                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00094-CV



      NANCY ELIZABETH BOWMAN, Appellant

                           V.

 JERRY DAVIDSON AND DIANA DAVIDSON, Appellees



         On Appeal from the 71st District Court
               Harrison County, Texas
               Trial Court No. 13-0618




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                                        MEMORANDUM OPINION
            While visiting the home of Jerry and Diana Davidson, first-time guest Nancy Elizabeth

Bowman was bitten in the face by the Davidsons’ dog, Bubba. Bowman sustained considerable

injury as a result of the bite. She sued the Davidsons and alleged (1) that because they knew or

had reason to know of Bubba’s dangerous propensities, they were strictly liable for her injuries

resulting from the dog’s bite and (2) in the alternative, that they were negligent in failing to exercise

reasonable care to prevent the dog from injuring her. A jury trial resulted in findings favorable to

the Davidsons on both theories of liability. In accordance with the jury’s verdict, the trial court

entered a take-nothing judgment against Bowman.

            On appeal, Bowman argues that she was entitled to a favorable finding on the strict liability

issue as a matter of law and, alternatively, that the jury finding was against the great weight and

preponderance of the evidence.1 We overrule Bowman’s points of error and affirm the trial court’s

judgment.

I.          Standard of Review

            Bowman argues that she was entitled to a favorable jury finding on the strict liability issue

as a matter of law. To prevail, Bowman “must demonstrate on appeal that the evidence establishes,

as a matter of law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis, 46 S.W.3d

237, 241 (Tex. 2001). In determining whether Bowman has met her burden, we “first examine the

record for evidence that supports the finding, while ignoring all evidence to the contrary.” Id. If

no evidence supports the adverse finding, we “then examine the entire record to determine if the


1
    Bowman does not contest the jury’s findings on the issue of negligence.

                                                            2
contrary proposition is established as a matter of law.” Id.; see Armstrong Forest Prods. v.

Redempco, Inc., 818 S.W.2d 446, 449 (Tex. App.—Texarkana 1991, writ denied). “In considering

the evidence, we view it in the light favorable to the verdict and, unless doing so is unreasonable,

presume the jury resolved all conflicts in accordance with its verdict.” Johnson v. Enriquez,

No. 08-13-00260-CV, 2015 WL 799461, at *3 (Tex. App.—El Paso Feb. 26, 2015, no pet.) (citing

City of Keller v. Wilson, 168 S.W.3d 802, 819–21 (Tex. 2005)).

         Bowman also attacks the jury’s verdict on factual sufficiency grounds. When, as here, a

party attacks “an adverse finding on an issue on which she [had] the burden of proof [at trial], she

must demonstrate on appeal that the adverse finding is against the great weight and preponderance

of the evidence.” Francis, 46 S.W.3d at 242. In making this determination, we “must consider

and weigh all of the evidence, and [will] set aside a verdict only if the evidence is so weak or if

the finding is so against the great weight and preponderance of the evidence that it is clearly wrong

and unjust.” Id. (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986), overruled on

other grounds by Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000)).

II.      Strict Liability for Dangerous Animals

         “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.’” Bushnell

v. Mott, 254 S.W.3d 451, 452 (Tex. 2008) (quoting Marshall v. Ranne, 511 S.W.2d 255, 259 (Tex.

1974)).2 Thus, ‘“a possessor of a domestic animal which [the owner] has reason to know has



2
 “For strict liability to attach, it is not required that the animal be ‘vicious’ or aggressive; a finding of the animal’s
abnormal ‘dangerousness’ is sufficient.” RESTATEMENT (THIRD) OF TORTS, § 23 cmt. c (2010).
                                                             3
dangerous propensities abnormal to its class, is subject to liability for harm caused thereby to others

. . . although he has exercised the utmost care to prevent it from doing the harm.’” Marshall, 511

S.W.2d at 258 (quoting RESTATEMENT OF TORTS, § 509 (1938)); see RESTATEMENT (THIRD) OF

TORTS, § 23 (2010).

        The elements of a strict liability claim in this context have been articulated as follows:

                To recover on a claim of strict liability for injury by a dangerous
        domesticated animal, a plaintiff must prove: (1) the defendant was the owner or
        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[3] of the plaintiff’s
        injury.

Thompson, 127 S.W.3d at 451 (citing Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 660 (Tex. App.—

Waco 2002, no pet.)). Only the second and third elements are at issue in this case.

