News: Ezekiel Elliott's Lawyer: Alleged Dog Attack Victim Was Trespassing on Property

[kskboys]

Zeke is either going to have to pay her or the judge off.

Either way he is paying off someone.

I think so too.

Like I said, unless there's some facts/info that I'm not aware of, I doubt he wins in court.

 

[kskboys]

Uh...being on someone's property without permission especially if its stated he must be notified in advance is trespassing...You're not supposed to be there...Here's the exact definition of trespassing you tell me what it says.
tres·pass
/ˈtrespəs,ˈtresˌpas/
verb
gerund or present participle: trespassing

1. 1.
   enter the owner's land or property without permission.

I'm no Zeke apologist and I doubt what his lawyer is saying but IF ITS true I don't see how he's liable...if someone has big vicious dogs no wonder they need to be notified in advance that's your own damn fault not Zekes. I'll also say I don't think people should own a bunch of vicious dogs that'll rip someones face off as well but to each his own.

A hunter is allowed to follow his wounded game onto another property. No weapons can be carried.

 

[Redball Express]

If this is true, Zeke is innocent of any charges or responsibilities for what happened to her.

It either has to say '"no trespassing" on the property or there has to be clearly stated someone must be home to let them in.

If the driver entered the premise without permission no case.

This must have not been the regular Workman who came that day. Whoever knows the procedure to get in should have mentioned there were dogs guarding the house to whomever was doing the work.

Failure to tell an employee of any special conditions at the property is negligence on the business part. It's like if their is an alarm code. If you know it has one, you use the code for access.

You do not jump the gate, set off the alarm and leave. You are responsible for the police call to check the property.

This is just small stuff. Zeke has a right to his dogs guarding the house if unoccupied.

 

[Reality]

Uh...being on someone's property without permission especially if its stated he must be notified in advance is trespassing...You're not supposed to be there...Here's the exact definition of trespassing you tell me what it says.
tres·pass
/ˈtrespəs,ˈtresˌpas/
verb
gerund or present participle: trespassing

1. 1.
   enter the owner's land or property without permission.

I'm no Zeke apologist and I doubt what his lawyer is saying but IF ITS true I don't see how he's liable...if someone has big vicious dogs no wonder they need to be notified in advance that's your own damn fault not Zekes. I'll also say I don't think people should own a bunch of vicious dogs that'll rip someones face off as well but to each his own.

Again, not paying attention to what I am saying.

The laws covering employees are different than the laws covering regular people. I am not saying Elliott is wrong or that he should have to pay anything. That is not what I have been posting.

I am simply pointing out that it will be nearly impossible to prove trespassing if an employee is injured while attempting to do their job on the owner's property. Whether she followed the instructions or not will not matter if she had any level of permission to be on the property, again as long as she was not there to commit a crime or she did not break in to gain access.

Not following instructions would be grounds for termination, but not for trespassing. Otherwise, as I have mentioned before, every employer could simply say, "I told them not to come in that day" on days when an employee is injured to escape liability.

 

[Sevenup3000]

I also have a degree in law (SMU 1985) and could easily argue that neither motive or intent apply in this case . She had no motive since she was sent to do a job. Intent doesn't apply since there was no reason for her to go there other than the fact her employer sent her to do a job for which his company had been hired to perform. She was but an agent of her employer. Nothing she did was of her own volition. Shades of grey. Who'da thunk it.

https://www.nolo.com/legal-encyclopedia/texas-dog-bite-laws.html

If his affirmative defense is contributory negligence -- she was trespassing (therefore she is more than 51% at fault) and the first element of trespassing is INTENT...how does intent not apply here? Of course her intent applies:

She INTENDED to enter Zeke's property (even she is not going to contest that fact). What was she pushed? Drugged? Or intimidated onto the Zeke's property? Of course not. She entered onto Zeke's property and intended (wanted, desired) to do so.

Her motive does not apply as the tort of trespass does not care about her motive (reason).

So the only question left, under Texas law, is was her intentional entry authorized, which Zeke is saying it was not.

If it was not authorized: Zeke has established she was a trespasser, therefore, Zeke owed to her a far less duty (basically to refrain from wanton and willful misconduct). In addition, that she contributed to her own injuries (by trespassing) and under Texas modified comparative negligence statutes she would receive nothing from Zeke.


