfish Cabin, LLC, 32 So.3d 1208, (Miss. App 2010) This was a case in which the plaintiff got the heel of her shoe caught in a pad leading to a wooden, handicap ramp. Again, this is an intentionally designed, architectural feature. This is the way the ramp/pad was designed and built. It cannot be said that the defendants concrete drive was designed, architecturally or otherwise, to have the obviously unrepaired, all-the-way-across one inch crack. The defense cited Bond v. City of Long Beach, 908 So.2d 879 (Miss. App 2005) This was a case in which the plaintiff, who died while the litigation was pending, tripped and fell on a Long Beach sidewalk. The defense, in citing Bond, attempts to capitalize on the fact that the sidewalk was about one inch higher than the other area in which plaintiff fell. Again, a sidewalk is an architectural feature, created intentionally, i.e., built that way, and differs greatly from the un-natural, un-architecturally created defect in the driveway depicted in the above photographs. The defense cited First Nat l Bank v. Cutrer, 214 So. 2d 465 (Miss. 1968). This was a case in which the plaintiff fell when she stepped on a riser in front of the side entrance to the bank. The edge of the riser was cracked off and broken. This condition existed for more than 15 years. Again a riser

is an intended, architectural or built that way feature. The cracks in defendants driveway were not designed or created by an architect or contractor. Additionally, in the case of Cutrer, when the case is read, it is very easy to see that the opinion went off on the fact that the plaintiff should have placed her foot on top of the riser rather than the edge, i.e. open and obvious defense. THE OPEN AND OBVIOUS DEFENSE, IN ACCORDANCE WITH THE CASE OF THARP VS. BUNGE CORP., 611 So. 2d 20 (Miss. 1994), HAS BEEN ABOLISHED IN MISSISSIPPI. The defense cited Rowe v. City of Winona, 159 So. 2d 282, in which plaintiff was injured when she stepped on a crack in the sidewalk which caught the heel of her shoe and pulled it off. The proof was that there were cracks in the streets and sidewalks all over town and that plaintiff had observed the crack and had passed over it many times. There are two differences between Rowe and the case at bar. In Rowe, there was no unevenness. There had been no attempt to repair the crack. In the case at bar, there was serious unevenness and there were attempts, as shown by the differences in color of the concrete, to repair the crack. Most importantly in Rowe, the case really went off on open and obvious defense which has been abolished. (Please see Bunge, above) The court, in Rowe, cited three cases. Hutto was a case in which a person slipped in a hole on the sidewalk 14 inches around and a foot deep. The court held the city liable, that is held the party maintaining the defect liable. In Shows, the dangerous condition consisted of a distance between two culverts covered with leaves and refuse. In Gilmore, there were cracks in the building visible from the street and the sidewalk. In Gilmore, the City of Corinth was held liable. The most principal or glaring difference in the case at bar is never, repeat never, mentioned in the defense s argument. It is simply that, not only was there a dangerous condition that was known

(by evidence of the former repairs) or should have been known to the defense, the dog charged, barking at plaintiff and caused or contributed to the injury, i.e., a combining or coming together of two separate acts of negligence. This is certainly a distinguishing feature. The defense also cited City of Biloxi v. Schambach, 157 So. 2d 386 (Miss. 1963) In this case, that is in the case of Schambach, the differences are these. Schambach was a case against a municipality. This is a case against private individuals. Schambach, to a degree, went off on open and obvious. That defense has been abolished. Also, in Schambach, there was no barking, charging, vicious guard dog that could not be petted, that was not a pet, that was either caged or chained every time plaintiff had been on the premises. We again emphasize that there are two different acts of negligence on the part of defendants that combine, i.e. the dog and a dangerous condition. The defense cited City of Greenville v. Loury, 159 So. 2d (sic) 121 (Miss. 1935). (Defense, I believe, says So 2d but it really should be So. ) This case materially differs from the case at bar in two very important respects. First of all, in Loury, there was no barking, vicious, charging, frightening, guard dog. Secondly, the plaintiff was suing a municipality and it is clear from the opinion that the court delved into the open and obvious defense, but that defense has been abolished in Mississippi. The real question for our Honorable Court is can the court say, in looking at the pictures of the crack in the sidewalk, and considering that the dog was barking at and frightening plaintiff, that, on a motion for summary judgment and as a matter of law, the crack in the sidewalk did not constitute a hazardous or dangerous condition? 3rd ISSUE: EVEN IF NEITHER OF THE ACTS OF NEGLIGENCE ON PART OF DEFENDANTS WAS, STANDING ALONE, SUFFICENT TO IMPOSE LIABILITY, THE ACTS COMBINING AND COMING TOGETHER ARE MORE THAN SUFFICIENT TO WITHSTAND A MOTION FOR SUMMARY JUDGMENT Plaintiff s very extensive and exhaustive research revealed no opinions in the United States discoursing on when the tort of vicious dog and the tort of defect in the premises combined and came