III.    The Evidence at Trial

        At trial, the jury was asked to determine whether the Davidsons “[knew] or [had] reason to

know that their dog had dangerous propensities not normal for a dog.” The jury responded in the

negative, and we now examine the record for evidence supporting this finding.

        A.       Bubba’s General Character and the Davidson’s Warnings to Others

        Bubba is a twelve-year-old, male, Australian Blue Heeler. He weighs approximately

seventy pounds and has had no formal training. Diana testified that Bubba is very protective of

her, “is aggressive . . . if he doesn’t know someone,” is “very verbal when strangers come up,” and



3
 “Proximate and producing cause differ in that foreseeability is an element of proximate cause, but not of producing
cause.” Thompson v. Curtis, 127 S.W.3d 466, 451 (Tex. App.—Dallas 2004, no pet.) (citing Union Pump Co. v.
Allbritton, 898 S.W.2d 773, 775 (Tex. 1995), abrogated on other grounds by Ford Motor Co. v. Ledesma, 242 S.W.3d
32 (Tex. 2007)).
                                                         4
is known to jump at the fence. The Davidsons posted signs on their property warning others to

“beware of the dogs”4 since “[a] dog will naturally bite.” The Davidsons’ neighbors and friends

were well aware of Bubba’s nature; their longtime friends, Billy Strong and Danny Alexander,

described Bubba as an aggressive dog. Alexander stated that Bubba barks at everyone “[m]ost of

the time.” Anita Biggs Scott, another friend of the Davidsons, testified that she would not pick up

a napkin if it was dropped in close proximity to the dog. Given Bubba’s size and nature, the

Davidsons put Bubba away in the presence of children, large crowds, or strangers to the dog.

            At trial, Diana admitted that she typically warns guests of Bubba’s aggressiveness,

protectiveness, and possessiveness and instructs them not to look at, touch, or otherwise bother the

dog. She further testified that the purpose behind these warnings is to prevent dog bites. Jerry

testified that he also warns people not to touch, look at, or pet Bubba and that the warnings are

given so that others can avoid being bitten by him. Strong, Scott, and other frequent visitors,

including Nancy George, Gladys May Phant, and Sherry Rushing, all testified that newcomers are

warned by Diana and Jerry not to touch Bubba or stare him in the eyes. Strong, Alexander, and

Scott also personally issued similar warnings to new visitors during gatherings at the Davidsons’

home. Despite the typical warnings, some of the Davidsons’ guests pet Bubba.5 Bowman was

one of these guests.




4
    The Davidsons have owned several dogs over the years, including Bubba’s sister, Sissy.
5
    Scott stated that she pets Bubba, although she is careful to cover her eyes when doing so.
                                                             5
       B.      Bowman Received Numerous Warnings about Bubba

       On the night that Bubba bit Bowman, the Davidsons were hosting a fish fry at their home.

Bowman, who did not know the Davidsons, was invited to the gathering as Alexander’s date.

Alexander testified that he warned Bowman several times both before and after they arrived at the

party to watch for Bubba, and to avoid touching him or looking at his eyes. Diana greeted Bowman

and, for Bowman’s safety, “asked her. . . if she had a problem with the dogs.” Diana testified that

“[Jerry] was getting up to put [Bubba] in the house,” but that Bowman “[s]aid it wasn’t necessary.

That she was not afraid of [dogs]. She liked dogs[,] and they liked her.” Diana then informed

Bowman, “[I]f you don’t touch them, you know, or look at them they will not bother you.” Scott

testified that she also issued these usual warnings to Bowman at the party.

       Bowman’s testimony established that she was informed that Bubba was so possessive of

Diana that Jerry could not dance with her because Bubba would get between them. She also

claimed, “[Jerry] just in general conversation said [jokingly] that he couldn’t hug Ms. Davidson

and get close to her because Bubba would get in between them.”                Although Bowman

acknowledged that she was warned of Bubba’s possessiveness, she did not heed the warnings.

       Scott testified that he witnessed Bowman coaxing Bubba to come to her and again warned

Bowman that beckoning Bubba was not a good idea. Bowman testified that Bubba came over to

her and put his head on her knee, prompting her to pet him. According to Alexander’s account,

Jerry, Diana, Scott, and Halle Biery all warned Bowman not to touch Bubba both before and after

she did so. Bowman said that Bubba laid down beside her and then walked back to Diana. By all



                                                6
accounts, including Bowman’s, Bubba did not exhibit any aggressive or concerning behavior

before the bite.