Not sure why you are mentioning principal-agent relationship here unless you are saying that she should go sue her employer because her injuries were sustained in the course and scope of her employment. And in that case, she should be suing her employer...not Zeke.

 

[cern]

Was it really only one day that they could show up?

A simple text could prove it either way. March is a busy time for pool cleaners since most trees are dripping pillen. Oaks, cedar elms, etc. I use texts all the time as a simple way to have written proof of something.

 

[Reality]

Mr. Webster's definition and the law's interpretation aren't going to be the same. Lawyers don't go to court with dictionaries. They go with precedents.

Exactly!

 

[kskboys]

A simple text could prove it either way. March is a busy time for pool cleaners since most trees are dripping pillen. Oaks, cedar elms, etc. I use texts all the time as a simple way to have written proof of something.

Was she there to clean the pool? Had there been other times the pool was cleaned on a day other than authorized, w/o complaint or other reaction? Were the dogs generally loose all the time, unless someone was coming?

There's a myriad of questions to be asked. This case is far from simple.

 

[cern]

https://www.nolo.com/legal-encyclopedia/texas-dog-bite-laws.html

If his affirmative defense is contributory negligence -- she was trespassing (therefore she is more than 51% at fault) and the first element of trespassing is INTENT...how does intent not apply here? Of course her intent applies:

She INTENDED to enter Zeke's property (even she is not going to contest that fact). What was she pushed? Drugged? Or intimidated onto the Zeke's property? Of course not. She entered onto Zeke's property and intended (wanted, desired) to do so.

Her motive does not apply as the tort of trespass does not care about her motive (reason).

So the only question left, under Texas law, is was her intentional entry authorized, which Zeke is saying it was not.

If it was not authorized: Zeke has established she was a trespasser, therefore, Zeke owed to her a far less duty (basically to refrain from wanton and willful misconduct). In addition, that she contributed to her own injuries (by trespassing) and under Texas modified comparative negligence statutes she would receive nothing from Zeke.


Not sure why you are mentioning principal-agent relationship here unless you are saying that she should go sue her employer because her injuries were sustained in the course and scope of her employment. And in that case, she should be suing her employer...not Zeke.

In law, intent is defined as the willingness to carry out specific actions related to an offense. What offense are you alluding to? That she was there to clean his pool? That's not a criminal offense. And if this goes to trial, it will be a civil trial, not a criminal trial. No motive, no intent, no crime.

 

[Redball Express]

https://www.nolo.com/legal-encyclopedia/texas-dog-bite-laws.html

If his affirmative defense is contributory negligence -- she was trespassing (therefore she is more than 51% at fault) and the first element of trespassing is INTENT...how does intent not apply here? Of course her intent applies:

She INTENDED to enter Zeke's property (even she is not going to contest that fact). What was she pushed? Drugged? Or intimidated onto the Zeke's property? Of course not. She entered onto Zeke's property and intended (wanted, desired) to do so.

Her motive does not apply as the tort of trespass does not care about her motive (reason).

So the only question left, under Texas law, is was her intentional entry authorized, which Zeke is saying it was not.

If it was not authorized: Zeke has established she was a trespasser, therefore, Zeke owed to her a far less duty (basically to refrain from wanton and willful misconduct). In addition, that she contributed to her own injuries (by trespassing) and under Texas modified comparative negligence statutes she would receive nothing from Zeke.


Not sure why you are mentioning principal-agent relationship here unless you are saying that she should go sue her employer because her injuries were sustained in the course and scope of her employment. And in that case, she should be suing her employer...not Zeke.

I guess I do not understand this.

Was the pool cleaner not the regular person?

There must have been a previous time the pool was cleaned by the company.

How was it handled then?

What was different this time to prompt an attack?

Where there any instructions verbal written or implied that set the basis for the entrance to the property.?

Was a phone call or doorbell ring required to come in?

Were there video cameras on the property to see what was done?

The best defense for Zeke is posting signage "Beware of Dog". Then he would be covered.

 

[cern]

Was she there to clean the pool? Had there been other times the pool was cleaned on a day other than authorized, w/o complaint or other reaction? Were the dogs generally loose all the time, unless someone was coming?

There's a myriad of questions to be asked. This case is far from simple.

