When and under what circumstances is dog owner responsible for bites?
Bushnell v. Mott, No. 06-1044 (Tex. Mar. 28, 2008) (per curiam)
(animal law, dog bite liability, duty to restrain animal not known to be vicious, vicious dog)
Holding: Owner of dog has duty to attempt to stop the dog from attacking a person
after the attack has begun.
Plaintiff testified that while she was being bitten, she “never once heard [the dog
owner] scold the dogs.” Even if the owner of the dog did not know her dogs had
dangerous propensities, Bushnell’s original affidavit indicating that defendant dog
owner did nothing to prevent her dogs from continuing the attack raises a material fact
issue concerning whether Mott failed to exercise ordinary care over her dogs once the
attack began. The court reverses the judgment of the court of appeals and remands the
case to the trial court for further proceedings.
Case details: GENEVIA BUSHNELL AND DEWARD RAYMOND (D.R.) BUSHNELL vs. JANET MOTT; from
Gillespie County; 4th district (04-05-00846-CV, ___ S.W.3d ___, 09-13-06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Opinion below: Bushnell v. Mott, No. 04-05-00846-CV (Tex.App.- San Antonio [4th Dist.] Sep. 13, 2006)
(Opinion by Chief Justice Alma L. López)
Related terms: animal law, owner's responsibility, duty, liability, dangerous animals, vicious dogs, non-vicious
dog, dog bite, leash law, muzzle
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Bushnell v. Mott (Tex. 2008) (per curiam)
Per Curiam Opinion [from Supreme Court's web site]
In this case, we consider whether the owner of a dog not known to be vicious owes a duty to attempt to stop
the dog from attacking a person after the attack has begun. Because we hold that such a duty exists, we
reverse the court of appeals’ decision.
Genevia Bushnell was in the business of selling health and wellness products. Bushnell alleges that she went
to Janet Mott’s mobile home to deliver some products that Mott had purchased. Bushnell knocked on Mott’s
door and Mott’s dogs began barking. When Mott opened the door, her three dogs pushed open the door and
rushed out. The dogs attacked Bushnell, biting her multiple times on her legs, arms, back, and shoulder.
Bushnell claims Mott made no attempt to stop the attack, and that Mott did not assist Bushnell after the attack.
Bushnell filed suit, alleging negligence, premises liability, and strict liability claims. Mott moved for summary
judgment and Bushnell filed a response. A few days before the summary judgment hearing, Bushnell filed a
supplemental response and affidavit, but Mott contested the filing as untimely. The trial court refused to
consider Bushnell’s late filing and granted Mott’s motion for summary judgment.
The court of appeals assumed, without deciding, that the trial court erred when it refused to consider Bushnell’
s supplemental response and affidavit. ___ S.W.3d ___, ___ (Tex. App.—San Antonio 2006). It then
determined that Bushnell had abandoned her premises liability and strict liability claims and examined the
supplemental evidence only in the context of the negligence claim. Id. The court of appeals held that when a
dog attack takes place on an owner’s property (where the owner has a right to keep the dog), a plaintiff must
show that the owner had knowledge of the dog’s dangerous propensities in order to be liable for negligent
handling. Id. (citing Petry v. Gasca, No. A14-93-00433-CV, 1994 WL 132772, at *1 (Tex. App.—Houston [14th
Dist.] Apr. 14, 1994, no writ) (not designated for publication)).
The only evidence offered to demonstrate knowledge of Mott’s dogs’ dangerous propensity was Bushnell's
claim that Mott had “frantically attempted to position herself in front of the screen door to prevent the dogs
from attacking.” Id. at ___. Because there were reasons other than the viciousness of the dogs for Mott to
position herself in front of the door (e.g., to keep the dogs from running into the street and getting injured or to
prevent them from playfully jumping on a visitor), the court of appeals determined that Bushnell’s evidence
amounted to no more than a scintilla, giving it no legal effect, and affirmed the trial court’s summary judgment.
An owner of a vicious animal can be strictly liable for harm, while an owner of a non-vicious animal can be
“subject to liability for his negligent handling of such an animal.” Marshall v. Ranne, 511 S.W.2d 255, 259 (Tex.
1974). The court of appeals found no evidence of negligence here because the attack occurred where the
dogs had a right to be. ___ S.W.3d at ___. But in each of the cases it cited for support, the negligence theory
alleged was that the animals should have been restrained before the attack. Here, Bushnell alleged that
Mott was negligent not only in failing to keep her dogs restrained, but in failing to do anything to stop the
attack after it had started. As a comment to the Restatement recognizes, the owner of a non-vicious dog is
generally not liable for the former, but can be liable for the latter:
[A]lthough the possessor or harborer of a dog or cat is privileged to allow it to run at large and therefore is not
required to exercise care to keep it under constant control, he is liable if he sees his dog or cat about to attack
a human being . . . and does not exercise reasonable care to prevent it from doing so.
See Restatement (Second) of Torts § 518 cmt. j (1977).
If we consider only Bushnell’s original affidavit, Bushnell testified that while she was being bitten, she “never
once heard [Mott] scold the dogs.” Even if Mott did not know her dogs had dangerous propensities, Bushnell’s
original affidavit indicating that Mott did nothing to prevent her dogs from continuing to attack Mott raises a
material fact issue concerning whether Mott failed to exercise ordinary care over her dogs once the attack
began. Accordingly, we reverse the judgment of the court of appeals and remand the case to the trial court for
OPINION DELIVERED: March 28, 2008
 See Jones v. Gill, No. 2-03-298-CV, 2005 WL 503182, at *4 (Tex. App.—Fort Worth Mar. 3, 2005, no pet.) (mem. op.) (finding
no negligence in keeping a dog behind a counter during business hours); Rodriguez v. Haddock, 2003 WL 1784923, at *2 (Tex.
App.—Fort Worth Apr. 3, 2003, no pet.) (mem. op.) (finding no negligence in allowing a dog into a house near strangers); Petry v.
Gasca, No. A14-93-00433-CV, 1994 WL 132772, at *1 (Tex. App.—Houston [14th Dist.] 1994, no writ) (not designated for
publication) (finding no negligence in failing to keep a dog in a home on a leash); Searcy v. Brown, 607 S.W.2d 937, 941 (Tex.
Civ. App.—Houston [1st Dist.] 1980, no writ) (finding no negligence in allowing dogs to run at large on the owner’s property);
Lewis v. Great Sw. Corp., 473 S.W.2d 228, 230 (Tex. Civ. App.—Fort Worth 1971, writ ref’d n.r.e.) (finding no negligence in having
a goat in a petting zoo).