        C.       The Bite

        When it was time to enjoy the fried fish, Bowman sat next to Diana at the dinner table,

with Bubba on the floor between them. Bowman testified, “I asked Ms. Davidson could I feed

[Bubba] a French Fry. I don’t recall her saying anything. . . . I saw her shake her head yes.” Jerry

testified that he heard Diana tell Bowman that Bubba did not like french fries and that it was

probably best not to feed him. Bowman fed Bubba a french fry. Witnesses to the accident

impliedly questioned whether Bowman was attacked as a result of sharing her meal. Diana

testified that Bowman was bent over looking towards the floor when Bubba bit her. Scott, Squire,

and Biery also testified that Bubba bit Bowman when she leaned down at the table. Strong testified

that Bowman had turned and was looking at Bubba’s face when the dog jumped up and bit her.

        Bowman denied that she was feeding Bubba at the time of the bite. According to Bowman,

she dropped the french fry on the ground and then turned to Diana to compliment her on the table

setting when Bubba jumped up and bit her in the face. Bowman’s friend, Clay Armstrong, testified

that on the following day, Bowman informed him that she had “leaned over to say something to

[Diana] . . . when . . . the dog bit her in the face.” Strong testified that she disbelieved Bowman’s

account because she witnessed Bowman’s head duck down past the tabletop.6




6
 According to Bowman, Strong, Alexander, and Squire, Bubba did not bark or make any noise before the attack but
Biery testified that she heard the dog bark.
                                                      7
            Alexander immediately drove Bowman to a hospital; she received emergency medical

treatment for her injuries. The bite permanently damaged Bowman’s facial nerve endings, causing

chronic pain, and also disfigured her lip, making it difficult to eat. Bowman consulted with Dr.

Kenneth Wayne Sanders, a plastic surgeon, who suggested that surgery might repair Bowman’s

disfigured lip line.

            D.       Evidence of a Previous Incident

            Most of the Davidsons’ friends, including George,7 Alexander, Scott, and Squire, testified

that they had not seen Bubba act out aggressively toward a human and that they could not believe

that Bubba bit someone.8 Diana testified that she did not know why Bubba bit Bowman and that

Bubba had never bitten anyone before. Yet, the record established that Bubba had previously

displayed aggressive behavior toward Strong.

            Strong had been around Bubba on many occasions and was familiar with and to the dog.

When asked whether Bubba had ever bitten anyone before, Strong said that Bubba had bitten him

one year before Bowman’s bite. Strong testified that Bubba ran towards him and “nip[ped] [him]

on the back of [his] leg” as he was rushing out of the Davidsons’ front door. Strong characterized

the incident as a “nip” that left a bruise, but did not break the skin. Diana witnessed the incident

and scolded Bubba to let go of Strong. The dog obeyed. Diana testified that Bubba “pinch[ed]”




7
    George testified that she had previously been bitten by a Blue Heeler.
8
 Bubba’s veterinarian, Dr. Bruce Bradley, testified that his records did not indicate that Bubba was aggressive towards
him or others during his veterinary visits. Jerry testified that Bubba was muzzled when he went to his veterinarian
appointments.
                                                             8
Strong because he “just moved too fast.” Strong testified that the Davidsons should have put

Bubba away to avoid the bite to Bowman.

         E.       What the Davidsons Knew or Should Have Known

         Diana admitted the Bubba “laid teeth on Mr. Strong, a human being.” She claimed that

she had been warning people for a long time about Bubba’s aggressiveness, protectiveness, and

possessiveness and that she just did not know when or if the dog might show aggressiveness or

bite someone. Diana admitted that she had reason to know that Bubba could be dangerous and

might bite someone and also agreed that she knew Bowman might be bitten unless Bubba was put

away.9 Yet, according to Diana, Bowman was at fault for the bite because she did not insist on

having Bubba banished from the party. During her later testimony, Diana claimed that Bubba was

“absolutely not” vicious and dangerous.

         Jerry agreed that Bubba was protective, but denied that the dog was aggressive. Jerry’s

initial testimony regarding Bubba’s propensity for danger is contained in the following excerpt:

                  Q         Then a biting dog is potentially dangerous?

                  A         Not necessarily.

                  Q         Or has a potential or the possibility?

