In this personal injury case involving a dog bite, the plaintiff, Richard Fournet, Jr., appeals the judgment of the trial court granting summary judgment in favor of the defendants, Jansen Stoufflet and Allstate Vehicle and Property Insurance Company finding, Mr. Stoufflets dog did not present an unreasonable risk of harm. For the following reasons, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
Mr. Fournet and Mr. Stoufflet are neighbors. On February 2, 2019, Mr. Stoufflet was working on a woodworking project in his front yard and had his black lab, Rosco, tethered to something in his yard. Mr. Fournet walked from his yard toward Mr. Stoufflet while he was working, stopped to pet Rosco and when he placed his face close to Rosco, Rosco bit him. Thereafter, on January 17, 2020, Mr. Fournet filed a Petition for Damages naming as defendants Mr. Stoufflet and his insurer, Allstate. The defendants answered the petition and subsequently filed a motion for summary judgment contending that Mr. Fournet would be unable to establish that Rosco posed an unreasonable risk of harm. The defendants attached to their motion, the petition for damages; the affidavit of Mr. Stoufflet; the deposition of Mr. Fournet; a DVD from Mr. Stoufflets home surveillance system, which captured two viewpoints of the incident; and a picture of Mr. Stoufflet and Mr. Fournets homes. Mr. Fournet opposed the motion for summary judgment attaching the same exhibits (other than the picture). This matter came before the trial court for a hearing on June 25, 2021. After the hearing, the trial court signed a judgment on July 22, 2021 granting the defendants’ motion for summary judgment and dismissing Mr. Fournets claims against Mr. Stoufflet and Allstate. It is from this judgment that Mr. Fournet appeals.
LAW AND ANALYSIS
In his single assignment of error, Mr. Fournet contends that “[t]he trial [c]ourt erred in granting the Motion for Summary Judgment, as it was not [a]ppropriate considering the many issues of [m]aterial [f]act and credibility.” A motion for summary judgment shall be granted only if the pleadings, memoranda, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3) & (4). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial courts determination of whether summary judgment is appropriate. Alvarado v. Lodge at the Bluffs, LLC, 2016-0624 (La. App. 1st Cir. 3/29/17), 217 So.3d 429, 432, writ denied, 2017-0697 (La. 6/16/17), 219 So.3d 340.
The burden of proof rests on the mover. See La. Code Civ. P. art. 966(D)(1). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the movers burden does not require that all essential elements of the adverse partys claim be negated. Instead, the mover must point out an absence of factual support for one or more elements essential to the adverse partys claim, action, or defense. Thereafter, if the adverse party fails to produce factual evidence sufficient to establish the existence of a genuine issue of material fact, the mover is entitled to summary judgment as a matter of law. La. Code Civ. P. art. 966(D)(1); Alvarado, 217 So.3d at 432.
Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Mills v. Cyntreniks Plaza, L.L.C., 2014-1115 (La. App. 1st Cir. 8/19/15), 182 So.3d 80, 82, writ denied, 2015-1714 (La. 11/6/15), 180 So.3d 308. The law governing claims for damages caused by animals is La. Civ. Code art. 2321, which provides:
The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animals behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured persons provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.
In addressing the requirements of establishing liability under this article, the Louisiana Supreme Court in Pepper v. Triplet, 2003-0619 (La. 1/21/04), 864 So. 2d 181, 184, held: “[T]o establish a claim in strict liability against a dog owner under La. Civ. Code art. 2321 as amended in 1996, the plaintiff must prove that his person or property was damaged by the owners dog, that the injuries could have been prevented by the owner, and that the injuries did not result from the injured persons provocation of the dog. We hold that, to establish that the owner could have prevented the injuries under Article 2321, the plaintiff must show the dog presented an unreasonable risk of harm.” The criterion for determining whether a defendant has created or maintained an unreasonable risk of harm is a balancing of claims and interest, a weighing of the risk and gravity of harm, and a consideration of individual and societal rights and obligations. Pepper, 864 So.2d at 195-196; see also Thibodeaux v. Krouse, 2007-2557 (La. App. 1st Cir. 6/6/08), 991 So. 2d 1126, 1129.