Not by a long ways. If her lawyers can establish his homeowner's policy excluded paying for dog sttacks, it could be construed as his being forewarned.

 

[cern]

A hunter is allowed to follow his wounded game onto another property. No weapons can be carried.

Not in texas. He must have the land owners permission to do so.

 

[Sevenup3000]

Actually, I have dealt with this situation before in two different situations.

If she was a kid wondering into the yard for a ball and the dogs bit her, she would be at fault and considered trespassing.

If she was not an employee and went into the yard and the dogs bit her, she would be at fault for trespassing.

However, she was an employee who had access and unless she was there to commit a crime or broke in, it will be nearly impossible to prove trespassing.

The reason I say "unless she was there to commit a crime or broke in" is not a blanket statement for ALL people, but for her, an employee, specifically because that would negate her authorization as an employee.

If an employee goes to their office at midnight and has a key, that will not be considered trespassing unless they commit a crime while doing so, though the employer could fire them for doing so if it violated procedures. However, if they went to the office, broke in and then caught up on some work, that would be trespassing because they committed a crime in gaining entry even though they were there to actually work.

Not following procedures is grounds for termination, but not grounds for relief of liability.

Now, if she had been told not to return to the property and did so, then yes, that would be trespassing. However, simply saying, "Yes, she was allowed but only when the moon is full on a Tuesday" is not enough to remove liability from an employer. If that were the case, then every employer could simply say, "I told them not to come in the day they were hurt so they were trespassing" on every work-related injury.

"If she was a kid wondering into the yard for a ball and the dogs bit her, she would be at fault and considered trespassing."

I agree somewhat...she is still a trespasser...but landowners may owe a special duty to children trespassers: "A lesser duty is usually owed to trespassing children. However, a property owner or possessor must warn children if it knows or should know children may be on the property. Moreover, the doctrine of attractive nuisance may apply to child trespassers who are injured on someone else's property."

https://www.justia.com/injury/premises-liability/children-on-property/

"If she was not an employee and went into the yard and the dogs bit her, she would be at fault for trespassing."

Once again, this is irrelevant -- her status as an employee does not matter. Was she authorized or not? That is the question under Texas law. If what Zeke says is true...then she was not authorized to be on his property...she wasn't an invitee or a licensee...and therefore almost NO duty is owed to her under Texas law. She would not be able to collect anything under Texas modified comparative negligence rules.

"However, she was an employee who had access and unless she was there to commit a crime or broke in, it will be nearly impossible to prove trespassing."

No. Just no.

Look at the definition of trespass under Texas law:

"Texas law recognizes a cause of action for trespass to real property. Trespass to real property is an unauthorized entry upon the land of another, and may occur when one enters, or causes something to enter, another's property."

Where does it talk about motive? It doesn't. Texas law only talks about INTENT (which is different than motive).

Again, it does not matter who her employer was...did she intentionally enter Zeke's property without authorization? If the answer is yes she did...Zeke has a valid contributory AFFIRMATIVE defense of trespassing...and she would not be able to recover anything under Texas comparative negligence law (but for her trespassing, this would not have happened):

https://www.nolo.com/legal-encyclopedia/texas-dog-bite-laws.html

"If an employee goes to their office at midnight and has a key, that will not be considered trespassing unless they commit a crime while doing so, though the employer could fire them for doing so if it violated procedures. However, if they went to the office, broke in and then caught up on some work, that would be trespassing because they committed a crime in gaining entry even though they were there to actually work."

Once again, please please please read what the definition of trespassing is under Texas law.

Yes, you would be trespassing in either case because you do NOT have AUTHORIZATION to be on your employer's property. If your hours are from 8am to 5pm Monday to Friday...and you show up (even if you have a card to gain access to the building) at 11:00am on a Saturday (you did not have AUTHORIZATION from your employer)...

That would be trespassing under Texas law. Nobody AUTHORIZED you to enter on your employer's property on a Saturday. You would be guilty of the intentional tort of trespassing.

And if you were provided a notice to leave and you refused to do so: under Texas law you would be guilty of criminal trespassing (and the intentional tort of trespassing).

 

[Sevenup3000]

In law, intent is defined as the willingness to carry out specific actions related to an offense. What offense are you alluding to? That she was there to clean his pool? That's not a criminal offense. And if this goes to trial, it will be a civil trial, not a criminal trial. No motive, no intent, no crime.