                  A         Possibility.
9
 Citing to Mendoza v. Fidelity & Guaranty Insurance Underwriters, Inc., 606 S.W.2d 692, 694 (Tex.1980), Bowman
also argues in a reply brief that Diana’s uncontroverted testimony “[rose] to the level of a judicial admission.” The
record does not establish that Bowman made this argument below. Also, Bowman did not raise this argument in her
first appellate brief. Moreover, Mendoza states, “A party’s testimonial declarations which are contrary to his position
are quasi-admissions. They are merely some evidence, and they are not conclusive upon the admitter.” Id. We
recognize that Mendoza goes on to identify the circumstances under which quasi-admissions are treated as judicial
admissions, yet the third requirement is that the statement be “deliberate, clear, and unequivocal.” Id. (citing United
States Fid. & Guar. Co. v. Carr, 242 S.W.2d 224, 229 (Tex. Civ. App.—San Antonio 1951, writ ref’d)). Diana’s
statement here does not rise to the level of the “deliberate, clear, and unequivocal” statement necessary to constitute a
judicial admission that her dog was dangerous.
                                                           9
                Q      Okay. How about propensity?

                A      I don’t even know the meaning of the word.

              Q       Propensity means that he is leaning that way and you gave warnings
       because you thought that he might bite; correct?

                A      Maybe so.

Later, Jerry testified several times during his examination, including in the following excerpt, that

Diana warned others about Bubba because there was a propensity for danger:

              Q      Okay. And the mere fact of somebody leaning toward Diana, as far
       as we know, that could set the dog off?

                A      Right.

                Q      We just don’t know what?

               A      We don’t know what. We don’t know what set him off that night.
       It hasn’t happened again.

               Q      Okay. Well, that is why you gave the warnings is because you knew
       that the propensity was there for it to happen?

                A      Yes, that is the reason that they give the warning.

             Q         Okay. And the warnings were to try to prevent what happened from
       happening?

                A      Right.

When asked about the incident with Strong, Jerry testified, “I am not really sure that he laid teeth

on [Strong].”




                                                 10
        F.      The Experts’ Testimony

        In an attempt to explain some of his behavior, Diana stated that Bubba was used to herd

cattle at one time. Bubba’s vet, Dr. Bruce Bradley, testified that as a heeler, there was a natural

tendency for Bubba to have a herding instinct. However, he clarified that a heeler might nip a cow

or a horse, but was not likely to “nip” people. Bradley testified that he would have put an

aggressive dog away when people came over.

        John Charles Laughlin, an engineer, was asked to “perform a hazard mitigation analysis

and a human factor analysis to determine whether or not the Davidsons took appropriate measures

on the date of the incident.” Laughlin’s expert conclusion was that the Davidsons could have

removed the potential for Bubba to bite someone by simply putting him away. Laughlin also

testified that it was irresponsible for the Davidsons to have allowed Bubba to sit next to a stranger

at the dinner table.

        Dr. Lore I. Haug, a board-certified veterinarian behaviorist, provided her expert testimony

after reviewing the depositions taken by both parties during discovery. Noting that the Davidsons

had spent years warning people about Bubba, and not their other dog, Sissy, Haug testified, “When

people give warnings about their dog . . . it is because they have some knowledge about the dog’s

previous behavior that makes them concerned that something bad is going to happen.” Haug

testified that a dog can become so protective and possessive that it becomes dangerous, and that

“[i]n the vast majority of cases the behavior persists or worsens over time” unless the owners

correct the dog’s behavior. She stated that a poorly socialized animal could react after finding a

person’s stare threatening. According to Haug, “In the depositions they said when Jerry got near

                                                 11
Diana[,] Bubba barked, jumped on them and pushed between them.” Haug testified that Bubba’s

behavior “does not fall within what we would call typical, normal or[,] acceptable for a companion

dog.”

         Haug opined that the Davidsons warned others about Bubba’s dangerous character because

they knew that Bubba exhibited a tendency to attack human beings or other animals. Haug

believed that Bubba had dangerous propensities, which was defined for her by counsel as vicious

or aggressive tendencies that are not normal for a dog. When asked if the Davidsons knew or had

reason to know that Bubba had propensities to be dangerous, Haug testified that the Davidsons

“did have adequate knowledge that something may happen.”

         Yet, Haug stated that Strong’s fast movement could have triggered Bubba’s bite10 because

the dog had a nature to herd from behind and that Strong’s running could have startled the dog.