In determining whether strict liability has been established under Article 2321, it is important to remember that the unreasonable risk of harm requirement is “in effect, a limitation ․ upon the reach of strict liability, so the owner of an animal is not required to insure against all risk or loss.” Pepper, 864 So.2d at 195. (Emphasis added.) Unlike absolute liability, the standard of strict liability requires that the damage be caused by a dog that presented an unreasonable risk of harm to others. See Dubois v. Economy Fire & Casualty Company, 30,721 (La. App. 2d Cir. 6/24/98), 715 So.2d 131, 133; see also Pepper, 864 So.2d at 194-95.
In his affidavit, Mr. Stoufflet attested that he is the owner of the eleven-year-old black lab named Rosco who, prior to this incident, has never shown aggression towards anyone and has never bitten anyone. He stated that on the day in question, he was woodworking outside on his driveway and had Rosco on a leash. He said he saw Mr. Fournet approaching him from behind, but he was at a critical point in his project and was unable to stop. Mr. Stoufflet attested that he never gave Mr. Fournet permission to pet Rosco and was unaware that Mr. Fournet would stop to pet Rosco and attempt to kiss Rosco. Mr. Stoufflet stated that the incident was caught on camera by his home surveillance camera, and the video footage from his surveillance system is “true, correct and unaltered.”
Mr. Fournet in his deposition stated that he arrived home from work, saw Mr. Stoufflet working in the yard with Rosco on a rope next to him and walked over to speak with Mr. Stoufflet about his woodworking. He said Rosco greeted him in a playful manner, and Mr. Stoufflet acknowledged that he was there but turned around to finish his project. Mr. Fournet stated that after petting Rosco for some time he was going to give him a kiss and “grabbed him by the head and reached down, you know. And that was a bad mistake.” During the deposition, Mr. Fournet was shown the videos of the incident and said the videos portrayed an accurate depiction of what happened that day. Mr. Fournet also acknowledged that Mr. Stoufflet lived next door to him for around a year prior to the incident, and Mr. Fournet never had issues with Rosco before and would pet Rosco through the privacy fence. He said that the only time he heard about Rosco being aggressive is when he was defending himself from two dogs while tied to a tree.
The DVD from Mr. Stoufflets surveillance camera showed the dog bite incident from two viewpoints. As described by Mr. Fournet and Mr. Stoufflet, Mr. Stoufflet was working in his yard and Rosco was beside him connected by a leash or rope to something in Mr. Stoufflets vicinity. Mr. Fournet walked toward Mr. Stoufflet, Mr. Stoufflet acknowledged him and then turned back around to finish his project. Initially, Rosco appeared friendly and wagged his tail as Mr. Fournet petted him for several seconds, but then when Mr. Fournet held Roscos head from behind and bent down in the direction of his face to kiss him, Rosco bit Mr. Fournet in the face.
As noted, the criterion for determining whether a defendant has created or maintained an unreasonable risk of harm is a balancing of claims and interest, a weighing of the risk and gravity of harm, and a consideration of individual and societal rights and obligations. The evidence presented in support of and in opposition to the motion for summary judgment established that prior to this incident, eleven-year-old Rosco had never shown aggression towards anyone, including Mr. Fournet, and had never bitten anyone. On the day of the incident, Rosco was tethered to something preventing him from leaving Mr. Stoufflets yard, and Mr. Fournet encountered Rosco in Mr. Stoufflets yard. Further, Mr. Fournet admitted that trying to kiss Rosco was a mistake. As noted by the trial court, this was an unfortunate incident, and we have a great deal of sympathy for the injuries sustained by Mr. Fournet. However, the record lacks factual support to establish Mr. Fournet will be able to meet his evidentiary burden at trial of proving that Rosco presented an unreasonable risk of harm, and summary judgment was, therefore, appropriate.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to plaintiff-appellant, Mr. Richard Fournet, Jr.
AFFIRMED.
HESTER, J.