together to cause injury. There are a number of cases throughout the country in which a plaintiff claimed, some successfully and some unsuccessfully, that the keeping of vicious dog constituted, per se, defective premises. There are a number of cases in which a plaintiff sought to impose liability on a landlord for permitting a tenant to keep a vicious dog on the premises and many of these went off on the theory that in so doing, the landlord maintained defective premises. One of the cases holding a landlord liable under the theory of defective premises based on an attack by a dog is Medina v. Ferreira, 41 Conn. L. Rptr. 165 (Sup. Ct. 2006) which holds: The court is satisfied that in a dog bite case a plaintiff may still bring a cause of action grounded in premises liability even where there are no allegations that the landlord was the owner or keeper of the dog. Here, the complaint presents a cause of action based on premises liability and therefore need not allege that the defendant was an owner or keeper of the dog. For the aforementioned reasons, the motion to strike is denied. Medina v. Ferreira, No. CV054010712, 2006 WL 1102707, at *4 (Conn. Super. Ct. Apr. 8, 2006) 4th ISSUE: A CHANGE IN THE WIND/LANDSCAPE TO FORSEEABILITY: There is a very late decision of our Supreme Court that clearly seems to change the basis of liability in dog bite cases to one of forseeability. The case of Olier v. Bailey, ---So.3d--- 2014 WL 7084509 (Miss. Dec. 11, 2014) was a case in which Janet Olier was attacked by a domestic goose in Donna Bailey s yard. In fleeing from the goose, she, Janet Olier, fell and broke her arm. (In the case at bar, Mrs. Ringo fell and broke her arm). Olier sued Bailey under two separate theories, one was general premises liability and the second was dangerous propensity theory. The premises liability theory was based on the idea that keeping the gaggle of geese per se created a dangerous condition. Both the County Court and the Circuit Court granted summary judgment for Bailey on each of the two issues, i.e. premises liability and dangerous propensity. Our Supreme Court affirmed the decision on premises liability because Bailey was not an invitee, but a licensee (in the case at bar it is admitted

that plaintiff was an invitee) and that the standard to impose premise liability on an owner in the event of a licensee had not been met. However, our Supreme Court reversed both the County Court and the Circuit Court on the dangerous propensity aspects of the case. Our Supreme Court quoted from Mongeon in Olier supra, as follows: 29. Based upon the holdings of the Missouri Court of Appeals and Supreme Court of Hawaii, this Court held that 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. Mongeon, 733 So.2d at 172 ( 12). As the Court considered the evidence in the light most favorable to the plaintiff, it held that there was credible evidence from which the jury could find for her. Id. Olier v. Bailey, No. 2013-CA-01411-SCT, 2014 WL 7084509, at *7 (Miss. Dec. 11, 2014) We ask the court to note that in Olier, our court approved and stated that Mongeon held that dogs growling at a witness constituted an exhibition of dangerous and vicious propensities. HOW MANY TIMES IN PLAINTIFF S DEPOSITION DID SHE STATE THAT EVERY TIME SHE WENT TO THE HOME OF THE DEFENDANTS, THE DOG NOT JUST GROWLED, BUT BARKED VICIOUSLY AT HER TRYING TO GET AT HER THROUGH IT S CAGE? Comparing Olier to the case at bar, it is assumed that the case involved a young goose which startled and frightened plaintiff and then bit her, causing her to fall, whereupon she broke her arm. When she broke her arm, Ms. Olier was fleeing from the goose and tripped. How close on the facts is the case at bar. Plaintiff was frightened by the dog (admittedly it did not bite plaintiff), backed up and tripped over the crack in the driveway. The defendant in Olier argued that there was no proof that the particular goose involved (as opposed to another goose which had run off a police officer) had ever evidenced any dangerous and/or vicious

propensities. Our Supreme Court did not accept this argument and ruled that the defendant had sufficient notice of the dangerous propensities of the entire gaggle of geese. In so failing to accept the argument and in discoursing foreseeability, our court ruled: 9 10 35. 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 36. Generally, if the owner knows, or has reason to know, that the animal will be aggressive, or exhibits a dangerous propensity, that owner may be liable in tort. In that sense, it is possible for the dangerous-propensity rule, as articulated in Poy and Mongeon, to be unnecessary for the finding of foreseeability of the injury, and, consequently, liability for the injury. Instead, where an injury is a result of an animal's having behaved consistently with its general nature, it is irrelevant whether that particular animal had exhibited an unusually dangerous propensity previously, as its own inherent propensity precipitated the injury. Olier v. Bailey, No. 2013-CA-01411-SCT, 2014 WL 7084509, at *9 (Miss. Dec. 11, 2014) May we apply the rules as quoted above from Olier to the case at bar? Surely in all the evidence in the record, it cannot be said that the defendants could not foresee that Boo, a guard dog, who viciously lunged at and barked at plaintiff every one of the ten times she had been to defendant s home. He had to be kept in his cage, he was kept for protection and not as a pet, and when the defendants told plaintiff not to pet the dog, that they didn t let children pet him, and that BOO DOESN T REALLY LIKE YOU, is this not enough for this Honorable Court to state that there was enough foreseeability to withstand a motion for summary judgment?