She testified that Bubba could have injured Strong more severely if he had wanted to. During

cross-examination, Haug agreed that prior to Bowman’s bite, there was no evidence that Bubba

had bitten anyone severely. The Davidsons also elicited the following statements from Haug,

which focused on her prior deposition testimony, and likely weighed on the jurors’ minds:

                  Q      I am going to move briefly to some of your [deposition] testimony.
         . . . You were asked would you have classified or considered Bubba to be a
         dangerous dog. You go on basically and say it is difficult in answering and you
         talk about Bubba’s problems and legal definitions and whatnot . . . . On Page 16
         [a]t Line eight, you told me your answer was at the time up to the Bowman bite
         would I have told people he was dangerous, was a dangerous dog, no. . . . However,
         I would say there were clearly red flags, but the bottom line you said no. I would
         not have considered him dangerous up until the time he bit Ms. Bowman. Do you
         still agree with that testimony?

10
  Haug testified that she considered any contact that a dog made with its mouth to constitute a bite, even absent
injury.
                                                         12
                A       Yes and no. Can I clarify? I get what you are saying. So this is the
        proposed question and I am basing my answer on the way dangerous propensities
        is outlined there. Okay.

               [Davidsons counsel]: Your Honor, I would object to the responsiveness to
        the answer. My question was: Does she still agree with her prior opinion, her
        statement. That is a yes or no.

                        THE COURT: That objection is sustained.

                Q[Mr. Brown]: So is your answer now yes and no as opposed to no, which
        is what you told me on deposition?

                A       I would say no with a qualifier.

                Q       Okay. Good enough. There is a potential in most any dog to bite?

                A       Correct.

               Q      Under the right circumstances and conditions whatever any -- most
        any dog might bite someone; agree?

                A       Yes.

        G.      The Jury’s Finding

        On the issue of strict liability, the trial court submitted the following question and

instructions to the jury:

               On the occasion in question, did the Davidsons know or have reason to
        know that their dog had dangerous propensities not normal for a dog[?]

               “Reason to know” means the actor has information from which a person of
        reasonable intelligence would infer that the fact in question exists, or that such
        person would govern his conduct under the assumption that such fact exists.

                It is enough that the possessor of the animal knows that it has on other
        occasions exhibited such a tendency to attack human beings or other animals or
        otherwise to do harm as should apprise him of its dangerous character. Thus, the
        fact that a dog has to his knowledge unsuccessfully attempted to attack human
                                                 13
       beings or other animals is sufficient to bring its possessor within [the] knowledge
       requirement. Sufficient also is any form of ill temper displayed in the presence of
       man or beast which would apprise a reasonable man that the animal if uncontrolled
       would make such an attack.

              “Dangerous propensities” means vicious or aggressive tendencies that are
       not normal for a dog.

               Answer “Yes” or “No.”
               Jerry Davidson      ___________
               Diana Davidson      ___________

       Favoring the Davidsons, the jury wrote “No” in both blanks.

IV.    The Jury’s Strict Liability Finding Is Supported by Legally Sufficient Evidence And
       Is Not Against the Great Weight and Preponderance of the Evidence

       Pointing to the warnings issued by the Davidsons to others, Haug testified that the

Davidsons “did have adequate knowledge that something may happen.” Yet, “in a dog bite case[,]

the controlling issue to be determined is whether the party complained against has knowingly kept

or harbored a vicious dog.” Arrington Funeral Home v. Taylor, 474 S.W.2d 299, 300 (Tex. Civ.

App.—Eastland 1971, writ ref’d n.r.e.). Certainly, given the facts before us, the answer to this

question likely required considerable deliberation. By its finding, the jury determined that prior

to Bubba’s attack on Bowman, the Davidsons did not know and should not have known that Bubba

had dangerous propensities abnormal to his class. In reviewing the jury’s verdict, we must

recognize that the jury is the “sole judge of the credibility of the witnesses and the weight to be

given their testimony, and we may not act as a thirteenth juror in assessing the evidence and the

credibility of the witnesses.” Lesikar v. Rappeport, 33 S.W.3d 282, 296 (Tex. App.—Texarkana

2000, pet. denied).


