Ducote v. Boleware

216 So.3d 934

Wardette DUCOTE

v.Michael BOLEWARE, et al.

No. 2015–CA–0764.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 17, 2016.

Rehearing Granted for Clarification March 4, 2016.

Richard Lynn Ducote, Pittsburgh, PA, Denis W. Barry, Jr., Livingston, LA, for Plaintiff/Appellant.

Michael J. Madere, Metairie, LA, for Defendant/Appellee.

(Court composed of Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS ).

ROSEMARY LEDET, Judge.

This is a personal injury suit for injuries sustained by the plaintiff when she was bitten by a cat allegedly belonging to the defendant. From the trial court's judgment granting the motion for summary judgment filed by the defendant and his homeowner's insurer and dismissing the plaintiff's suit, the plaintiff appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 30, 2010, at about 7:30 p.m., Wardette Ducote went for a walk down the sidewalk near her house, which was located at 3547 Rue Colette in New Orleans, Louisiana. At that time, it was dark outside. When she was about ten feet from the nearest street light and twenty feet from her house, she was bitten by a cat. According to Ms. Ducote's deposition testimony, the incident occurred as follows:

I was taking a walk and I had on a scarf because it was chilly. And as I was walking down the sidewalk a cat just ran up to me and jumped up against my left side. And his paw was pulling on my scarf, so I grabbed it and when I put my arm down he lunged and screamed, the way cats scream, and bit and his tooth sunk into my wrist. And then he ran off.

Ms. Ducote identified the cat that bit her as belonging to her neighbor, Michael Boleware, who resided at 3534 Rue Colette Street.

At the time of the incident, Ms. Ducote's sister and housemate, Sue Bordelon, was standing outside their house talking on her cell phone. In her affidavit, Ms. Bordelon described the incident as follows:

Dee [Ms. Ducote] was about 20 feet away from me on the sidewalk when I saw Buddy the cat [that belonged to Mr. Boleware] walking fast towards her....

* * * * * *

[M]y sister continued walking on her stroll, then I saw Buddy leap up on her and he bit her left hand or wrist. Dee screamed in pain and then came running toward me; she had a lot of blood dripping from her wrist, from where Buddy had bitten her. I am 100% certain that it was Buddy, Mr. Boleware's cat, who leaped onto Dee's hand and bit her wrist, I have seen this cat often and am very familiar with his look.

Following the incident, Ms. Ducote returned to her house to clean the bite wound and to stop the bleeding, which took about twenty minutes. After doing so, Ms. Ducote and Ms. Bordelon went to Mr. Boleware's house to inquire whether his cat was current on his rabies vaccination. Ms. Bordelon explained that the reason they did so was because the emergency room doctor would need to know if the cat was vaccinated for rabies. According to Ms. Bordelon's affidavit, "Mr. Mike [Boleware] said he thought his cat had been vaccinated at one time, but he wasn't sure, he thought his daughter may have brought Buddy to the Fire Station one day [to be vaccinated.]" According to Mr. Boleware's deposition testimony, he informed Ms. Ducote and her sister that he did not know where his proof of vaccination was and that he would look for it. Mr. Boleware's explanation as to why he did not keep his cat inside was that he also had a dog that he kept inside, and his dog would eat the cat litter.

After leaving Mr. Boleware's house, Ms. Ducote went to the emergency room where she was treated and released. The emergency room physician's notes regarding Ms. Ducote's treatment are as follow:

Patient is concerned about possible contraction of rabies. Mandible that attacked her belongs to a neighbor. However, the neighbor cannot produce evidence that the animal has been vaccinated and he lets the cat run loose. The patient is concerned because there are bats and raccoons in her neighborhood which could carry rabies and pass it on to the cat. The animal attacked her unprovoked and then the animal came up and sat next to the owner and then bit the owner when he tried to pick it up. I discussed with the patient that it is less likely that the animal has rabies, but I can not [sic] be 100% certain. The patient prefers the certainty of having the immunoglobulin and the vaccine while the animal is observed by the authorities.

After she returned from the emergency room, Ms. Ducote called the police and animal control to report the incident. Two days later, a LA/SPCA Animal Control officer came to the scene of the incident to investigate. According to the Animal Control officer's incident report, Mr. Boleware was cited for violating the following two City of New Orleans ordinances: (i) § 18–14, roaming at large;¹ and ii) § 18–170, proof of rabies vaccination.² The incident report states that the reason for the charges against Mr. Boleware were that the biting incident took place across the street from his property and that Mr. Boleware was unable to produce a current rabies vaccination certificate for his cat.

Because Mr. Boleware was unable to produce a current rabies vaccination certificate for his cat, the Animal Control officer informed Mr. Boleware that his cat was required to spend the ten-day quarantine period at the SPCA.³ Although the Animal Control officer was unable to capture the cat and take it into custody, Mr. Boleware surrendered the cat to the SPCA later that evening. According to the SPCA records, on December 2, 2010, the cat, Buddy, appeared to be a normal, healthy adult cat; and the cat's temperament was noted as "friendly." On December 9, 2010, the cat was released from quarantine with no sign of rabies. In the meantime, Ms. Ducote underwent a series of anti-rabies treatments (vaccinations and inoculations).⁴

On April 25, 2011, Ms. Ducote filed this suit against Mr. Boleware and his homeowner's insurer.⁵ In her petition, Ms. Ducote alleges the following:

• On November 30, 2010, Plaintiff, Defendant's neighbor, was viciously, without provocation, and through no fault of Plaintiff, attacked in Orleans Parish, in Plaintiff's yard by a cat owned, housed, and cared for by Defendant Boleware. The cat bit deeply into Plaintiff's wrist, causing a painful and serious puncture wound.

• Defendant's offending cat was allowed by Defendant Boleware to run freely in the neighborhood, and was not vaccinated against rabies.

• As a direct result of the cat bite, Plaintiff was required to undergo expensive, painful, and dangerous medical treatments, including the series of anti-rabies vaccine injections.

• Plaintiff's damages were caused solely by the negligence of Defendant Boleware in failing to confine his cat, failing to have his cat properly vaccinated against rabies, and/or failing to maintain records of any such vaccination, all in breach of his legal duty and in direct violation of New Orleans Code of Ordinances §§ 18–14, 18–168, 18–169, and 18–170.

Mr. Boleware answered the petition and filed a motion for summary judgment. Following a hearing, the trial court granted the motion for summary judgment and dismissed Ms. Ducote's suit with prejudice. This appeal followed.

DISCUSSION

The well-settled standard of review of a trial court's ruling granting a motion for summary judgment is as follows:

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.

The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish these ends. The code provides that where [as in the instant case] the party moving for summary judgment will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the adverse party's claim, but rather to point out to the court that an absence of factual support exists for one or more elements essential to the adverse party's claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law. The adverse party cannot rest on the mere allegations or denials of his pleadings when a motion for summary judgment is made and supported by affidavits, but is required to present evidence establishing that material facts are still at issue.

Johnson v. Loyola Univ. of New Orleans, 11–1785, pp. 7–8 (La.App. 4 Cir. 8/8/12), 98 So.3d 918, 923–24 ; see also Mandina, Inc. v. O'Brien, 13–0085, p. 9 La.App. 4 Cir. 7/31/13), 156 So.3d 99, 104–05, writ denied, 13–2104 (La.11/22/13), 126 So.3d 485 (collecting cases).⁶

Because the applicable substantive law determines...