THREE BITES AND JURY QUESTIONS IN TEXAS
Michael Sean Quinn*
Suppose the large dog, Ruffian, belonging to A bites B three times in A’s front yard, where A and B were having a hostile but peaceful conversation. In other words, the two disagrees and argued they cases.
Here are the three bites; they all take place within about 3 minutes of each other.
(1) A is not paying attention and for some reason, say, as B wags his finger at A, Ruffian leaps up and bits B on his wrist. Mind you this is a firm bite. B injured; skin broke; the arm bled; nerve was more than just touched. A is obviously negligent.
(2) B is pissed and begins shouting, and A is also upset all the way around. However, A reaches out and pushes B, while yelling at B, “Makes friends with Ruffian “Asshole” and do it quickly. Reach out and pet him, and do it now, Buttwipe.” Shouting continues, and A does not reach for Ruffian to get him under control, even though A knows that this sort of thing has happened at least twice before. Same arm; further up it; nerve damage more sever. Assume that A is thereby reckless.
(3a) Shouting goes up and continues. B takes a step toward A, though without fists clenched or up, and A says to his dog, “Ruffian, get him.” A does not know full well that Ruff will leap and bite. Still he exactly directs an event that hurting B pretty badly further up the same arm; same nerve system; dog’s hear shook and twisted; a good deal of blood spilled this time. This is clearly a deliberate act.
(3b) A knows full-well that Ruff will do as he is commanded and do so vigorously, aka ruffly.
So, what’s covered and what’s not? (1) Obviously covered. (2) Probably covered, except for punitive-exemplary damages. (3a) Deliberate act by A and hence not covered at all, probably. (3b) Certainly not covered. Keep in mind, however, that these three bites are all part of the same event and that is is mind numbing–or at least counter intuitive–to say that they are separate occurrences. Also keep in mind that B’s ultimate injuries get worse from the separate bites, but it is at least virtually impossible to divide them up.
What’s the best way to formulate the questions to be submitted to the jury? Most especially, how many should be given to the jury about the different bites. How should the damage questions be formulated. What impact will this have on indemnity coverage. (Of course, the carrier has a duty to defend, so there is not issue there.)
At the same time I wrote this piece, I wrote a virtually identical piece about insurance coverages for a similar, hypothetical case. See D
*Michael Sean Quinn
Quinn and Quinn
Quinn and Quinn
Originally posted on 01/21/2016 @ 6:16 pm