                                                14
        Bubba is a large, vocal dog who barks “at most everybody . . . [m]ost of the time.” While

the jury heard uncontested testimony about Bubba’s possessiveness and protectiveness of Diana,

it heard conflicting testimony about his aggressiveness. Although Diana and several other

witnesses used the word “aggressive” to describe Bubba, those same witnesses who had been

around Bubba on many occasions (with the exception of Strong), stated that they never saw Bubba

acting aggressively toward another person. Jerry denied the idea that Bubba was an aggressive

animal. From the record, the jury was required to determine whether the incident with Strong

established that Bubba had dangerous propensities, or whether he was merely overly-protective

and that this incident was atypical.

        The characterization of the prior incident with Strong was hotly contested. Bowman, who

was not warned that Bubba had a tendency to bite, argued at trial that Bubba’s attack on her

constituted a second bite. She contends that Bubba’s prior incident with Strong established that

the Davidsons knew that the dog had “on other occasions exhibited such a tendency to attack

human beings . . . as should apprise [them] of [his] dangerous character.”

        Diana testified that Bubba had never previously bitten anyone. Strong referred to the

incident as a nip that did not break the skin, but only left a bruise. Strong further testified that after

the nip, Bubba let go. In spite of the incident, Strong continued to interact with Bubba and

frequently attended dinners at the Davidsons’ home even though Bubba was usually close to the

dinner table.

        When questioned about the incident involving Strong, Haug testified that any dog could

have the potential to bite under the right circumstances and that Strong’s fast movement could

                                                   15
have startled the dog. She added that Bubba could certainly have caused more harm to Strong if

he wanted to. Further, the jury heard that Haug had previously testified that she would not have

described Bubba as dangerous prior to Bowman’s bite. While Haug opined that “there [wa]s

something about this dog that [prompted the Davidsons] to warn people about him,” she stated that

she had not seen any evidence of an act that would prompt such warnings.

       Viewing the evidence in the light most favorable to the verdict, we conclude that there was

some evidence to support a decision that the Davidsons did not know or have reason to know that

Bubba was vicious until he bit Bowman. Thus, Bowman cannot establish that she was entitled to

a favorable finding on the strict liability issue as a matter of law. We next determine whether the

jury’s verdict was against the great weight and preponderance of the evidence.

       The reason for the imposition of strict liability is explained in the Third Restatement of

Torts, which states,

       Given the defendant’s knowledge, the reasonableness of the defendant’s conduct in
       retaining the animal is at least questionable, and strict liability gives the owner an
       incentive to consider whether the animal should be retained. Even if that retention
       is itself proper, an abnormally dangerous animal is by definition unusual; owning
       such an animal is an activity engaged in by a few that poses significant risks on
       others within the community. In these circumstances, strict liability is fairly
       imposed.

RESTATEMENT (THIRD) OF TORTS, § 23 cmt. b (2010). Thus, ‘“[t]he owner of a domestic animal

is not liable for injuries caused by it in a place where it has a right to be, unless the animal is of

known vicious propensities or the owner should know of the vicious or unruly nature of the

animal.’” Searcy v. Brown, 607 S.W.2d 937, 941 (Tex. App.—Houston [1st Dist.] 1980, no writ)

(quoting Lewis v. Great Sw. Corp., 473 S.W.2d 228 (Tex. App.—Fort Worth 1971, writ ref’d

                                                 16
n.r.e.)). Whether a dog has a vicious nature and whether the owner is aware of that nature is a

question for the finder of fact. See Pate v. Yeager, 552 S.W.2d 513, 516 (Tex. Civ. App.—Corpus

Christi 1977, writ ref’d n.r.e.).

        At the time of his encounter with Bowman, Bubba was twelve years old and had been

socialized with a number of people. Prior to the incident involving Strong, there was no evidence

that Bubba had previously harmed any person or animal. Because Haug and Diana both suggested

that Bubba could have been startled by Strong’s sudden movement, the jury could have determined

(1) that the nip was a startled reaction rather than an attack and (2) that prior to Bowman’s bite,

the Davidsons had no reason to know that Bubba had dangerous tendencies that were not normal

for a dog since he had displayed no tendency to attack human beings or other animals. Thus, based

on our review of this record, we cannot conclude that the jury’s determination was against the

great weight and preponderance of the evidence. Accordingly, we must overrule Bowman’s points

of error.

V.      Conclusion

        We affirm the trial court’s judgment.



                                                Ralph K. Burgess
                                                Justice

Date Submitted:         May 26, 2015
Date Decided:           July 1, 2015




                                                  17