Trespassing is an intentional tort...(which contrast from non-intentional tort of say negligence). So because Zeke is saying she is trespassing...which is an intentional tort...and he is asserting that as his affirmative defense: trespassing...Zeke would have to prove each element of trespass of which intent would be one (the first element).

https://en.wikipedia.org/wiki/Intentional_tort

She alleges that Zeke's dogs bite her...Zeke says sure my dog did bite you...I admit it...but I have an AFFIRMATIVE defense: you trespassed upon my property and I can prove it...

If Zeke can prove that she in fact trespassed...under Texas comparative negligence rules...Zeke wins...

Defenses to a Texas Dog Bite Claim
A dog owner in Texas typically has two defenses to a dog bite lawsuit: lack of knowledge and trespassing. (A different set of defenses may apply in a criminal dog bite case.)

Because many Texas dog bite claims require the injured person to show that the owner knew the dog was aggressive, showing that the owner had no knowledge may work as a defense to a dog bite claim. An owner may not be liable for a dog bite if the owner can show that he or she did not know the dog was likely to bite or to act aggressively, and the owner was not acting negligently in controlling the dog.

If the injured person was trespassing unlawfully on the dog owner's property when the bite occurred, the owner may be able to argue that the person who was bitten bears some or all of the fault for what happened. Learn more about Comparative Negligence in Texas Dog Bite Cases.

https://www.nolo.com/legal-encyclopedia/texas-dog-bite-laws.html

 

[Typhus]

yeah, unless he can produce a signed agreement that clearly states what he's claiming, his goose is cooked. Judge Judy would destroy Zeke in a court lol..It would be priceless.

Had to reread last sentence twice,, thought you said "it would be a process." lol

 

[Cowboysfan1975]

It would probably work in this case because because of the dogs. Letting him know in advance was not just for a matter of convenience or courtesy, but for safety and not just her own but for the dogs or neighbors if the dogs were not secured prior to her arrival. She arrived without his knowledge or permission and ignored the safety concerns of entering the premises. The dogs live there, she does not. The dogs have to be secured while she is there performing her job, but should not be expected to be secured within their own home when she is not there.

She put herself at risk, she put the dogs at risk if they had escaped the yard due to her unannounced visit, and put others at risk if those dogs had escaped and hurt someone else.

Hell our local meter reader won't just walk in my yard because he knows i have two bullies that will attack a stranger entering our yard. He comes to the door and we kennel them until he leaves. That property is the dogs domain and unless Zeke knew she was coming onto the property and had the dogs unconstrained i don't see how he is liable. It's he said, she said until one side shows proof.

 

[cern]

Trespassing is an intentional tort...(which contrast from non-intentional tort of say negligence). So because Zeke is saying she is trespassing...which is an intentional tort...and he is asserting that as his affirmative defense: trespassing...Zeke would have to prove each element of trespass of which intent would be one (the first element).

https://en.wikipedia.org/wiki/Intentional_tort

She alleges that Zeke's dogs bite her...Zeke says sure my dog did bite you...I admit it...but I have an AFFIRMATIVE defense: you trespassed upon my property and I can prove it...

If Zeke can prove that she in fact trespassed...under Texas comparative negligence rules...Zeke wins...

Defenses to a Texas Dog Bite Claim
A dog owner in Texas typically has two defenses to a dog bite lawsuit: lack of knowledge and trespassing. (A different set of defenses may apply in a criminal dog bite case.)

Because many Texas dog bite claims require the injured person to show that the owner knew the dog was aggressive, showing that the owner had no knowledge may work as a defense to a dog bite claim. An owner may not be liable for a dog bite if the owner can show that he or she did not know the dog was likely to bite or to act aggressively, and the owner was not acting negligently in controlling the dog.

If the injured person was trespassing unlawfully on the dog owner's property when the bite occurred, the owner may be able to argue that the person who was bitten bears some or all of the fault for what happened. Learn more about Comparative Negligence in Texas Dog Bite Cases.

https://www.nolo.com/legal-encyclopedia/texas-dog-bite-laws.html

Given the company she works for was contracted to clean his pool, trespassing is a bit of a reach.

 

[Sevenup3000]

I guess I do not understand this.

