Frazier was an employee of the City of Alexandria and worked as a meter reader. He visited the Difulco’s home one afternoon to read their residential meter. As he approached the gate, two dogs began barking, followed by Luke Difulcot’s son, Daniel, who came outside to greet Frazier. Although Daniel offered to kennel the dogs for Frazier’s comfort, he entered through the gate without responding, and the ten-year-old black Labrador bit him on the hand.
In contrast to Daniel’s testimony, Frazier claimed that he saw no evidence of a dog when he approached the Difulco’s residence and entered through the gate to check the meter. After entering the gate, he was attacked by a dog, and then a second one approached him. Frazier received workers’ compensation and medical payments from his employer, and he sought additional damages against Luke Difulco through the lawsuit subject of this appeal.
The trial court ruled in favor of the Difulcos, stating that the dogs had no history of aggression, and Frazier assumed the risk of entering through the gate with barking dogs. Frazier disagreed that he assumed the risk of entering through the gate and believed the Difulcos acted negligently by not kenneling their dogs.
Frazier lost his case at trial as the trial Judge found Difulco’s testimony more persuasive. He eventually filed a motion for a new trial and lost. The trial court did, however, change the language of the original judgment, holding Frazier was 100% negligent rather than assuming the risk. Frazier appealed the decision.
In his motion for a new trial, Frazier relied on a Louisiana statute that provides for a new trial if the decision from the original case was clearly not aligned with the law and evidence (La.Code Civ.P. art. 1972(1)). He also denied the facts regarding the incident with the dogs from the trial court, which relied on the Difulcos’ testimony.
Louisiana state law typically holds the owner of the dog responsible for harm if they should have a reasonable concern that the dog would exhibit aggressive behavior (La.Civ.Code art. 2321). However, the Court of Appeals upheld the trial court’s decision that the Difulcos could have done nothing to foresee or prevent the dogs’ behavior. They did so based on the fact that the trial court had assessed the credibility of the witnesses and found Daniel’s testimony credible while Frazier’s was not believable. Therefore, the appeals court found that because Frazier entered the yard after his conversation with Daniel and without Daniel’s knowledge, this was the sole cause of his injuries.
While those injured during a work shift deserve compensation, entering a residence with clearly agitated dogs could have been avoided. While every case is different, generally, if you approach a barking dog in Louisiana, you assume the risk and may be unable to recover damages for your injuries. If there is ever an issue regarding liability for an injury, it is best to consult an attorney who can provide the necessary information to move forward.
Additional Sources: Frazier v. Difulco
Written by Berniard Law Firm Writer: Ainsley Ayres
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