Was the pool cleaner not the regular person?

There must have been a previous time the pool was cleaned by the company.

How was it handled then?

What was different this time to prompt an attack?

Where there any instructions verbal written or implied that set the basis for the entrance to the property.?

Was a phone call or doorbell ring required to come in?

Were there video cameras on the property to see what was done?

The best defense for Zeke is posting signage "Beware of Dog". Then he would be covered.

No Zeke's best defense would be that she was a trespasser...therefore not entitled to collect any damages under Texas law. Trespassing is an affirmative defense...which means that even if every single fact she said alleged in her Original Petition was true...she still could not collect a penny because her trespassing, under Texas modified comparative negligence rule, would probably put her more than 51% at fault...and therefore she would collect nothing.

"...but for your trespassing lady, you would not have been bitten by my dogs even if I did have some fault."

How does Zeke prove that she was a trespasser under CIVIL Texas law?

1. Intent (easy to prove...unless she was pushed onto his property) AND 2. lack of authorization/consent (she was not supposed to be at my house at that date or that time or she also had to notify me prior to entering my property).

That is why her attorney said what he said about her not adhering to company policy. It makes PERFECT sense: "Look lady, your own company's policy said that you have to give us a call 15 minutes prior to entering..." and because you didn't...your entrance was unauthorized...therefore trespassing...you collect nothing.

Once again...CIVIL trespassing...NOT CRIMINAL trespassing.

Sure, if she can prove that Zeke let her in or that an objective person would have believed that they were authorized to enter the property given the facts (implied consent), then authorization is given, and she would not be guilty of the civil tort of trespassing.

 

[Sevenup3000]

Given the company she works for was contracted to clean his pool, trespassing is a bit of a reach.

I think I know where the breakdown is...there are two types of trespassing...one civil (an intentional tort) and one criminal.

We are in the civil realm...this is a civil claim against Zeke...therefore the civil definition of trespassing applies. The civil definition of trespassing is: Texas law recognizes a cause of action for trespass to real property. Trespass to real property is an unauthorized entry upon the land of another, and may occur when one enters, or causes something to enter, another's property.

Therefore, this boils down to civil intent (i.e. did she want or desire or of her own free will) to enter the property? The answer is of course she did...unless she argues that she was somehow pushed onto Zeke's property...in every intentional tort cause of action you MUST prove intent...the next element is authorization. And that is where the fight is going to be...Zeke will argue (and win if true) that this lady showed up at either the wrong time and/or wrong day and/or did not provide (per her own company's policy) a sufficient notice to him that she would be entering his land.

So all this talk about how she was only there to clean the pool and not to rob him or not for criminal purposes or this or that is irrelevant to CIVIL TORT...that is the reason why if I decide to make a u-turn in your drive way...yes...you can sue me for the tort of trespassing (but unless you can prove actual damages then the best you would get is nominal damages of $1.00 -- but yes you can sue someone for doing a u-turn on your property). I met all the elements of civil trespassing: intent and lack of authorization...who cares what my motive (reason) is or whether it was even criminal.

It is also irrelevant if she was previously the one who cleaned the pool or if the last time she cleaned the pool she came at the wrong time or the wrong date. The only thing that matters, per Texas law, is intent and lack of authorization on that date/time she was bitten. Period.

 

[Kwyn]

Ezekiel Elliott's Lawyer: Alleged Dog Attack Victim Was Trespassing on Property

Ezekiel Elliott 's attorney said Friday that the woman who is suing the Dallas Cowboys running back after allegedly getting attacked by his three dogs in March did not have permission to be on Elliott's property...

Frank Salzano provided TMZ Sports with the following statement:

"The plaintiff was unauthorized to be on the premises the day of the incident and either willfully disregarded and/or negligently ignored her employer's policy which required Elliott to be notified in advance of any visits. We look forward to further establishing the plaintiff's contributory negligence during the course of this matter."

Read Full Story

Dollars to donuts the employee had routinely come in to clean the pool and did so without seeking some sort of express permission limitation. That will limit Zeke’s ability to say she was negligent.

Not to mention the fact that it’s possible there was no contractual or written notice of the requirement to schedule access.

I think Zeke is such a knucklehead thst it’s no surprise crap like this continues to happen. He’s just not smart and makes problems for himself every step of the way